Waves of Concern: Copyright Issues in Satellite Radio

• Citation: Vol. 22 No. 4
• Publication year: 2010

Georgia State University Law Review

Volume 22 , „

Article 7

Issue 4 Summer 2006

6-1-2006

Waves of Concern: Copyright Issues in Satellite Radio

Eric M. Jenniges

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Recommended Citation

Jenniges, Eric M. (2005) "Waves of Concern: Copyright Issues in Satellite Radio," Georgia State University Law Review: Vol. 22: Iss. 4, Article 7.

Available at: http://digitalarchive.gsu.edu/gsulr/vol22/iss4/7

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WAVES OF CONCERN: COPYRIGHT ISSUES IN

SATELLITE RADIO

Introduction

Modern pirates are found not in oceans, but streams.¹ With the advent of Internet radio in the early to mid-1990s, listening to music and other audio programs via streaming audio has erupted into a widespread practice. Though they initially feared the technology, copyright holders are increasingly embracing their work being streamed over the Internet because of safeguards provided by various legislative enactments, namely The Digital Performance Right in Sound Recordings Act of 1995³ and The Digital Millennium Copyright Act.⁴

Copyright holders and the Recording Industry Association of America (R1AA), however, have found a new source of unease— satellite radio.⁵ Recently, controversy has surfaced regarding a software program known as TimeTrax.⁶ The program enables its users to record satellite broadcasts from leading satellite radio provider XM Radio and then breaks the broadcasts up into individual tracks stored in the user's computer as MP3 or WAV files. Opponents of the software, including counsel for the RIAA, argue the program allows users to alter copyrighted musical performances into a personal music library.⁸ Proponents of the TimeTrax software assert

1. See Kiersten Conner-Sax & Ed Krol, The Whole Internet: The Next Generation 355 (1999) (describing "streaming" as a method of relaying audio and video over the Internet in real time).

2. See generally id. at 355-60.

3. Pub. L. No. 104-39, 109 Stat. 336 {codified as amended in scattered sections of 17 U.S.C. (1995)).

4. Pub. L. No. 105-304, 112 Stat. 2860 (codified as amended in scattered sections of 17 U.S.C. (1998)).

5. See discussion infra at Part LA (providing a brief history of satellite radio).

6. See TimeTrax, http://www.tirnetraxtech.com (last visited Apr. 14,2006).

7. See Alex Veiga, Digital Radio a New Front in Piracy War, Associated Press, Sept. 1, 2004. TimeTrax has developed recording technology compatible with SIRIUS satellite radio as well. See TimeTrax, supra note 6.

8. Veiga, supra note 7.

969

the program stands on solid legal ground as a permissible method of "time-shifting."⁹

This Note will examine the debate over the legality of software such as TimeTrax and will briefly survey other copyright concerns, namely bootlegging of live radio, that are uniquely presented by satellite radio technology. Part I of this Note will give a brief history of satellite radio as well as the TimeTrax software and will briefly lay out the copyright concerns implicated by the emergence of satellite radio.¹⁰ Part II will examine current and proposed legislation likely to play a key role in this debate.¹¹ Part III of this Note will examine current case law relevant to the arguments presented by each side.¹² Specifically, Part III will look at Sony Corp. of America v. Universal City Studios, Inc.,ⁿ the Supreme Court's seminal "time-shifting" case, as well as the recent decisions of Circuit Courts of Appeals interpreting Sony.¹⁴ Part III will further examine the recent Supreme Court case of Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.,¹⁵ and its effect on the Sony decision.¹⁶ Finally, Part IV is an analysis of the likely outcome of potential litigation pitting TimeTrax against the RIAA and relevant copyright holders, as well as a possible resolution to other copyright issues implicated by satellite radio.¹⁷

I. Background

A. Brief History of Satellite Radio

In 1988, NASA, along with the United States Information Agency/Voice of America, commenced the Direct Broadcast

9. See id.; TimeTrax, supra note 6 (describing the program as time-shifting software for your XM PCR); see also discussion infra Part III.A.2 (providing a definition and discussion of time-shifting).

10. See discussion infra Part I.

11. See discussion infra Part II.

12. See discussion infra Part III. 13 . 464 U.S. 417(1984).

14. See discussion infra Part III. A-B.

15. 125 S. Q. 2764 (2005).

16. See discussion infra Part III.C.

17. See discussion infra Part IV.

2006] COPYRIGHT ISSUES IN SATELLITE RADIO 971

Satellite-Radio Program. This program's purpose was to "help the U.S. commercial communications satellite and receiver industry maintain its competitiveness in [satellite radio] and related areas of communications."¹⁹ NASA recognized the revolutionary capabilities of satellite radio. Among these capabilities were a virtually unlimited coverage range and the ability to offer a broad range of programming, from educational to niche-audience programming, that would be too costly to offer in a traditional AM/FM format.²¹

In 1992, the FCC designated spectrum in the S-band for the use of "satellite-based Digital Audio Radio Service (DARS)."²² When the FCC auctioned off segments of that spectrum, it accepted multi-million dollar bids by two companies: CD Radio and American Mobile Radio Corporation. These companies are now known as Sirius Satellite radio (SIRIUS) and XM Satellite radio (XM), respectively.²⁴ Satellite radio has established itself and is growing at an impressive rate.²⁵ As of October 2005, XM has over 5 million subscribers and SIRIUS has over 2.1 million subscribers, more than doubling the subscriber base since the third quarter of 2004.²⁶

18. James E. Hollansworth, Direct Broadcast Satellite-Radio Program, NASA Lewis Research Center (1992).

19. Id at 2.

20. See id. ("Commercial radio broadcasting has not seen such potential for change since the introduction of FM stereo broadcasting.").

21. See id.

22. Fred Maia, The Digital Satellite Revolution Comes to Broadcast Radio, monitoring Times, Nov. 1,2001.

23. Id.

24. Id.

25. See Press Release, XM Satellite Radio, XM Satellite Increases Lead with More Than 617,000 New Net Subscribers During Third Quarter of 2005 (Oct. 3,2005), available at http://www.xmradio.corn/newsroom/screen/pr_2005_10_03.html; Press Release, SIRIUS Satellite Radio, SIRIUS Satellite Radio Doubles its Net Subscriber Additions in the Third Quarter 2005 (Oct. 4, 2005), available at http://www.shareholder.com/sirius/ReleaseDetail.cfm7ReleaseD>¹175481 &cat= General&newsroom^-.

26. See id.

B. Potential Copyright Concerns Presented by Satellite Radio 1. Piracy and the TimeTrax Controversy

In early August 2004, a software application entitled TimeTrax debuted on the Internet. TimeTrax is a software application created by Scott MacLean, founder of the software website NeroSoft.com.²⁸ The software, when used in conjunction with XM's PCR receiver (which allows a XM subscriber to listen to the service via a personal computer), allows the subscriber to record hours of XM radio broadcasts, break the broadcasts up into individual tracks, and store them on a computer as individual tracks in either a WAV or MP3 format.²⁹ XM has since discontinued the sale of the PCR unit.³⁰ The TimeTrax software, however, remains on the market and continues to develop technology enabling its users to record XM broadcasts.³¹

The emergence of the TimeTrax software greatly concerns both the RIAA and XM because of potential piracy.³² In fact, attorneys for XM have requested that MacLean stop selling TimeTrax, but MacLean has refused to do so.³³ Though neither XM nor the RIAA have articulated specific piracy issues involving TimeTrax, the availability of recorded tracks from XM broadcasts for use in peer-to-peer file sharing networks is a concern.³⁴

27. See TimeTrax, supra note 6 (follow "about timetrax" hyperlink) (giving a brief history of TimeTrax software).

28. Veiga, supra note 7.

29. See id. TimeTrax has developed an adapter that enables recording of satellite broadcasts without use of the PCR. See TimeTrax, Features, http://www.timetraxtech.com/tt_features_index.asp (last visited Apr. 14, 2006).

30. Paul Festa, XM Radio Pulls PC Hardware Amid Piracy Concerns, news.com, Aug. 30, 2004, http://news.com.com/XM+Radio+pulls+PC+hardware+amid+piracy-^oncerns/2100-1026_3-5330698.html?tag=cd.top.

31. See TimeTrax, supra note 29.

32. See Veiga, supra note 7.

33. Id.

34. See Hollansworth, supra note 18 (describing the signal produced by a satellite radio broadcast as "CD quality"). The high quality of the recorded satellite broadcasts would make them very attractive to file-swappers. See id.

2006] COPYRIGHT ISSUES IN SATELLITE RADIO 973

2. Bootlegging Potential

Bootlegging is defined as "manufacturing], reproducing], or distributing] (something) illegally or without authorization."³⁵ Bootlegging often occurs in the context of unauthorized taping of live musical performances.³⁶ Such live performances are available on XM via a channel entitled "XM Live," which is strictly dedicated to live musical performances and simulcasts of live concerts.³⁷ TimeTrax and similar software could be used to reproduce such performances without authorization, leading to potential liability under the Federal Anti-Bootlegging Statute.³⁸

II. Applicable Legislation

A. Current Legislation

1. The Digital Performance Right in Sound Recordings Act of 1995

The Digital Performance Right in Sound Recordings Act of 1995 (DPRSRA) added § 106(6) and many subsections to § 114 to the Copyright Act of 1976 (Copyright Act).³⁹ The DPRSRA created the first exclusive public performance right in sound...