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Recording on Home Equipment from Television and Sound Recordings

  • Digital memories retained within an ISP are not regarded as infringement media.
  • Copying that circumvents DMCA protection measures is illegal. A
  • The Supreme Court ruled in 1983 that time-shifting is fair use, but the Court did not rule on home copyists who build libraries of programs home-taped from television.
  • Subsequent legislation by Congress has not granted private individuals any rights to copy broadcasts.

 
Copying of Music

As this passage is written during the first decade of the twenty-first century, substantial numbers of people are copying from compact discs, LP phonographs, cassettes and digital audio files, doing so to transfer sound recordings to portable audio players (MP3 players more often than not) as well as to create “party mix” discs and tapes and home-made abridgements.  Still others are obtaining unauthorized songs from peer-to-peer file-swapping sites.

The questions that arise are (1) is any of this legal?; (2) is it legal to copy a recording that one owns a factory-made copy of while keeping use of the copy to oneself?; (3) is it legal to share a self-made copy with a friend while holding on to the purchased copy?; (4) is it legal to sell or give away the original copy but keep the self-made copy for future playback?; (5) is it legal to upload or download copyrighted music from file-sharing sites that don’t compensate the recording companies, composers or performers?

Many people attempting to defend the practice of “ripping” compact discs to MP3 tracks do so on the basis of a part of the copyright law that mentions backup copies.  In actuality, the relevant provision in the United States copyright law refers specifically to computer software.  Audio recordings, DVDs and other media are not mentioned.

Those wondering why computer software should be accorded the privilege of copying while other media is excluded should understand the particular non-portability of functional installations of computer software.  As computer use by private individuals became somewhat commonplace in the 1980s, conscientious minicomputer owners recognized that they could be held liable for copyright infringement for having the same computer software installed on both the computer in their office and the computer in their home, even though the two computers were never both in operation at the same time.  By contrast, using the same music compact discs or audio cassettes both in one’s office and one’s home had not posed a comparable program; a music compact disc can be easily ejected from one player and brought to the other.  Computer software does not offer such ease of transition: a program might take an hour to install.  Purchasers of software recognized that if they were to be strictly legal, they might have to uninstall the software on the office machine at the end of each workday if the software were to be used at home, after which the software would be laboriously installed at home, only then to be uninstalled there so that the office computer could get its next installation the next morning.  The revision in copyright law addressed this concern.  It also addressed the problem of the uninstalled discs remaining on the shelf while a copy of the same program — in operational mode — resided on the computer itself, a seeming rebuke to the copyright law in that (in a simplistic perspective) it stood as a second copy of media purchased only once.

So, the next question might be: If I can’t plead that copying of audio recordings is legal on the basis of the right to make a backup copy, can I plead this on the basis of something else?

Section 107 of the Copyright Act has since 1976 permitted “fair use” where the copying involved passes four tests:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

The question that a person who salivates over “ripping” software has to answer is: Can his use fulfill the tests itemized by section 107?

A person planning to rip an entire album cannot claim to pass the third test (“portion used in relation to the … whole”).  Given that each song is copyrighted individually on many albums, one doesn’t pass the third test by confining himself to a limited number of songs.  Most people who copy and download songs do so for entertainment (such as while exercising or driving), not for playback in music classes, so most people would have to contort their brains to finangle an excuse to pass the first test (“for nonprofit educational purposes”).  The second test is vague on its own and likely to be considered by courts in relation to the others.  This leaves the fourth test.

The fourth test makes it clear that the court considering whether unauthorized copying of a copyrighted work is legal on the basis of “fair use” must examine “the effect of the use upon the potential market for or value of the copyrighted work.”  Can a person who has copied a privately-“ripped” audio file credibly argue to prosecutors that he has left unaffected “the potential market for or value of the copyrighted work”?

In examining whether the market has been unaffected, the owners of copyright can point out that if the unauthorized copy was not made, the person who owns a copy of an album or cassette or compact disc might have bought a digital copy as well, making two purchases of the one work.  On this latter point, the defendant may convincingly counterargue that ownership of one legal copy may be said to confer on him the right to listen to the work, that the change in form is a mere detail and not the essence of copyright infringement, and that as long as never more than one copy is in use at any given time, no effect has been made to the market.

Persons who upload and download to illegal file-sharing sites cannot make the above counterargument.  When one legitimate compact disc is purchased, but a thousand people download unauthorized copies, with no coordination among the 1001 people as to who gets to listen at what time, with the people so distant from one another in physical geography that the legitimate copy could not be handed off in borrowings, then the Recording Industry Association of America (RIAA) has a point: a thousand potential sales were lost.  (The actual number of lost sales is more difficult to ascertain.)


Question: I’m looking for the section in the law that says that recording from TV is legal for personal use.

Answer: The people who started looking years before you are still looking.  There isn’t such a passage.  The nearest that the law came to this subject is the Supreme Court ruling in “the Betamax decision” (Sony v. Universal)  The Supreme Court found “time-shifting” to be a “fair use” but building a permanent library of home-made tapes was not declared to be fair.  The Court neither accepted nor rejected the legality of home-taping of permanent libraries, although several justices in separate opinions foresaw this being a potential abuse of recording equipment.  (Go to the summary prepared for this web site).  Audio recording was addressed in the Audio Home Recording Act of 1992 (Public Law 102-563), which is incorporated into Title 17 as of October 28, 1992.  Despite what its name may have you thinking of, this amended copyright law to “to implement a royalty payment system and a serial copy management system for digital audio recording, to prohibit certain copyright infringement actions, and other purposes.”  Primarily, it added sections 1001 to 1011 to the Copyright Act.  (The text is available through the law section of this web site.)

Objection to Answer: You’re telling me that long-term keeping of the tapes I make is possibly illegal, and you’re also saying that only the Supreme Court and not the Congress had made it legal to watch a television program at a time most convenient to me.  I can’t accept that Congress never passed a bill making that legal.  I distinctly remember reading about a law that says that citizens can time-shift a program “the purpose of enabling it to be viewed or listened to at a more convenient time” and that doing so “does not infringe any copyright in the broadcast or in any work included in it.”

Answer: Perhaps this is what you’re thinking of:

70 Recording for purposes of time-shifting

(1) The making in domestic premises for private and domestic use of a recording of a broadcast solely for the purpose of enabling it to be viewed or listened to at a more convenient time does not infringe any copyright in the broadcast or in any work included in it.

(2) Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with —

(a) it shall be treated as an infringing copy for the purposes of that dealing; and
(b) if that dealing infringes copyright, it shall be treated as an infringing copy for all subsequent purposes.
(3) In subsection (2), “dealt with” means sold or let for hire, offered or exposed for sale or hire or communicated to the public.

Questioner: Yeah, that’s the one.

Answer: That is from the British Copyright Act of 1988, as revised 1995.  (It’s in Part I, Chapter III, in case you want to know; the passage quoted is on pg. 41.  Schedule 1, item 17A, appearing on pg. 152, has nearly the same passage.)  You have to remember that this web site concerns American law and American copyright status, except where specifically indicated otherwise.

 


 

The Supreme Court Decides the Legality of Recording From Television

As reported in the tree-view chart and at the top of this page, the U.S. Supreme Court ruled in a landmark 1983 case that time-shifting is fair use, but the Court did not rule on home copyists who build libraries of programs home-taped from television.

 Click on the image of the Supreme Court at left to listen to a 1¼-minute excerpt from the reargument session of Sony v. Universal, accompanied by descriptive text indicating who is speaking at the given time.

In lieu of viewing the above Flash video: Click to listen to MP3 sound file (175kb, about 1¼ minutes) excerpted from the reargument session, October 3, 1983, of Sony v. Universal.

The clip begins with Justice John Paul Stevens asking a question to Stephen A. Kroft, representing Universal.  Toward the end, Justice Thurgood Marshall asks a question (and humously suggests what he thinks of it).

The complete one-hour recording can be downloaded from oyez.org

Below are excerpts from the oral arguments in the case of Sony v. Universal.  These remarks address several of the concerns which continue to animate the debate on the legality of in-the-home copying for personal use.  (A thorough summary of the Court’s decision is available elsewhere on this web site.)

DEAN C. DUNLAVEY, Esq., Los Angeles, Cal., argued on behalf of Petitioners (Sony)
STEPHEN A. KROFT, Esq., Beverly Hills, Cal., on behalf of Respondents (Universal and Disney)

On January 18, 1983

MR. KROFT: […] I think it’s also important to emphasize to the Court that what we’re talking about here is an end result after all these machines are used that is no different than the end result of commercial piracy.  Now, I’m not suggesting to the Court that an individual Betamax owner in his home is the same as a commercial pirate.  But we’re not talking in this case about a single individual Betamax owner.  We’re talking about millions of Betamax owners.  And when they get done making their copies, they end up with millions of copies of Respondents’ copyrighted works.

It just makes no difference that the millions of copies end up in their hands because they make them individually, without seeing or hearing each other, rather than buying them from a film pirate.  The end result is exactly the same.  And the 1976 copyright statute under which we’re now operating was specifically designed to protect copyright owners from mass copying activities in all contexts.

I think we’ve quoted for the Court a provision from the legislative history that I will take a chance at quoting now because I think it’s important.  Congress said at least three times in the course of the legislative history that isolated instances of minor infringements, when multiplied many times, become in the aggregate a major inroad on copyright that must be prevented.


On October 3, 1983

JUSTICE JOHN PAUL STEVENS: Assume there was proof and you took it as a fact — I know you don’t — that there were, that the time shifting actually enlarges the size of the audience.  Assume that’s a fact.  Then could you possibly show harm?

MR. KROFT: Yes.  There are two answers to that, Justice Stevens, one legal and one factual.

The legal answer is that the cases have held that just because there may be an increase in one market — and let’s assume under your hypothetical that there is — that does not destroy the copyright owner’s rights to enforce his copyright under the fair use doctrine if there are going to be harms in other markets, because it’s up to the copyright owner to determine how and in what manner and in what markets and in what progression he will exploit his product.

The factual answer to your question is that the so-called increase in audience depends on who’s in that increased audience.  The name of the game here is advertiser support.  They pay for the audiences and the broadcasters in turn then pay the suppliers of the product.

If that increased audience, for example, included people whom the advertiser of a particular program wasn’t interested in reaching — for example, a truck driver who doesn’t buy the family detergent, likes to record soap operas for some reason or another, and the advertiser now picks him up as a viewer at night because he watches his time shift recording — the advertiser’s not going to be willing to pay for him.

[…]

Another example of why your hypothetical would not necessarily increase revenues or cause the fair use defense to come into play is because it depends when the advertisement is watched.  If a Christmas advertisement is broadcast the week before Christmas and it’s watched the day after New Year’s, it’s of no value to the advertiser and he’s not going to pay for it.

Now, another area, the second area where off-the-air recording is going to cause substantial harm to copyright owners is in the market for the sale and rental of prerecorded cassettes.  And it must be borne in mind that this market doesn’t depend on the sale of machines that can record off the air.  At the time of trial — and this is in the record — Sony was selling machines that had no off-the-air recording capability.  They were just players like an ordinary record player.  And those players can play back these prerecorded tapes and cassettes.

So it’s quite misleading to suggest that we only have that market because off-the-air recorders are out there.  That’s not at all the case.

The district court expressly found that off-the-air recordings, both time — and he didn’t differentiate in this finding between time shift and library copies — will compete with the sale and rental of those devices.  It doesn’t take much imagination to realize that that competition is going to reduce the income to the Respondents from the sale and rental of their copyrighted motion pictures.

This is probably best illustrated by the fact that this year the Electronics Industry Association has estimated that there will be a sale of approximately 55 million blank cassettes in this country as opposed to only 8 million prerecorded cassettes.  Now, the reason people are buying so many more blank tapes than they are prerecorded tapes seems obviously to me to be that they’re just not willing to pay the extra price to buy a copyrighted motion picture when they can take it off the air for the mere price of a blank cassette.

[…]

Mr. Justice Stevens, one further answer to your question about increasing the audience.  I was assuming in my answer to you that all these commercials would be watched.  In fact, most people that are recording off the air are taking the commercials out, so that the commercials aren’t even reaching —

[…]

JUSTICE STEVENS: Then they can fast forward when they watch it.

MR. KROFT: You understand the technology quite well.  That’s right.

(Laughter.)

MR. KROFT: There are devices coming on the market, however —

[Interrupted for a new question, Mr. Kroft never got to finish this point.  However, he seems to have set up himself to talk about devices that would detect commercials while a videotape was being recorded and stop the tape from advancing until the device detected that the program had resumed.]


MR. DUNLAVEY: Justice Marshall, when Mr. Kroft says that he wants the manufacturer of Betamax to be enjoined, he could not be more serious.  When we were down in the district court, the court was asking him at the time he had finished his case and before the defense started — and I’m reading now.  It says:

“You are not asking that Sony be enjoined from further manufacture of the Betamax, or are you?

And Mr. Kroft says: “Yes, I am.”

To be sure there was no misunderstanding, a little bit later the Judge said: “Let’s get back to the relief you are actually seeking.  You say, one, you want an order prohibiting Sony from manufacturing Betamax?”

And Mr. Kroft says: “That is where we start.”  Then he went on and he said: “We want to get all the Betamaxes that have been out on the market and we want to recall them and disembowel them so that they can no longer record off the air.”

And he’s not kidding.  He wants that relief, which I suppose is within the injunctive power of the Court, and/or he wants $250 per infringement every time a homeowner copies one of his programs [i.e., Universal’s and Disney’s programs].  There’s no manufacturer in the world that can stand up to that kind of relief.

Now, it would be nice if there were a way of distinguishing in free off-the-air television what programs are free for copying without objection and what programs are not.  But for the moment there isn’t.  The VTR is inanimate.  It can’t tell.

EDITOR’S NOTE: The preceding oral argument was given extemporaneously in answer and is subject to the inaccuracies inherent in verbal exchanges.  However, as site editor, I have checked the above assertions against the texts of the Copyright Act and have found nothing in the law that contradicts them.

Complete transcripts and recordings are available online for free from oyez.org.

You’ve seen the illustrations —
You’ve read the captions —
Now read passages from the law
and read what the courts decided.

Read Citations and Case Summaries on:
Copying: sound recordings ; copying: video recordings
Copying: computer programs
Accessory to infringement
Digital media used for copying

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