The RIAA lawsuit is certainly ambitious, von Lohmann conceded--seeking $150,000 from XM for every song that is downloaded by subscribers using the Pioneer Inno, an electronic time-shifting device that can store up to a gigabyte of copyrighted music culled from radio airplay: "I think it's a frontal attack on home taping. The complaint very specifically accuses every owner of being a copyright infringer--so this is an attack not just on XM, but its customers too."

The lawsuit against XM comes on the heels of threats of similar legal action against Sirius Satellite over its S50 player. This conflict was resolved in March by a deal between Sirius and four leading recording companies, in which Sirius paid them an undisclosed sum for each S50 device sold.

Although the recording industry succeeded in getting a favorable settlement from Sirius, von Lohmann was skeptical about the new lawsuit's prospects: "The legal theories are pretty threadbare, honestly." For one thing, legislation recently passed by Congress appears to allow domestic recording as long as it's only for personal use, according to von Lohmann: "The Audio Home Recording Act--which the lawsuit conspicuously fails to mention--gives XM and Sirius a pretty good defense. As far as I know, every one of these devices was designed to conform to the AHRA."

"They're arguing that XM is 'distributing' music because they broadcast and give their clients these recorders, and that's crazy," von Lohmann explained. "I mean, if that's right, then Comcast, Echostar, and DirecTV are in a whole bunch of trouble." He went on: "Basically, the RIAA is going after music fans who were doing the right thing, in that they've chosen to pay for the music on a monthly basis, rather than download it from illegal file-sharing sites."

Listeners have always been free to record music from radio airplay, von Lohmann said, and asserted that this is no different: "All of us remember taping music off the radio in the 1970s and 1980s. The recording industries complained then, saying it was going to destroy their business--but obviously that didn't happen. This is sort of like round two."

At the same time, von Lohmann cautioned against widespread speculation that the lawsuit is simply a tactical maneuver by the RIAA to extract royalties from XM: "Some people have said this is about royalties, but it really doesn't look that way to me. XM already offered them $18 per unit, which was probably about what Sirius agreed to pay them, but they refused." According to von Lohmann, this is in part "because XM wouldn't redesign the device according to RIAA's specifications," including changes that would seriously reduce its functionality as a personal data storage device.

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