We are saying the same thing differently.
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A good business model (from a company POV) involves giving away your product for free?
Yeah look at all those fourtune 500 companies that give their shit away for free. :rolleyes:
Maybe Yahoo or Google, (are they even F500?) but that’s about it.
There are actually a number of laws that would apply, but the most direct is the Audio Home Recording Act, 17 U.S.C. 1008. This law was an amendment to existing copyright laws to quell the music industry position that making one’s own tapes is illegal. There is also a position that the AHRA does not apply to non-musical works, but the full application and interpretation of that statute is another discussion for another day reserved for people who care and have too much time on their hands.
Check your sources. The first cite is from the University of Texas, and is a private policy meant for the covering of their butts. They will ask their employees and students to take the highest road possible so they can avoid being sued. As they state:
“We have reviewed all the Guidelines and have decided to take a different approach to protecting our component institutions and our faculty, staff and students from the dangers of the no-man’s land while supporting our exercise of fair use rights. We call our approach “Rules of Thumb” for the Fair Use of Copyrighted Materials. Like the Guidelines from which they are in some cases derived, the Rules of Thumb are tailored to different uses of others’ works. But unlike the Guidelines, they are short, concise, and easy to read. And they are part of a larger strategy to meet our needs for permission when fair use is not enough; to reduce our need for permission in the future by licensing comprehensive access to works; and to take a more active role in the management of the copyrighted works created on our campuses for the benefit of our university community.”
The second cite is from Whitman College, and is basically the same thing. To wit:
“This document provides an overview of Whitman’s policies and procedures governing music and movie sharing and how we deal with alleged violations.”
If I am not “dead wrong” does that make me “dead right?” “Live right?” Maybe something else. By the way, the point of the “the copyright law” comment was that while there is a body of law that can be called “the copyright law accurately,” the impression I had when reading some of the posts was that people think there is this single magical law that governs all circumstances and applies to everything. In the US, the courts interpretations of those laws (which often conflict in the Circuits) become as much a part of the law as the statutes themselves. The argument about file sharing is very complicated, as are most issues that require the application of laws that did not foresee where technology was going.
I note that the trade off under the Audio Home Recording Act is a royalty on equipment, paid to copyright owners.
Damnit hit submit too early.
It seems to me that the AHRA is an explicit recognition of copyright holder rights that recognises their concerns in that it requires home digital recording gear to be limited so that it will only make first and not second generation copies, and in that it requires a royalty to be paid by manufacturers to copyright owners.
In other words, yes you can make a million copies but you have to make them yourself. Not going to happen. And the real danger for copyright holders, that of geometric copying of copies, is alleviated.
Isn’t this statement somewhat intellectually dishonest in that you don’t mentino what is the logic, namely that the latter burner is not restricted to first generation copying, and does not pay any royalty?
World Eater, so what if the legalities have fuck all to do with whether it’s right or wrong. But legalities are held up in court, unless you get a jury. Believe me, morality has fuck all to do with how some court decisions are made.
So if you want to get into morality, fine. I already addressed morals in the analogy where my flat broke friend copies the damn lawnmower. He wasn’t going to buy one in the first place, so who lost the deal on that one? Who can show material damages? In fact, IRL can the recording industry show material damages from filesharing?
Yeah, I suppose it’d be ironic if a cloning ray meant the end of my job, but at least I’d be able to get a Viper. And all the gas I’d ever need for it. And, oh yeah, no one would ever go without food, water, or medicine.
Though of course there would be drawbacks. Currency and precious metals would become worthless. No military would ever run out of supplies, vehicles, or perhaps even troops, so wars might last forever.
I think we’d all have a lot more to think about than me losing my job. 
Well, I guess that explains why art and music didn’t exist until the last few centuries. I knew those people at the museum were lying!
And with that, it seems we’ve come full circle. I don’t have anything to say to the other points in your post that I haven’t already said before, and no amount of repeating our points is going to change each other’s minds or make the thread any more interesting.
If you’ve never heard of the AHRA, you must not have read many of the copyright threads here.
I’m sure people didn’t expect Napster to happen either. Letting millions of strangers download files from your hard drive, wasting your modem bandwidth for what? Just so you can download files from their hard drives? It’ll never happen. No one would spend 20 minutes downloading a song he could hear on the radio for free.
It would be simple for someone to put a “wish list” of albums on his web page, along with a list of albums he owns, and tell people “Send me a copy of one of your albums from column A, and a self-addressed stamped envelope, and I’ll send you a copy of any of my albums from column B.” Get enough people doing that and just wait for the industry to start blaming their failures on it.
Not quite - you just have to make an analog copy, then you can make another generation of digital copies from it. There may be a slight loss of quality (depending on how good your equipment is), but the people who listen to FM radio and 128 kbps MP3s won’t care.
And in fact, with some equipment, a digital copy that you make from an analog source isn’t copy protected (SCMS bits = 00), so you only lose quality once. You can then make generation after generation of digital copies.
Pragmatically speaking, I think the AHRA is a fine compromise that should be extended to file sharing. It eliminates the copyright holder’s control over who can have or make a copy of the work, the copyright holder keeps his exclusive right to exploit the work for profit, and the consumer pays a flat rate per MB of storage no matter what he copies.
No it is not, and had I not accidently closed the window I replying in that contained pages of explanation, you would have fully understood why I say that. (Whether you would agree, of course, is a different matter entirely) Here is a reader’s digest version of what I was saying before, and I will stipulate in advance that what I wrote previously was far more comprehensive, erudite and thought-provoking. Instead, since I am too occupied and irritated to go through it all again, we will have to take the surgery with a sledge hammer approach.
Back in the late 80s, if you were around and of an age, you might recall the advent of the digital tape recorder. You probably did not own one. Not many people ever did. An analog tape recorder records sound waves, and so with each passing recording, the sound quality deteriorates from the original. The digital recorder, on the other hand, records the source in the form of 0’s and 1’s and it can create an exact duplicate of the original. A duplicate of the duplicate is likewise an exact duplicate of the original.
Prior to digital tape recorders, the RIAA was not overly worried about tape recordings. In the late 80s, there was a lot of new and good music coming out, and cds were a relatively new technology. Sales were good. CD burners did not exist, and so to copy a cd, one had to tape the cd on an analog tape that would not recreate the cd sound quality. The digital tape recorder threatened to change that, and it was heralded as the ultimate replacement for cds. In the late 80s, many were saying that cds would be obsolete before they ever really caught on.
The RIAA, seeing the danger of perfect duplicates, threatened to sue the manufacturers of digital recorders and to seek an injunction to prevent the sale of digital recorders based on claims of copyright infringement. (This is not the only time the RIAA would take this approach, as we will see momentarily) You might be wondering where the copyright infringement was by merely creating this piece of equipment, but that is a question never answered because of the way history unfolded. The RIAA and the manufacturers ultimately entered into a settlement (or more accurately a compromise) that they presented to Congress stating that it was acceptable to both the music industry and the digital tape recorder manufacturers. Congress enacted that settlement into law, and that law became known as the Audio Home Recording Act of 1992.
The digital tape recorder never caught on. The reasons are up for debate, but are not really relevant to this discussion. Suffice it to say that the AHRA was a very limited exception to the existing copyright law because it was meant to control the next great thing. Unfortunately for the RIAA, the next great thing happened to be MP3s. The RIAA went to great lengths to quell the use of MP3 technology, and the RIAA will readily admit that it seeks to quell the use of any technology that could result in copyright violations, even if that technology has other purposes. They were unable to stop MP3 technology, however.
Enter Rio, the first major portable MP3 device. When Diamond Multimedia Services began to manufacture the Rio, the RIAA threatened to sue and to seek an injunction to prevent the sale of the Rio based on claims of copyright infringement – the exact same threat it made to digital recorder manufacturers. The RIAA’s case was stronger against Diamond than it was against the digital tape recorder manufacturers, because now it had the AHRA, which it had a direct hand in bringing about. Unlike the digital recorder manufacturers, however, Diamond refused to fold. The RIAA filed suit in California, where the courts zealously protect the music and movie industries that are at the core of its prosperity.
The RIAA asked the court to make Diamond stop selling the Rio. The court refused. The RIAA appealed. The Ninth Circuit affirmed the trial court, and so having lost twice with no chance of getting their incredibly asenine arguments heard by the Supreme Court, the RIAA settled the case for the hollow agreement that Diamond would assist in working on some secure technology. The opinion of the Court is at The Recording Industry Association of America v. Diamond Multimedia Systems, Inc., 180 F.3d 1072 (1999).
Among other things, the Court said:
Therefore, there is no problem with the computer cd burner not being subject to royalties, because the law does not require it, and there is no intellectual dishonesty on my part in not assuming it does.
That is the short version of it all. The questions you raise are at the heart of the issue, but there is a practical side that I don’t think you are considering. Ownership is nothing more than a bundle of rights relating to an object. When you buy a cd (at least in the States) you have the right to make a copy, or a million or a billion. That it would be difficult to do so does not mean you have lost the right. That it would be easy to do so does not mean you have lost the right.
No matter which side you fall on the current debate, it is hard to ignore that the RIAA made a tactical error in going after MP3 technology rather than trying to secure ways of protecting their royalties. Now they are trying to recover from their blunders, and I think the way they are doing so (i.e. suing the helpless) is reprehensible. They don’t want to have another Diamond Media on the books, so they sue those with too little to gain and too much to lose to actually fight the issue out. Let’s face it, for the average user, it is one thing to talk about rights, but it is an entirely different thing to have to risk uncertain results if you are wrong.
A complete discussion of the legality of filesharing and the cases that followed Diamond would take a while, and I have probably put you to sleep already.
I haven’t proofed this, so pardon the misspellngs, missing words and incoherency that are bound to exist.
**
Except of course that cloning rays would put an end to anyone investing the time and effort into designing and building something like a Viper.
**
Huh?
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True. And I’m about to go on holiday for 10 days with no internet connection, so a good point to end this.
**
A pretty good exchange for everyone except the copyright owner. And several orders of magnitude less painful than sitting over a cd burner cranking out individual copies. Get real.
Holy shit, Mr2001, careful! You’re nearly admitting to the moral rights of copyright holders here!
Is that decision on line anywhere, Serenitynow? From what you have quoted it sounds like the decision is patently correct in terms of the RIO itself. But when I consider a comment like this:
and then consider the type of “domestic” copying that involves sharing your mp3’s with the entire worldwide online community with a few keystrokes, I have to say that the decision doesn’t influence much or at all my views of the morality of online file sharing.
Here ya go, Princhester. Google is your friend. We can discuss the case, but realize that I have cited it for a specific reason, and I don’t claim that this case hits the heart of whether filesharing is “piracy”, as the RIAA likes to claim. Also realize, that the part in this decision that talks about illegal use of individual files is dicta – that is not binding precedent because it is not truly an issue before the court or the holding of the case.
There are future decisions from the Ninth Circuit that conflict with this case, and some – including myself-- believe irreconcilably so. Nevertheless, the principle is there, and this case is somewhat unique because it came from the court that is the RIAA’s staunchest ally.
If you are not familiar with the U.S. Federal legal system (and there is no reason you should be), we have twelve circuit courts of appeal, and each circuit covers a territory. The Supreme Court covers the entire nation all courts must yield to it. Aside from the Supreme Court, the ciruit courts are the final authority in their territories. The end result is that you often get one circuit court saying the law is “x” and another court saying the law is “y.” The true state of the law in such circumstances remains unresolved until the Supreme Court takes the issue or until Congress changes the law.
The Ninth Circuit’s territory covers California, and it is known to be very entertainment industry oriented for obvious reasons. Therefore, when the Ninth Circuit sides against the entertainment industry, you pretty much know their position was complete and utter crap. Realize that by the time we get to the Diamond Media case, the RIAA relies completely on the AHRA. They don’t even try to peddle an argument such as they would have had to make before the AHRA, and that should tell you something.
As an aside, you seem to think the evil of file sharing is one based on numbers. I would suggest to you that the numbers are not as extreme as you think. When one makes a file available for sharing online, it may be available to millions, but millions can’t honestly get to it because there is not enough bandwith. Maybe 5 or 10 people at a time could so if you have a really good connection. Even hardcare sharers probably don’t give up more than a cd or two a day, in reality. What makes the numbers astronomical is not the effect of any one user, but the effect of millions of users, each giving a little.
In reality, the numbers don’t matter. Either you have a right to give away what you have bought, or you do not. Copyright laws are technical and are laws of exclusion. In other words, you have a right to do whatever you want with yours or someone else’s creative work unless the law says you do not have that right. There are exceptions based on knowledge of wrong use and I don’t believe that anyone can state dogmatically what the law is in this country short of a new statute or a Supreme Court decision on the issue. The RIAA does not want a Supreme Court decision on this issue, as they have had several cases that were ripe for appeal. They have, to my knowledge, universally refused to appeal to the Supreme Court, doubtlessly because the risk and costs of losing are too high. That is why they want to pick on the poor and defenseless, who will settle because the risks for those hapless individuals are too high to fight the lawsuit. As long as they can scare people into believing something is illegal, the RIAA will never have to have their position looked at outside of the Ninth Circuit, where they can feel reasonably assured they will win.
The true defense of filesharing, or the illegality of it, would take 50 or more pages of sequential legal argument, and that is beyond the scope of these boards and way beyond the scope of my interests or time in the issue, and yours as well, I am sure. My goal in all of this was to simply suggest that (1) the law is not necessarily what the RIAA claims it is, and the way they are going about using the law to harm individuals without ever having to prove their interpretation of the law is correct is morally repugnant to me; (2) the law is unsettled, and absent a final word on the subject from Congress or the Supreme Court, claims of “stealing” or “piracy” or “illegality” are not well-founded; and (3) that we have entered a new phase in technology that has never been contemplated by the existing laws, and current laws are inadequate to deal with the situation. For the benefit of all, there needs to be balancing of what is good for individuals and artists so that free expression is promoted, but not the exclusion of individuals’ rights to the enjoyment of the property they paid for. Inevitably, these argument begin at the extremes and moderate as time goes on and the parties realize that certain positions will never pass muster with the courts.
This post got too long, so the text of the case follows in the next post.
[quote]
U.S. 9th Circuit Court of Appeals
RECORDING INDUSTRY ASSOCIATION OF AMERICA
v.
DIAMOND MULTIMEDIA SYSTEMS INC.,
OPINION
O’SCANNLAIN, Circuit Judge:
In this case involving the intersection of computer technol-
ogy, the Internet, and music listening, we must decide
whether the Rio portable music player is a digital audio
recording device subject to the restrictions of the Audio Home
Recording Act of 1992.
I
This appeal arises from the efforts of the Recording Indus-
try Association of America and the Alliance of Artists and
Recording Companies (collectively, “RIAA”) to enjoin the
manufacture and distribution by Diamond Multimedia Sys-
tems (“Diamond”) of the Rio portable music player. The Rio
is a small device (roughly the size of an audio cassette) with
headphones that allows a user to download MP3 audio files
from a computer and to listen to them elsewhere. The dispute
over the Rio’s design and function is difficult to comprehend
without an understanding of the revolutionary new method of
music distribution made possible by digital recording and the
Internet; thus, we will explain in some detail the brave new
world of Internet music distribution.
A
The introduction of digital audio recording to the consumer
electronics market in the 1980’s is at the root of this litigation.
Before then, a person wishing to copy an original music
recording – e.g., wishing to make a cassette tape of a record
or compact disc – was limited to analog, rather than digital,
recording technology. With analog recording, each successive
generation of copies suffers from an increasingly pronounced
degradation in sound quality. For example, when an analog
cassette copy of a record or compact disc is itself copied by
analog technology, the resulting “second-generation” copy of
the original will most likely suffer from the hiss and lack of
clarity characteristic of older recordings. With digital record-
ing, by contrast, there is almost no degradation in sound qual-
ity, no matter how many generations of copies are made.
Digital copying thus allows thousands of perfect or near per-
fect copies (and copies of copies) to be made from a single
original recording. Music “pirates” use digital recording tech-
nology to make and to distribute near perfect copies of com-
mercially prepared recordings for which they have not
licensed the copyrights.
Until recently, the Internet was of little use for the distribu-
tion of music because the average music computer file was
simply too big: the digital information on a single compact
disc of music required hundreds of computer floppy discs to
store, and downloading even a single song from the Internet
took hours. However, various compression algorithms (which
make an audio file “smaller” by limiting the audio bandwidth)
now allow digital audio files to be transferred more quickly
and stored more efficiently. MPEG-1 Audio Layer 3 (com-
monly known as “MP3”) is the most popular digital audio
compression algorithm in use on the Internet, and the com-
pression it provides makes an audio file "smaller " by a factor
of twelve to one without significantly reducing sound quality.
MP3’s popularity is due in large part to the fact that it is a
standard, non-proprietary compression algorithm freely avail-
able for use by anyone, unlike various proprietary (and
copyright-secure) competitor algorithms. Coupled with the
use of cable modems, compression algorithms like MP3 may
soon allow an hour of music to be downloaded from the Inter-
net to a personal computer in just a few minutes.
These technological advances have occurred, at least in
part, to the traditional music industry’s disadvantage. By most
accounts, the predominant use of MP3 is the trafficking in
illicit audio recordings, presumably because MP3 files do not
contain codes identifying whether the compressed audio
material is copyright protected. Various pirate websites offer
free downloads of copyrighted material, and a single pirate
site on the Internet may contain thousands of pirated audio
computer files.
RIAA represents the roughly half-dozen major record com-
panies (and the artists on their labels) that control approxi-
mately ninety percent of the distribution of recorded music in
the United States. RIAA asserts that Internet distribution of
serial digital copies of pirated copyrighted material will dis-
courage the purchase of legitimate recordings, and predicts
that losses to digital Internet piracy will soon surpass the $300
million that is allegedly lost annually to other more traditional
forms of piracy.1 RIAA fights a well-nigh constant battle
against Internet piracy, monitoring the Internet daily, and rou-
tinely shutting down pirate websites by sending cease-and-
desist letters and bringing lawsuits. There are conflicting
views on RIAA’s success – RIAA asserts that it can barely
keep up with the pirate traffic, while others assert that few, if
any, pirate sites remain in operation in the United States and
illicit files are difficult to find and download from anywhere
online.
In contrast to piracy, the Internet also supports a burgeon-
ing traffic in legitimate audio computer files. Independent and
wholly Internet record labels routinely sell and provide free
samples of their artists’ work online, while many unsigned
artists distribute their own material from their own websites.
Some free samples are provided for marketing purposes or for
simple exposure, while others are teasers intended to entice
listeners to purchase either mail order recordings or record-
ings available for direct download (along with album cover
art, lyrics, and artist biographies). Diamond cites a 1998
“Music Industry and the Internet” report by Jupiter Communi-
cations which predicts that online sales for pre-recorded
music will exceed $1.4 billion by 2002 in the United States
alone.
Prior to the invention of devices like the Rio, MP3 users
had little option other than to listen to their downloaded digi-
tal audio files through headphones or speakers at their com-
puters, playing them from their hard drives. The Rio renders
these files portable. More precisely, once an audio file has
been downloaded onto a computer hard drive from the Inter-
net or some other source (such as a compact disc player or
digital audio tape machine), separate computer software pro-
vided with the Rio (called “Rio Manager”) allows the user
further to download the file to the Rio itself via a parallel port
cable that plugs the Rio into the computer. The Rio device is
incapable of effecting such a transfer, and is incapable of
receiving audio files from anything other than a personal
computer equipped with Rio Manager.
Generally, the Rio can store approximately one hour of
music, or sixteen hours of spoken material (e.g., downloaded
newscasts or books on tape). With the addition of flash mem-
ory cards, the Rio can store an additional half-hour or hour of
music. The Rio’s sole output is an analog audio signal sent to
the user via headphones. The Rio cannot make duplicates of
any digital audio file it stores, nor can it transfer or upload
such a file to a computer, to another device, or to the Internet.
However, a flash memory card to which a digital audio file
has been downloaded can be removed from one Rio and
played back in another.
B
RIAA brought suit to enjoin the manufacture and distribu-
tion of the Rio, alleging that the Rio does not meet the
requirements for digital audio recording devices under the
Audio Home Recording Act of 1992, 17 U.S.C. S 1001 et seq.
(the “Act”), because it does not employ a Serial Copyright
Management System (“SCMS”) that sends, receives, and acts
upon information about the generation and copyright status of
the files that it plays. See id. S 1002(a)(2).2 RIAA also sought
payment of the royalties owed by Diamond as the manufac-
turer and distributor of a digital audio recording device. See
id. S 1003.
The district court denied RIAA’s motion for a preliminary
injunction, holding that RIAA’s likelihood of success on the
merits was mixed and the balance of hardships did not tip in
RIAA’s favor. See generally Recording Indus. Ass’n of Amer-
ica, Inc. v. Diamond Multimedia Sys., Inc., 29 F. Supp. 2d 624
(C.D. Cal. 1998) (“RIAA I”). RIAA brought this appeal.
II
[1] The initial question presented is whether the Rio falls
within the ambit of the Act. The Act does not broadly prohibit
digital serial copying of copyright protected audio recordings.
Instead, the Act places restrictions only upon a specific type
of recording device. Most relevant here, the Act provides that
“[n]o person shall import, manufacture, or distribute any
digital audio recording device . . . that does not conform to
the Serial Copy Management System [“SCMS”] [or] a system
that has the same functional characteristics.” 17 U.S.C.
S 1002(a)(1), (2) (emphasis added). The Act further provides
that “[n]o person shall import into and distribute, or manufac-
ture and distribute, any digital audio recording device . . .
unless such person records the notice specified by this section
and subsequently deposits the statements of account and
applicable royalty payments.” Id. S 1003(a) (emphasis added).
Thus, to fall within the SCMS and royalty requirements in
question, the Rio must be a “digital audio recording device,”
which the Act defines through a set of nested definitions.
The Act defines a "digital audio recording device " as:
any machine or device of a type commonly distrib-
uted to individuals for use by individuals, whether or
not included with or as part of some other machine
or device, the digital recording function of which is
designed or marketed for the primary purpose of,
and that is capable of, making a digital audio copied
recording for private use . . . .
Id. S 1001(3) (emphasis added).
A “digital audio copied recording” is defined as:
a reproduction in a digital recording format of a
digital musical recording, whether that reproduction
is made directly from another digital musical record-
ing or indirectly from a transmission.
Id. S 1001(1) (emphasis added).
A “digital musical recording” is defined as:
a material object-
(i) in which are fixed, in a digital recording for-
mat, only sounds, and material, statements, or
instructions incidental to those fixed sounds, if any,
and
(ii) from which the sounds and material can be
perceived, reproduced, or otherwise communicated,
either directly or with the aid of a machine or device.
Id. S 1001(5)(A) (emphasis added).
[2] In sum, to be a digital audio recording device, the Rio
must be able to reproduce, either “directly” or “from a
transmission,” a “digital music recording.”
Continued:
III
We first consider whether the Rio is able directly to repro-
duce a digital music recording – which is a specific type of
material object in which only sounds are fixed (or material
and instructions incidental to those sounds). See id.
A
[3] The typical computer hard drive from which a Rio
directly records is, of course, a material object. However, hard
drives ordinarily contain much more than “only sounds, and
material, statements, or instructions incidental to those fixed
sounds.” Id. Indeed, almost all hard drives contain numerous
programs (e.g., for word processing, scheduling appoint-
ments, etc.) and databases that are not incidental to any sound
files that may be stored on the hard drive. Thus, the Rio
appears not to make copies from digital music recordings, and
thus would not be a digital audio recording device under the
Act’s basic definition unless it makes copies from transmis-
sions.
[4] Moreover, the Act expressly provides that the term
“digital musical recording” does not include:
a material object-
(i) in which the fixed sounds consist entirely of
spoken word recordings, or
(ii) in which one or more computer programs are
fixed, except that a digital recording may contain
statements or instructions constituting the fixed
sounds and incidental material, and statements or
instructions to be used directly or indirectly in order
to bring about the perception, reproduction, or com-
munication of the fixed sounds and incidental mate-
rial.
Id. S 1001(5)(B) (emphasis added). As noted previously, a
hard drive is a material object in which one or more programs
are fixed; thus, a hard drive is excluded from the definition of
digital music recordings. This provides confirmation that the
Rio does not record “directly” from “digital music
recordings,” and therefore could not be a digital audio record-
ing device unless it makes copies “from transmissions.”
B
The district court rejected the exclusion of computer hard
drives from the definition of digital music recordings under
the statute’s plain language3 (after noting its “superficial
appeal”) because it concluded that such exclusion “is ulti-
mately unsupported by the legislative history, and contrary to
the spirit and purpose of the [Act].” RIAA I, 29 F. Supp. 2d
at 629. We need not resort to the legislative history because
the statutory language is clear. See City of Auburn v. United
States, 154 F.3d 1025, 1030 (9th Cir. 1998) ("[W]here statu-
tory command is straightforward, `there is no reason to resort
to legislative history.’ " (quoting United States v. Gonzales,
520 U.S. 1, 6
(1997))). Nevertheless, we will address the leg-
islative history here, because it is consistent with the statute’s
plain meaning and because the parties have briefed it so
extensively.4
1
[5] The Senate Report states that “if the material object
contains computer programs or data bases that are not inci-
dental to the fixed sounds, then the material object would not
qualify” under the basic definition of a digital musical
recording.5 S. Rep. 102-294 (1992), reprinted at 1992 WL
133198, at *118-19. The Senate Report further states that the
definition “is intended to cover those objects commonly
understood to embody sound recordings and their underlying
works.” Id. at *97. A footnote makes explicit that this defini-
tion only extends to the material objects in which songs are
normally fixed: “[t]hat is recorded compact discs, digital
audio tapes, audio cassettes, long-playing albums, digital
compact cassettes, and mini-discs.” Id. at n.36. There are sim-
ply no grounds in either the plain language of the definition
or in the legislative history for interpreting the term “digital
musical recording” to include songs fixed on computer hard
drives.
[6] RIAA contends that the legislative history reveals that
the Rio does not fall within the specific exemption from the
digital musical recording definition of “a material object in
which one or more computer programs are fixed.” 17 U.S.C.
S1001(5)(B)(ii). The House Report describes the exemption
as “revisions reflecting exemptions for talking books and
computer programs.” H.R. Rep. 102-873(I) (1992), reprinted
at 1992 WL 232935, at *35 (emphasis added); see also id. at
*44 (“In addition to containing an express exclusion of com-
puter programs in the definition of digital musical record- ing'. . . .") (emphasis added). We first note that limiting the exemption to computer programs is contrary to the plain meaning of the exemption. As Diamond points out, a com- puter program is not a material object, but rather, a literary work, see, e.g., Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1249 (3d Cir. 1983) ("[A] computer program . . . is a literary work.’ “), that can be fixed in a vari-
ety of material objects, see 17 U.S.C. S 101 (” `Literary
works’ are works . . . expressed in words, numbers, or other
verbal or numerical symbols or indicia, regardless of the
nature of the material objects, such as books . . . tapes, disks,
or cards, in which they are embodied.”) (emphasis added).
Thus, the plain language of the exemption at issue does not
exclude the copying of programs from coverage by the Act,
but instead, excludes copying from various types of material
objects. Those objects include hard drives, which indirectly
achieve the desired result of excluding copying of programs.
But by its plain language, the exemption is not limited to the
copying of programs, and instead extends to any copying
from a computer hard drive.
Moreover, RIAA’s assertion that computer hard drives do
not fall within the exemption is irrelevant because, regardless
of that portion of the legislative history which addresses the
exemption from the definition of digital music recording, see
id. S 1001(5)(B)(ii), the Rio does not reproduce files from
something that falls within the plain language of the basic
definition of a digital music recording, see id. S 1001(5)(A).
2
The district court concluded that the exemption of hard
drives from the definition of digital music recording, and the
exemption of computers generally from the Act’s ambit,
"would effectively eviscerate the [Act] " because “[a]ny
recording device could evade regulation simply by passing
the music through a computer and ensuring that the MP3 file
resided momentarily on the hard drive.” RIAA I, 29 F. Supp.
2d at 630. While this may be true, the Act seems to have been
expressly designed to create this loophole.
a
[7] Under the plain meaning of the Act’s definition of digi-
tal audio recording devices, computers (and their hard drives)
are not digital audio recording devices because their “primary
purpose” is not to make digital audio copied recordings. See
17 U.S.C. S 1001(3). Unlike digital audio tape machines, for
example, whose primary purpose is to make digital audio cop-
ied recordings, the primary purpose of a computer is to run
various programs and to record the data necessary to run those
programs and perform various tasks. The legislative history is
consistent with this interpretation of the Act’s provisions, stat-
ing that “the typical personal computer would not fall within
the definition of digital audio recording device,' " S. Rep. 102-294, at *122, because a personal computer's "recording function is designed and marketed primarily for the recording of data and computer programs," id. at *121. Another portion of the Senate Report states that "*f theprimary purpose’ of
the recording function is to make objects other than digital
audio copied recordings, then the machine or device is not a
`digital audio recording device,’ even if the machine or device
is technically capable of making such recordings.” Id.
(emphasis added). The legislative history thus expressly rec-
ognizes that computers (and other devices) have recording
functions capable of recording digital musical recordings, and
thus implicate the home taping and piracy concerns to which
the Act is responsive. Nonetheless, the legislative history is
consistent with the Act’s plain language – computers are not
digital audio recording devices.6
b
[8] In turn, because computers are not digital audio record-
ing devices, they are not required to comply with the SCMS
requirement and thus need not send, receive, or act upon
information regarding copyright and generation status. See 17
U.S.C. S 1002(a)(2). And, as the district court found, MP3
files generally do not even carry the codes providing informa-
tion regarding copyright and generation status. See RIAA I, 29
F. Supp. 2d. at 632. Thus, the Act seems designed to allow
files to be “laundered” by passage through a computer,
because even a device with SCMS would be able to download
MP3 files lacking SCMS codes from a computer hard drive,
for the simple reason that there would be no codes to prevent
the copying.
[9] Again, the legislative history is consistent with the
Act’s plain meaning. As the Technical Reference Document
that describes the SCMS system explains, “[d]igital audio sig-
nals . . . that have no information concerning copyright and/or
generation status shall be recorded by the[digital audio
recording] device so that the digital copy is copyright asserted
and original generation status.” Technical Reference Docu-
ment for the Audio Home Recording Act of 1992, II-A, P 10,
reprinted in H.R. Rep. 102-780(I), 32, 43 (1992) (emphasis
added). Thus, the incorporation of SCMS into the Rio would
allow the Rio to copy MP3 files lacking SCMS codes so long
as it marked the copied files as “original generation status.”
And such a marking would allow another SCMS device to
make unlimited further copies of such “original generation
status” files, see, e.g., H.R. Rep. 102-873(I), at *47 (“Under
SCMS . . . consumers will be able to make an unlimited num-
ber of copies from a digital musical recording.”), despite the
fact that the Rio does not permit such further copies to be
made because it simply cannot download or transmit the files
that it stores to any other device. Thus, the Rio without SCMS
inherently allows less copying than SCMS permits.
c
[10] In fact, the Rio’s operation is entirely consistent with
the Act’s main purpose – the facilitation of personal use. As
the Senate Report explains, “[t]he purpose of[the Act] is to
ensure the right of consumers to make analog or digital audio
recordings of copyrighted music for their private, noncom-
mercial use.” S. Rep. 102-294, at *86 (emphasis added). The
Act does so through its home taping exemption, see 17 U.S.C.
S 1008, which "protects all noncommercial copying by con-
sumers of digital and analog musical recordings, " H.R. Rep.
102-873(I), at *59. The Rio merely makes copies in order to
render portable, or “space-shift,” those files that already
reside on a user’s hard drive. Cf. Sony Corp. of America v.
Universal City Studios,
464 U.S. 417, 455
(1984) (holding
that “time-shifting” of copyrighted television shows with
VCR’s constitutes fair use under the Copyright Act, and thus
is not an infringement). Such copying is paradigmatic non-
commercial personal use entirely consistent with the purposes
of the Act.
IV
Even though it cannot directly reproduce a digital music
recording, the Rio would nevertheless be a digital audio
recording device if it could reproduce a digital music record-
ing “from a transmission.” 17 U.S.C. S 1001(1).
A
[11] The term “transmission” is not defined in Act,
although the use of the term in the Act implies that a transmis-
sion is a communication to the public. See id. S 1002(e) (plac-
ing restrictions upon “[a]ny person who transmits or
otherwise communicates to the public any sound recording in
digital format”) (emphasis added). In the context of copyright
law (from which the term appears to have been taken), “[t]o
transmit' a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent." 17 U.S.C. S 101. The legislative history confirms that the copyright definition of "transmission" is sufficient for our purposes here. The Act originally (and circularly) provided that "[a ] transmission’ is
any audio or audiovisual transmission, now known or later
developed, whether by a broadcast station, cable system,
multipoint distribution service, subscription service, direct
broadcast satellite, or other form of analog or digital
communication.” S. Rep. 102-294, at *10. The Senate Report
provides a radio broadcast as an example of a transmission.
See id., at *119 (referring to “a transmission (e.g., a radio
broadcast of a commercially released audio cassette).”). The
parties do not really dispute the definition of transmission, but
rather, whether indirect reproduction of a transmission of a
digital music recording is covered by the Act.
B
RIAA asserts that indirect reproduction of a transmission is
sufficient for the Rio to fall within the Act’s ambit as a digital
audio recording device. See 17 U.S.C. S 1001(1) (digital
audio recording devices are those devices that are capable of
making “a reproduction in a digital recording format of a digi-
tal musical recording, whether that reproduction is made
directly from another digital musical recording or indirectly
from a transmission”) (emphasis added). Diamond asserts that
the adverb “indirectly” modifies the recording of the underly-
ing “digital music recording,” rather than the recording “from
the transmission.” Diamond effectively asserts that the statute
should be read as covering devices that are capable of making
a reproduction of a digital musical recording, “whether that
reproduction is made directly[,] from another digital musical
recording[,] or indirectly[,] from a transmission.”
[12] While the Rio can only directly reproduce files from
a computer hard drive via a cable linking the two devices
(which is obviously not a transmission), the Rio can indirectly
reproduce a transmission. For example, if a radio broadcast of
a digital audio recording were recorded on a digital audio tape
machine or compact disc recorder and then uploaded to a
computer hard drive, the Rio could indirectly reproduce the
transmission by downloading a copy from the hard drive.
Thus, if indirect reproduction of a transmission falls within
the statutory definition, the Rio would be a digital audio
recording device.
1
[13] RIAA’s interpretation of the statutory language ini-
tially seems plausible, but closer analysis reveals that it is
contrary to the statutory language and common sense. The
focus of the statutory language seems to be on the two means
of reproducing the underlying digital music recording –
either directly from that recording, or indirectly, by reproduc-
ing the recording from a transmission. RIAA’s interpretation
of the Act’s language (in which “indirectly” modifies copying
“from a transmission,” rather than the copying of the underly-
ing digital music recording) would only cover the indirect
recording of transmissions, and would omit restrictions on the
direct recording of transmissions (e.g., recording songs from
the radio) from the Act’s ambit. This interpretation would sig-
nificantly reduce the protection afforded by the Act to trans-
missions, and neither the statutory language nor structure
provides any reason that the Act’s protections should be so
limited. Moreover, it makes little sense for the Act to restrict
the indirect recording of transmissions, but to allow unre-
stricted direct recording of transmissions (e.g., to regulate
second-hand recording of songs from the radio, but to allow
unlimited direct recording of songs from the radio). Thus, the
most logical reading of the Act extends protection to direct
copying of digital music recordings, and to indirect copying
of digital music recordings from transmissions of those
recordings.
2
Because of the arguable ambiguity of this passage of the
statute, recourse to the legislative history is necessary on this
point. Cf. Moyle v. Director, Office of Workers’ Compensa-
tion Programs, 147 F.3d 1116, 1120 (9th Cir. 1998) ("*f the
statute is ambiguous, [this court] consult[s] the legislative his-
tory, to the extent that it is of value, to aid in[its]
interpretation."), cert. denied, 119 S. Ct. 1454 (1999). The
Senate Report states that "a digital audio recording made from
a commercially released compact disc or audio cassette, or
from a radio broadcast of a commercially released compact
disc or audio cassette, would be a `digital audio copied
recording.’ " S. Rep. 102-294, at *119 (emphasis added). This
statement indicates that the recording of a transmission need
not be indirect to fall within the scope of the Act’s restric-
tions, and thus refutes RIAA’s proposed interpretation of the
relevant language. Moreover, the statement tracks the statu-
tory definition by providing an example of direct copying of
a digital music recording from that recording, and an example
of indirect copying of a digital music recording from a trans-
mission of that recording. Thus the legislative history con-
firms the most logical reading of the statute, which we adopt:
“indirectly” modifies the verb "is made " – in other words,
modifies the making of the reproduction of the underlying
digital music recording. Thus, a device falls within the Act’s
provisions if it can indirectly copy a digital music recording
by making a copy from a transmission of that recording.
Because the Rio cannot make copies from transmissions, but
instead, can only make copies from a computer hard drive, it
is not a digital audio recording device.7
V
For the foregoing reasons, the Rio is not a digital audio
recording device subject to the restrictions of the Audio Home
Recording Act of 1992. The district court properly denied the
motion for a preliminary injunction against the Rio’s manu-
facture and distribution. Having so determined, we need not
consider whether the balance of hardships or the possibility of
irreparable harm supports injunctive relief.
AFFIRMED.
Yeah that taught me that one in law school too.
Couldn’t you just have linked?
What is the nutshell argument that the 12 year old could use to argue that her filesharing is fair use, assuming she does it a lot and with many people?
So it sounds like if a hard drive had only music files on it, then it would be subject to the AHRA?
Possibly true - inventions were certainly made before patents existed, though I suppose one could argue that a sports car requires so much investment in engineering and manufacturing that no one would take the time to make any more.
OTOH, even if no more sports cars were ever designed, would it be worth giving that up in order to eliminate famine and poverty?
Ha, I didn’t say “pragmatically speaking” for nothing. I’m not acknowledging any moral right for the companies to profit from the people who use their content, any more than the companies are acknowledging any moral right of individuals to share music with their internet pals.
Not really… from 17 USC 1001:
A computer hard drive would have to be specially marketed as audio storage to count as a “digital audio recording medium”, and I believe a computer would have to implement the Serial Copy Management System to count as a “digital audio recording device”.
Right. :smack: I’ll go back and read the whole article when I have time.
OTOH, what about those CD-Rs that are being marketed specifically for storing music. First time I saw those I was suspicious. If you’re storing 0’s and 1’s on a disk it shouldn’t make any difference on the medium itself whether the files are music or programs or documents or images. I’ll have to look into the pricing of CDs next time I’m in an office supply store. If they’re more then odds are those extra are royalties.
Yes, they cost more, and that’s exactly why. A standalone CD burner is a “digital audio recording device” and music CD-R media is a “digital audio recording medium”. The standalone burners won’t work with regular CD-R media.