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Music Publishers File Federal Lawsuit Against XM Satellite Radio
The National Music Publishers' Association (NMPA) has filed a lawsuit against XM Satellite Radio for refusing to acknowledge the rights of or pay compensation to the music publishers and songwriters who own songs being distributed through its unauthorized digital download service. The suit, filed on behalf of several leading music publishers, includes such well-known works as "Let It Be," "My Heart Will Go On," "Me and Bobby McGee" and "Like a Prayer." The publishers' suit, filed Thursday afternoon in federal court in New York, alleges that XM engages in massive copyright infringement through its illegal subscription digital music download service known as "XM + MP3." The suit was filed after months of discussions between NMPA and XM regarding the satellite radio company's obligation to compensate creators fairly for the songs it distributes. "Filing a lawsuit was our last resort, but we felt that we had no choice," said David Israelite, NMPA President and CEO. "We want new technologies to succeed, but it can't be at the expense of the creators of music. All that we ask is that music publishers and songwriters be fairly compensated for their efforts." The NMPA represents music publishers and their songwriting partners, who are dependent on copyright protection to keep making music. The plaintiffs in the suit are Famous Music, Warner/Chappell, Sony/ATV and EMI music publishing entities. The complaint seeks a maximum of $150,000 in statutory damages for each work infringed by XM, and lists over 175 songs as a "small fraction" of those being illegally distributed through the XM + MP3 service. The music publishers allege in the lawsuit that XM operates an unlawful download service that delivers perfect digital copies of copyrighted recordings to its subscribers. The XM + MP3 service allows users to record and store individual songs on portable music players at the touch of a button, creating extensive permanent libraries for so long as the user remains an XM subscriber. The service also allows subscribers to create personal playlists and automatically record large blocks of programming from which favorite tunes can be cherry-picked and permanently retained for replay. XM, which is alleged to compete with Apple's iTunes and other legitimate download services, urges its subscribers to "Hear It, Click It, Save It!" "XM has been profiting at the expense of others," said Debra Wong Yang of Gibson, Dunn & Crutcher LLP, the lead attorney on the case and the former U.S. Attorney for Los Angeles. "The XM + MP3 service constitutes pervasive and willful copyright infringement to the overwhelming detriment of copyright holders, legitimate online music services and, ultimately, consumers." Last year, the Recording Industry Association of America (RIAA) filed a similar copyright infringement lawsuit against XM on behalf of its record label members. Earlier this year in the RIAA suit, a federal judge ruled against XM on its claim that the Audio Home Recording Act gave the company immunity from following copyright law. In the lawsuit filed by the record labels, XM has argued that it is just a "radio broadcaster" that does not provide download services. But after it announced its intent to merge with one of its main competitors, SIRIUS Satellite Radio, XM began aggressively defending against charges that the merger would create an unacceptable monopoly. XM has asserted that it is in the same market as "music subscription services, iPods, CD players and cell phones," making clear that its unlicensed service is designed to compete with legitimate digital music download services and other distributors of recorded music.
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