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What Does the Audio Home Recording Act Really Allow?
festers asks: "With all the legal action being taken by the MPAA and RIAA, I decided to check out their Web sites for a closer look at what they are saying. While I was on riaa.org I came across this: What You Can't Copy They cite the Audio Home Recording Act. Basically what I came away with was that I am not allowed to make any recordings of copyrighted music onto my computer. I can't make mix CDs, or sound clips, or even MP3s for my own use. Can this really be?? Is this what the Home Recording Act is all about? If this is the case, then MP3.com seems to have no ground to stand on when it comes to the Beam-It software."
When the laws are all secret and no one will tell you what they are, how can one be expected to follow them?
Even more to the point. There are so many laws today with so many new ones coming on the books constantly, that I do not believe it is humanly possible for a single person to know them all. If so, how *can* one ever hope to comply?
IANAL, but I got to round one of angel funding for streaming audio start-up before DMCA made it illegal, and I spoke a great deal with one about Title 17 and musical copyrights in general.
What you get when you buy a music CD is *not* a license to the content. You buy, and own, one copy of that recording. It's known in legal circles as the Right of First Purchase. You own that copy, you can play it, you can sell it, you can bury it in your back yard. If not for right of first purchase, used record and CD shops would be illegal, and despite what the RIAA says (and they get up in a huff about this every few years) they are not. You can't copy it legally, because then you would have two copies and you only own one. (Though the law allows you to make a copy for archival purposes, so long as you don't use both of them at once.)
Now, since you don't own the content (assuming you are not the copyright holder) you can't use it to make money (like radio ad revenue) without paying the copyright holder a royalty, generally via ASCAP or BMI. Similarly you can't record your own version of the music without paying the copyright holder a royalty, generally via the RIAA's Harry Fox Agency.
What the DMCA did was bring US copyright law into compliance with the World Intellectual Property Orgaization Performances and Phonograms Treaty which established a new copyright for the producers of a phonogram (i.e. the record companies). This new and additional copyright gives the producer control of digital distribution, with explicit control over on-demand distribution of the content of the phonogram. So, for the first time, the record companies have a legal right to the music just by virtue of owning the studio and paying the engineers. (In less enlightened times, they would get similar control by forcing the artist to sign over part or all of the copyright in exchange for money or distribution access.) The Librarian of Congress is tasked with the duty to determine fair license fees for copyrights, and the discussion is underway. The record companies are lobbying for exorbitant rates for the phonogram producer copyright, but are strangely reluctant to use their political muscle to lobby for higher rates for the copyrights traditionally held by artists (which can be fairly described as a pittance).
So, when they say it's about protecting the artists, they are lying through their teeth.
Don Negro
Perl 6 will give you the big knob. -- Larry Wall
So the short of it is yes, you're allowed to make tape copies, CD-R burns, MP3 uploads into private lockers, copies from your CD to your hard drive, etc. -- just make sure that it doesn't get passed around too much. (Too much being defined as more than ~$1000 worth of goods in a year as per the Net Copy Act.)
Most relevantly, the RIAA has made public statements that they are not going to after individual consumers who copy their own music for personal use. So regardless of what you think about its actual legality, you will not get in trouble for it.
IANAL, but I have been in this industry for 3 years.
David E. Weekly
David E. Weekly
Code / Think / Teach / Learn
h4x0r for
All this talk of the audio home recording act is just an attempt to make a big loss from the RIAA's perspective sound like a win. The audio home recording act places big restrictions on the kind of copying you can do with certain kinds of components -- stereo system CD recorders, etc. -- These are required to pay royalties on blank media and incorporate "serial copy managment."
The act has NOTHING to say about what you can copy with computers; it specifically EXEMPTS them from the restrictions of the act. What's left covering computers is the traditional copyright act with traditional fair exemptions, which have been interpreted by the courts (e.g. in the RIAA vs. Diamond Rio case) as allowing quite extensive copying of music you own.
It's totally disigenuous of the RIAA to say that since the Audio Home Recording Act doesn't cover computers, then all copying of music with computers is illegal. To the contrary: since the Audio Home Recording Act doesn't cover computers, copying of music with computers is much less restricted by law than copying it in other ways.
The RIAA is lying in order to try to misinform you of your rights. From their web page:
... it's already firmly on our side.
The bottom line: the only digital copying of music that is allowed is with digital recorders that are covered by and comply with the Audio Home Recording Act.
The law they are referring to is the Audio Home Recording Act of 1992. They are lying. It's written right into the law that the law does NOT apply to end users.
Section 1008. Prohibition on certain infringement actions [meaning things they can't sue you over, because they aren't illegal]
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, 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.
In other words, the law specifically says that the law does NOT apply to end users making non-commercial recordings.
In fact, the law only applies to persons who manufacture or import digital recording devices and media. Since you are not doing either, the law does not apply to you.
What does apply to you is the general law regarding copyright, which incorporate fair use. Under fair use, you are not infringing on copyright if you make personal copies of copyrighted materials, without distributing them, for your own use. This was decided by the courts, and is the reason why VCRs are legal to buy, sell, and use.
We don't need to get THIS law changed
Once again, the RIAA does not want you to know your rights. They want you to be misinformed and believe that you are breaking the law when you engage in legal fair use practices. That is the purpose of the false, deliberately misleading statements on this web page.
- John
The Audio Home Recording Act is at:
http://www4.law.cornell.edu/uscode/ 17/1001.html
I especially like Section 1008, which says that noncommerical use is exempt from the Act:
Sec. 1008. Prohibition on certain infringement actions
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, 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.
-- Don't Tase me, bro!
The relevant part seems to be section 1008, which says "...No action may be brought under this title alleging infringement of copyright based on... the noncommercial use by a consumer..."
-- Don't Tase me, bro!
RIAA and friends want to make it impossible to copy anything. They also want to control who can originate content (q.v. DeCSS). They would love to be able to control how often we could even play a given piece of media, or limit us to streaming audio across the net so that we couldn't even own the media in the first place.
Why?
Because they want their cut.
But we can stop this, if we put our minds to it. Remember DiVX? That evil little play-for-play disk that Circuit City and (Sony? refresh my memory....) tried to foist on us? Did we not squash it like a bug? can we not do it again? Are we men, or are we Logitech?
CHAAAAAAAAAAAAAAAAARGE! :)
Seriously, folks, if we bitch loudly and long enough to the right folks, get all het up and throw a few bucks each in the right pockets (EFF), we can nip this thing in the bud, and tell RIAA they can take their micromanagement of my PRIVATE LIFE and shove it where the sun don't shine.
The whole thing is fscked up anyway; bands spend 2-300 days a year on the road promoting their latest blood, sweat and tears giving concerts at $50 a pop, and who gets rich? Some fat cat in an ivory tower who can't carry a tune in a bucket. Two things are trying to solve that. One is the fact that pressing CD's is so cheap any two-bit outfit can hit the club circuit and hawk their own, and the other is the pay-for-download MP3 sites, where small-time artists can get the dough for good jam with no media costs involved. Neither involves signing your life away to some fat cat.
You know what? RIAA HATES that. We should love it. We should support it. See that it thrives. Make the old adage true: Money talks, bullshit walks.
Vote with your feet... and your ones and tens.
--
That Shaft, he's one baaaad mutha-
(Hush your mouth!)
I'm just talkin' 'bout Shaft!
(We can dig it!)
And some rebuttals...
No I don't own the music. However I just looked at a couple CDs. I see no license that I agreed to. No click though "sure whatever" thing, nothing.
Win98 there is a license. I agreed to that license at some point (ok in theory only but still).
Linux you also agreed to a license. Specifically the GPL.
Software usually comes accompanied by a license. Music does not. Nowhere. Therefore it should be treated like copydrighted material (which it is). To the best of my knowledge I can produce a copy of any copyrighted material for backup puposes. (Side note: Even the Win98 license allows this) So I feel that I am right in creating a copy on my hard drive, and listening to that as the primary source. I am then using the CD as a backup.
Music is under copyright law.
Software is under license law. And specifically the license that accompanies the software.
-cpd
Instead of just throwing this out here for a bunch of people who really don't have a clue about what they are talking about to argue about? All I can see is this article generating more heat than light.
I mean, I think you all could afford it.
DrLunch.com The site that tells you what's for lunch!
the act is right here! go ahead and read!
"Make the law so Joe Citizen can understand it... otherwise, your law is poorly written and needs to be rewritten until it is understandable to the layman. Part of the reason so many laws are broken is that they are confusing, contradictory, or just plain unknown to the citizen. Even the cops who will arrest you don't know the law until they're told by others to arrest you for whatever. Go to a police station and ask then to appraise you of all new laws passed this year so you can stay up to date. They'll laugh you out of the office."
/. the other day that developers don't much care for the end user, because developers basically design for other developers. This seemed to be a prevalent view, and no one saw a problem with it.
;)
Or, only slightly offtopic, but something interesting to consider...Joker's corollary of computer programming to the legal profession:
Make computers and their systems work so Joe Citizen can understand them...otherwise your programs are poorly written, and need to be rewritten until they are understandable/usable to the layman. Even the admins who are there to help you don't know how the software works until they're told by tech support. Go to your local computer store and ask them to appraise you of all new upgrades released this year so you can stay up to date. They'll laugh you out of the office.
How ridiculous does that sound?
The closer we get to software, the harder it is to place it in the context of everyday users. I saw someone say on
Law works a lot the same way, if you think about it. The closer you get to the atomic detail involved, the more complicated it gets, and the harder it gets to explain. Remember, the only true answer to any legal question is, "it depends." Legal questions, or need for expertise, keep lawyers in business, on any side of any issue. Why make laws easier to understand, and risk your own business? By making your laws for lawyers, you leave the citizen out of the experience -- so when they have trouble, they need you to bail them out.
Technical issues, or expertise, keep developers in business, on any side. Why make computers and programs easier to understand, and risk your own business? By making your code for developers, you leave the everyday user out of the experience -- thus you'll never rule the desktop, or the world.
Think about it. Just an idea.....
Spoken by a law-school dropout geek.
A human being is the best computer available...the only one that can be mass produced with unskilled labor. - Wernher v
Having said that, let's start with the law. Section 1008 of the Audio Home Recording Act of 1992 says:
What that means, in English, is that individuals cannot be sued (or prosecuted) under the AHRA for making recordings, analog or digital, for non-commercial use.
The act is not designed to prevent people from making recordings (or MP3s or anything else) of their records. What the act does require is that the manufacturers of devices capable of making digital recordings (and also manufacturers of digital recording media) pay the record companies certain royalties for each such device (or unit of media) they sell and, more importantly, that they implement a system called the Serial Copy Management System (SCMS) on every such device. SCMS is designed to prevent people from making multiple generation digital copies from a single original - something that the record companies figure only pirates would want to do. SCMS has been around for 8 years now on every DAT and similar device sold to the public and its not going anywhere.
To answer the "how come I can freely tape my records or TV onto analog media" question, the answer is simple: Congress, with the help of record company lobbyists, has determined that lossless digital copying is not the same as lossy, hiss inducing, analog copying. It has therefore placed restrictions (the SCMS and the above-mentioned royalty) on digital copying. It's not a matter of teaching the "Courts" anything - it's a matter of telling Congress you disagree (if you do).
In fact, for a change, pretty much get it. When the RIAA sued Diamond, they claimed that the Rio MP3 player was a "digital recording device" subject to the terms of the AHRA and attempted to keep it off the market as it did not implement (back then) SCMS or any similar copy-protection scheme. The Court rejected that theory, finding that the Rio was not a digital recording device for the purposes of the Act. An in depth discussion of that case is beyond the scope of this already long-winded post, but if people want it I'll be happy to put it in a separate post.
Summary: The AHRA doesn't prevent you from recording anything. Go ahead. Go nuts. The DMCA is another matter, but that'll wait.
"The true administration of justice is the firmest pillar of good government." - George Washington