From the music industry’s perspective, XM is acting as a distributor because it allows consumers to record “perfect digital copies” and store and keep these for later use. This, according to the complaint, violates XM’s licensed right to publicly perform copyrighted works. Judge Batts is in line with this, so far, and is siding with the music industry’s assertion that recording of music on the Inno or devices like it is akin to providing consumers with a free download.
Others do not agree. When the lawsuit was first filed, Gigi Sohn, president and co-founder of Public Knowledge, a Washington, D.C.-based advocacy group, wrote, “I just don’t buy the download argument. It’s not like you can export the music onto your computer or iPod. If you want more songs, you have to erase the old ones. To me, the XM receiver is no different than a TiVo. I could keep 20 of my favorite shows on my TiVo forever if I want—but I don’t because I want to TiVo new shows.”
XM argues that it in no way disrupts the distribution model. “Our new radios complement download services, they don’t replace them,” the company wrote in a letter to subscribers.