Audio Home Recording Act of 1992 (AHRA) amended the US Copyright Act by adding chapter 10 "DIGITAL AUDIO RECORDING DEVICES AND MEDIA". The act was prompted by the release of the Sony Digital Audio Tape (DAT). The RIAA concerned that consumers could make perfect digital copies of music, thus destroy the market for audio recordings, lobbied congress to pass this legislation which prevented prohibition of manufacturing, importing, or selling of digital records and allowing consumers to be exempt from infringement for private noncommercial recordings in return for a royalty for the music being copied, a royalty for every recorder, and serial copy protection built into home devices. George Bush Sr signed the AHRA into law in 1992 proclaiming " S. 1623 [AHRA] will ensure that American consumers have access to equipment embodying the new digital audio recording technology. It also protects the legitimate rights of our songwriters, performers, and recording companies to be fairly rewarded for their tremendous talent, expertise, and capital investment."
Contents of the AHRA
- Exempts media primarily marketed and most commonly used by consumers either for the purpose of making copies of motion pictures or other audiovisual works or for the purpose of making copies of nonmusical literary works, including computer programs or data bases (section 1001(4)(B)(ii))
- Requires digital recorders to use the Serial Copy Management System ( SCMS), which prevents digital dubbing beyond one generation (section 1002(a))
- Prohibits manufacture and sale of devices whose primary purpose is to circumvent SCMS (section 1002(c))
- Imposes a "royalty" on digital recorders (section 1004(a))
- Imposes a "royalty" on blank digital media (section 1004(b))
- Establishes a procedure for distributing the collected "royalty" to artists, performers, writers, and publishers (sections 1006 and 1007)
- Prohibits infringement action 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. (Section 1008)
- The act failed to define "noncommercial use by a consumer" however "In short, the reported legislation [Section 1008] would clearly establish that consumers cannot be sued for making analog or digital audio copies for private noncommercial use." (House Report No. 102-780(I), August 4, 1992)
- Allows ignorance of actions as a defense to copyright infringement (Section 1009(3))
AHRA and the No Electronic Theft (NET) Act
The RIAA claims that any copy of a phonorecord has commercial value. Thus even though a royalty has been paid already for the copy of the music made on the digital recorder and media to the labels they wish to make it criminal to record or copy any CD.
The No Electronic Theft Act (NET Act) amends section 101 so that financial gain (commercial uses) include;
- The term "financial gain" includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.
The changes effected in section 101 effectively gut the consumer copies for noncommercial use if you trade mix CDs, or even receive anything in return for a copy of CD, including a homecooked meal. The RIAA even argues, just as the MPAA does for DVDs, that an archive/backup copy to protect the consumer's investment or a custom mix CD has value.
The act also makes it criminal to;
- Make 1 or more copyrighted works, which have a total retail value of more than $1,000
- In any 180-day period, at least 10 copies or phonorecords, of 1 or more copyrighted works, with a which have a total retail value of more than $2,500
As the RIAA tends to inflate damages, in order to elevate infringement to criminal levels, any 10 copies will have a valuation by the RIAA of $2,500 or more regardless of actual market value. In effect consumers are limited to making only 10 recordings of their records or CDs in a 180 day period.
AHRA and the DMCA
In 1998 Congress passed the controversial Digital Millennium Copyright Act of 1998 (DMCA) after significant lobbying in particular from the MPAA, RIAA, and BSA. The DMCA effectively bans the use and sale of digital recorders if there is an access control or encryption ( DRM) built into the copyrighted audio file.
The DMCA language reads as follows;
- No person shall circumvent a technological measure that effectively controls access to a work protected under this title (section 1201(1)(A)).
- No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that -
(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or
(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof. (Section 1201 (b)(1))
As most digital music has some sort of DRM included. or will have it in the future, this means that digital records are banned despite section 1008 and despite the royalty already paid on the devices.
Several companies such as Microsoft with the aide of Macrovision and SunnComm have devised DRM for the "analogue music hole" which will also add DRM to analogue music, effectively making all recording devices illegal under the DMCA regardless of how effective the DRM is.
All benefits to the consumer that were given in the AHRA have effectively been overruled by latter legislation while the royalties are still being collected.
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