Something I should have been clearer on but wasn’t. The Audio Home Recording Act, by its terms of course, applies to audio recording not video recording a la Tivo.
My concern for PVRs and DVRs is one of extension. It is an unfortunate tendency in the law for bad law in one area to bleed over into other areas. The bad trademark law around domain names had impacts into trademark law and fair use generally, before the pendulum started to turn.
So while a decision about the applicability of AHRA to the “XM +MP3” service generally, I worry that the emphasis on subscription service v. free service and the nature of the functionalities does. It does not seem to me much of a leap to apply the analysis used in this case to cases applying the Sony standard, as interpreted in MGM v. Grokster.
But, on reflection, that was not at all obvious in my post, which appeared to say that AHRA applied to video recording services. Sorry for any confusion.
Stay tuned . . . .