Section 1008

Section 1008 of title 17 brings back bad memories. It was drafted "off-the-Hill" by industry (as was the entire initial draft of what later became the Audio Home Recording Act of 1992 of which Section 1008 is a part.) The drafting was done before Congressman Hughes was chair of the House IP subcommittee and I joined it. Neither Hayden Gregory - the subcommittee's chief counsel - nor I liked the bill or the drafting, including that in Section 1008. We thought Section 1008 should have been much more transparent, but we had many other fish to fry in the bill and with other members of Congress too, and so we let it go. That was a mistake, and on my part, an abdication of responsibility.

The Judiciary Committee report, H.R. Rep. No. 102-873, pt. 1, 102d Cong.,2d Sess.24 (1992) states our intent with respect to Section 1008: "In the case of home taping, the exemption protects all noncommercial copying by consumers of digital and analog musical recordings." Not this uses the term "all" and is not limited to "digital audio recording devices." But that's not what the statute says. Section 1008 says in relevant part, that no action may be brought "based on the noncommercial use by a consumer of such device or medium for making digital musical recordings or analog musical recordings." The "such" here refers to (and this is the nub of the matter) only the following: "a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium." Focusing only on the digital side, the critical definition is that in Section 1001 of a "digital audio recording device," which is limited to machines or devices or parts thereof "the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use... ."

This definition, and that of "digital audio copied recording" were the heart of RIAA v. Diamond Multimedia Sys., Inc., 180 F.3d 1072 (9th Cir. 1999), which held that a computer hard drive is excluded from the definition of digital musical recordings and therefore the Serial Copy Management System (SCMS) and royalty obligations of the AHRA. But the definition of a digital audio recording device and Diamond Multimedia bite both ways: as applied to Section 1008, I think it fair to say that the legislative report is much broader than the statutory language and it goes without saying that the statutory language prevails.

Industry might respond that the exemption was only intended for cases where they were getting a royalty from sales of copying devices and blank digital recording media, and where SCMS or its equivalent prevented serial copying. Where they weren't getting SCMS protection or royalties, no exemption. That may well have been their intention, and that is the way the statute works out. Nor did industry mislead us in any way. But our subjective intention and that of the Committee, expressed in the Committee report, was to exempt all noncommercial private copying. Because we failed to express that intention in the statute, I accept that our intention is irrelevant.

I have been asked occasionally whether there is a practical difference between Section 1008 being phrased as "no action may be brought" versus the usual language, "x is not an infringement." That issue is one reason why I didn't kvetch about the language of Section 1008 during the drafting process. I thought the phrasing awkward and silly: why not just say that conduct x is not infringing, like Section 107 does. My goal in statutory drafting was Anton von Webern's definition of art: expressing an idea in its simplest, clearest, most comprehensible terms. Section 1008 was most inartful. But, because I thought I was just fussing about drafting styles (and the private sector is generally an awful drafter of statutory language, which they tend to treat as if it was a contract), I let it go. That was a big mistake. I missed that the phrasing was the way it was because it masked, in plain view, the real point, the severe limitation of the exemption to copying from a digital audio recording device. Shame on me.