There are few cases involving the interpretation of Section 1008 of title 17, added in the 1992 Audio Home Recording Act, RIAA v. Diamond Mutimedia Systems, Inc., 180 F.3d 1072 (9th Cir. 1999) being the most important. Section 1008 was intended to provide, finally, a statutory exemption for home copying of musical works, but that isn't how it has worked out. Section 1008 received another look on January 19th by Judge Deborah Batts of the SDNY in Atlantic Recording Corp. et al v. XM Satellite Radio, Inc. You can get the decision on Cathy Kirkman's Silicon Valley Media Blog.
The case was an RIAA case, brought on behalf of ten labels against XM's "XM+MP3" players (inno, Helix, and NeXus). The players have a number of features besides permitting listeners to hear broadcasts. The players permit listeners to instantly record songs being broadcast (even if they have started, through use of a buffered copy). Additionally, XM provides playlists of individual tracks disaggregated from blocks of radio programming and a search function facilitated by "ArtistSelect" and "TuneSelect" utilities. Listeners can request alerts for particular artists or songs and XM will notify listeners when a song is being brodcast. Up to 50 hours of music can be stored for unlimited playback, but when the subscription ends so too does access to the songs.
XM's position was clear, although in the court's opinion, extreme: Section 1008 immunized its conduct completely, and such that a 12(b)(6) motion should be granted. The label's position was less clear from the opinion, other than that XM was wrong. The labels certainly asserted that XM, while not liable for mere broadcasting, was acting without authorization by delivering permanent digital copies. But the copies weren't permanent, they were, as the court put it leased, for the duration of the subscription, not that the distinction matters. The court also stated that the labels were not claiming "XM is infringing on their copyrights by distributing a [digital audio recording device]." Section 1008 exempts such distribution so certainly the labels would not want to make such a claim, but to me, at least, an important issue is whether the XM players are a digital audio recording device, a defined term. What I find baffling about the court's opinion is that it doesn't address that issue except in passing (fn.4) , even though I thought that was the basis for XM's motion. Instead, the court analyzed whether XM had exceeded its license under Section 114, presumably as an independent ground for liability not covered by Section 1008, but it would have been nice to have a real discussion of Section 1008.