Dump XM Suit Because AHRA Bars It, CEA Urges in Amicus Brief
A recording industry suit alleging XM’s portable devices are tools for “massive wholesale infringement” of copyright (CD May 18 p9) was “filed literally in the teeth of, but without any reference to” the Audio Home Recording Act (AHRA), said CEA and the Home Recording Rights Coalition (HRRC). Their comments came in an amicus brief filed Mon. in U.S. Dist. Court, Manhattan.
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The 1992 law was “specifically conceived, drafted and enacted” to prevent such litigation, the groups said, backing XM’s motion to dismiss the case. CEA and HRRC -- with the RIAA and the National Music Publishers’ Assn. -- were the AHRA’s “main progenitors and active private-sector negotiators,” the brief said. Their main aim was “to establish marketplace assurance and legal protection” for CE makers, distributors, retailers and consumers against copyright infringement suits over just the types of devices the XM suit cites, the brief said: “Our participation in the legislative process represented a long-term commitment to, and a compromise on behalf of, our members, many of whom continue to pay royalties for devices covered by the AHRA and must comply with its technical restrictions on products. Our amicus participation in this litigation represents a continuation of that commitment.”
The complaint against XM doesn’t mention the AHRA, but “virtually every word of it is written with the AHRA in mind,” CEA and HRRC said. For example, the brief said, the suit -- aiming to “circumvent” the AHRA -- mislabels device functions as “services.” The groups called this “universal mischaracterization” an effort to sway the court from seeing such devices “for what they plainly and unambiguously are -- digital audio recording devices as defined by the AHRA.”
The recording industry, “like everyone else involved, intended and thoroughly understood that the AHRA, and its prohibition of suit, apply to any ‘digital audio recording device’ that can receive and record from any type of digital broadcast transmission -- and RIAA so informed Congress,” the brief said, citing congressional testimony in AHRA legislative hearings. “Both the language of the AHRA itself and the context in which it arose make clear that the AHRA compromise was intended to provide the recording industry with a solution for home recording from analog and digital broadcasts,” using devices like the Pioneer Inno.
Letting the suit move even to pretrial discovery “would chill the availability of products whose utility is specifically addressed and protected by the AHRA, and thus would deprive the consuming public of expectations that the Congress explicitly protected in the AHRA,” the brief argued. The AHRA was an “historic compromise… the first in a series of statutory, licensing, and regulatory initiatives whereby technology companies accepted technical and financial obligations, in exchange for technical and legal assurances that consumer products would be supported, and operate reliably, in the future,” the brief said: “The validity and vitality of this approach, favoring solutions arising in the private sector, depends on the courts and the parties adhering to the plain meaning of what was proposed in the private sector and adopted in the Congress.”