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13B.1 copying: sound recordings
1909 Act: §5(e) allowed registration for “musical compositions” but not to the recordings embodying them; §1(e) gave creators of a musical composition the exclusive right “to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced”.
1947 Act: Same as 1909 Act until 1972; thereafter in §§2, 104
1976 Act: §§114-116; as of October 28, 1992: also §§1001-1010; as of December 8, 1994: also §1101
Circulars 56, 56a
“October 28, 1992[:] Digital Audio Home Recording Act required serial copy management systems in digital audio recorders and imposed royalties on sale of digital audio recording devices and media. Royalties are collected, invested, and distributed among the owners of sound recording and musical compositions, certain performing artists, and/or their representatives. Clarified legality of home taping of analog and digital sound recordings for private noncommercial use.” (Information Circular 1a)
“December 8, 1993[:] North American Free Trade Agreement Implementation Act (NAFTA) … made permanent the prohibition of sound recordings rental.” (Information Circular 1a)
“December 8, 1994[:] Uruguay Round Agreements Act … created legal measures to prohibit the unauthorized fixation and trafficking in sound recordings of live musical performances and music videos.” (Information Circular 1a)
Concerning “restorations” effective January 1, 1996: “Generally, the U.S. copyright term for works published before January 1, 1978, lasts for 95 years from the year of first publication. Although sound recordings fixed before 1972 were not then protected by federal copyright, those sound recordings will receive the remainder of the term they would have received had they been protected by such copyright when published. For example, a sound recording published in 1925 will be protected until 2020. For works published on or after January 1, 1978, the term of copyright is the life of the author plus 70 years.” (Information Circular 38b)
Goldstein was a “record pirate,” operating a cassette-tape plant where “between April 1970 and March 1971, [he] had copied several musical performances from commercially sold recordings without the permission of the owner of the master record or tape.” He was charged under California law, but challenged whether his actions were indeed against the law. The Supreme Court recognized that Congress had in 1971 passed legislation that might seem to be in conflict with that of California, and that “the States cannot exercise a sovereign power which, under the Constitution, they have relinquished to the Federal Government for its exclusive exercise.” The Court ruled: “Although in 1971, the federal copyright statutes were amended to allow federal protection of recordings, such statutory protection was not intended to alter the legal relationships governing recordings ‘fixed’ prior to February 15, 1972. Until and unless Congress takes further action with respect to recordings fixed prior to February 15, 1972, California remains free to proscribe acts of record or tape piracy such as those involved here.”
Goldstein had crossed the line in trampling on the property rights of the companies which owned the rights to the recordings he duplicated. However, “No restraint has been placed on the use of an idea or concept; rather, petitioners and other individuals remain free to record the same compositions in precisely the same manner and with the same personnel as appeared on the original recording.”
Cases Summarized in Other Sections
|Metro-Goldwyn-Mayer Studios Inc, et al. [includes numerous other movie studios] vs Grokster, Ltd. (launch this) decided that the owners of peer-to-peer computer networks are liable for infringement when they encourage their users to share unlawfully-copied music.|
“Against this background, the statements regarding home recording under the 1971 Amendment appear in a very different light. If home recording was ‘common and unrestrained’ under the 1909 Act, see 1971 House Report 7, it was because sound recordings had no copyright protection and the owner of a copyright in the underlying musical work could collect no more than a 2-cent royalty plus 6 cents in damages for each unauthorized use. With so little at stake, it is not at all surprising that the Assistant Register ‘d[id] not see anybody going into anyone’s home and preventing this sort of thing.’ 1971 House Hearings 23.” (from Blackmun’s dissent, Sony v. Universal, 1984)
13B.2 copying: video recordings
Video recordings has largely been governed by the statutes applying to motion pictures:
1909 Act: §1(d) (subsumed by “dramatic work… not reproduced in copies for sale”)
1947 Act: §1(d) (subsumed by “dramatic work… not reproduced in copies for sale”)
1976 Act: §102; effective December 8, 1994, §1101 applies to music videos.
Sony manufactures videotape recorders which purchasers have used to record copyrighted television programs owned by Universal (and Walt Disney Productions, which was also named in the suit). The studios sued and won on appeal. Sony sought reversal from the Supreme Court. The Supreme Court held that “The sale of the VTRs to the general public does not constitute contributory infringement of respondents’ copyrights.” They reasoned that “Any individual may reproduce a copyrighted work for a ‘fair use’”; that “the only contact between” Sony “and the users of the VTRs occurred at the moment of sale,” thus manufacturers were not subject to “vicarious liability” should customers “use the equipment to make unauthorized copies of copyrighted material. The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes, or, indeed, is merely capable of substantial noninfringing uses.” Further, “there is a significant likelihood that substantial numbers of copyright holders who license their works for broadcast on free television would not object to having their broadcast time-shifted by private viewers” and time-shifting would not harm “the potential market for, or the value of, respondents’ copyrighted works.”
Among the evidence which the Court considered was that:
• “representatives of professional baseball, football, basketball, and hockey testified that they had no objection to the recording of their televised events for home use.”
• In the District Court case, “No issue concerning the transfer of tapes to other persons, the use of home-recorded tapes for public performances, or the copying of programs transmitted on pay or cable television systems was raised.”
The Court weighed evidence of copyright owners who did not object to home copying, copyright owners who might, and the responsibility of those who tape to bear responsibility.
The District Court had believed granting relief to Universal would be wrong because “the Betamax [VTR] could still legally be used to record noncopyrighted material or material whose owners consented to the copying. An injunction would deprive the public of the ability to use the Betamax for this noninfringing off-the-air recording.”
The Supreme Court noted: “The two respondents in this case [Universal and Disney] do not seek relief against the Betamax users who have allegedly infringed their copyrights. Moreover, this is not a class action on behalf of all copyright owners who license their works for television broadcast, and respondents have no right to invoke whatever rights other copyright holders may have to bring infringement actions based on Betamax copying of their works.” The Court was not supplied with an estimate, but contended that the percentage of television programming owned by the two studios is “well below 10%.”
The manager of a PBS affiliate, channel 58 in Los Angeles, provided evidence that among producers of programs scheduled in the station’s Spring 1978 guide, “58% authorize some home taping” (“some” subsumed those with a restriction “such as erasure within seven days”) and “almost 20% authorize unrestricted home taping.”
The Court was also guided by “the testimony of Fred Rogers, president of the corporation that produces and owns the copyright on Mister Rogers’ Neighborhood. The program is carried by more public television stations than any other program. Its audience numbers over 3,000,000 families a day. He testified that he had absolutely no objection to home taping for noncommercial use and expressed the opinion that it is a real service to families to be able to record children’s programs and to show them at appropriate times… .
“If there are millions of owners of VTR’s who make copies of televised sports events, religious broadcasts, and educational programs such as Mister Rogers’ Neighborhood, and if the proprietors of those programs welcome the practice, the business of supplying the equipment that makes such copying feasible should not be stifled simply because the equipment is used by some individuals to make unauthorized reproductions of respondents’ works.”
The Court did not address the building of home-taped videocassette libraries, except within a footnote presenting an anecdote about a user who found that retaining more than 100 cassettes was too expensive. Given that tapes sold for about $20 each when the Betamax was first introduced, then about $10 each at the time of the verdict, and at about $1 each (in devalued money) at the time of this writing (2006), that anecdote has lost validity. (Justice Blackmun’s dissent, on which he was joined by three justices, addresses the issue of “library-building” to a greater degree.) The legality of home-taped video libraries has not been addressed by legislation.
Cases Summarized in Other Sections
|Encyclopedia Britannica Educational Corp., Learning Corp. of America and TimeLife vs Crooks, et al, and Board of Cooperative Educational Services, Erie County (launch this) concerned an educational television station that, on behalf of a school district, engaged in large-scale copying of educational programs from public television stations, thereby building a library of thousands of tapes that were lent to schools in lieu of the schools renting from the copyright owners.|
In MGM v. Grokster, the Supreme Court—seeking a resolution to the legality of peer-to-peer networks given that they are used for unauthorized distribution of copyrighted material—looked back on the Court’s decision in Sony v. Universal. Internal quotes in the following passage from within MGM v. Grokster are quotations from Sony v. Universal that the Court in 2002 considered significant and analogous in deciding the later case.
“‘Accordingly,’ the Court held, ‘the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.’ Ibid. [Sony, 464 U. S., at 442.] Thus, to resolve the Sony case, the Court explained, it had to determine ‘whether the Betamax is capable of commercially significant noninfringing uses.’ Ibid.
“To answer that question, the Court considered whether ‘a significant number of [potential uses of the Betamax were] noninfringing.’ Ibid. The Court homed in on one potential use—private, noncommercial time-shifting of television programs in the home (i.e., recording a broadcast TV program for later personal viewing). Time-shifting was noninfringing, the Court concluded, because in some cases trial testimony showed it was authorized by the copyright holder, id., at 443-447, and in others it qualified as legitimate fair use, id., at 447-455. Most purchasers used the Betamax principally to engage in time-shifting, id., at 421, 423, a use that ‘plainly satisfie[d]’ the Court’s standard, id., at 442. Thus, there was no need in Sony to ‘give precise content to the question of how much [actual or potential] use is commercially significant.’ Ibid.” (All brackets appear here as they do in the Grokster decision.)
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© 2007 David P. Hayes