Failure to Communicate

I. Introduction

The development of the Internet has led to exponential growth in the amount of information available to any one person. With the Internet, entire new market sectors have sprung up almost overnight. The Internet has (for many) made our lives more convenient –  one can make many, if not all, purchase online, access the news and weather reports, plan a vacation, work from home, communicate with friends and family, and access a plethora of information that would otherwise be unavailable to them – with the Internet the possibilities are almost limitless. Bearing this in mind, researchers, businessmen, and consumers are constantly searching for ways to better utilize the Internet for their own benefit. The desires of the various demographics seeking to better utilize the Internet are not always inline, and are in fact often in competition with one another.

Prime examples of the competing interests can be found in the issues that surround Digital Rights Management ("DRM"). DRM “is a general term used to describe any type of technology that aims to stop, or at least ease, the practice of piracy.”[1] The issues at the root of DRM are by no means new, but have recently been exacerbated by the influx of the Internet and new technologies.[2] The current lack of an adequate means of regulation and the subsequent distribution of music and media by consumers has led to a great deal of litigation. Furthermore, it has led many companies to adopt various forms of DRM which regulate such dissemination.  The means of many DRM protocols have often led to complications, which have left many consumers without access to their purchased media, and have often confounded their rights.[3] A great deal of these problems stem from the fact that music stored on a computer is not necessarily protected under the Audio Home Recording Act ("AHRA") leaving much ambiguity regarding the rights and regulations of consumer copying.[4]

II. Background

Currently, DRM stands on inconsistent grounds, especially with regards to “digital musical recordings.” “Digital musical recordings” are generally not subject to the same restrictions as normal “copies,” or “phonorecords.”[5] However “digital musical recordings” and more specifically digital audio recording devices are subject to a form of DRM, the Serial Copy Management System ("SCMS").[6] SCMS allows music producers to encode their distributed music (and other media) such that if any copy is made of that music subsequent copies are not allowed.[7] The “digital audio recording devices” are required to comport with the specifications of SCMS such that no additional copies may be made from the copies they create.[8] This form of DRM is both endorsed and enforced by AHRA.[9] AHRA was created in response to the entertainment industries growing concern over consumer reproduction of copyrighted materials, and represents a compromise between all interested parties.[10] AHRA allows the entertainment industry to limit the impact of consumer usage of copying devices on their profits, while allowing electronic manufacturers to benefit by selling their products.[11] This enables consumers to engage in protected copying for private use. The effectiveness of the AHRA has stumbled somewhat as of late. The dawn of the age of communication has led to the development of different objects and devices which allow similar activities to those protected. However, according to the leading case on the subject many of the new means of storing and creating copies of music are currently beyond the scope of the AHRA.[12]

The current U.S. law (the AHRA) regarding the definition of and protections afforded to digital musical recordings only applies to songs recorded to a “material object . . . in which are fixed, in a digital recording format, only sounds, and material, statements, or instructions incidental to those fixed sounds[,]” and explicitly states that a digital musical recording does not include objects to “which one or more computer programs are fixed.”[13] The legislative history acknowledges the fact that songs recorded in a digital format technically constitute instructions, that those instructions are not merely incidental, and additionally, those instructions could be considered computer programs in their own right.[14] In order to prevent the statute from logically invalidating itself legislature took two steps to clarify their position. The first step the legislature took was to include the word “incidentally.”[15] The Statute defines incidental as “related to and relatively minor by comparison.”[16] Without the inclusion of the word "incidentally," few, if any, objects could be defined as a “digital musical recording” because most of them contain information which is ancillary to the recorded sounds. This language indicates that any object which contains instructions which in turn are either fundamental or unrelated to the “fixed sounds” would not qualify as a digital musical recording. However, merely resting on the inclusion of "incidentally" would pose new problems. All digital formats are essentially code, or rather instructions that when fed to a digital media player produce the sound desired.[17] The code that forms the very basis of a digital format is an instruction that is not incidental to sounds, but quite the opposite – it is fundamental. It follows that sounds fixed in digital format are technically instructions fundamental to the functional utility of those songs, and that merely resting on the inclusion of “incidentally” would force the Statute to logically nullify its application. The second step addresses this issue by modifying the “one or more computer programs” clause.[18] The modified clause allows instructions that “constitute the fixed sounds” or are used “to bring about the perception, reproduction, or communication of the fixed sounds” to be considered digital musical recordings.[19]

III. Discussion

The legislature spent a great deal of time crafting the provisions of the AHRA in order to differentiate the recordings protected from prior definitions of audio recordings. The efforts to create a new definition were to insulate the activities and objects sought to be protected by the statute from the rest of copyright law, and vice versa. The leading case concerning the applicability of the AHRA is Recording Indus. Ass'n of Am. v. Diamond Multimedia Sys., Inc. ("Diamond"), which concluded that digital audio files stored on a typical computer did not constitute a digital musical recording, and that the device in question (the Rio mp3 player) did not constitute a digital recording device because it was unable to make copies of “digital music recordings” [20] The Court, working off the language of the statute looked to the hard drive of a computer as the material object that would be the focus of definition.[21] This decision is not by any means illogical, and is for most practical purposes the best piece of equipment to identify as the material object. The Court quickly concluded that music stored on a hard drive cannot be defined as a “digital musical recording” because most, if not all, computers have programs affixed to them, that those programs (like the music) are stored on the hard drive, which is expressly prohibited by the act.[22] The Court in its conclusion concerning the mp3 player and the nature of hard drives cited no data, but rather appeared to rely on common knowledge. The assumptions and holdings of the court are, for the most part, true for computers, but they have their holes.

Firstly there are instances where a hard drive may constitute a material object to which digitally formatted musical sounds and only those sounds, and statements materials and instructions constituting or incidental to those sounds are affixed. There exist computers with multiple hard drives. In fact, many consumers now use computers with multiple hard drives, be it dual internal or one internal and one external. In computers which utilize multiple hard drives there exists a master and a slave drive. The master drive generally contains the partition upon which the OS resides. The other free space on either hard drive can be used for music, backup files, and extra programs and so on. Multiple hard drive configurations often implement a smaller faster drive, and a larger slower archival drive. The archival drive is typically used to store bulk material such as music, movies, photographs and other large space intensive files. If such a drive were used for the sole purpose of storing music files, such an object could clearly be considered a digital audio music recording. Aside from the music files, such an object would have few other files – all of which would be incidental to the music themselves. Using similar logic the legislature noted that while the typical computer may not be considered a “digital audio recording device,” a peripheral piece of equipment used with that computer may be considered to be such a device.[23] Simply put the language on its face does not preclude an object, ancillary to the rest of the computer, which meets the requirements set forth by the AHRA from being defined as a “digital audio recording.” The mere fact that a hard drive is connected to a computer would not make it any less a “digital musical recording” than a CD playing in the CD drive.

Secondly, the language of the statute does not preclude the creation of “digital musical recordings” from files stored on a computer. The statute states that no action may be brought against a consumer who uses such a device to make “digital musical recordings.”[24] The utilization of a peripheral device to create a CD would for example create at the very least “digital musical recording.” There is nothing in the statute that requires a “digital musical recording” to originate from any defined material object. Furthermore, there is nothing that can even be inferred from the AHRA that requires a digital musical recording to be made from a “digital audio recording device[,]” especially if one uses the courts analysis from Diamond.[25] If a digital musical recording can be made from something other than a “digital audio recording device” then files copied to a hard drive, which meets the requirements of AHRA, could again be considered “digital musical recordings.”

Thirdly, the main concern of the entertainment industry was that new digital recording allowed for near perfect reproductions of music recordings, and as such feared widespread consumer “copying” of copyrighted works.[26] As such the AHRA is primarily concerned with the dissemination of copyrighted works.[27]  The AHRA has two primary purposes: to ensure the implementation of SCMS for purposes of regulating the creation of “digital copied audio recordings”, and to grant the consumer the right/privilege to create and reproduce “digital musical recordings.”[28] SCMS curbs this dissemination by regulating the ability to make copies of copies (“serial copying”), and 17 U.S.C. § 1008 protects the use of a “digital audio recording device” to make “digital musical recordings.”[29] Constraining the defining characteristic of that device to only one of its protected functions runs counter to the purpose of protecting the creation of “digital musical recordings.”

For example, suppose there is a device capable of creating “digital musical recordings,” and not “digital audio copied recordings.” The function and use of such a device would be consistent with the AHRA, but according to the court’s ruling the use of such a device would not be protected by the AHRA as it is not defined as a “digital audio recording device.” On the other hand, suppose there is a device capable of making only making “digital audio copied recordings.” Such a device would meet the court’s requisite definition of a “digital audio recording device,” the use of which would be protected by the AHRA. However the AHRA affords protection for many activities beyond the scope of such a device rendering much of the protection offered irrelevant.  The only type of device which would encompass the scope of the protected activities and meet the court’s requisite definition would be a device which is capable of creating both “digital musical recordings” and “digital audio copied recordings.” Disregarding devices that are precluded from being defined as “digital audio recording devices” for reasons other than those elucidated above, it does not seem likely than Congress intended to decline to offer protection to half of the devices above which are capable of performing the actions protected by AHRA. It is unlikely that Congress intended to afford such widespread protection of which one third are capable of performing the entire scope of protected activity. Furthermore it would seem unlikely that Congress would be reluctant to offer devices which are incapable of performing functions that are the primary target of the regulatory aspect of the AHRA, but are capable of performing the functions which are sought to be protected by it.

Legislative history also indicates that a “digital audio copied recording” was not necessarily intended to be reproduced solely from a “digital musical recording.” Initially, in the Senate the term “audiogram” was used instead of “digital musical recording.”[30] The term “audiogram” included recordings not fixed in a digital format. This term however was replaced by “digital audio recording.”[31] The purposes behind this change reflected Congress’ reluctance to use a term which could broadly describe other materials covered in the Copyright statute.[32] Using the term phonorecord or audiogram would have broad implications for which they would have to write additional exceptions elsewhere in the statute.[33] The new phrase barely affected the wordings of the provisions to which it was added – in many places the term” phonorecord” or “audiogram” was simply replaced. Semantically this change made a difference which forms the root of the ambiguity surrounding the definition of “digital audio copied recording” (a phrase used prior and subsequent to the addition of “digital musical recording”). The senate report indicates that the original source from which the “digital audio copied recording” is made can either be analog or digital in nature.[34] This in some ways reflects the nature of the term audiogram, but should also reflect the nature of the term “digital audio copied recording.” The House, which introduced the term “digital musical recording,” also acknowledges that a source may be analog or digital.[35] The House stated that “[t]he term ‘serial copying’ encompasses musical works and sound recordings whether originally recorded in a digital or an analog format and then copied into digital form.”[36] “The term ‘serial copying’ means the duplication in a digital format of a copyrighted musical work or sound recording from a digital reproduction of a digital musical recording.”[37] If the digital reproduction from which a serial copy originates could in turn originate from a non-digital source, then a “digital audio copy” could be a digital reproduction of recordings other than a “digital musical recording.” Since copying of copyrighted works is the primary concern of the AHRA, it is posited here that the purpose of choosing the phrase “digital copied audio recording” and not a “digital musical recording” in the definition of a “digital audio recorder” is used in order to highlight the activity sought to be regulated most, and not preclude certain devices from coverage under the AHRA.

IV. Conclusion

Given the entertainment industry’s fear of the proliferation of music recordings and their subsequent copies which could be made indefinitely without loss in quality, and the legislative history of the AHRA, it would seem contrary to the aim of the AHRA to exclude any device which does not reproduce something that might not have originated from a “digital musical recording.” To comport with the AHRA, the activity of creating “digital musical recordings” of music for home personal use should be viewed as protected under, and consistent with, the purposes and legislative history of the AHRA. The Court’s ruling that AHRA did not apply to the Diamond case closed one door and opened another, and continued a precedent which leaves music stored on a computer without the benefits and regulations provided by the AHRA. The court may have reached a fair, and albeit correct conclusion, but much of this conclusion is founded on inconsistent grounds, which will only serve to further muddle the waters of DRM and IP law.