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The two devices in question are the Inno and Helix. These two new devices that XM has released are one of the most excellent examples of useful technological convergence that we have seen since radios started coming with tape decks. This product takes portable satellite radio abilities and gives the ability to record live programming for playback at a later time. But that alone would just be an average example of convergence. Through the use of streaming technology and the included memory, XM has enabled "tagging" of songs so that even if you are listening to a song and it is half way over with, it can go back into the queue and record the entire thing. This takes recording to a whole new level because it takes the failure rate right out of the process.

And this "tagging," or recording of songs is the problem that the RIAA has with XM. They feel as if storing a song digitally is outside the realm of fairness. Without additional planning and controls, I might agree with them. If listeners could tag songs, go home and load all their tracks onto their PC's into portable digital music formats like MP3's then it would be just like stealing the track from one of the illegal venues for stealing music on the Internet. If that were the case then I would say that the RIAA has every right to sue XM into oblivion.

That is not the case, though. XM has allowed the "tagging" of these songs for replay in their device alone. A listener is unable through any normal, reasonable methods to transfer that audio from the XM device onto the PC. If that wasn't enough, they also decided to enable easy purchase of any tracks that were "tagged."

For example, an XM subscriber with either the Helix or Inno XM radio can spend a day walking around with their device tagging songs that they like. Let's say that then they want to have copies of ten of the songs they enjoyed so they could make a mix on their computer. They connect the XM device to the PC and it helps them purchase each one of the tracks through the 100% legal Napster download service. If anything, this seems to lessen the chance that someone would go hunting through illegal internet channels for MP3 copies of the songs they just downloaded. By converging the recording of material off of the airwaves with an online store, XM is encouraging legal participation in the music business by its listeners.

Sure, it is possible that a listener could save tracks and only listen to them on the XM device, but the right of individuals to record programming for their own personal and private use has been protected since the cassette tape recorder was introduced. It is also true that a listener could use a third party recording device and record into a digital format from the headphone jack of the device, but that is a possibility with every single device with a headphone jack. On top of that, recording that occurs like that doesn't preserve all the original quality of the sound as it is being converted from digital to analog and then being converted back into digital.

Back to the lawsuit at hand. The RIAA is claiming that the ability to record tracks and then have them subsequently stored on the device so that they are searchable by song, artist and genre somehow violates the fair use of audio recorded over the air. It is certainly more convenient than to have to record a whole block of audio like in the old days with cassette tapes, but does that make this an illegal process? I don't think so. The fact that the technology has moved forward and a company like XM is enabling its listeners to exercise their rights to record over the air programming is great. I would agree with the RIAA if the listener's abilities were unchecked and recording the songs gave you some portable digital format to use and abuse. The fact is that the abilities of listeners are checked by the device.

XM has released an intentionally limiting technology that maximizes ease of use for their customers, while promoting the legal procurement of songs that are available for purchase at Napster. They have pushed their technology forward a giant step, while doing everything it could to respect the artists and their various management companies.

Do we really want to legislate to the point that we are discouraging this kind of creativity and ingenuity?