Monday, August 12, 2002

George writes: "I looked up the AHRA, and it only protects consumer copying if he uses equipment with digital copy protection, like DAT tapes. Computers are exempted. The RIAA says that no computer copying of music is fair use."

The Audio Home Recording Act of 1992 says:

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a [digital audio recording] device or medium for making digital musical recordings or analog musical recordings. [Sec. 1008]

So the consumer is sheltered provided that:

  1. the music copying is noncommercial
  2. he uses a digital audio recording device or digital audio recording medium
  3. he makes makes digital musical recordings or analog musical recordings.

Most of these terms are defined in Sec. 1001. The definitions are tricky because the AHRA was a legislative compromise that was designed to not put any burdens on computer makers or consumers. A "digital musical recording" might be an MP3 file on a material object that does not have any computer programs on it. As I read this, it might be a CD-R or hard disk with just music on it.

A "digital audio recording device" is any machine or device of a type commonly distributed 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 ...

So let's say I have a regular Wintel PC or Mac with these components:

  1. extra hard disk just for music
  2. sound card and speakers
  3. CD-RW drive
  4. supply of blank CD-R and CD-RW disks
  5. Napster, Morpheus, or similar file sharing software
  6. MusicMatch or similar MP3 playing software
  7. CD ripper software for making MP3 files

All of these components are often marketed for the primary purpose of making music. Millions of people buy these components for that primary purpose. Even entire computers are marketed and sold for the primary purpose of making music. Eg, Apple had a "rip, mix, burn" campaign.

If any of these components qualify as a "digital audio recording device" (or medium) under the AHRA then the consumer copying is legal, and the maker is supposed to be paying royalties under the AHRA. Now most of these makers are probably not paying the royalties, but the only AHRA remedy is against them, not the consumers.

You might say that this is a legal technicality that the courts would never condone, but they already condoned a closely related AHRA loophole in the case that legalized the popular portable MP3 music players that you now see everywhere. The ruling said, "the Act seems to have been expressly designed to create this loophole." [RIAA v. Diamond, 9th Cir, 1999]

I think that if end users got prosecuted for using Napster-type programs or rippers, then a likely outcome would be a clarification of the law. People might learn, for example, that all they have to do is to buy a second hard disk drive and then use it exclusively for storing MP3 files. Then they are completely legal for noncommercial music sharing.

George writes: "If what you say is correct, then the AHRA is nothing but a big piracy law. How did it pass?"

The music label lobbied for the AHRA because it gave them a royalty on all consumer digital music. I think Congress figured that it was giving an incentive to the music industry to promote formats like DAT (Digital Audio Tape) that would give better quality music, more consumer flexibility, and guaranteed royalties. The computer industry is more important than the music industry, and Congress was not going to give the music industry royalties on every computer. If the music industry had promoted DAT and related formats, then they might keep music in formats that they could control. Instead they conspired to kill DAT, and gambled that computer music would never take off.

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