In 1986, digital audio tape (DAT) recorders suitable for home use first became available. At the time, many observers believed that this technology would take the place of the traditional and ubiquitous analog audio cassette tape. Because the new machines recorded music in digital form, they created a new threat of large-scale high-quality piracy. Records and cassette tapes are subject to wear and tear, and second- or third-generation copies created from one of these analog devices are often scratchy and of poor quality. Digital audio tapes, by contrast, allow for "perfect" reproduction, in which each successive copy is identical to its predecessor. The recording industry, consequently, lobbied against the introduction of DAT recorders into the United States. (Some industry commentators believe that the resultant delay is responsible for the failure of the technology to gain consumer interest. Others blame the lack of consumer enthusiasm on relatively high equipment costs and consumer loyalty to pre-existing audio cassette collections.)
Despite the fact that the threat of mass piracy threat supposedly posed by DAT technology never materialized, the recording industry's lobbying efforts did pay off in the form of a piece of legislation specifically designed to appease copyright holders' concerns. The Audio Home Recording Act of 1992 (AHRA), 17 U.S.C. §§1001-1010, mandates the inclusion in DAT machines of copy-control devices that limit the ability of would-be profiteers to create serial copies of protected works. Under AHRA §1002(a), a "digital audio recording device" must conform to a Serial Copy Management System (SCMS) designed to prevent multiple copies being created from a single work. A "digital audio recording device" is defined as a device capable of rendering a "digital audio copied recording." The digital audio copied recording must be a digital reproduction of a "digital music recording" and must be produced either directly or from a transmission. See AHRA §1001. Finally, under AHRA § 1002(c), it is unlawful to attempt to circumvent the SCMS.
However, both consumers and the manufacturers of consumer-electronics products also benefited from the Act. AHRA §1008 provides that no suit for copyright infringement -- or for contributory copyright infringement -- may be brought based on "the noncommercial use by a consumer" of "a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium . . . for making digital musical recordings or analog musical recordings. A surprising development in the litigation over Napster has recently placed a great deal of pressure on this last provision. Napster's lawyers have made the bold argument that the use of its system by consumers to locate and then make copies of MP3 files located on the hard drives of other members constitutes "noncommercial use . . . of a digital audio recording device . . . for making digital musical recordings" and is therefore immunized by section 1008. Because its members are not engaged in copyright infringement, Napster argues, it cannot be held liable for contributory copyright infringment. The RIAA (not surprisingly) and the Justice Department (somewhat more surprisingly) has insisted that this argument stretches section 1008 far beyond the scope intended by Congress when it adopted the AHRA. Regrettably, the legislative history of section 1008 is far from clear on this issue. Accordingly, the Court of Appeals for the Ninth Circuit, when it reviews this argument, will get little guidance from Congress.