The Legislative History of AHRA section 1008

Ellen Hochberg

 

Introduction

The AHRA represents a balance of consumer privilege and copyright protection. §1008 of the AHRA establishes that

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, … or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog recordings. (17 U.S.C. §1008)

Thus, under the AHRA, consumers are allowed to make copies of copyrighted music, but only under specific circumstances. To enforce this policy, serial copy management systems that prevent copying of copied material are required in all digital audio recording systems. ((House report - House, Tuesday, September 22, 1992, 102nd Cong. 2nd Sess. 138 Cong Rec H 9029 (House debate)).

Legislative History

The legislative history of the AHRA provides scant guidance in determining the scope of the safe harbor provision set out in §1008. Legislators expressed concern both for the need to ensure the protection of copyrighted works, as well as for the promotion of new opportunities for consumers. See 138 CONG. REC. H9029 (daily ed. September 22, 1992). To balance these concerns, consumers are allowed by this law to make an unlimited number of copies of original music, but cannot engage in serial copying, which is making copies of copies. A Senate report emphasizes the consumer rights aspect of the law, by stating that the purpose of the statute is to protect the right of consumers to make recordings of copyrighted music for private, noncommercial use. See 102 S. Rpt. 294. A House report speaks of the need to "remove[] the legal cloud over home copying of prerecorded music in the most proconsumer way possible." 138 CONG. REC. H9029 (daily ed. September 22, 1992).

Consumers are only afforded this protection for noncommercial uses. See 17 U.S.C. §1008. An earlier form of the statute considered by the House specifies that consumers are not exempt when they make copies for indirect or direct commercial benefit. See H.R. 3204, 102nd Cong. (1992). This bill further states that the copying of an "audiogram by a consumer for private, noncommercial use is not for direct or indirect commercial advantage." H.R. 3204, 102nd Cong. (1992). Hence, making a copy of a CD for one's children or to play in the car is protected under this act. See H.R. 3204, 102nd Cong. (1992). See also 102 S. Rpt. 294.
Individuals who make copies in adherence with the AHRA's requirements are protected from prosecution for copyright violation. Furthermore, manufacturers and distributors are immune from charges of contributory violation stemming from such copying. See H.R. 3204, 102nd Cong. (1992). The House report clarifies that "[t]hese exemptions are complete, notwithstanding the somewhat indirect phrasing of the section, which is couched in terms of a prohibition on the bringing of infringement actions." H.R. 3204, 102nd Cong. (1992). Section 1008 does not judge whether the underlying conduct is or is not infringement, but merely provides full protection against the specified types of copyright infringement actions. See 102 S. Rpt. 294.

Unresolved Issues

Several areas on which the legislative history is silent or ambiguous have become points of contention in A&M Records, Inc. v. Napster, Inc., Nos. 00-16401 & 00-16403 (N.D. Ca, filed Dec.1999). The legislative history is ambiguous regarding the scale to which making first generation copies is allowed. The Brief of the United States as Amicus Curiae argues that the wide scale copying engaged in by Napster users violates the intent of Congress in passing the AHRA, which was to provide music companies with royalty revenues in return for limited copying by consumers. Instead of the intended quid pro quo, Napster is creating a situation in which music is widely copied on machines which do not generate the royalty revenues imposed by the AHRA. The government stresses the use in the House Report of the words "home copying" and "private" in describing permitted activities as illustrative of intent to limit the scale of copying. See H.R. Rep. No. 873(I) (1992). The word "private" is omitted from the final version of the statute, but the government argues that legislative history requires that covered uses be private. However, such an omission can also mean that the AHRA does not require copying to be private.

Furthermore, the House Report states that an individual "can make as many noncommercial copies as [he] wish[es] from the new machine but [he] will not be able, mechanically, to make a copy of the copy." See H.R. Rep. No. 873(I) (1992). Although this language is in reference to the technical capabilities of machines implanted with a serial copy management system, it could be read to imply the permissibility of unlimited copying of originals. However, the same report states that when a work is originally recorded in analog form, the consumer may make two authorized copies: one from analog to digital and then one copy of the digital recording. See H.R. Rep. No. 873(I) (1992). This passage could imply that when the musical recording is digital, only one copy is authorized.

The legislative history is also unclear in delimiting the range of devices and recording types that are protected from allegations of infringement. The government claims that a computer, the device used to make copies in the Napster system, does not fall within the definition of a digital audio recording device or medium as set forth in section 1001 of the AHRA. See Brief of the United States as Amicus Curiae. The government also claims that a hard drive cannot be considered a digital recording under the definition of the AHRA since program files are fixed in it, an excluded category under the AHRA. See Brief of the United States as Amicus Curiae. Napster counters that the devices are not limited to those in the definitions and that excluding consumers using computers from protection leads to absurd results. See Reply Brief of Appellant Napster, Inc., at 19. The legislative history is silent on these definitional issues.

Conclusion

The legislative history does not shed light on whether the AHRA covers Napster's activities due to ambiguities regarding the extent to which copying is permissible and the range of devices and recording types permitted. While the statute itself could arguably be construed to exempt Napster from contributory liability, it is unlikely that Napster users all use Napster in such a way as to be exempted from liability. If consumers are downloading recordings of copies, they would not be protected by the safe harbor provision, and therefore Napster could be contributorily liable. Since at present it is not feasible to determine whether consumers are copying originals or copies, there is no way of determining which users are covered. Furthermore, even if all users are making permissible copies of originals, the ambiguities regarding the extent of copying and the types of recordings and devices casts doubt on the protection afforded Napster under the AHRA.