[Update: I’m aware the Audio Home Recording Act does not apply to video recordings. See my more detailed update here]
It’s an old cliche in Lawland that “hard cases make bad law.” To which I will now add: “and when you throw in clueless judges, the mix becomes positively toxic.”
Case in point, the recent decision by Judge Deborah Batts to deny XM Radio’s motion to dismiss a lawsuit by the RIAA for copyright violation. This case turns on the rather difficult interplay between the sections of the Copyright Act that provide a license for satellite radio, the immunity granted to equipment manufacturers under the 1992 Audio Home Recording Act, and the nature of the service offered by XM. It doesn’t help that, at the “motion to dismiss” phase, we gave the complainant (here the RIAA) the benefit of every doubt. To win, XM Radio would need to persuade Judge Batts that there is no set of provable facts under which the RIAA has a case.
Contrary to some of my colleagues (such as the eloquent and brilliant Art Brodsky in this post on the Public Knowledge website), I don’t think this was a slam dunk for XM. I actually think there is a complicated legal question here that needs to go forward for further analysis. That’s why I’m hiding over here on Sausage Factory for this one (if you check the Technorati rating for PK v. that for TotSF — you’ll understand what I mean by “hiding”).
Unfortunately, the language of Judge Batts opinion has — IMO — really, really, really bollixed things up badly. It calls to mind the awful results driven analysis in Jews for Jesus v. Brodsky when judges didn’t know squat about the internet and domain names, but sure knew they didn’t like these evil “cybersquatters” and boy were they gonna show ’em a lesson! The devil with the actual law or understanding the technology — we got us a heapin’ gavel of JUSTICE to whack you’re ass!
Batts opinion reads rather the same way J4J did. She doesn’t understand the technology and doesn’t feel any need to do so. All that matters is that someone seems to be making money that she thinks should go to the music mafia instead, and by God is she gonna get ’em! So she fixes on the wrong details and creates potential havoc for the likes of Tivo or anyone else making a PVR integrated into a receiver that picks up a subscription video or audio service.
The real issue in the RIAA v. XM case, and where Batts goes horribly, tragically, gut-churningly wrong, below….
Continue reading