Most of us have recorded a cassette tape of our favorite songs from other tapes and CDs. Some of us may have recorded from CD to DAT, or used a home CD recorder to copy an audio CD. But we noticed in that case that we couldn't copy the DAT to another DAT. This is because DAT recorders are equipped with the Serial Copy Management System (SCMS), a copy-protection technology whose implementation on DAT recordings is mandated by Chapter 10 of the Copyright Act of 1976. This 1992 addition to the Copyright Act, titled "Digital Audio Recording Devices and Media," and generally referred to as the Audio Home Recording Act (AHRA), was added to establish copyright structures for DAT. It's unclear whether the authors of the Act had recordable CD in mind; however, the wording of the Act could cover CD-Recordable drives and media in certain circumstances.

The furor over digital audiotape that prompted the passage of the AHRA came out of the recording industry's fear that digital copying would greatly increase piracy of music because there would be no loss of sound quality as DAT copies went from generation to generation. For several reasons, DAT never became a big hit with home users, and Philips' Digital Compact Cassette (DCC) has never taken off as a music medium. Since implementation of SCMS prevents copies of copies from being made, the illegal copying and distribution of DATs or DCC wasn't, in any event, likely to become a problem. [an error occurred while processing this directive] The AHRA refers to "digital audio recording devices" and "digital audio recording mediums," but does not mention DAT, digital audio cassette, or CD-R by name. It covers musical recordings, but not spoken word recordings. The Act defines a "Digital Audio Recording Device" as "any machine or device of a type commonly distributedÉthe digital recording function which is designed or marketed for the primary purpose ofÉmaking a digitized audio copied recording for private use." The Act bars the manufacture, importation, and distribution of any such device that does not incorporate the Serial Copy Management System (SCMS) or a functional equivalent approved by the Secretary of Commerce. The Serial Copy Management System is a system that encodes a copy of an original digital recording with information which prevents users from making a copy of the copy. Its implementation in DAT systems manifests itself by allowing the DAT recorder to copy from a CD to a DAT, but that first-generation tape cannot be subsequently copied to another DAT. The Act also bars the importation, manufacture, or distribution of any device, or the offering or performance of any service that deactivates, disables, removes, or bypasses the SCMS. Such devices do exist, however, and the Recording Industry Association of America (RIAA) recently received an injunction against Technolab Digital Systems, Inc., for manufacturing and selling a device known as the DigiCon 2, whose purpose was to circumvent SCMS protections. Circumvention efforts continue, however, and a little rooting around on the Internet will reveal plans for a "SCMS Killer" circuit that you can build yourself.

The Act specifically excludes media and recorders that are "primarily marketed and most commonly used... for] making copies of nonmusical literary works, including computer programs and databases." To fall under the Act, recorders must be "designed or marketed for the primary purpose of... making a digital audio-copied recording for private use."

CD recorder manufacturers have generally taken the position that their recorders are not designed or marketed primarily for the purpose of making digital audio copies and are professional model products. CD-R media, likewise, is primarily marketed and most commonly used for copying computer programs and databases.

The AHRA provides that the importer, manufacturer, or distributor of any digital audio recording device or digital audio recording media must file quarterly statements and pay, with those filings, royalties on each recorder or piece of media distributed in the United States. The royalty is 2 percent of the manufacturer's selling price for recorders and 3 percent of the manufacturer's selling price for recordable media. The royalty minimum for recorders is one dollar and the maximum is eight dollars, although in 1998, interested parties (such as musicians and music publishers) may request an increase in the royalty maximum under certain conditions. There are no minimum or maximum royalties for recording media.

Two-thirds of the royalties go into the Sound Recording Fund and are distributed from that fund to the American Federation of Musicians (2-5Ú8 percent), the American Federation of Television and Radio Artists (1-3Ú8 percent); 40 percent of the remaining royalties go to featured recording artists and 60 percent are distributed to music publishers.

The remaining third of the royalties are allocated to the Musical Works Fund and are distributed evenly between music publishers and songwriters. The percentages of distribution within each group of beneficiaries is determined by the groups themselves.



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