Digital radio faces $24bn piracy claim

Wired on Friday: 'Digital" was to the 1990s what "atomic" was to the 1950s: a way of selling almost anything. But just as that nuclear term developed something, shall we say, of a backlash in the 1960s, so it appears that being digital these days can lead to more harmful attention than is strictly deserved.

No better example of that can be found than the US recording industry's recent attempts to smother the US digital radio market in its cot. This week the Recording Industry Association of America (RIAA) launched a stinging lawsuit against XM Radio, a US digital radio broadcaster.

The alleged infringement arises from the company's marketing of a device, the Inno, that does what analogue radio listeners have been able to do for decades: record from the radio.

Home-recording in the US is a right enshrined both in the decisions of the Supreme Court and statutory law. But the RIAA argues that while it accepted - grudgingly - recording from analog radio, digital is different.

And not in a good way. The RIAA claims that XM's digital radio recording device is illegal piracy and is demanding $150,000 (€117,000) for each song XM Radio's listeners have recorded on their home recorders. Since XM says it broadcasts 160,000 different songs every month that gives the claimed damages at over $24 billion.

For XM, and anyone considering investing in the digital radio market, that is certainly quite a difference. The RIAA is, in effect, attempting to sue radio back to the analog age.

It won't have to go that far back in time. Radio has been a curious latecomer to the digital revolution. As in other areas, digital transmission allows for more efficient use of resources, permitting many more channels to be received and transmitted over a comparable radio band. And digital has the potential for higher fidelity - just as the move from analog vinyl to digital CDs provided for better sound quality in our homes.

Unfortunately, these features, both rapid engines for adoption in so many other media, have found themselves solutions looking for a problem in the world of radio. While digital uses the radio bands more efficiently, there are few radio stations clamouring for space in the AM and FM bands.

But, as it turns out, when it comes to high audio quality, simple FM radio gives digital audio of any kind a run for its money. The ear cannot easily tell the difference between a well-tuned FM station and a perfectly-received digital one.

RTÉ has conducted experiments in digital radio broadcasts in Dublin and the north-east since the beginning of this year but has shown little enthusiasm for rolling the service across the country.

Nonetheless, there are niches where digital radio has succeeded. In Europe digital radio that has piggybacked on satellite receivers and terrestrial digital television has found a place in many people's homes. More than 13 million adults in the UK listen to digital radio via their television. America, too, has adopted digital radio primarily on satellite - but its receivers are mainly to be found in cars and trucks.

The two main satellite radio broadcasters, XM and Sirius, found a subscription market for travellers bored with the homogenous local radio stations of the US. Despite incompatible hardware, both have gained sizable audiences with their offers of around 60 separate channels for about $10 a month. XM claims an audience of six million subscribers, Sirius four million.

Which brings us to the RIAA's suit. The RIAA claims that, by selling a receiver that can record tracks from its radio broadcasts, XM is marketing, not a digital radio service, but an illegal competitor to digital download sites like iTunes. In other words, XM is a piratical operation, like Napster was or other illegal file-sharing networks are.

This rather outlandish claim is based upon the observation that, because XM's digital receiver can detect the name and band of each song being played by XM, and save songs locally under those names, then the experience is not dissimilar to picking and choosing a track on an online digital download service.

The obvious differences - that on iTunes, you don't have to wait until your radio station plays a song you like, and you don't have DJs talking over your purchases - are, the RIAA hopes, drowned out by the single similarity.

You see, XM's transmissions and iTunes are both digital. And, as the RIAA regularly asserts, digital copying is far more of a threat to the music industry than home taping ever was.

Radio perhaps did not need a digital revolution as badly as other media, but at least as a global industry it is experimenting with the possibilities. By contrast, the US recording industry's attack on XM is continuing evidence that, for them, "digital" continues to mean "dangerous", even after a decade. It's certainly a tragedy that XM has managed to find a genuine advantage to putting the digital into radio, only to find itself legally tangled in the RIAA's paranoia over the same technologies.

A worse tragedy, perhaps, is that the record industry would rather destroy its potential partners than join them in this high-fidelity and potentially high-revenue new world.

Danny O'Brien is activism co-ordinator at the Electronic Frontier Foundation