Hastings Communications and Entertainment Law Journal Volume 16 | Number 2 Article 4 1-1-1993 Home Audio Taping of Copyrighted Works and the Audio Home Recording Act of 1992: A Critical Analysis Joel L. McKuin Follow this and additional works at: https://repository.uchastings.edu/ hastings_comm_ent_law_journal Part of the Communications Law Commons, Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Joel L. McKuin, Home Audio Taping of Copyrighted Works and the Audio Home Recording Act of 1992: A Critical Analysis, 16 Hastings Comm. & Ent. L.J. 311 (1993). Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol16/iss2/4 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Communications and Entertainment Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Home Audio Taping of Copyrighted Works and The Audio Home Recording Act of 1992: A Critical Analysis by JOEL L. McKuIN* Table of Contents I. Home Taping: The Problem and its Legal Status ....... 315 A. Constitutional and Statutory Background ........... 315 B. Home Taping or Home "Taking"?: The History of Home Taping's Legal Status ........................ 318 C. New Technologies Sharpen the Home Taping Problem ............................................ 321 1. The DAT Debacle .............................. 321 2. Other New Technologies ........................ 322 II. The Audio Home Recording Act of 1992 (AHRA) ..... 325 A. Serial Copy Management System (SCMS) .......... 325 B. Royalties on Digital Hardware and Media .......... 326 C. Prohibition of Copyright Infringement Actions ..... 328 III. Analysis and Critique of AHRA ....................... 328 A. Analysis of Protections Provided by AHRA ........ 329 1. SCM S ........................................... 329 a. Unlimited Home Copying .................. 329 b. Banning Unauthorized Home Digital Copying .................................... 330 2. Royalties on Home Taping ..................... 330 a. International Aspects ....................... 330 b. AHRA's Royalty Provisions ................ 332 3. The Division of Royalties and Passive Law M aking ......................................... 336 4. Preclusion of Copyright Infringement Actions.. 340 B. AHRA: Two Missing Elements .................... 341 * J.D. 1993, Harvard Law School; B.A. 1990, Union College. Associate, Mitchell, Silberberg & Knupp, Motion Picture and Television Department, Los Angeles. 312 HASTINGS COMMIENT L.J. [Vol. 16:311 1. Royalties on Home Analog Recording ......... 341 2. No Performance Right in Sound Recordings ... 344 IV . Conclusion .............................................. 347 19941 AUDIO HOME RECORDING Acr OF 1992 Introduction In 1942, R. Buckminster Fuller, an American philosopher, engi- neer and visionary set out to discover whether scientific achievements occurred in any regular or predictable pattern.1 He studied the speed of travel, the discovery of the elements and the speed at which inven- tions were adopted for common use. It took 150 years for the steam engine, 50 years for the automobile, 25 years for the radio, 15 years for the transistor and 5 years for the microchip to become common- place. 2 The technological trend remains unmistakable: Advanced so- cieties are continuing to embrace new technologies for everyday use at a pace that increases exponentially. Such a rapid adoption of new technologies is taking place in the area of information technology, from the speed and volume of trans- mission to storage capacity. As Alvin Toffler, a noted commentator, acknowledged: "More diversity and change equals more information, equals more technology to handle the information, leading to still more diversity and change."3 The possibilities are exciting, especially for those involved in ar- eas of high technology development and manufacturing. Emerging technologies, however, present threats to the livelihood of creative in- dividuals and current or future copyright owners. Nevertheless, those individuals are still eager to participate in the ongoing information revolution. If history is an accurate indicator, however, they have a valid reason to fear that Congress will supply inadequate legal protec- tions for their creative works. This prediction is especially true for musical artists and producers4 of sound recordings. This Article focuses on the inadequate protection of sound re- cordings from unauthorized noncommercial home taping. For years, producers of recordings have watched as millions of people annually have made over one billion cassette recordings of copyrighted sound recordings.6 This widespread practice of unauthorized home taping 1. JOHN CHESTERMAN, THE ELECTRONIC PIRATES 194 (1987). 2. Id. at 195. 3. ALVIN TOFFLER, PREVIEWS AND PREMISES (1984); see also CHESTERMAN, supra note 1, at 195. 4. In this Article, the term "producers" refers to both the record companies and the performers of sound recordings. 5. Sound recordings enjoyed no federal copyright protection until February 15, 1972, the effective date of the Sound Recording Amendment of 1971. Only recordings fixed and published after that date received the amendment's protection. 6. OFFICE OF TECHNOLOGY ASSESSMENT (OTA), COPYRIGHT & HOME COPYING: TECHNOLOGY AND CHALLENGING THE LAW, OTA-CIT-422, at 153-54 (1989) [hereinafter 1989 OTA REPORT]. HASTINGS COMM/ENT L.J. [Vol. 16:311 not only intuitively seems unfair, but also has harmed the recording industry and society as a whole. First, home taping has displaced some of the demand for prerecorded material.7 People who make their own tapes from broadcasts or phonorecords8 belonging to friends, family members or libraries are less likely to purchase original recordings. This usurpation of demand for records has harmed the recording industry economically: performers, vocalists, composers and record companies are all affected.' Second, allowing people, some of whom have not even purchased an original record, to make unauthorized copies of copyrighted musical recordings is intuitively wrong and unfair. Creative producers do not labor to have their works purloined by home tapers. Third, and perhaps most important, home taping of copyrighted works has harmed society. Home taping decreases the funds available to the recording industry for the devel- opment of new musical acts, thereby decreasing the amount of records made overall. Despite these important reasons for compensating the recording industry for home taping, until recently Congress did nothing to ad- dress the problem. On October 28, 1992, President Bush signed the Audio Home Recording Act of 19921" (hereinafter AHRA or the Act) into law.11 AHRA places a small royalty on digital sound re- cording media and equipment. The Act also requires manufacturers of digital recorders to incorporate circuitry that prevents serial copy- ing. Finally, the Act bars infringement suits based on private copying performed in accordance with the Act. Although the Act is a step in the right direction, it inadequately protects musical performers and copyright holders. For example, the 7. Id. 8. A "phonorecord" is described by the Copyright Act as the material object in which sounds are fixed. 17 U.S.C. § 101 (1988). In this Article, the term "record" is used to denote a "phonorecord." 9. There has been disagreement over the aggregate economic effects of home taping. The findings of the latest study, the 1989 OTA REPORT, are ambiguous. See supra note 6. For example, one of the contracted reports concluded that the presence of home copying does cut into demand for recorded material, but that it stimulates prices charged for pre- recorded formats because the originals are worth more since they can be used to generate copies. Id. at 183. The 1989 OTA REPORT is not particularly useful because it compares societal welfare assuming unmitigated home taping with societal welfare assuming an abso- lute ban on home taping. The Report's conclusions inadequately consider the economic effects of a less draconian measure, royalty on tapes and recording equipment. Appropri- ately, the final words of the 1989 OTA REPORT, which appear in boldface, are: "It is potentially misleading to base policy on an estimate of one of several harms or benefits." Id. at 207. 10. Pub. L. No. 102-563, 106 Stat. 4242 (codified at 17 U.S.C. §§ 1001-1010 (1992)). 11. See Dennis Wharton, Bush Signs DAT Measure into Law, DAILY VARIETY, Oct. 30, 1992. 19941 AUDIO HOME RECORDING ACT OF 1992 Act only applies to digital media and equipment-it imposes no royal- ties on analog recording tape and equipment. Yet the inequities and economic loss presented by home taping will continue to emanate from analog home taping for the foreseeable future. In addition, the Act does not create a performance right in sound recordings, even though this has been recommended by the Copyright Office and scholarly commentators for almost two decades.' 2 The adverse effects to the recording industry resulting from the Act's deficiencies will in- crease over the next few years as new technologies in digital audio transmission and recording are introduced and become popular. This Article argues that producers of American recorded music are inadequately protected from home taping under American copy- right law. Specifically, the shortcomings of AHRA, the latest attempt at breathing