In an earlier post, Rashmi provided an excellent overview of music industry's assault on your home recording rights. The war on home taping relies on everyone–in particular Congress–forgetting that this war has already been fought once before. The music industry would like to shove the Audio Home Recording Act (AHRA) down the memory hole, and with it consumers' legal right to make copies of copyrighted works for private, noncommercial use.
Let's make this very simple:
You may legally make copies of copyrighted audio recordings for private noncommercial use.
This is not some shaky, maybe-on-alternate-Tuesdays-if-the-sun-is-shining kind of right. Unlike private copies of video recordings (which are protected by the much beloved Betamax decision), the right to make home audio recordings of copyrighted works is not sustained solely by the slender and oft-confused reed of fair use.
In 1992, the Congress passed the Audio Home Recording Act explicitly giving you this right. It comes in the form of an exemption, 17 USC Â§1008:
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 device or medium for making digital musical recordings or analog musical recordings.
In short, you cannot be sued under copyright law for noncommercial, private copying of an audio recording. The RIAA argues that the statute's definitions limit this protection to copies made with certain devices, but the Committee Reports that accompanied the bill tell a different story:
Senate Report 102-294 from the Committee on the Judiciary, p. 51:
As stated earlier, the key purpose of S. 1263 is to insure the right of consumers to make analog or digital audio recordings of copyrighted music for private, noncommercial use. . . . Thus for purposes of illustration, the making of an audiogram by a consumer for use in his or her home, car, or portable tape player, or for a family member, is protected by the prohibition against copyright infringement actions contained in this legislation.
House of Representatives Report 102-873 (Part 1) from the Committee on the Judiciary, p.:
Section 1008 covers one of the most critical components of the legislation: exemptions from liability for suit under title 17 for home taping of copyrighted musical works and sound recordings . . . In the case of home taping, the exemption protects all noncommercial copying by consumers of digital and analog musical recordings.
Congress specifically intended to remove the legal ambiguity surrounding private noncommercial copying of audio recordings.
There are two caveats to this. First, that for DRM-protected music, the Digital Millenium Copyright Act (DMCA) conflicts with this right, by making it illegal to strip or bypass these measures for any reason–including private, noncommercial copying. Second, copying is not distribution. The AHRA doesn't make filesharing over peer-to-peer networks legal, for example.
In subsequent posts I'll explore the other secrets of the AHRA–the royalties the music industry gets from certain devices and blank digital media, the RIAA's familiar strategy that led to the AHRA, and more generally, why home taping rights matter.
“A long memory is the most radical idea in this country.” -Utah Phillips