major substantive changes to copyright law. First, Subchapter D of the AHRA (Section 1008)
immunizes certain noncommercial recording and use of musical recordings in digital or analog
form.^1628 Section 1008 provides:
No action may be brought under this title alleging infringement of copyright^1629
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.Second, Subchapters B and C (Sections 1002-1007) of the AHRA require (i) that any
“digital audio recording device” conform to the “Serial Copyright Management System”
(SCMS), which allows unlimited first generation copies of an original source, but prohibits
second generation copies (i.e., copies of a copy), and (ii) that manufacturers and distributors of
digital audio recording devices and digital audio recording media (such as DAT tape and
recordable CDs) pay royalties and file various notices and statements to indicate payment of
those royalties.^1630
Napster argued that under the direct language of Section 1008, no action for infringement
of copyright could be brought against Napster’s users, who were consumers and who were
engaged in the noncommercial making and sharing (distribution) of digital musical recordings.
Because the actions of Napster’s users were immune, Napster argued that it could not be
contributorily or vicariously liable for those actions.^1631 Napster cited the following legislative
history of the AHRA as support for its argument that Congress intended to afford a very broad
immunity for non-commercial copying of audio recordings:
- S. Rep. 102-294 (1992) at 51 (“A central purpose of the Audio Home Recording Act of
1991 is conclusively to resolve [the] debate” over the “copyright implications of private
audio recording for noncommercial use.”). - H. Rep. 102-873(I) (1992) at 24 (“In the case of home taping, the exemption protects all
noncommercial copying by consumers of digital and analog musical recordings.”). - Contemporaneous comments by Jason Berman, former head of the RIAA, acknowledging
that the immunity provisions of the AHRA were intended to have a broad scope, stating:
“The [AHRA] will eliminate the legal uncertainty about home audio taping that has
(^1628) Nimmer § 8B.01 (2000).
(^1629) The immunity applies with respect to copyrights in both the sound recordings and any musical compositions
embodied therein. Id. § 8B.07[C][2], at 8B-90.
(^1630) Id. §§ 8B.02 & 8B.03 (2000).
(^1631) Opposition of Defendant Napster, Inc. to Plaintiffs’ Motion for Preliminary Injunction, A&M Records, Inc. v.
Napster, Inc., Civ. Nos. C99-5183 MHP (ADR) & C00-0074 MHP (ADR) (July 5, 2000), at 5-6 (hereinafter,
“Napster’s PI Opp. Br.”), on file with the author.