Legal Issues
While no Court has ruled on the specific legality of using a program such as Total Recorder to bypass the DRM used by Apple’s Itunes, the following is a background summary of what one should consider when looking at this issue.
Statutory and Case Law Considerations:
Audio Home Recording Act of 1992 (AHRA): Fearing consumers ability to make exact digital audio recordings, the RIAA (Recording Industry Association of America) lobbied Congress for this legislation which essentially struck a compromise between those who wanted to protect a consumer’s right to make copies of music with songwriters, performers, and record companies who wanted to make sure that this new ability to make digital copies did not cripple the music industry. The Act gives consumers immunity from law suits for making non commercial digital copies with AHRA covered devices. It also required manufacturers of digital recorders to install circuitry to prevent users from making more than 1st generation copies.
This Act does not apply to our situation due to the 9th Circuit Court of Appeals decision in RIAA v. Diamond Multimedia Systems, Inc. The Court ruled that the AHRA does not apply to computer hard drives because the primary purpose of computers is not to make digital recordings. This had 2 effects: First, this allowed the continued production of the Rio MP3 player without any circuitry that would prevent consumers from making additional copies of music stored on them. However, it also took away the immunity created under the Act for consumers who use computers to duplicate digital music files.
So, in our case, we’re using a computer and therefore we cannot fall under the Act.
DMCA (Digital Millenium Copyright Act of 1998): The act makes it unlawful to circumvent DRM technologies of copyrighted material. The DMCA does not explicitly prevent circumvention by individual users for Fair Use purposes. While we employed Total Recorder to circumvent Apple’s DRM technology, we have not and will not distribute the resulting converted Itunes files to others.
We may also fall under the encryption research exemption provision of the DMCA. However, we would need to comply with the specific requirements of this provision including the requirement to notify the creator of the protection mechanism as soon as we broke it.
FAIR USE: Essentially, if you legally purchase digital media such as the songs in our case, the doctrine of FAIR USE allows you to convert it to another format so long as you don’t share it with other people. The Court, in RIAA v. Diamond Multimedia Systems, Inc. held that the purpose of the fair use privilege is to protect consumers noncommercial copying of digital and analog musical recordings. Thus, in our case, we used Total Recorder for the sole purpose of converting to another format that we could PERSONALLY use in other media players.
The first landmark case in this area was Sony Corporation of America v. Universal City Studios, Inc. where the Supreme Court held that a consumer’s use of a VCR to record a television broadcast satisfied the doctrine of fair use because it amounted to no more than “time shifting” the content to a period more convenient for the consumer. The 9th Circuit Court of Appeals in RIAA extended the ruling in Sony Corporation by holding that the transfer of music files to MP3 players qualifies as fair use because it simply amounted to mere “space shifting.” The Court reasoned that a consumer’s right to “space-shift” (move files from one place to another) their music, is similar to their right to “time-shift” recordings that was upheld in Sony Corporation.
In our case study, by using Total Recorder we were able to “space-shift” the songs we purchased from the Itunes store to a format that would allow us to listen to the songs on multiple media players.
We conclude that our initial thoughts that Total Recorder does not violate copyright law so long as it is used for personal recordings holds true.
Statutory and Case Law Considerations:
Audio Home Recording Act of 1992 (AHRA): Fearing consumers ability to make exact digital audio recordings, the RIAA (Recording Industry Association of America) lobbied Congress for this legislation which essentially struck a compromise between those who wanted to protect a consumer’s right to make copies of music with songwriters, performers, and record companies who wanted to make sure that this new ability to make digital copies did not cripple the music industry. The Act gives consumers immunity from law suits for making non commercial digital copies with AHRA covered devices. It also required manufacturers of digital recorders to install circuitry to prevent users from making more than 1st generation copies.
This Act does not apply to our situation due to the 9th Circuit Court of Appeals decision in RIAA v. Diamond Multimedia Systems, Inc. The Court ruled that the AHRA does not apply to computer hard drives because the primary purpose of computers is not to make digital recordings. This had 2 effects: First, this allowed the continued production of the Rio MP3 player without any circuitry that would prevent consumers from making additional copies of music stored on them. However, it also took away the immunity created under the Act for consumers who use computers to duplicate digital music files.
So, in our case, we’re using a computer and therefore we cannot fall under the Act.
DMCA (Digital Millenium Copyright Act of 1998): The act makes it unlawful to circumvent DRM technologies of copyrighted material. The DMCA does not explicitly prevent circumvention by individual users for Fair Use purposes. While we employed Total Recorder to circumvent Apple’s DRM technology, we have not and will not distribute the resulting converted Itunes files to others.
We may also fall under the encryption research exemption provision of the DMCA. However, we would need to comply with the specific requirements of this provision including the requirement to notify the creator of the protection mechanism as soon as we broke it.
FAIR USE: Essentially, if you legally purchase digital media such as the songs in our case, the doctrine of FAIR USE allows you to convert it to another format so long as you don’t share it with other people. The Court, in RIAA v. Diamond Multimedia Systems, Inc. held that the purpose of the fair use privilege is to protect consumers noncommercial copying of digital and analog musical recordings. Thus, in our case, we used Total Recorder for the sole purpose of converting to another format that we could PERSONALLY use in other media players.
The first landmark case in this area was Sony Corporation of America v. Universal City Studios, Inc. where the Supreme Court held that a consumer’s use of a VCR to record a television broadcast satisfied the doctrine of fair use because it amounted to no more than “time shifting” the content to a period more convenient for the consumer. The 9th Circuit Court of Appeals in RIAA extended the ruling in Sony Corporation by holding that the transfer of music files to MP3 players qualifies as fair use because it simply amounted to mere “space shifting.” The Court reasoned that a consumer’s right to “space-shift” (move files from one place to another) their music, is similar to their right to “time-shift” recordings that was upheld in Sony Corporation.
In our case study, by using Total Recorder we were able to “space-shift” the songs we purchased from the Itunes store to a format that would allow us to listen to the songs on multiple media players.
We conclude that our initial thoughts that Total Recorder does not violate copyright law so long as it is used for personal recordings holds true.
posted by Bart Bressler at 5:09 AM
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