Talk:Audio Home Recording Act

A discussion of why the computing exception makes the AHRA effectively useless nowdays would be handy.

Agreed. I started cleaning up the exception portion , there are many factual errors such as saying that because computers are excepted from the copy control technology and royalty that the prohibition on brining enforcement on them is also not present is simply not true and this was' decided in the RIAA v. DIAMOND MULTIMEDIA SYSTEMS

INC http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=case&no=9856727 . The caelaw explicitly exempts MP3 players and Computers from the copy control and royalty but explicitly keeps the prohibition on enforcement for these devices. In short the current section is factually incorrect with regards to the current case law, which needs to be summarized and inserted into the article instead of the current POV factually incorrect statements (heck call it what it is- propaganda ).

This is the pertinent portion of the decesion.

[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.

Okay I'm really not trying to propagandize here, or whatever. My natural inclination is to interpret this as broadly as I can, but I'm trying to be balanced here.

Maybe we could compromise on this one? I agree that the legislative history of the act (which the 9th circuit cites) says "[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, noncommercial use." But just because the Senate says so and the 9th Circuit cites this approvingly doesn't mean that it's so (or that subsequent courts are likely to agree). The section of the Diamond Rio case you're citing is clearly dicta, and cites legislative history shortly after stating that legislative history doesn't matter if the language of the statute is plain. And I think the language is quite plain.

The equation of personal audio copying and personal video copying is very much in dispute, which is how we ended up with the AHRA to begin with. If Sony thought they could rely on Betamax to protect Minidisc and DAT, they wouldn't have delayed introducing the recorders or settled the lawsuit. I'v tried to change the language to reflect our disagreement. Iamtfc 14:43, 8 February 2007 (UTC)Reply

I just re-read the opinion, and I can't find any basis for the last three claims you added to the Diamond Rio case analysis other than the paragraph you cited above.

If it wasn't so then the RIO would have been illegal and the use of such copyright infringement and Diamond would have been liable for contributory infringement and you have to read the lower court's opinion also denying the RIAA relief. . This is the full opinion. In the opinion you will see 1. That the court does in fact rule that ALL NONCOMERCIAL RECORDINGS by consumers is exempt regardless of whether or not the royalty was paid, 2. The court ruled that the computer loophole was intentional by congress, and 3. That space shifting was fair use. Bellow is the full opinion with the highlighted bits. Removing that shifts it into POV.

U.S. 9th Circuit Court of Appeals RECORDING v DIAMOND 9856727

RECORDING INDUSTRY ASSOCIATION OF AMERICA, a New York not for profit corporation; ALLIANCE OF ARTISTS AND RECORDING No. 98-56727 COMPANIES, a Pennsylvania not for D.C. No. profit corporation, CV-98-08247-ABC Plaintiffs-Appellants,

OPINION v.

DIAMOND MULTIMEDIA SYSTEMS INC., a California corporation, Defendant-Appellee.

. . .

—The preceding unsigned comment was added by 70.246.193.29 (talk) 16:54, 11 February 2007 (UTC).

Cutting and pasting the entire decision into the discussion page is unnecessary. I see the parts you're talking about, and I referenced them down further in the article, in the section on the 1008 exemption. I'm therefore going to remove them from the section on the holding of the case, since it's not relevant to this particular section, which is about the definitional issues.Iamtfc 03:03, 12 February 2007 (UTC)

Sorry, I feel like I should back this up a little bit more. Here's the first paragraph of the case, where they describe what's at issue:

"In this case involving the intersection of computer technology, 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."

That's all they are deciding. Does the Rio count as a "digital audio recording device." The answer is no, for the reasons stated in the article. Anything in the opinion beyond that basic question is dicta. I'm okay with keeping it in the article, because I think it's important to analyzing the applicability of the 1008 exemption. I want the 9th Circuit's interpretation to be true, trust me. But since the language on audio copying being fair use is dicta, in direct opposition to the statutory language and a significant body of work on fair use in audio recordings, I think it's a disservice to readers to simply yield to the 9th circuit on this one. This is the same 9th Circuit whose Grokster holding was overturned, yeah? Iamtfc 04:49, 12 February 2007 (UTC)Reply

Once again the the bit about recorded songs on computer hard drives not being digital recordings is added back despite the 9'th district ruling they were (and the provided quotes from the opinion removed) and that was appealed and upheld on appeal. As this is the only case where the AHRA was examined, the court in the XM radio case has taken the position that XM radio is providing digital downloads (and not recordings) and doesn't apply. This is not only POV but also contrary to the court decision. If it wasn't so then RIO would have lost the case, when they in fact won. —The preceding unsigned comment was added by 70.246.193.29 (talk) 13:14, 12 February 2007 (UTC).Reply

Okay, here's the question. Is music recorded on hard drives a "digital audio recording" for the purposes of the act?" This matters because the court needs to know this to decide whether the Rio is a digital audio recording device (see statutory definition of DARD). This is what the court says:

[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 communication of the fixed sounds and incidental material.

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.

Based on this, I'm not sure how you can say that the 9th circuit says that songs recorded on hard drives are digital music recordings. I'm going to wait before making the reversion until you respond to this very specific question. And try and keep it civil, eh? "Complete BS"? Iamtfc 14:45, 12 February 2007 (UTC)Reply

This is from a law Review article by Tony Reese, University of Texas, the cite is 55 Case W. L. Rev. 877, n. 52. Suggests that our debate is ongoing, and proper NPOV would be to show both sides. I'll add the cite to the article when I get a chance:

"Copyright owners have asserted that most personal copying by burning a duplicate CD or ripping CD tracks to transferable and usually compressed-format files is infringing. See, e.g., RIAA, Frequently Asked Questions--Downloading and Uploading, at http://www.riaa.com/issues/music/downup_faq.asp#digitaldevices (last visited Mar. 7, 2005). At least one circuit court has held that the latter activity, while apparently not protected under the Audio Home Recording Act's limitation on music copyright owners' exclusive rights, 17 U.S.C. § 1008 (1997), qualifies as fair use as noninfringing "space shifting," by analogy to the time-shifting use of audiovisual works held fair in Sony. Recording Indus. Ass'n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072 (9th Cir. 1999)."

Iamtfc 17:50, 12 February 2007 (UTC)Reply

A tangled web surrounds the origins of the AHRA, with RIAA involvement, shenanigans of the Home Recording Rights Coalition, large companies sometimes wearing several hats, and lots of spin from involved legislators.

Statements like "S. 1623 will ensure that American consumers have access to equipment embodying the new digital audio recording technology." Statement on Signing the Audio Home Recording Act of 1992 seemed paradoxical to many, as they saw the supposed "compromise" of the AHRA as selling out the spirit of the decision in the Betamax case.

• I just removed and toned down quite a bit of POV.

While it's understandable that people should try to interpret the meaning and ultimate effect of the laws, in fact it's better to accurately describe them and delineate what is a guess from what is a prediction from what is a likely outcome from what is a stated intention from what is desired and by who, etc etc ... all of these delineations require that the statements are attributed to the parties who make them.

This then enables the readers to understand, rather than them simply taking for granted that wikinews authors are omniscient. -- Pinbucket 00:26, 24 March 2006 (UTC)Reply

"At the current time, this law is being exploited by several recording companies to attempt to halt the sale of a whole category of digital radio (XM) receivers/recorders, on the premise that they can make truly "perfect digital copies," as opposed to previous mechanisms which, regardless of the final medium, necessitated conversion from analog sources, and were therefore far from perfect." Removed this because it was a little inflammatory and mostly not true. But it was good to add the XM suit, since it might undermine the whole act. Iamtfc 21:23, 20 January 2007 (UTC)Reply

This whole article is not NPOV, since it's really just the subjective opinion of the Ninth Circuit about what the law should be. Wikipedia is not a place for opinions, it's a place for facts.

--erin

Citing the highest available court ruling on law is as NPOV as it gets. You could call every ruling from the Supreme Court mere "subjective opinion", but IMO that would be rather silly and quite unproductive. Lower courts can be overruled, any court can change it's position, there are court rulings I personally disagree with, however it is not the place of Wikipedia to overturn or diminish standing rulings of law. A court ruling is not an opinion of what the law should be, it rules what the law *is*. And that *is* the law until an equal-or-higher court, or Act Of Congress, tells us otherwise. If there is an extremely notable controversy regarding a court ruling then you can report that controversy, however it would be POV Undue Weight to present it as equal or superior to the court ruling. Alsee 05:12, 18 October 2007 (UTC)Reply

"The DMCA effectively bans the use and sale of digital recorders if there is an access control or encryption (DRM) built into the copyrighted audio file." The author of the article doesn't really make clear what their argument is for this. If I were to guess about it, perhaps they mean something like this: Once any (DRM-type) access control is used, any unauthorized recording is circumvention, since the DRM should protect against it. In that case, anything that can make such a recording is a circumvention device, and so is prohibited. But that's not quite how it is; the protection must be effective for it to be covered by the DMCA. In cases where the DRM is supposed to allow access/decoding, the DMCA doesn't do anything, no matter what happens next. Of course there's a lot of leeway to interpret what that means. (See this discussion for a good start on it; especially on page 4.)

Removed the following from the links page, since they don't seem relevant:

• SunnComm agrees to buy Darknoise to block analogue loophole
• Microsoft & Macrovision to plug analogue hole in Windows OS

Iamtfc 15:13, 19 January 2007 (UTC)Reply

Changed introduction to emphasize what makes the AHRA important, and to make it a little clearer what the bill does. I'm tempted to remove the Contents of the AHRA section, because most of it is redundant with information below. As I add citations to the information below I will remove the corresponding bullet points from this section, and eventually the whole section. Unless there are objections. Iamtfc 14:39, 19 January 2007 (UTC)Reply

Okay, done for today. I removed this section

• Allows ignorance of actions dealing with SCMS as a defense to copyright infringement (Section 1009(3)) - This is probably superseded by the DMCA (see below)

. . . because it's not technically true. 1009(3) is not a defense, it's just gives judges leeway to reduce in damages to $250. And the DMCA's anti-circumvention provisions apply to access controls, which SCMS is not. It's a little more complicated than that, but I think it would unnecessarily clutter the article.

The DMCA section in fact was relevant because new DRM technologies have been developed to "plug" the analog whole. It is important to note several things. 1. The DMCA 1201 anti circumvention provisions revolve around access and not copy control technologies 2. The new DRM technologies that have been developed simply won't play the music if a recorder is attached to the output. The net effect is that the DRM specifically denies the ability to record music by not allowing the player to play music when it is connected to any recorder. The DMCA anti-trafficking section specifically counters the AHRA 1008 provisions not to ban the manufacture of Digital Recorders and denies the use of them by consumers by simply denying access to any audible output when a non-secure output is present. This technology was developed by 2 companies- SunComm and Microsoft and the Microsoft developed technology is currently deployed in Windows Vista (All editions). The SunComm technology works by introducing static that becomes audible when music is recorded and played back. Again the recorder becomes useless because all recorded music will have this noise. Since both are access control systems the DMCA kicks in and circumventing/distributing recorders that filter out the noise would fall under the anti-circumvention/trafficking sections of the DMCA thus banning them despite section 1008. —The preceding unsigned comment was added by 70.246.193.29 (talk) 08:10, 8 February 2007 (UTC).Reply

Okay, I've added the two links on SunComm and Microsoft back in, thanks for pointing this out. I'll confess to being a little fuzzy on exactly what "effectively controls access" exactly means, but what you're describing seems on point. Can you find a way to put this into the article? Maybe another section on the DMCA/AHRA overlap?

Also, FWIW, the oft-neglected 1201(b), which bans manufacture/transport of tools for the purposes of "circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner" is essentially identical to the AHRA's anticircumvention language. I think you're right that this will confuse people though, since most of the debate around the DMCA focuses on 1201(a) . . . Iamtfc 15:26, 8 February 2007 (UTC)Reply

The AHRA:

• Imposes a "royalty" on digital recorders (section 1004(a))
• Imposes a "royalty" on blank digital media (section 1004(b))
• Establishes a procedure for distributing the collected "royalty" to artists, performers, writers, and publishers (sections 1006 and 1007)
• Prohibits infringement action 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. (Section 1008)
• The act failed to define "noncommercial use by a consumer" however "In short, the reported legislation [Section 1008] would clearly establish that consumers cannot be sued for making analog or digital audio copies for private noncommercial use." (House Report No. 102-780(I), August 4, 1992)

(Moved for safekeeping) Iamtfc 17:08, 19 January 2007 (UTC)Reply

The last bullet point is interesting, but it seems the final text of the bill, once it got through both chambers of Congress, did not indemnify consumers or declare private, noncommercial copying to be non-infringing. For the last 5 years, the article has incorrectly stated that 17 USC 1008 explicitly protects private, noncommercial copying. A liberal reading of the text may infer such, but it really only explicitly says the makers (and importers/distributors) of "recording devices" and media aren't liable for infringement when consumers use those devices and media to make private, noncommercial copies. It doesn't address whether the making of such copies is protected. I've adjusted the article accordingly. —mjb (talk) 03:42, 9 January 2012 (UTC)Reply

For gosh sakes, 8 months ago I was incapable of reading section 1008 as indemnifying consumers, and now I'm incapable of reading it as not indemnifying them. I'm terribly sorry for spreading such misinformation. I've updated the article accordingly. (This doesn't change the fact that only certain types of digital tech are explicitly covered, and I think we've done a good job of pointing that out in the article.) —mjb (talk) 20:52, 7 September 2012 (UTC)Reply

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