Recording Industry Willfully Misreads The Law In Order To Sue Ford & GM For Having Built-in CD Rippers

from the keep-scroungingn-for-loose-change dept

Tue, Jul 29th 2014 9:11am — Mike Masnick

It's no secret that the legacy recording industry players are constantly searching for new ways to make money. Of course, they don't seem all that keen on actually searching for new business models to make money, but rather they tend to default to new ways to squeeze money out of others through legal changes or lawsuits. That's what happens when you have an industry dominated by lawyers, rather than innovators. It's why so many new music services end up getting sued. It's why ASCAP tried to declare that ringtones were a public performance (ditto for the 30 second previews of songs at iTunes). Basically, these industries just go searching under the couch cushions for spare change to sue for because that's how they operate.

The latest such example is the AARC -- the Alliance of Artists and Recording Companies -- deciding to file a lawsuit demanding $2,500 for every car in which Ford and GM have installed CD devices that will automatically rip CDs into MP3s to store on a local hard drive. The AARC is a smaller and little known collection society. It was created solely to collect fees from the Audio Home Recording Act (AHRA), one of the many (many) laws that the RIAA foisted upon the world in fear over the rise of digital music. It was designed as something of a "compromise" between the RIAA and the computing and consumer electronics industry. The focus was supposedly to better enable personal, non-commercial home copies of music, while putting royalties on devices used to make serial (repeated) copies.

The problem is that the AHRA is basically a deadletter act, with little real standing in the world today, partly because the act itself killed the market for such devices. The RIAA had tried to use it in the late 1990s to ban the mp3 player (or, well, to tax them to death). But, thankfully, a court in RIAA v. Diamond rejected that interpretation of the law, making mp3 players perfectly legal (without the corresponding royalty tax). That ruling, which destroyed the RIAA's (wrong) interpretation of the law, also opened up the wonderful digital music world we have today, where you can store thousands of songs in your pocket. Without the RIAA v. Diamond ruling, it's unlikely that we'd ever have the iPod.

There are still a very small number of things that are supposedly covered by the AHRA, but AARC collects a tiny, tiny amount of money. The Copyright Office's data shows a total of $748,277.72 in 2013. That's down from previous years, but at it's very highest AARC collected $5.3 million, and most years it was closer to $2 million. Oh, and in case you're wondering, almost none of that money actually gets paid out. The last year that the Copyright Office has published details concerning these fees, 2010, it notes that AARC collected $1.75 million... and paid out just $7,894.84. Yes, you read that right. AARC collected nearly $2 million, but gave less than $8,000 to copyright holders (likely the major labels, who probably didn't give any of that money to actual artists). The previous year, it paid out a whopping $16,564.63.

However, suddenly AARC seems to think that these CD-to-mp3 devices violate the law, and the auto companies and the electronics firms that make the devices, Denso and Clarion, must pay. The AARC is pulling out all the stops to explain why the lawsuit makes sense, focusing on claims by GM (in its marketing material) that "the hard drive will not accept photos or other sorts of data" but just music. This is in part because of the Diamond ruling noted (correctly) that a general purpose hard drive doesn't apply. But the AARC appears to be totally ignoring other key parts of the ruling.

For example, the court focused on the fact that the AHRA was targeted towards devices that are making more copies of works, and not on attempts to make recordings for private, non-commercial use. Here's what the court said about Diamond's Rio mp3 player (SCMS is the DRM the AHRA required device manufacturers install -- the Rio didn't have it, because they noted you can't copy works off the device, so it wasn't needed):

the Rio does not permit such further copies to be made because it simply cannot download or transmit the files that it stores to any other device. Thus, the Rio without SCMS inherently allows less copying than SCMS permits.

In fact, the Rio's operation is entirely consistent with the Act's main purpose - the facilitation of personal use. As the Senate Report explains, "[t]he purpose of [the Act] is to ensure the right of consumers to make analog or digital audio recordings of copyrighted music for their private, noncommercial use."... The Act does so through its home taping exemption, ... which "protects all noncommercial copying by consumers of digital and analog musical recordings," ... The Rio merely makes copies in order to render portable, or "space-shift," those files that already reside on a user's hard drive. Cf. Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 455 (1984) (holding that "time-shifting" of copyrighted television shows with VCR's constitutes fair use under the Copyright Act, and thus is not an infringement). Such copying is paradigmatic noncommercial personal use entirely consistent with the purposes of the Act.

In other words, the court recognized that devices that are just recording for home and personal use (and not allowing further copies) fit nicely into the purpose of the act and aren't subject to the royalty rates. It seems likely that the same argument applies to Ford and GM in this case. The AARC coyly claims that "other manufacturers, importers and distributors of comparable music recorders pay the required royalties without controversy," but it doesn't name who actually pays or for what.

Of course, these days, even CD ripping is well on its way to the technological graveyard. If the AARC magically succeeds with this lawsuit, I would imagine it would receive a one-time payout (how much do you think artists will see?), followed by Ford and GM ditching CD rippers from their vehicles, and moving straight to built-in streaming setups via things like Pandora and Spotify. But, you know, these days, the legacy record labels are searching under every damn legal cushion, never once thinking that maybe not trying to demand cash, but rather earning it from willing buyers might make more sense.

Aarc Class Action Complaint (PDF)Aarc Class Action Complaint (Text)

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Filed Under: ahra, audio home recording act, cars, cd rippers, mp3 players, recording industry, royalties
Companies: aarc, clarion, denso, diamond, ford, gm, riaa

44 Comments

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Violynne (profile), 29 Jul 2014 @ 7:33am

"the legacy record labels are searching under every damn legal cushion, never once thinking that maybe not trying to demand cash, but rather earning it from willing buyers might make more sense."
NO. WAY.

Here's a better idea: empower the music makers and remove the labels completely from the picture.
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Ninja (profile), 29 Jul 2014 @ 7:48am

If the AARC magically succeeds with this lawsuit, I would imagine it would receive a one-time payout (how much do you think artists will see?), followed by Ford and GM ditching CD rippers from their vehicles, and moving straight to built-in streaming setups via things like Pandora and Spotify.

Sounds like a fair deal. If it leads to AARC death I'm all for it.

Also, let's hope the MAFIAA doesn't kill the streaming services before Ford and GM go for it. Or Comcast/Verizon don't throttle their connections to the point a 33600 modem is faster making streaming impossible. Actually, nevermind, let's go back to painting cave walls.
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Anonymous Coward, 29 Jul 2014 @ 9:29am

What is this "CD" of which you speak? Oh, you mean those silvery plastic coasters I use for my coffee cup? Why does the recording industry care about coasters?
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Michael, 29 Jul 2014 @ 9:30am

I had a car with one of these CD rippers in it, but my iPod didn't fit in the slot. I assume it must only work with Sony devices or a Kindle.
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John Fenderson (profile), 29 Jul 2014 @ 9:36am

Even better
followed by Ford and GM ditching CD rippers from their vehicles, and moving straight to built-in streaming setups via things like Pandora and Spotify.

Or, even better, the inclusion of an SD card slot so that people can rip their own CDs onto a card (or copy selections from their digital-only collection onto it.) Personally, I'd much rather that than a CD reader or streaming service anyway.
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Jason, 29 Jul 2014 @ 9:43am

Re: Even better
Or, even better, the inclusion of an SD card slot so that people can rip their own CDs onto a card (or copy selections from their digital-only collection onto it.) Personally, I'd much rather that than a CD reader or streaming service anyway.

That's what I have in my VW. It was a piece of cake.

1) Drag iTunes folder to SD card.
2) Insert SD card.
3) Listen to music. (With a fairly decent UI too.)
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Rich, 29 Jul 2014 @ 9:55am

Re:
I laugh every time some idiot writes this, thinking they are so hip and cool.
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Anonymous Coward, 29 Jul 2014 @ 9:56am

Remember kids, don't copy that floppy!
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jupiterkansas (profile), 29 Jul 2014 @ 10:06am

Re:
My teenage daughter has started buying CDs and considers it pretty retro.
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Anonymous Coward, 29 Jul 2014 @ 10:12am

Re:
Except that moving to Pandora and Spotify also puts money into the pockets of the MAFIAA, as we discussed on this site yesterday. Different tentacle, same monster.

The only way out of this is to starve the beast. Now it's true (as was pointed out yesterday) that it's a difficult task, but it's the only method that has the slightest chance of working. We might as well give it our best shot.
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John Strosnider (profile), 29 Jul 2014 @ 10:22am

Listening vs. paying
It seems like they and their ilk are saying, "We don't want you to listen to our music--just pay for it."
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John Fenderson (profile), 29 Jul 2014 @ 10:23am

Re: Re:
"Except that moving to Pandora and Spotify also puts money into the pockets of the MAFIAA"

Which is exactly why I don't use streaming services. It's too hard to maintain my boycott of RIAA-member music with them.
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John Fenderson (profile), 29 Jul 2014 @ 10:25am

Re: Listening vs. paying
Well, yes. They don't care at all whether anyone's actually listening to the music except insofar as it affects the flow of revenue.
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Anonymous Coward, 29 Jul 2014 @ 10:28am

I don't understand why these record labels are so upset. They act like tons of people are taking their product without buying or something.
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Anonymous Coward, 29 Jul 2014 @ 10:34am

It's like one last crash brag before CDs become obsolete like tape and record players.
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rapnel, 29 Jul 2014 @ 10:38am

Re: Re:
You might as well keep laughing since it's not really hurting anybody but you should probably know that their are technologically adept children out there that've never so much as touched one.
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Ninja (profile), 29 Jul 2014 @ 10:39am

Re: Re:
True enough. Or not. People are slowly shifting to self-publishing. Give it time and they'll be dead. Sure, lifetime plus infinity copyrihgts will make it a longer, bloody process =/
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rapnel, 29 Jul 2014 @ 10:41am

Re: Re: Listening vs. paying
Yeah, the polar opposite of the musicians that they claim to support. All that flow and nowhere to go.
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rapnel, 29 Jul 2014 @ 10:44am

Re:
No, they act like it's actually their product and it couldn't exist without them. They're upset because it will live without them. Welcome to tomorrow 30 years ago.
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Mason Wheeler (profile), 29 Jul 2014 @ 10:45am

AARC collects a tiny, tiny amount of money. The Copyright Office's data shows a total of $748,277.72 in 2013. That's down from previous years, but at it's very highest AARC collected $5.3 million, and most years it was closer to $2 million.

Could I have a tiny, tiny amount of money please?
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David, 29 Jul 2014 @ 10:46am

Compare to the ACA
The ACA (Obamacare, whatever) purports to require insurance companies to pay out %80 of their premiums to actual health care claims.

Maybe the AARC (and others) should be required to pay out 80% of their licensing fees to actual artists. Maybe the artists would actually get paid instead of the vast majority going to these 'licensing groups'. Let's see how they fight that when they constantly beat on the "think about the artists" drum.
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Anonymous Coward, 29 Jul 2014 @ 10:46am

Re:
don't worry, I just download it...
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MadAsASnake (profile), 29 Jul 2014 @ 11:01am

Even 50% would kill that noxious little industry stone dead. Another idea would be a requirement to distribute that money equitably between all impacted rightsholders. You know, like Spotify and Pandora do.
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Anonymous Coward, 29 Jul 2014 @ 11:11am

Re: Even better
Some Ford products have that. My Ford Fiesta has a SD card along with 2 USB ports. They work great. Ford Sync is sometimes a little slow on indexing, especially if there are a large amount of MP3s, but usually no problems.
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ltlw0lf (profile), 29 Jul 2014 @ 12:09pm

Re: Re:
My teenage daughter has started buying CDs and considers it pretty retro.

I occasionally buy them from independents like CDBABY. I call them backups.
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PaulT (profile), 29 Jul 2014 @ 12:10pm

" followed by Ford and GM ditching CD rippers from their vehicles, and moving straight to built-in streaming setups via things like Pandora and Spotify"

IOS 8 will apparently already include the ability to stream Spotify via CarPlay in the manufacturers that include it. No reason why those manufacturers can't add their own support or adopt Apple's solution.
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PaulT (profile), 29 Jul 2014 @ 12:16pm

Re:
"They act like tons of people are taking their product without buying or something."

They made a lot of money for decades by reselling people the same content over and over. They sold an 8 track to those who owned a vinyl, then they sold a CD to those people, then a remastered CD, then possibly a Minidisc or DAT. But, as soon as people could rip a CD legally, that revenue stream dried up. If you rip an MP3 through a CD you already own or - god forbid - stream the track through Spotify, that's a lost sale to them. Even an iTunes sale isn't enough because you might dare omit a few tracks you don't actually like instead of buying the whole album again.
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techflaws (profile), 29 Jul 2014 @ 12:40pm

Cue the Whatever troll to claim it's perfectly ok to make people pay for copies of songs they already paid for.
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Anonymous Coward, 29 Jul 2014 @ 12:42pm

Re: Re:
I have re-bought so many things, I figure I'm good for the rest of my life. Which is why I pirate almost all music and TV I watch.

Interestingly, I'd bet I still spend more on entertainment than most, because I go to movies in the theatre, go to concerts, and buy video games on PC and PS3.
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phils, 29 Jul 2014 @ 1:46pm

Re: Re: Re:
The other problem with streaming services (Pandora, Spotify) in a car is that you are using wireless data and that cost can run up if you use it a lot.

I just load a USB flash drive with several hundred or more MP3's, most at 320 bps, and plug it into my car stereo. Even an 8 GB drive is enough for a coast-to-coast road trip. Simple.
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jupiterkansas (profile), 29 Jul 2014 @ 2:00pm

Re:
Sure. Start a collections agency.
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Anonymous Coward, 29 Jul 2014 @ 4:21pm

Re:
Anyone with a CD to put in a car is almost guaranteed to be a paying customer already.

Way too much effort to find someone with a CD so you can copy it, as opposed to clicking like 2 links and just downloading it.
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Anonymous Coward, 29 Jul 2014 @ 6:11pm

Remember, the only reason why anyone would buy a cassette recorder/computer/Internet connection/blank CD/car is because they're a filthy, filthy pirate!
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JEDIDIAH, 29 Jul 2014 @ 6:44pm

It doesn't mean what you think it does.
The claim that "there exists a hipster" does not prove that the hipster point of view is any way prevalent or pervasive or dominant.

That just means that there are some annoying hipsters out there that go out of their way to make sure that their children can't relate to normal people.
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alternatives(), 29 Jul 2014 @ 7:53pm

The solution here for citizens would seem to be
Under the AHRA, importers and manufacturers pay royalties on "digital audio recording devices" and "digital audio recording media". Those who wish to import, manufacture and distribute must seek a statutory license from the Copyright Office. Royalties are based on "transfer price", either the sale price or the price recorded for customs purposes in the case of importers.

For digital audio recording devices, manufacturers and importers pay a 2% royalty on the device's transfer price, with a minimum royalty of $1 and a maximum of $8 ($12 for dual recorders) per device.

Thus declare yourself a maker of such devices, pay $8 and now you can put as much audio as you want on the 4 TB hard drive. When busted declare you'd paid the fee that covered the licensing.
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Sheogorath (profile), 29 Jul 2014 @ 8:08pm

I got in touch with AARC and pointed out to them where the AHRA says that Ford and GM's CD players are perfectly legal because their primary purpose is to play CDs, even if they can also rip them into MP3s. I'll see how it goes and update you all if possible.
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Anonymous Coward, 30 Jul 2014 @ 2:41pm

Re: Re: Re:
N+ forevah
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Anonymous Coward, 30 Jul 2014 @ 2:45pm

Re: Re:
Get her into buying Vinyls, that's right, all bands put em out and never really stopped putting them out.

I really like my digital vinyl player, removes the little shhh background but thats the only manipulation it does, maybe it doesn't play them like back then but the covers make for great posters. on your walls.
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Anonymous Coward, 30 Jul 2014 @ 2:46pm

Re: Even better
I have a dvd player that can read mp3's, i'm up to about #53. People will always be buying seperate parts from their cars if possible.
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cpt kangarooski, 30 Jul 2014 @ 5:39pm

I think they're correct on this one
So I think the AARC analysis is correct here.

The gist of the AHRA, even in RIAA v Diamond, was that portable music players were exempt from the various requirements of the AHRA basically because they only copied music via ordinary, standalone computers.

From the opinion (and remember that many of these terms have special definitions in the law that are not the same as the ordinary definition, but which control):

[12] The initial question presented is whether the Rio falls within the ambit of the Act. The Act does not broadly prohibit digital serial copying of copyright protected audio recordings. Instead, the Act places restrictions only upon a specific type of recording device. Most relevant here, the Act provides that "[n]o person shall import, manufacture, or distribute any digital audio recording device . . . that does not conform to the Serial Copy Management System ["SCMS"] [or] a system that has the same functional characteristics." 17 U.S.C. § 1002(a)(1), (2) (emphasis added). The Act further provides that "[n]o person shall import into and distribute, or manufacture and distribute, any digital audio recording device . . . unless such person records the notice specified by this section and subsequently deposits the statements of account and applicable royalty payments." Id. § 1003(a) (emphasis added). Thus, to fall within the SCMS and royalty requirements in question, the Rio must be a "digital audio recording device," which the Act defines through a set of nested definitions.

[13] The Act defines a "digital audio recording device" as:

any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, 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. . . .

[14] Id. § 1001(3) (emphasis added).

[15] A "digital audio copied recording" is defined as: [p*1076]

a reproduction in a digital recording format of a digital musical recording, whether that reproduction is made directly from another digital musical recording or indirectly from a transmission.

[16] Id. § 1001(1) (emphasis added).

[17] A "digital musical recording" is defined as:

a material object

(i) in which are fixed, in a digital recording format, only sounds, and material, statements, or instructions incidental to those fixed sounds, if any, and

(ii) from which the sounds and material can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

[18] Id. § 1001(5)(A) (emphasis added).

[19] In sum, to be a digital audio recording device, the Rio must be able to reproduce, either "directly" or "from a transmission," a "digital music recording."

...

[21] The typical computer hard drive from which a Rio directly records is, of course, a material object. However, hard drives ordinarily contain much more than "only sounds, and material, statements, or instructions incidental to those fixed sounds." Id. Indeed, almost all hard drives contain numerous programs (e.g., for word processing, scheduling appointments, etc.) and databases that are not incidental to any sound files that may be stored on the hard drive. Thus, the Rio appears not to make copies from digital music recordings, and thus would not be a digital audio recording device under the Act's basic definition unless it makes copies from transmissions.

[22] Moreover, the Act expressly provides that the term "digital musical recording" does not include:

a material object

(i) in which the fixed sounds consist entirely of spoken word recordings, or

(ii) in which one or more computer programs are fixed, except that a digital recording may contain statements or instructions constituting the fixed sounds and incidental material, and statements or instructions to be used directly or indirectly in order to bring about the perception, reproduction, or communication of the fixed sounds and incidental material.

[23] Id. § 1001(5)(B) (emphasis added). As noted previously, a hard drive is a material object in which one or more programs are fixed; thus, a hard drive is excluded from the definition of digital music recordings. This provides confirmation that the Rio does not record "directly" from "digital music recordings," and therefore could not be a digital audio recording device unless it makes copies "from transmissions."

...

[25] The Senate Report states that "if the material object contains computer programs or data bases that are not incidental to the fixed sounds, then the material object would not qualify" under the basic definition of a digital musical recording.[fn5] S. Rep. 102-294 (1992), reprinted at 1992 WL 133198, at *118-19. The Senate Report further states that the definition "is intended to cover those objects commonly understood to embody sound recordings and their underlying works." Id. at *97. A footnote makes explicit that this definition only extends to the material objects in which songs are normally fixed: "[t]hat is recorded compact discs, digital audio tapes, audio cassettes, long-playing albums, digital compact cassettes, and mini-discs." Id. at n.36. There are simply no grounds in either the plain language of the definition or in the legislative history for interpreting the term "digital musical recording" to include songs fixed on computer hard drives.

[26] RIAA contends that the legislative history reveals that the Rio does not fall within the specific exemption from the digital musical recording definition of "a material object in which one or more computer programs are fixed." 17 U.S.C. § 1001(5)(B)(ii). The House Report describes the exemption as "revisions reflecting exemptions for talking books and computer programs." H.R. Rep. 102-873(I) (1992), reprinted at 1992 WL 232935, at *35 (emphasis added); see also id. at *44 ("In addition to containing an express exclusion of computer programs in the definition of `digital musical recording'. . . .") (emphasis added). We first note that limiting the exemption to computer programs is contrary to the plain meaning of the exemption. As Diamond points out, a computer program is not a material object, but rather, a literary work, see, e.g., Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1249 (3d Cir. 1983) ("[A] computer program . . . is a `literary work.'"), that can be fixed in a variety of material objects, see 17 U.S.C. § 101 ("`Literary works' are works . . . expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such [p*1078] as books . . . tapes, disks, or cards, in which they are embodied.") (emphasis added). Thus, the plain language of the exemption at issue does not exclude the copying of programs from coverage by the Act, but instead, excludes copying from various types of material objects. Those objects include hard drives, which indirectly achieve the desired result of excluding copying of programs. But by its plain language, the exemption is not limited to the copying of programs, and instead extends to any copying from a computer hard drive.

...

[29] Under the plain meaning of the Act's definition of digital audio recording devices, computers (and their hard drives) are not digital audio recording devices because their "primary purpose" is not to make digital audio copied recordings. See 17 U.S.C. § 1001(3). Unlike digital audio tape machines, for example, whose primary purpose is to make digital audio copied recordings, the primary purpose of a computer is to run various programs and to record the data necessary to run those programs and perform various tasks. The legislative history is consistent with this interpretation of the Act's provisions, stating that "the typical personal computer would not fall within the definition of `digital audio recording device,'" S. Rep. 102-294, at *122, because a personal computer's "recording function is designed and marketed primarily for the recording of data and computer programs," id. at *121. Another portion of the Senate Report states that "[i]f the `primary purpose' of the recording function is to make objects other than digital audio copied recordings, then the machine or device is not a `digital audio recording device,' even if the machine or device is technically capable of making such recordings." Id. (emphasis added). The legislative history thus expressly recognizes that computers (and other devices) have recording functions capable of recording digital musical recordings, and thus implicate the home taping and piracy concerns to which the Act is responsive. Nonetheless, the legislative history is consistent with the Act's plain language - computers are not digital audio recording devices.[fn6]

...

[30] In turn, because computers are not digital audio recording devices, they are not required to comply with the SCMS requirement and thus need not send, receive, or act upon information regarding copyright and generation status. See 17 U.S.C. § 1002(a)(2). And, as the district court found, MP3 files generally do not even carry the codes providing information [p*1079] regarding copyright and generation status. See RIAA I, 29 F. Supp.2d. at 632. Thus, the Act seems designed to allow files to be "laundered" by passage through a computer, because even a device with SCMS would be able to download MP3 files lacking SCMS codes from a computer hard drive, for the simple reason that there would be no codes to prevent the copying.

[31] Again, the legislative history is consistent with the Act's plain meaning. As the Technical Reference Document that describes the SCMS system explains, "[d]igital audio signals . . . that have no information concerning copyright and/or generation status shall be recorded by the [digital audio recording] device so that the digital copy is copyright asserted and original generation status." Technical Reference Document for the Audio Home Recording Act of 1992, II-A, P 10, reprinted in H.R. Rep. 102-780(I), 32, 43 (1992) (emphasis added). Thus, the incorporation of SCMS into the Rio would allow the Rio to copy MP3 files lacking SCMS codes so long as it marked the copied files as "original generation status." And such a marking would allow another SCMS device to make unlimited further copies of such "original generation status" files, see, e.g., H.R. Rep. 102-873(I), at *47 ("Under SCMS . . . consumers will be able to make an unlimited number of copies from a digital musical recording."), despite the fact that the Rio does not permit such further copies to be made because it simply cannot download or transmit the files that it stores to any other device. Thus, the Rio without SCMS inherently allows less copying than SCMS permits.

If the device in the car is itself copying straight from a CD (unlike the Rio), and is not a general purpose device (like the computers that ripped music for the Rio), AHRA probably applies to it.

This is why, even though it would be quite easy, you don't really see basically single-purpose music players with recording functions
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Sheogorath (profile), 31 Jul 2014 @ 9:26am

Re: I think they're correct on this one
despite the fact that the Ford and GM CD players do not permit such further copies to be made because they simply cannot download or transmit the files that they store to any other device. Thus, the Ford and GM CD players without SCMS inherently allow less copying than SCMS permits.

Any clearer yet?
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cpt kangarooski, 31 Jul 2014 @ 9:50pm

Re: Re: I think they're correct on this one

despite the fact that the Ford and GM CD players do not permit such further copies to be made because they simply cannot download or transmit the files that they store to any other device. Thus, the Ford and GM CD players without SCMS inherently allow less copying than SCMS permits.

Any clearer yet?

The statute doesn't actually care. 17 USC 1002:

(a) Prohibition on Importation, Manufacture, and Distribution.— No person shall import, manufacture, or distribute any digital audio recording device or digital audio interface device that does not conform to—
(1) the Serial Copy Management System;
(2) a system that has the same functional characteristics as the Serial Copy Management System and requires that copyright and generation status information be accurately sent, received, and acted upon between devices using the system’s method of serial copying regulation and devices using the Serial Copy Management System; or
(3) any other system certified by the Secretary of Commerce as prohibiting unauthorized serial copying.

I don't see anything in there about a device that merely doesn't allow copying to be made from it. If it's not SCMS, and not certified, it has to have the status information accurately sent, received, and acted upon, etc. Regardless of whether the device is otherwise more restrictive.

And if it's a qualifying device, the royalty has to be paid. 17 USC 1003:

(a) Prohibition on Importation and Manufacture.— No person shall import into and distribute, or manufacture and distribute, any digital audio recording device or digital audio recording medium unless such person records the notice specified by this section and subsequently deposits the statements of account and applicable royalty payments for such device or medium specified in section 1004.

Any other suggestions?

What you really need to do is to show that it isn't a digital audio recording device; that's what happened in the Diamond Rio case. But I don't think it'll work here.
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Sheogorath (profile), 2 Aug 2014 @ 12:57pm

Re: Re: Re: I think they're correct on this one
I would have thought it was clear that I was paraphrasing the judge's remarks in RIAA v Diamond Multimedia. Plus, Wikipedia says:
The AHRA also includes blanket protection from infringement actions for private, non-commercial analog audio copying, and for digital audio copies made with certain kinds of digital audio recording technology.
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cpt kangarooski, 2 Aug 2014 @ 8:01pm

I would have thought it was clear that I was paraphrasing the judge's remarks

No, I know; but what that particular passage relates to was the argument that if computers and their hard drives are exempt from AHRA, that it defeats AHRA's purpose. The appellate judges found that in the case of the Rio, while AHRA did not apply, its purpose was not frustrated. That is, it was not an absurd result to find the Rio was legal.

The problem is that if AHRA does apply, compliance with part of the general idea (and not with the royalties provision, which is also at issue in this case) does not excuse non-compliance with the actual requirements of the statute.

As for the Wikipedia entry, surely you should know better than to cite that when you could cite the actual law. The blanket protection is at 17 USC 1008, but it only applies to copies made with AHRA-compliant devices, media, etc. This is why there had to be a fair use determination in the Rio decision, finding that space shifting could be non-infringing, because the protection in AHRA wasn't applicable. Here if you're saying the section 1008 protection applies, you're also having to concede that the plaintiffs are correct and that their action for violating sections 1002, and 1003 should succeed.

Here's the relevant 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.

Note, btw, that it only protects against infringement actions, not actions to enforce the AHRA itself.
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