whether that copying was subject to the particular requirements of the AHRA. In
short, Defendant’s reliance on Diamond Multimedia is entirely misplaced.^345(d) Atlantic Recording Corp. v. XM Satellite RadioIn Atlantic Recording Corp. v. XM Satellite Radio, Inc.,^346 numerous record companies
sued XM Satellite Radio for contributory, vicarious and inducement copyright liability based on
XM’s offering of digital radio broadcast services together with special receivers marketed as
“XM + MP3” players that allowed subscribers to record, retain and library individually
disaggregated and indexed audio files from XM broadcast performances. The record companies
challenged these capabilities as an infringing “digital download delivery service.”^347
XM offered several services specifically to XM + MP3 player users that were the subject
of the plaintiff’s challenge. First, while listening to XM programming, an XM + MP3 user could
instantly record any song at the touch of a button. To facilitate such recording, the XM + MP3
player maintained a short-term buffered copy of every broadcast song a user listened to. As a
result, a user could record and store in its entirety any broadcast song he or she heard, even if the
user started listening to the song after it began to play.^348
Second, XM provided XM + MP3 users with playlists from blocks of broadcast
programming which had been disaggregated into individual tracks. XM sent users such digital
playlists with title and artist information included. The playlists identified all songs broadcast
over a particular channel and during a particular period of time. Users could then scroll through
a playlist and select which songs to store for future replay, and which to delete. Using this
utility, users could hear and store individual songs without actually listening to XM broadcast
programming.^349
Third, XM provided to users a search function together with “ArtistSelect” and
“TuneSelect” utilities that made it easy for a user to find out when a requested song was being
broadcast. XM would send the listener immediate notice when his or her chosen artists or songs
were played on any XM channel. The user could then immediately switch channels and store the
requested track onto his or her XM + MP3 player.^350
Fourth, the XM + MP3 players enabled users to store the approximate equivalent of
1,000 songs recorded from XM broadcasts for as long as the user maintained an XM
(^345) Id. at 649.
(^346) 2007 U.S. Dist. LEXIS 4290 (S.D.N.Y. Jan. 19, 2007).
(^347) Id. at 6.
(^348) Id. at 9.
(^349) Id.
(^350) Id. at *9-10.