Advanced Copyright Issues on the Internet - Fenwick & West LLP

Napster argued that its users’ downloads of music for their own personal use wereimmunized by the Audio Home Recording Act of 1992 (AHRA). 1169 The AHRA made twomajor substantive changes to copyright law. First, Subchapter D of the AHRA (Section 1008)immunizes certain noncommercial recording and use of musical recordings in digital or analogform. 1170 Section 1008 provides:No action may be brought under this title alleging infringement of copyright 1171based on the manufacture, importation, or distribution of a digital audio recordingdevice, a digital audio recording medium, an analog recording device, or ananalog recording medium, or based on the noncommercial use by a consumer ofsuch a device or medium for making digital musical recordings or analog musicalrecordings.Second, Subchapters B and C (Sections 1002-1007) of the AHRA require (i) that any“digital audio recording device” conform to the “Serial <strong>Copyright</strong> Management System”(SCMS), which allows unlimited first generation copies of an original source, but prohibitssecond generation copies (i.e., copies of a copy), and (ii) that manufacturers and distributors ofdigital audio recording devices and digital audio recording media (such as DAT tape andrecordable CDs) pay royalties and file various notices and statements to indicate payment ofthose royalties. 1172Napster argued that under the direct language of Section 1008, no action for infringementof copyright could be brought against Napster’s users, who were consumers and who wereengaged in the noncommercial making and sharing (distribution) of digital musical recordings.Because the actions of Napster’s users were immune, Napster argued that it could not becontributorily or vicariously liable for those actions. 1173 Napster cited the following legislativehistory of the AHRA as support for its argument that Congress intended to afford a very broadimmunity for non-commercial copying of audio recordings:S. Rep. 102-294 (1992) at 51 (“A central purpose of the Audio Home Recording Act of1991 is conclusively to resolve [the] debate” over the “copyright implications of privateaudio recording for noncommercial use.”).H. Rep. 102-873(I) (1992) at 24 (“In the case of home taping, the exemption protects allnoncommercial copying by consumers of digital and analog musical recordings.”).1169 Pub. L. No. 102-563, 106 Stat. 4244 (1992), codified at 17 U.S.C. §§ 1001-1010.1170 Nimmer § 8B.01 (2000).1171 The immunity applies with respect to copyrights in both the sound recordings and any musical compositionsembodied therein. Id. § 8B.07[C][2], at 8B-90.1172 Id. §§ 8B.02 & 8B.03 (2000).1173 Opposition of Defendant Napster, Inc. to Plaintiffs’ Motion for Preliminary Injunction, A&M Records, Inc. v.Napster, Inc., Civ. Nos. C99-5183 MHP (ADR) & C00-0074 MHP (ADR) (July 5, 2000), at 5-6 (hereinafter,“Napster’s PI Opp. Br.”), on file with the author.- 269 -