Copying and Sharing Recorded Music (The Dos and Don'ts of Copyright Law) Page 2

Two other provisions of AHRA are of less interest to audiophiles but nonetheless bear mention. First, digital copying devices must be equipped with the Serial Copy Management System (SCMS), which prevents unlimited serial copying of copyrighted material. When SCMS is incorporated into a digital recording device, the device can make unlimited first-generation copies of original prerecorded material. However, SCMS prevents the recopying of those copies (footnote 7). Second, AHRA provides compensation to copyright holders for lost revenues resulting from home taping, in the form of royalty payments paid by the manufacturers of digital recording devices. AHRA thus serves both the copyright holders and the purchasers of recorded music.

One last word about the Audio Home Recording Act: As its name implies, the law pertains solely to audio. AHRA does not grant permission to copy videotapes or DVDs.

Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA), enacted in 1998, has generated considerable angst in the audiophile and videophile communities. In fact, opposition to it has been so widespread that it has generated a movement calling for its repeal (footnote 8). What exactly is the DMCA, and why does it have everyone so hot under the collar?

The impetus for passage of the DMCA was largely the Internet, as it became possible for even those without technical backgrounds to readily share digital copies of music with hundreds of thousands of other people. Indeed, the Internet has been described by a copyright official as "the world's biggest copying machine" (footnote 9). The DMCA contains many provisions, but the one most germane to the copying of discs is stated as follows: "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

In plain English, it is illegal to make a copy if doing so entails bypassing copy protection. The implications of this are considerable, because DVDs and an increasing number of CDs are copy protected. If copy-protected CDs become the norm, not only will it be illegal to burn a copy to, for example, a CD-R; it will similarly be illegal to copy music to a computer or MP3 player. Needless to say, this will drastically affect how the public listens to music.

The battle cry of the anti-DMCA legions is that the DMCA removes their fair-use rights. And yet, the DMCA states that "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use." The $64,000 question thus becomes, does the DMCA remove fair-use rights?

This question has been addressed in a few recent decisions in both Federal District Court and the U.S. Court of Appeals (the latter is one step below the U.S. Supreme Court) (footnote 10). In one case, an individual posted on his website a copy of and a link to DeCSS, a program designed to circumvent Content Scrambling System (CSS), the encryption technology used on DVDs to prevent copying and unauthorized viewing. Another case dealt with Advanced eBook Processor, a product that allowed a user to remove use restrictions from Adobe Acrobat PDF files and from files formatted for the Adobe eBook Reader, thereby allowing the files to be copied. Still another case involved software for copying DVDs. While the primary foci of the various cases differed, they had in common a claim that the DMCA violated fair-use rights.

In all three decisions, the courts took a consistent and firm stance that the DMCA does not violate fair use. The courts' reasoning, in a nutshell, was that fair use does not guarantee the right to make a copy in the same format as the original, nor in the most convenient or manipulable format. Even though the DMCA prevents the making of digital copies, it does not prevent one from making a copy of a protected audio disc by using the analog outputs of the CD player, or even by holding a microphone in front of one's speakers. Similarly, it does not prevent one from copying a movie recorded on a DVD by pointing a video camera at a monitor displaying the movie stored on the DVD.

Needless to say, many audiophiles find these alternatives unacceptable, and are likely displeased with the courts' decisions. Indeed, when I have pointed out these alternatives on various Internet discussion groups, about the nicest comment I have received was being told that I was ludicrous. (Some went so far as to question the legitimacy of my birth.) Ultimately, audio and video enthusiasts need to come to terms with the distinction between what they want and what fair use allows. What they want is perfect digital copies. However, as the Courts have made clear, fair use does not guarantee this right. As I described above, the primary intent of fair use is to promote education, commentary, and the like, none of which is prevented by the DMCA—one can still make copies, albeit not perfect digital copies.

But how about AHRA? If AHRA permits the making of audio copies, how can the DMCA prevent it? While these two laws seem to be at odds with one another, they actually are not. The first point to be noted is that AHRA does not grant the "right" to make an audio copy. For example, if manufacturers of analog and digital recording devices decided to stop making these products, thus preventing one from making audio copies, one could not claim that one's Constitutional rights had been violated. Instead, AHRA merely exempts one who makes an audio copy from being charged with copyright infringement (provided that the copy is not for commercial use). The second part of the explanation is that even though the DMCA is contained within Title 17, violation of the DMCA is not an act of copyright infringement. Instead, violation of the DMCA is a separate violation. As such, were one to bypass copy-protection software and make a copy of a CD, one might be exempt from a charge of copyright infringement (per AHRA), but still be guilty of violating the DMCA. The law is a strange and wonderful thing. Sometimes, it's not so wonderful.

Distributing copyrighted works
As mentioned above, the holder of a copyright has the exclusive right to distribute the protected work. However, just as AHRA is an exception to the exclusive right to copy, so there exists an exception to the exclusive right to distribute. Title 17's "First Sale" provision is intended to limit the copyright holder's control over the disposition of the protected work to the first sale. That is, once one buys a painting, a book, a CD, or another protected work, the purchaser gains the right to sell, give away, or otherwise dispose of the work. If the work is sold to another, that individual then gains the right to dispose of the work, and so on.

There are some important caveats to the First Sale provision. First, it does not apply to a copy the purchaser makes. For example, if one purchases a CD and then makes a copy (or copies), as permitted by AHRA, one cannot give away or sell the copies. Second, there need not be any money exchanged for a copyright to be infringed. For example, if one were to copy a book in its entirety and give the copy to a friend as a gift, one would most likely have committed an act of infringement. Ditto for a CD. In other words, if you have ever burned a CD for a friend, you have broken the law. While the recording studios are not thrilled by this practice, they have tended to turn a blind eye to it. But now it's time to turn to the heart of the matter.

What keeps record labels up at night is the downloading and sharing of MP3 files. Each day, hundreds of thousands, if not millions, of songs are shared via peer-to-peer (P2P) programs, the vast majority without having obtained the permission of the copyright holders. But it is an act of copyright infringement to share copyright-protected music over a peer-to-peer network without the copyright holder's permission. Like it or not, anyone who shares music over a P2P network is committing an act of copyright infringement, unless one uses a commercial service such as Apple's iTunes. As the public is now grasping, most of the music that has been downloaded over the last five or so years has been downloaded in violation of U.S. copyright law. It should, however, be noted that this does not apply to "streaming" audio, the use of which is not an act of copyright infringement, provided certain requirements have been met.

While a full description of the legal issues regarding P2P networks is beyond the scope of this article, a few key points bear mention. In what is probably the most famous case to date, the owners of the Napster P2P program were found liable of vicarious or contributory copyright infringement. Because the owners of Napster were unable to comply with a court order to eliminate from their centralized files those songs protected by copyrights, they were ultimately forced to cease operations. Since that time, a new class of file-sharing programs has appeared. Unlike Napster, these new programs (eg, Morpheus, Grokster, and the newly reformed Napster) do not contain centralized indexes of the music files. The owners have argued before the courts that because of this architecture, they lack the ability to prevent sharing of copyrighted music files—a defense similar to that used in the famous Betamax case.

Footnote 7: Interestingly, computers are not considered digital recording devices under AHRA. Accordingly, one can circumvent the SCMS copy protections that appear on second-generation copies simply by copying them to a computer.

Footnote 8:

Footnote 9: Hon. Marybeth Peters, Register of Copyrights, Copyright Office of the United States, The Library of Congress. See Vic Sussman, "Policing Cyberspace," U.S. News & World Report (23 January 1995): 54. See also A.L. Melville, "The Future of the Home Recording Act of 1992: Has it survived the Millennium Bug?".

Footnote 10: To the best of my knowledge, this issue has never been addressed by the Supreme Court. Thus, it is possible that the decisions of the lower courts will one day be overturned.