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Copyright and Home Copying: Technology Challenges the Law

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Copyright and Home Copying: Technology Challenges the Law Copyright and Home Copying: Technology Challenges the Law October 1989 NTIS order #PB90-151309 GPO stock #052-003-01169-7 Recommended Citation: U.S. Congress, Office of Technology Assessment, Copyright and Home Copying: Technology Challenges the Law, OTA-CIT-422 (Washington, DC: U.S. Government Printing Office, October 1989). Library of Congress Catalog Card Number 89-600714 For sale by the Superintendent of Documents U.S. Government Printing Office, Washington, DC 20402-9325 (Order form can be found in the back of this report) Foreword Today’s consumer electronics allow the average citizen to make very good copies of recorded music, television shows, movies, and other copyrighted works for private use at home. Soon, as digital recording equipment comes into wide- spread use, homemade copies will not just be very good—they can be perfect reproductions of the originals. Home copying is becoming much more common; for instance, the proportion of people who make home audiotapes has doubled in the last 10 years. Copyright owners are concerned, and claim that home copy- ing displaces sales and undermines the economic viability of their industries. They fear that the ability to make perfect copies will increase home copying even more. This report first examines home recording technologies. Then—focusing primarily on audiotaping—we examine the ambiguous legal status of home copy- ing. Our report considers the economic effects that home audiotaping may have on the recording industry, contrasted to the effects that restricting home taping might have on consumers. Finally, we identify a range of actions that either Con- gress or the industry might pursue. Included in our report are the results of a national survey of home taping and copying behavior conducted for OTA in the autumn of 1988. In this survey, 1,500 members of the public responded to a range of questions about their own audio- and video-taping behaviors and their attitudes toward various policy approaches related to home taping. The Subcommittee on Courts, Intellectual Property and the Administration of Justice of the House Committee on the Judiciary and the Subcommittee on Patents, Copyrights and Trademarks of the Senate Committee on the Judiciary initially requested the report. This request was joined by the Ranking Minority of the House Committee on the Judiciary. Interest in the study was also expressed in a letter from the Chairman of the House Committee on Ener- gy and Commerce and the Chairman of the Subcommittee on Commerce, Con- sumer Protection and Competitiveness of the House Committee on Energy and Commerce. OTA appreciates the participation of the advisory panel, survey working group, Federal agency officials, and interested citizens without whose help this report would not have been possible. The report itself, however, is the sole responsibili- ty of OTA, not of those who so ably assisted us in the assessment and its critical review, or of the congressional committees who requested or endorsed the under- taking of the study. Copyright and Home Copying Advisory Panel Robert W. Crandall (Chairman) Senior Fellow, Economic Studies Program The Brookings Institute Jason S. Berman William Livingstone President Contributing Editor Recording Industry Association of America Stereo Review Magazine Brenda Dervin Peter Menell Chairman Associate Professor of Law Department of Communications Georgetown University Law Center Ohio State University David Mouon David Fishman Chairman Senior Staff Consultant Music Production and Engineering Arthur D. Little, Inc. Berklee College of Music Jack Golodner Peter Rothbart Director Assistant Professor of Electronic Music Department of Professional Employees Ithaca College School of Music AFL-CIO Gary J. Shapiro Michael H. Hammer Staff Vice President Director Government and Legal Affairs Communications Policy Development Consumer Electronics Group Time Incorporated Electronic Industries Association Glen H. Hoptman Mark Silbergeld Editor-in-Chief, Optical Publishing Director of Washington Office Smithsonian Institution Consumers Union Judith K. Larsen Russell M. Solomon Director of Primary Research President Dataquest MTS, Inc. Judith Lichtenberg Patrick A. Weber Research Scholar Director/R&D Center for Philosophy and Public Policy MCA Records University of Maryland NOTE: OTA appreciates and is grateful for the valuable assistance and thoughtful critiques provided by the advi- sory panel members. The panel does not, however, necessarily approve, disapprove, or endorse this report. OTA assumes full responsibility for the report and the accuracy of its contents. iv — OTA Project Staff–Copyright and Home Copying John Andelin, Assistant Director, OTA Science, Information, and Natural Resources Division James W. Curlin, Program Manager’ Communication and Information Technologies Program Fred W. Weingarten, Program Manager2 Communication and Information Technologies Program Project Staff Joan D. Winston, Project Director3 Karen G. Bandy, Analyst’ Mark Nadel, Analyst’ Darlene Wong, Research Analyst Congressional Research Service Contributor Douglas R. Weimer American Law Division Administrative Staff Elizabeth Emanuel, Administrative Assistant Karolyn Swauger, Secretary Jo Anne Price, Secretary 1 As of 4/89 2 Senior Associate as of 1/89 3As of 8/88 4 Project Director 2/88-8/88, on leave 8/88-12/88 5 As of 3/89 v Survey Working Group Brenda Dervin Mark Levy Robert Schwartz Chairman Professor Attorney Department of Communications College of Journalism McDermott, Will & Emery Ohio State University University of Maryland Philip Wirtz Martin Fishbein Lewis Lipnick Associate Professor Department of Psychology Principal Department of Management University of Illinois Your Silent Partner Science Judith Larsen Steve MacGregor George Washington University Director of Primary Research Vice President Dataquest Diagnostic Research, Inc. Reviewers and Contributors Robbin Ahrold Ralph E. Cousino Dan Hochvert Broadcast Music, Inc. Capitol Industries EMI, Inc. NYNEX Joe Alen Michael Cover Brad Kingsbury Copyright Clearance Center Recording Industry Association Peter Norton Computing, Inc. David E. Altschul of America, Inc. David E. Kronemyer Warner Bros. Records, Inc. Paula Cranston Capitol Records, Inc. Wilhelmus Andriessen SESAC, Inc. Stan Liebowitz Conseil Europeen de l’Industrie Jeff Cunard Department of Economics and de la Bande Magnetique Debevoise & Plimpton Business Russ Bach Linda B. Cutler North Carolina State University CEMA - Capitol Records Eidak Corp. Sandra Lockhart Lew Bachman Donald P. Dulchinos Car Audio Specialists Association The Songwriters Guild National Cable Television John W. Lyons James Barrett Association National Institute of Standards Barrett’s Audio & Video Joe Finney and Technology James A. Berkovec National Center for Health Frannie Martis University of Virginia Statistics MTS, Inc. Paul Berry Ronald Freed James Massey Canadian Musical Reproduction Music Publishers’ Association National Center for Health Rights Agency Limited of the U.S. Statistics Peter Beruk Ray Gianchetti John T. McGuire Software Publishers Association National Association of Screen Actors Guild Recording Merchandisers Stan Besen Al McPherson Columbia University James L. Goldberg Warner Bros, Records, Inc. Abram, Westermeier, Goldberg, Gloria Messinger Marv Bornstein P.C. A&M Records American Society of Composers, National Association of Retail Authors, and Publishers Timothy J. Brennan Dealers of America George Washington University Edward D. Murphy Michael Greene Harry Fox Agency Yvonne Burckhardt National Academy of Recording International Federation Arts and Sciences Dave Newberg Capitol Records of Musicians Jill Grisco Robert Cassler The Washington Post Ian Novos Copyright Royalty Tribunal University of Southern Michael Grubbs California Tandy Electronics vi Continued on next page List of Reviewers and Other Contributors (continued) Kevin Odegard David Sappington Jeffrey M. Sydney National Association of Bell Communications Research Polygram Records Songwriters Erich Schulze Doug Talley Joseph Oldham GEMA Digital Radio Labortories, Inc. Popular Mechanics Eric Schwartz Ana Thorne Edwin Outwater U.S. Copyright Office Peter Norton Computing Warner Bros. Records, Inc. Steven Schwartz Jean Loup Tournier Marybeth Peters Music Distribution Service SACEM/SDRM Office of the Registrar Molly Seagrave Kenneth Train U.S. Copyright Office International Cablecasting Cambridge Systematic Skip Pizzi T’echnologies Harold Vogel National Public Radio Carl Shapiro Merrill Lynch Capital David Pushic Woodrow Wilson School Markets Optical Disc Mastering Princeton University Michael Waldman Helen Rena Cary H. Sherman University of California at Legal Department Arnold & Porter Los Angeles American Federation of Rick Shoemaker Howard L. Wattenberg Musicians MCA Music Marshall Morris Wattenberg Irene Robadey Gregory Sidak & Platt International Secretariat of Arts, Federal Communications George David Weiss Communications Media and Commission The Songwriters Guild Entertainment Trade Unions– FIET Cathy Slesinger Clifford Winston NYNEX The Brookings Institution Hilary B. Rosen Recording Industry Association Ken Small Sanford Wolff of America, Inc. University of California American Guild of Musical at Irvine Artists Garth Saloner Sloan School of Management David Stebbings Massachusetts Institute of CBS Records Technology Technology Group Contractors John Boyle, Principal Investigator Carl Shapiro David Sappington Schulman, Ronca, & Bucavalas, Princeton University Bell Communications
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