There is no substitute for actually reading what people say about issues, although I remain surprised that there are still seem to misreadings of the RIAA’s supplemental brief in the Howell case. After listening to the NPR interview last week with Marc Fisher and Cary Sherman about the Washington Post’s misreading of the Howell complaint, I went out into my back garage where I keep, in no order at all, hundreds of older Congressional committee reports and hearing transcripts. After two trips, I found what I was looking for: the transcript of a Joint Hearing in 1987 held by the Senate and House IP subcommittees. The title of the hearing is “Copyright Issues Presented by Digital Audio Tape,” 100th Congress, First Session, April 2, 1987, Senate Serial No. J-100-13, House Serial No. 6. If you get a copy of it, it is well worth reading for the Yogi Berra feeling it gives, especially quips "It's like déjà vu all over again" and “I never said half the things I really said.”
The lead witness was Jason S. Berman, President of the RIAA. (He was followed as RIAA President by Hilary Rosen and then by Cary Sherman. He and Ms. Rosen now have a consulting company.) The hearing was an oversight hearing, meaning there was no bill on the table, but rather an issue, and that was issue was the existential threat allegedly posed by DAT (digital audio tape). Mr. Berman began by testifying “DAT poses the most significant technological threat the American music industry has ever faced.” (page 4). After invoking such a folk devil, there was of course a solution: more rights!: “At the same time it offers a significant opportunity for Congress to craft a timely and uniquely suitable legislative response as we enter what will be the next phase of the home taping problem, a problem that has worsened over the years.” This much is standard fare: the set-up is so ubiquitous that I could draft testimony like this in my sleep.
What interested me was how analog home taping was put forth as an epidemic (or in the current hyped-up environment what would be called a "global pandemic" and "a dagger into the heart of America's future economic security," and how there was no mincing of words that copying of analog tape for personal use was infringing and not fair use. (I am leaving out the numerous, blatant xenophobic attacks on Japanese manufacturers). In written questions sent to Mr. Berman by Senator DeConcini after the hearing, Mr. Berman was asked:
There are two kinds of home taping. Copying copyrighted material for commercial use is clearly illegal, and I will strive as Chairman of this subcommittee to protect copyright holders from piracy. But home taping for personal use is arguably “fair use” under the copyright laws. How does the proposed DAT legislation maintain thus distinction? (Page 36).
Here is as much of Mr. Berman’s response as makes sense to reproduce here to avoid any conceivable claim of quoting out of context; I will, moreover, create a pdf of the whole answer Tuesday and send it to those who want it. Bear in mind that he is referring to copying of analog tape by individuals at home for what everyone else would call noncommercial purposes. Here are RIAA’s answers to Senator DeConcini, reproduced in the hearing transcript:
Under Section 106(1) of the copyright law, the copyright holder is granted an exclusive right to reproduce the copyrighted work. There is no statutory exemption that permits “personal” copying merely because it is not commercial. Nothing in the copyright statute distinguished between “personal” copying and commercial copying. … The only conceivable basis for exempting home taping from the provisions of Section 106 would be the fair use doctrine, addressed in Section 107 of the copyright law. [quotes statute] None of these factors, however, justifies the conclusion that home taping of copyrighted sound recordings should be considered a fair use. First, home taping is a commercial use within the meaning of the “fair use” provision despite the fact that the home taper may not charge for his or her copies. [quotes Harper & Row v. Nation]. Second, copyrighted works are sold for the purpose of entertainment. The home taper seeks to use the copyrighted work for the same purpose. … Third, home tapers record entire musical collections. Their appropriation of the copyrighted work is total. Fourth, the economic effect of copying on the potential market for the copyrighted work grows is so sever that the defense of fair use cannot be invoked. The studies, the market statistics, and economic analysis of the home taping problem vividly document home taping’s adverse effect on sales of records and prerecorded tapes. The displaced sales, lost because of home taping, cost the industry $1.5 billion annually. … Thus, there is no personal use exemption, nor any fair use immunity for home taping. Contrary to the premise of the question, there is no distinction between commercial and home personal taping. (pages 37-39, emphasis in original).
Senator DeConcini then asked “Can you cite any case law for the proposition that home audio taping for noncommercial purposes violates the copyright laws?” (Page 39). Mr. Berman answered, “There is no case law on this subject because no recording company has ever asked a court to try and solve a problem that can only be resolved by Congress,” (page 40), but he adds, “Were we to bring a case for infringement against the home taper, we could prevail under existing law.” (Id.) There was a case over home taping though, three years before this, involving audiovisual works, the Sony Betamax case, in which RIAA filed an amicus brief urging a finding of liability. In his answer to Senator DeConcini, Mr. Berman went on to add that if RIAA did bring such a suit, the matter would be back in Congress’s bailiwick.
And 5 years later it was, in the Audio Home Recording Act. Section 1008, added by the AHRA, has this unfortunately drafted language:
No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.
The House Committee report states the matter with a clarity that is regrettably lacking in the statutory language:
“In the case of home taping, the exemption protects all noncommercial copying by consumers of digital and analog recordings,”
H.R. 873, 102d Cong., 2d Sess. 24 (1992).
Back to the Washington Post story. Here is the whole passage from the RIAA’s website on the issue, again under the theory that we should read what people actually say:
When It Comes to Copying Music, What’s Okay … And What’s Not: Technology has made digital copying easier than ever. But just because advances in technology make it possible to copy music doesn’t mean it’s legal to do so. Here are tips from some record labels on how to enjoy the music while respecting rights of others in the digital world. Stick with these, and you’ll be doing right by the people who created the music. Internet Copying * It’s okay to download music from sites authorized by the owners of the copyrighted music, whether or not such sites charge a fee. For a list of some authorized sites, click here. * It’s never okay to download unauthorized music from pirate sites (web or FTP) or peer-to-peer systems. Examples of peer-to-peer systems making unauthorized music available for download include: Kazaa, Grokster, WinMX, LimeWire, Bearshare, Aimster, Morpheus, and Gnutella. * It’s never okay to make unauthorized copies of music available to others (that is, uploading music) on peer-to-peer systems. Copying CDs * It’s okay to copy music onto an analog cassette, but not for commercial purposes. * It’s also okay to copy music onto special Audio CD-R’s, mini-discs, and digital tapes (because royalties have been paid on them) – but, again, not for commercial purposes. * Beyond that, there’s no legal "right" to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as: o The copy is made from an authorized original CD that you legitimately own o The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying. * The owners of copyrighted music have the right to use protection technology to allow or prevent copying. * Remember, it’s never okay to sell or make commercial use of a copy that you make. Are there occasionally exceptions to these rules? Sure. A "garage" or unsigned band might want you to download its own music; but, bands that own their own music are free to make it available legally by licensing it. And, remember that there are lots of authorized sites where music can be downloaded for free. Better to be safe than sorry – don’t assume that downloading or burning is legal just because technology makes it easy to do so. The reference to “special Audio CD-R’s etc., is to the AHRA payment scheme. It is the next example, that outside of the AHRA payment scheme that raises questions. This passage states: “Beyond that, there’s no legal ’right’ to copy the copyrighted music on a CD onto a CD-R.” The italics in the original around “right” presumably prefers to the view that fair use is not a right, but a privilege, although even here one could turn the language around and say copyright owners have no right to prevent a fair use. The other part of the passage – “won’t usually raise concerns” is puzzling because the passage assumes an individual has made a copy from an authorized CD that the individual owns, and he or she has made the copy for personal use. Why “usually” then? When would that specific use not be fair use? It is not sufficient to say there might be different facts that could lead to different results because the hypo has its own facts.
In the NPR interview, a caller asked about transferring an LP to his computer; he was not give a definitive answer that the facts in his specific example was fair use, but he was instead referred to the content owners’ industry site, musicunited.org website. This site has a very long section “Why You Shouldn’t Do It,” but it does have “Copying FAQ’s [sic]”:
How do I know what’s legal and what’s not when it comes to copying music? Here’s the bottom line: If you distribute copyrighted music without authorization from the copyright owner, you are breaking the law. (Distribution can mean anything from "sharing" music files on the Internet to burning multiple copies of copyrighted music onto blank CD-Rs.) For more information about what’s okay and what’s not, click here. Is it illegal to upload music onto the Internet even if I don’t charge for it? Yes, if the music is protected by copyright and you don’t have the copyright holder’s permission. U.S. copyright law prohibits the unauthorized distribution of copyrighted creative work whether or not you charge money for it. What will happen to me if I get caught illegally copying or distributing copyrighted music? Under federal law, first-time offenders who commit copyright violations that involve digital recordings can face criminal penalties of as much as five years in prison and/or $250,000 in fines. You could also be sued by the copyright holder in civil court, which could cost you hundreds of thousands of dollars more in damages and legal fees. For more information about legal penalties, click here. Is downloading and uploading music really stealing? If it’s done without the permission of the copyright holder, it’s legally no different than walking into a music store, stuffing a CD into your pocket, and walking out without paying for it. Are there any sites where it’s legal to download music? There are plenty of Internet sites that offer music for legal downloading. To check them out, click here. If all I do is download music files, am I still breaking the law? Yes, if the person or network you’re downloading from doesn’t have the copyright holder’s permission. Can I use E-mail or instant messenger services to exchange songs with my friends? The use of e-mail or instant messenger services to exchange songs is governed by the same copyright laws that apply to any other form of reproduction or distribution. Am I breaking the law if I upload or download copyrighted music and leave it on my hard drive for less than 24 hours? Reproducing or distributing copyrighted music without the permission of the copyright holder is against the law regardless of how long you hold on to the music. Is it legal to post music that is no longer "in print"? Copyrights don’t last forever. Eventually all creative work becomes part of what is called the public domain—at which point anyone and everyone is free to copy and distribute it as they please. But just because a particular recording has gone out of print doesn’t mean its copyright has lapsed. If it hasn’t, then you need to get permission from the copyright holder before you post it. What if I upload or download music to or from a server that is based outside of the U.S.? If you are in the United States, U.S. law applies to you regardless of where the server may be located. What if I download or upload poor-quality recordings? The law prohibits unauthorized copying and/or distribution of digital recordings that are recognizable copies of copyrighted work. The quality of the recordings doesn’t matter. How do I know if something is copyrighted? When you buy music legally, there is usually a copyright mark somewhere on the product. Stolen music generally doesn’t bear a copyright mark or warning. Either way, the copyright law still applies. A copyrighted creative work does not have to be marked as such to be protected by law. Doesn’t the First Amendment give me the right to download and upload anything I want, including copyrighted music? The answer is, no, it does not. What copyright law prohibits is theft, not free expression. Doesn’t the "Fair Use doctrine" give me the right to download and upload copies of music I’ve purchased? No, it doesn’t. In certain instances, the use of a copyrighted work for purposes of criticism, comment, news reporting, teaching, scholarship or research might not constitute infringement, depending on (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work has a whole, and (4) the effect of the use on the potential market for or value of the copyrighted work. However, courts have rejected the notion that uploading and downloading copyrighted sound recordings without permission constitutes the "fair use." Besides the record companies, who does copying music actually hurt? First and foremost, illegal copying hurts the songwriters and recording artists who make the music. These people depend on the royalties they get from the authorized sales of their recordings to make a living. Many recording artists receive most of their income from royalties. For many young artists, income from royalties means survival. In the end, illegal downloading guarantees that artists won’t be fully rewarded for their hard work and devotion to the craft. Are you against "peer-to-peer" services? We are not against P2P services. We are against people who steal and illegally distribute copyrighted music that doesn’t belong to them. The music industry has been a major beneficiary of new technology (from wax cylinders to vinyl to LPs to CDs), and the current technological developments are no exception. But let's face it, even great technology can be abused. And that's what the industry is confronting right now. We have to figure out how to take advantage of the great new delivery systems that the Internet offers, without being seriously damaged by uncontrolled piracy. P2P in particular can really be a fabulous technology - but right now it's doing far more harm than good. (So surveys show.) What is your position on MP3s? We think MP3 technology is a great thing—as long as it’s used legally and properly.
There is nothing in this, absolutely nothing, that could have answered the listener’s question, or indeed many questions at all. The FAQs are very long on polemics, and virtually non-existent on practical guidance. While it may have made whoever wrote them feel like they had accomplished something, what that something is can’t be identified by me. And that gets me back to my central point: we should fairly and accurately portray what RIAA and anyone else actually says, and not distort things for partisan or other purposes. At the same time, it must also be stated that RIAA has said precious little in any of the material immediately above to give simple, straightforward answers; the answers are hedged or qualified, and it appears the RIAA doesn’t want to ever concede that personal use is lawful – as compared to “usually won’t raise concerns.” What does that mean? If I ask a cop whether I can drive 35 miles per hour on a particular road with no speed sign, is it sufficient for him to say, “well that usually won’t raise concerns?”
The only definitive answers to home taping were Jay Berman’s in 1987:
1. ”[T]here is no personal use exemption, nor any fair use immunity for home taping. Contrary to the premise of the question, there is no distinction between commercial and home personal taping.” 2. “Were we to bring a case for infringement against the home taper, we could prevail under existing law.”
It may be that these very clear sentiments do not reflect RIAA’s current thinking, but one wouldn’t be able to tell from the current material. So here’s a proposed solution: let’s give honest people what they want, clear guidance; instead of wasting Congress’s time on gluttonous issues like getting even greater statutory damage awards, why not spend that time drafting a personal use exemption – not fair use guidelines, but a real exemption. One that will exempt all home copying and use by individuals off of lawfully purchased copies, including space and format shifting, for noncommercial purposes. Such a law would earn copyright owners (and Congress) tremendous public applause, while those who are honest could forget about copyright law, finally. Those who are engaged in the truly problematic activities, like massive unauthorized distribution of works would be isolated, legally and in the public’s eyes. What I think is unacceptable is the status quo, one that deliberately keeps things vague and that lumps honest people who want to engage in home, personal, noncommercial uses in with those who deserve to be called pirates. If copyright owners wanted to change they status quo, they could, so why are they not? Drafting difficulties is not an answer: As copyright counsel to the House, I drafted, along with copyright owners, numerous far more complicated provisions. Nor is there any question that Congress is the only vehicle for achieving the necessary clarity. Sometimes things unsaid or not done also speak loudly and when that is the case it is hard to complain there is a misunderstanding about what is meant.