Advanced Copyright Issues on the Internet - Fenwick & West LLP

7. The Immunity of the Audio Home Recording Act (AHRA)The Audio Home Recording Act of 1992 (AHRA) 204 made two major substantivechanges to copyright law. First, Subchapter D of the AHRA (Section 1008) immunizes certainnoncommercial recording and use of musical recordings in digital or analog form. 205 Section1008 provides:No action may be brought under this title alleging infringement of copyright 206based 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” (DARD) conform to the “Serial <strong>Copyright</strong> ManagementSystem” (SCMS), which allows unlimited first generation copies of an original source, butprohibits second generation copies (i.e., copies of a copy), and (ii) that manufacturers anddistributors of digital audio recording devices and digital audio recording media (such as DATtape and recordable CDs) pay royalties and file various notices and statements to indicatepayment of those royalties. 207(a) The Napster CasesFor a discussion of the rulings with respect to the AHRA in the Napster cases, seeSection III.C.2(c)(1) below.(b) The Aimster CaseIn In re Aimster <strong>Copyright</strong> Litigation, 208 the plaintiffs brought copyright infringementclaims against the Aimster peer-to-peer file sharing site and its operators for secondary liabilityfor the infringing distribution of the plaintiffs’ copyrighted sound recordings. On a motion for apreliminary injunction, the defendants asserted that the plaintiffs had failed to establish thatAimster’s users were engaged in direct copyright infringement because the AHRA provided anaffirmative defense. The defendants argued that the AHRA shielded them from liability becauseit was intended to immunize from liability personal use of copyrighted material by protecting all204205206207208Pub. L. No. 102-563, 106 Stat. 4244 (1992), codified at 17 U.S.C. §§ 1001-1010.Nimmer § 8B.01 (2000).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.Id. §§ 8B.02 & 8B.03 (2000).252 F. Supp. 2d 634 (N.D. Ill. 2002), aff’d on other grounds, 334 F.3d 643 (7th Cir. 2003), cert. denied, 124 S.Ct. 1069 (2004).- 61 -