Most music discs contain copyrighted material. The basis of copyright protection in the United States is found in the U.S. Constitution, Article I, Section 8. The Constitution empowers Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The result of this empowerment is the U.S. Copyright Act, Section 17 of the United States Code (U.S.C.).

A copyright gives its owner the exclusive right to reproduce, distribute, perform, display, or license the work referenced in the copyright. The holder of the copyright additionally receives the exclusive right to produce or license the production of derivatives of the work. According to the Copyright Act, the owner of copyright has the exclusive rights "to reproduce the copyrighted work in copies or phonorecords," a privilege generally known as the Right of Reproduction. However, the Copyright Act also limits this exclusive right in Section 107 of the Act, which addresses "fair use" of copyrighted materials. Although Section 107 enumerates some of the situations that may be considered fair use--criticism, comment, news reporting, teaching, scholarship, and research--it certainly does not exclude other uses, such as home recording for personal use. [an error occurred while processing this directive] Fair use, sometimes referred to as the Fair Use Doctrine, does not necessarily grant the user the right to copy material which he or she has purchased. Fair use is generally reserved for use as a defense to a copyright infringement action. The criteria set forth in the Act make it necessary for courts to decide copyright infringement issues and fair use defenses on a case-by-case basis, applying the four criteria set out in the Act to the particular infringement alleged in the case at bar.

Section 202 of the Copyright Act clearly states that the ownership of a copyright "is distinct from ownership of any material object in which the work is embodied." Therefore, the transfer of ownership of any material object, such as a CD, does not convey any rights in the copyrighted work embodied in that object.

Concerning computer programs, the Copyright Act states that "it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program," as long as the copy is for archival purposes only. This specification seems ill-suited to being applied to computer programs in that it refers to the "owner" of the program and most computer programs are sold under license and no ownership is contemplated or granted. Nonetheless, making an archival copy of a computer program is apparently permitted.

THE BETAMAX CASE AND ITS BEARING ON CD-BURNING

According to the Recording Industry Association of America, that compilation disc that you made for your shindig last weekend is a violation of the copyright owner's right of reproduction. And the RIAA makes no distinction whether the source of the music is digital or analog. The RIAA's position is based on the right of reproduction in Section 106 of the Copyright Act. However, Section 1008 of the Audio Home Recording Act of 1992, entitled "Prohibition on certain infringement actions," states, "No action may be brought under this title [The Copyright Act] 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, hardware manufacturers are free to design, build, and sell digital and analog recording machines and media and the owners of those machines cannot be sued for copyright infringement for making digital or analog recordings of purchased music for non-commercial use, provided that the machines are designed in compliance with the AHRA.

Additionally, the recording of copyrighted audio material can be likened to the recording of copyrighted video material as approved by the United States Supreme Court's 1984 Betamax case, Sony Corporation v. Universal City Studios. In that case, Universal sought an injunction to keep Sony from selling its Betamax video recorders in the United States.

The road to the Betamax decision began in 1976, when Universal City Studios and Walt Disney filed suit against Sony Corporation, the manufacturer of the Betamax videocassette recorder. Universal charged contributory copyright infringement, based on the argument that home taping of copyrighted television shows and movies for later viewing (time-shifting) violated Universal and Disney's copyright in those properties. The United States District Court ruled in favor of Sony at the trial. In 1981, the U.S. Court of Appeals for the Ninth Circuit reversed the decision of the District Court. The Ninth Circuit found that home time-shift recording was copyright infringement, and Sony Corporation could be a contributory infringer. The Supreme Court heard the case in January 1983, but did not issue an opinion until its second term, after additional oral argument. In January 1984, the court overruled the decision of the Ninth Circuit by a single vote. In a memo of June 17, 1993, Justice Byron White said that he was "not at all convinced that Congress intended each home recorder of copyrighted works to be an infringer, whether he records sound or video."

In the court's opinion, "The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses." Quoting the District Court with approval, the court went on to say, "Whatever the future percentage of legal versus illegal home-use recording might be, an injunction which seeks to deprive the public of the very tool or article of commerce capable of some noninfringing use would be an extremely harsh remedy, as well as one unprecedented in copyright law." Even when an entire copyrighted work was recorded, the District Court regarded the copying as fair use "because there is no accompanying reduction in the market for plaintiff's original work." Additionally the Court stated, "A use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create."

The Supreme Court's ruling continued, "Moreover, when one considers the nature of a televised copyrighted audiovisual work, and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact that the entire work is reproduced, does not have its ordinary effect of militating against a finding of fair use." The Supreme Court concluded that "this record amply supports the District Court's conclusion that home time-shifting is fair use."



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