Since no one else seems interested in responding to my enquiry, I'll do so myself, subject to this caveat: I speak English, not Legalese. While the two may intersect, they do not always coincide. So I apologize in advance if I inadvertently offend any lawyers among us by foolishly attempting to superimpose the plain meaning of the former on the obfuscatory nature of the latter. And I am, by all means, open to correction.
Now, to answer my question:
Quote:
Originally Posted by Nathanael
as far as I've been able to discover the claim has never been tested in court.
|
While I've been busy scouring legal decisions and the 1976 US Copyright Act, I neglected legislation and, in particular, the 1992 amendment to the Copyright Act known as the
Audio Home Recording Act (17 U.S.C.). Depending on whom you listen to, the AHRA either created a blanket protection for any and all non-commercial home copying of copyright material, or only a specific exemption for digital copying accomplished specifically through the use of "digital audio recorders" and "digital audio media".
First, the relevant section (§ 1008) of the Act itself states:
Quote:
|
"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." (emphasis added)
|
Now the plain meaning of 1008 (assuming it's written in English, not Legalese) seems to be that personal non-commercial copying is protected
only when the consumer uses a digital audio recorder or digital audio medium to do his copying. And the Act explicitly defines such devices and media as those
primarily marketed as such; it further explicitly excludes personal computers and their hard drives from that definition, since PCs and hard drives are not marketed
primarily as digital audio recorders or media, even though they may be capable of acting as such.
Under such a restrictive reading of the Act, it would seem to allow, say, copying a CD using a DAT recorder specifically onto digital audio tape, but not ripping the CD to a computer hard drive.
End of story? Not quite.
Along comes
RIAA v. Diamond Multimedia (180 F.3d 1072 - 15 June 1999). In its decision the Ninth Circuit looked at the legislative history of the AHRA. In citing both the Senate ("The purpose of [the AHRA] is to ensure the right of consumers to make analog or digital audio recordings of copyrighted music for their private, noncommercial use." - S. Rep. 102-294, at 86) and the House (the AHRA "protects all noncommercial copying by consumers of digital and analog musical recordings," - H.R. Rep. 102-873(I)), the Ninth Circuit adopted a much broader view that the AHRA's main purpose was "the facilitation of personal use", without exception or exemption (III.B.2.c). "The Rio merely makes copies in order to render [copyrighted material] portable. ... Such copying is paradigmatic noncommercial personal use entirely consistent with the purposes of the Act."
So there you have it. A legal decision which takes the position that all non-commercial, personal-use copying of copyrighted material is protected by the AHRA and fair use. Case closed.
Yeah, you wish.
Some argue that the Ninth Circuit's musings on AHRA § 1008 constitute an
obiter dictum and thus lack legal force. This might seem to be supported by the language of the decision itself (e.g., "We need not resort to the legislative history because the statutory language is clear." (III.B)).
Keep in mind that RIAA vs. Diamond was about neither copying nor fair use, but merely the much narrow question of whether the Rio fell under the AHRA's definition of a "digital audio recorder" subject to the stipulations of the AHRA. To the extent that this is all the court was enjoined to find, its discussions of the AHRA vis-a-vis fair use lay outside the court's main line of reasoning. That being the case, its pronouncements viz. the AHRA and fair use are almost certainly an
obiter dictum which cannot be relied upon by any other court.
So what's the ultimate conclusion? Never ask a lawyer for advice, for he will say both No and Yes.
--Nathanael