From Wikipedia, the free encyclopedia Audio Home Recording Act
Audio Home Recording Act
Audio Home Recording Act None
The Audio Home Recording Act of 1992 (AHRA) amended
the United States copyright law by adding Chapter 10,
"Digital Audio Recording Devices and Media". The act en-
abled the release of recordable digital formats such as
Sony and Philips’ Digital Audio Tape without fear of con-
tributory infringement lawsuits.
The RIAA and music publishers, concerned that con-
sumers’ ability to make perfect digital copies of music
Full title To amend title 17, United States Code, to would destroy the market for audio recordings, had
implement a royalty payment system and a
threatened to sue companies and had lobbied Congress
serial copy management system for digital
audio recording, to prohibit certain to pass legislation imposing mandatory copy protection
copyright infringement actions, and for technology and royalties on devices and media.
other purposes. The AHRA establishes a number of important prece-
Acronym AHRA
dents in US copyright law that defined the debate be-
tween device makers and the content industry for the en-
Enacted by 102nd United States Congress suing two decades. These include:
the
• the first government technology mandate in the
Effective October 28, 1992 copyright law, requiring all digital audio recording
devices sold, manufactured or imported in the US
Citations
(excluding professional audio equipment) to include
Public Law Pub. L. 102-563 the Serial Copy Management System (SCMS).
• the first anti-circumvention provisions in copyright
Stat. 106 Stat. 4237 (1992)
law, later applied on a much broader scale by the
Codification Digital Millennium Copyright Act.
Act(s) Copyright Act of 1976 • the first government-imposed royalties on devices
amended and media, a portion of which is paid to the record
industry directly.
Title(s) 17 (Copyrights)
The Act also includes blanket protection from infringe-
amended
ment actions for private, non-commercial analog audio
U.S.C. 17 U.S.C. §§ 1001–10 copying, and for digital audio copies made with digital
sections audio recording devices.
created
U.S.C.
sections
n/a
History and legislative back-
substantially
amended ground
Legislative history By the late 1980s, several manufacturers were prepared
to introduce read/write digital audio formats to the Unit-
• S. 1623 by Sen. Dennis DeConcini (D-AZ) on August 1, ed States. These new formats were a significant improve-
1991
ment over the newly introduced read-only digital format
• Senate Judiciary Committee (Subcommittee on Patents,
Copyrights and Trademarks) of the compact disc, allowing consumers to make perfect,
• June 16, 1992 (voice vote) multi-generation copies of digital audio recordings. Most
• September 22, 1992 (voice vote) prominent among these formats was Digital Audio Tape
• George H. W. Bush on October 28, 1992 (DAT), followed in the early 1990s by Philips’ Digital Com-
Major amendments pact Cassette (DCC) and Sony’s Minidisc.
DAT was available as early as 1987 in Japan and
None
Europe, but device manufacturers delayed introducing
Relevant Supreme Court cases the format to the United States in the face of opposition
1
From Wikipedia, the free encyclopedia Audio Home Recording Act
from the recording industry. The recording industry, works and by creating a system that will prevent unfet-
fearing that the ability to make perfect, multi-generation tered copying of digital audio tapes."[7]
copies would spur widespread copyright infringement
and lost sales, had two main points of leverage over de-
vice makers. First, consumer electronics manufacturers
Devices covered by the AHRA
felt they needed the recording industry’s cooperation to
induce consumers — many of whom were in the process Digital Audio Recording Device defined
of replacing their cassettes and records with compact The AHRA’s statutory definitions of "digital audio record-
discs — to embrace a new music format. Second, device ing device" and "digital audio recording media" are cru-
makers feared a lawsuit for contributory copyright in- cial to understanding the implications of the Act. The
fringement. [1] distinction between covered and non-covered devices or
Despite their strong playing hand, the recording in- media dictates whether or not royalties are paid and
dustry failed to convince consumer electronics compa- whether the SCMS copy control technologies are includ-
nies to voluntarily adopt copy restriction technology. ed. The language of the act protects all noncommercial
The recording industry concurrently sought a legislative copying by consumers of digital and analog musical
solution to the perceived threat posed by perfect multi- recordings regardless if the copy control technology is
generation copies, introducing legislation mandating present or the royalty has been paid.
that device makers incorporate copy protection technol- The statutory definition states:
ogy as early as 1987.[2] These efforts were defeated by
the consumer electronics industry along with songwrit- A "digital audio recording device" is any machine
ers and music publishers, who rejected any solution that or device of a type commonly distributed to indi-
did not compensate copyright owners for lost sales due viduals for use by individuals, whether or not in-
to home taping.[3] cluded with or as part of some other machine or de-
The impasse was broken at a meeting in Athens in vice, the digital recording function of which is de-
1989, when representatives from the recording industry signed or marketed for the primary purpose of, and
and the consumer electronics industry reached a com- that is capable of, making a digital audio copied
promise intended to enable the sale of DAT recorders recording for private use.[8]
in the United States. Device manufacturers agreed to in-
The definition of "digital audio recording medium" is
clude SCMS in all consumer DAT recorders in order to
similar:
prevent serial copying. The recording industry would in-
dependently pursue legislation requiring royalties on
A "digital audio recording medium" is any material
digital audio recording devices and media.[4]
object in a form commonly distributed for use by
A year later the songwriter Sammy Cahn and four
individuals, that is primarily marketed or most
music publishers, unhappy with the absence of a roy-
commonly used by consumers for the purpose of
alties provision in the Athens agreement, filed a class
making digital audio copied recordings by use of a
action copyright infringement suit against Sony.[5] The
digital audio recording device.[9]
plaintiffs sought declaratory and injunctive relief that
would have prevented the manufacture, importation or In each case, the principal distinction between what is
distribution of DAT recorders or media in the United and is not covered by the AHRA is determined by
States. The suit brought Sony to heel. In July 1991, Sony, whether or not the device is marketed or designed (or
as part of larger agreement between the recording indus- in the case of media, commonly used by consumers) to
try and consumer electronics makers, agreed to support make audio recordings, not the device’s capabilities. A
legislation creating a royalty scheme for digital media. CD-R recorder included as part of a personal computer
In exchange, Cahn and the publishers agreed to drop the would not be a digital audio recording device under the
suit.[6] Act, since the personal computer was not marketed pri-
With all the major stakeholders satisfied, the bill eas- marily for making copies of music. The same recorder,
ily passed both houses of Congress. President George H. sold as a peripheral and marketed for the express pur-
W. Bush signed the AHRA into law in 1992 proclaiming pose of making digital audio recordings, would fall under
" S. 1623 [AHRA] will ensure that American consumers the Act’s definition of a recording device.
have access to equipment embodying the new digital au-
dio recording technology. It also protects the legitimate Exceptions
rights of our songwriters, performers, and recording
The AHRA’s definition of "digital audio recording device"
companies to be rewarded for their talent, expertise, and
includes explicit exceptions for devices that are used pri-
capital investment. this will be accomplished by tax pay-
marily to record non-musical sounds (such as dictation
ers compensating these artists for the copying of their
devices and answering machines) and for "professional
2
From Wikipedia, the free encyclopedia Audio Home Recording Act
Distribution of AHRA Royalties
Sound Recordings Fund Musical Works Fund
Record Labels (sound recording copyright holders) 38.4% Music Publishers 16.65%
Featured Artists 25.6% Songwriters 16.65%
Non-featured Instrumentalists and Vocalists 2.7%
Percentage of Total Fund 66.7% Percentage of Total Fund 33.3%
equipment". [10] The definition of professional equip- ufacture and distribute must seek a statutory license
ment was to have been set by the Department of Com- from the Copyright Office. Royalties are based on "trans-
merce, though these regulations have never been issued. fer price", either the sale price or the price recorded for
"Professional" minidisc recorders without SCMS cost customs purposes in the case of importers.
thousands of dollars. For digital audio recording devices, manufacturers
The AHRA’s definition of "digital audio recording me- and importers pay a 2% royalty on the device’s transfer
dia" explicitly excludes pre-recorded but recordable me- price, with a minimum royalty of $1 and a maximum of
dia, and storage media used primarily to store informa- $8 ($12 for dual recorders) per device. For digital audio
tion other than musical works.[11] recording media, manufacturers and importers pay a 3%
This exception was crucial in RIAA v. Diamond Multi- royalty.
media Systems, Inc.,[12] the only case in which the AHRA’s
provisions have been examined by the federal courts. Distribution of royalties
The RIAA filed suit to enjoin the manufacture and distri- Under the AHRA, royalties collected by the Copyright Of-
bution of the Rio PMP300, one of the first portable MP3 fice on digital recording devices and digital recording
players, because it did not include the SCMS copy pro- media are divided into two separate funds, the Musical
tection required by the act, and Diamond did not intend Works Fund and the Sound Recordings Fund. One third
to pay royalties. The 9th Circuit, affirming the earlier of the royalties goes to the Musical Works Fund, which
District Court ruling in favor of Diamond Multimedia,[13] splits its cut 50/50 between writers (distributed by
ruled that the "digital music recording" for the purpos- ASCAP, BMI, and SESAC) and music publishers (distribut-
es of the act was not intended to include songs fixed on ed by Harry Fox Agency). These parties receive royalties
computer hard drives. The court also held that the Rio according to the extent to which their recordings were
was not a digital audio recording device for the purpos- distributed or broadcast.
es of the AHRA, because 1) the Rio reproduced files from The remaining two thirds of the royalties are placed
computer hard drives, which were specifically exempted in the Sound Recordings Fund. Four percent of these
from the SCMS and Royalty payments under the act, 2) funds are taken off the top for non-featured musicians
could not directly record from the radio or other trans- and vocalists (distributed by the American Federation of
missions. Musicians and AFTRA), what remains is split 60/40 be-
tween two sets of "interested copyright parties". Inter-
Serial Copyright Management ested copyright parties, a heretofore unknown catego-
ry in copyright law, is defined by the act as featured
System artists receive 40%, and the owners of the right to repro-
The AHRA required that all digital audio recording de- duce sound recordings (an individual or company, most-
vices conform to a form of copy protection called the ly the record label, who owns the master sound record-
Serial Copy Management System or its functional equiv- ing) receive 60%. These parties receive royalties through
alent.[14] The AHRA also prohibited circumvention of the Alliance of Artists and Recording Companies (AARC)
SCMS and importation, distribution or manufacture of according to the extent to which their recordings were
such tools.[15] Violations of either provision are punish- sold, based on sales in the United States, both digitally
able by up to $25 per recording, or $2,500 per device. [16] and retail.
The inclusion of the reproduction rights holders was un-
precedented in United States copyright law. Almost
AHRA royalties thirty-nine percent of the royalties collected under the
AHRA go not to songwriters and musicians, but to the
Payment of royalties record labels who own the right to copy and distribute
Under the AHRA, importers and manufacturers pay roy- their recordings. The justification for this cross subsidy
alties on "digital audio recording devices" and "digital is that the copying enabled by the digital technology is a
audio recording media". Those who wish to import, man- loss of profits for the recording industry, and that they
should be compensated for this loss.
3
From Wikipedia, the free encyclopedia Audio Home Recording Act
It is unclear whether the recording industry ever ing examples such as making copies for a family member,
thought that revenue from royalties would compensate or copies for use in a car or portable tape player. [17]
for revenues lost to the first generation copying autho-
rized by the AHRA. Given their willingness to block all Unresolved questions
distribution of all digital audio recording media and de- Still, the AHRA was unsuccessful in its attempt to "con-
vices in the United States, that the combination of SCMS clusively ... resolve this debate" over the legality of home
and the price premium imposed by royalties was intend- taping. Section 1008 explicitly allows private, noncom-
ed to cripple the market. It is also possible that given a mercial home copying with "analog" devices and media.
new technology, and the Act’s unprecedented provisions The primary difficulty lies in the definition of "digital au-
(royalties, legislative mandates for copy protection), they dio recording device". Though there are no reliable fig-
could not predict the impact of the AHRA on adoption of ures on the subject, the meager returns to the Copyright
the new technology. Office’s DART fund amidst widespread copying and dis-
Regardless of their intent, AHRA royalties have never semination of digital music suggests that a great deal of
been a significant revenue stream for anyone, least of all copying, noncommercial or otherwise, is accomplished
the recording industry. Revenues for the Copyright Of- using devices not covered by the AHRA. For these de-
fice’s Digital Audio Recording Technologies (DART) Fund vices, including MP3 players, computer hard drives, and
peaked at $5.2 million in 2000, and have been declining, most CD burners and CD-Rs, the section 1008 exemption,
at times precipitously, ever since. Revenues for 2005 which applies only to copies made with a "digital audio
were approximately $2.4 million. According to its Web recording device" as defined by the act, may not apply.
site, the Alliance of Artists and Recording Companies However, language in the RIAA v. Diamond Multimedia
(with its 38% share of all DART royalties) has distributed decision described above suggests a broader reading of
less than $19 million since 1993, a figure which includes the Section 1008 exemptions, providing blanket protec-
home taping royalties from three other countries. tion for "all noncommercial copying by consumers of
digital and analog musical recordings" and equating the
Exemption from infringement spaceshifting of audio with the fair use protections af-
forded home video recordings in Sony v. Universal Studios:
actions
In fact, the Rio’s operation is entirely consistent
The AHRA contains one positive provision for the con-
with the Act’s main purpose — the facilitation of
sumer electronics industry and consumers, section 1008,
personal use. As the Senate Report explains, "[t]he
a "Prohibition on certain infringement actions:"
purpose of [the Act] is to ensure the right of con-
"No action may be brought under this title alleging sumers to make analog or digital audio recordings
infringement of copyright based on the manufac- of copyrighted music for their private, noncommer-
ture, importation, or distribution of a digital audio cial use." S. Rep. 102-294, at *86 (emphasis added).
recording device, a digital audio recording medi- The Act does so through its home taping exemp-
um, an analog recording device, or an analog tion, see 17 U.S.C. S 1008, which "protects all non-
recording medium, or based on the noncommercial commercial copying by consumers of digital and
use by a consumer of such a device or medium for analog musical recordings, " H.R. Rep. 102-873(I), at
making digital musical recordings or analog musi- *59. The Rio merely makes copies in order to ren-
cal recordings."[17] der portable, or "space-shift", those files that al-
ready reside on a user’s hard drive. Cf. Sony Corp. of
According to the Senate, this provision was intended to America v. Universal City Studios, 464 U.S. 417, 455
conclusively resolve the debate over audio home taping, (1984) (holding that "time-shifting" of copyrighted
and "[create] an atmosphere of certainty to pave the way television shows with VCR’s constitutes fair use un-
for the development and availability of new digital der the Copyright Act, and thus is not an infringe-
recording technologies and new musical recordings."[17] ment). Such copying is paradigmatic non-commer-
They were partially successful: this provision made the cial personal use entirely consistent with the pur-
sale of DAT and Minidisc possible in the United States, by poses of the Act.[18]
protecting device manufacturers, importers and distrib-
utors from infringement suits like Cahn v. Sony. This language, however, may be obiter dicta.
Private, noncommercial copies by consumers using
"digital audio recording devices" are explicitly protected Relevance to XM lawsuit
by §1008. The Senate report defines noncommercial as The AHRA is important in the recording industry’s suit
"not for direct or indirect commercial advantage", offer- against XM radio for Samsung’s Helix and Pioneer’s Inno
XM receivers, which allow users to record blocks of satel-
4
From Wikipedia, the free encyclopedia Audio Home Recording Act
lite radio and disaggregate individual songs. XM argued [3] S. Rep. No. 102-294 (1992).
that the devices are "digital audio recording devices" [4] McKuin
("DARD") under the AHRA, and thus enjoy an exemption [5] Cahn v. Sony Corp., No. 90 Civ. 4537 (S.D.N.Y. July
from copyright infringement actions for private, non- 11, 1991).
commercial copying. A New York District Court judge [6] Lewis Kurlantzick & Jacqueline Pennino, The Audio
agreed that these devices are DARDs because they can Home Recording Act and the Formation of Copyright
record from a transmission without the use of an exter- Policy, 45 J. Copyright Soc’y U.S.A. 497, 500–01
nal computer or computer hard drive. As manufacturers (1998).
or distributors of DARDs, Samsung and Pioneer are im- [7] Statement on Signing the Audio Home Recording
mune from suit so long as they satisfy the requirements Act of 1992, Administration of George Bush: White
under the AHRA, including payment of royalties to the House Press Release, Oct. 29, 1992.
US Copyright Office, on a quarterly basis, for each device [8] 17 USC §1001(3).
distributed. However, according to the District Court, [9] 17 USC §1001(4).
this immunity does not protect XM with regard to the [10] 17 U.S.C. § 1001(3)(A)–(B).
recording industry suit. The recording industry’s com- [11] 17 U.S.C. § 1001(4)(B).
plaint was based on XM’s use of their music, not on the [12] 180 F.3d 1072 (9th Cir. 1999).
distribution of the devices. XM is currently licensed, un- [13] 29 F. Supp. 2d 624 (C.D. Cal. 1998).
der Section 114 of the US Copyright Act, to provide the [14] 17 U.S.C. § 1002(a).
recording industry’s music via a digital satellite broad- [15] 17 U.S.C. § 1002(c-d).
cast service. The recording industry’s complaint, howev- [16] 17 U.S.C. § 1009(d).
er, alleges that services such as the XM + MP3 distrib- [17] ^ insert
ute permanent digital copies of sound recordings with- [18] 180 F.3d at 1079.
out a license. XM is being sued for distributing the music
industry’s music without a distribution license, not for
distributing devices such as the Helix and Inno. There-
External links
fore, the District Court denied XM’s motion to dismiss on • AHRA Legislative History on Wikisource
grounds that the AHRA immunity with regard to distrib- • AARC (Alliance of Artists and Recording Companies)
ution of DARDs does not protect XM for a copyright in- • Chapter 10 of the US Copyright Act
fringement suit based on distribution of music without a • Bush Statements on Signing the AHRA
license. [1] • MUSIC PIRACY AND THE AUDIO HOME RECORDING
ACT
• Content Protection Progress Report (PDF)
References • NET Act
[1] Joel L. McKuin, Home Audio Taping of Copyrighted • Chapter 12 US Copyright Act
Works and the Audio Home Recording Act of 1992: A • Documents Relating to XM lawsuit
Critical Analysis, 16 Hastings Comm. & Ent. L. J. 311, • SunnComm agrees to buy Darknoise to block
321 (1994). analogue loophole
[2] S. 506 (1987), H.R. 1384 (1987), and then S. 2358 • Microsoft & Macrovision to plug analogue hole in
(1990). Windows OS
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Categories:
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