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A legal matter

Keeping up with the ever-shifting personal-use legislation.

Part of the reason the debate over intellectual property and the perceived rights (or lack thereof) of music lovers keeps chugging along is that the laws governing those issues keep changing. And if you’re paying attention, the focus of the legislation on the subject seems to be inching away from consumers’ rights.

Regardless of your stance on the rights of copyright owners versus those of consumers, it pays to be informed. Three acts of Congress in the past decade have had a significant effect on home-recording rights. To recap:

o The Audio Home Recording Act (AHRA) was passed late in 1992 after it became clear that the emergence of digital audio recording technologies was going to lead to copyright disputes. One of the most important elements of the act was that it guaranteed consumers the right to use all analog and digital audio recording formats to make personal-use copies of CDs and other digital sources of music. The act also provided for the rights of copyright holders by imposing a royalty on the sale of digital-audio recorders and by inhibiting the devices’ ability to mass-produce digital copies. In exchange, if you bought a CD, your right to personal-use copies was unlimited.

o The home-recording implications of the 1996 Digital Millennium Copyright Act (DMCA) were somewhat lost in the massive scope of the legislation. One thrust of the act was to address the failure of international copyright treaties to prohibit devices used to undermine electronic “locks” designed to prevent copying of CDs. The DMCA (among many, many other things) bans the manufacture and distribution of devices designed to undermine technology used to protect copyrighted works. Clearly, this portion of the act paved the way for the current trend of CDs embedded with anticopying technology.

o The No Electronic Theft (NET) Act of 1997 was ostensibly written to close loopholes in laws meant to protect computer software manufacturers. But language in the NET act says that sound recording infringements (including by digital means) can be criminally prosecuted even where no commercial gain is derived from the infringement. The NET Act also extends the criminal statute of limitations for copyright infringement from three to five years. Additionally, the NET Act amended the definition of commercial gain to include the receipt (or expectation of receipt) of anything of value, including copyrighted works–a prime example being MP3s.

Why is Congress seemingly so unable to provide a definitive ruling on what consumers can and can’t do with music they’ve legally paid for? One side will tell you that digital music is a rapidly expanding and shifting medium, and laws have to be rapidly created and tweaked to keep pace. Others will tell you that Congress is slowly bowing to pressure from groups who want to keep tightening restrictions on copying.

Obviously, two developments lawmakers didn’t count on in 1992 were the emergence of MP3 technology and the presence of a CD-R drive on virtually every new PC. But the fact remains that the most important right guaranteed by the AHRA was that of consumers to make copies for personal use of legally purchased recorded music–and that right is steadily eroding. The leading culprits are antipiracy tools added to CDs to discourage file sharing.

And the beat goes on. The cheerily named Consumer Broadband and Digital Television Promotion Act was introduced in March. If enacted, the act would make it illegal for American electronics and software producers to sell any digital media device unless it had “standard security technologies that adhere to the security system standards” (anticopying measures) as defined by the Federal Communications Commission–standards that don’t yet exist. In other words, agree to abide by our rules, and then we’ll tell you what they are.

Write your congressperson.

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