Audio Home Recording Act of 1992, Pub. L. No. 102-563, 106 Stat. 4237 (Oct. 28, 1992), codified at 17 U.S.C. §1001 et seq. (full-text).
The Act was Congress's response to a controversy between the music industry and the consumer electronics industry regarding the introduction of digital audio recording technology into the domestic consumer market. The Act represented an effort to resolve that controversy through a carefully developed and finely balanced legislative compromise. The AHRA established a licensing system for the manufacture of equipment that facilitates the copying or selling of digital recordings. The AHRA amended the 1976 Copyright Act by adding chapter 10, “Digital Audio Recording Devices and Media.”
Beginning in the 1980s, consumer electronics firms began to develop tape recorders and other consumer recording devices that employ digital audio recording technology. Unlike traditional analog recording technology, which results in perceptible differences between the source material and the copy, digital recording technology permits consumers to make copies of recorded music that are identical to the original recording. Moreover, a digital copy can itself be copied without any degradation of sound quality, opening the door to so-called "serial copying" — making multiple generations of copies, each identical to the original source.
The capability of digital audio recording technology to produce perfect copies of recorded music made the technology attractive to the consumer electronics industry, which anticipated substantial consumer demand for tape recorders and other recording devices equipped with digital recording technology. However, the same capability was a source of concern to the music industry, which feared that the introduction of digital audio recording technology would lead to a vast expansion of "home taping" of copyrighted sound recordings and a corresponding loss of sales.
When digital audio recording technology first became available for the consumer market, the legality of home taping of copyrighted sound recordings was a subject of ongoing controversy between the music industry and the consumer electronics industry. In Sony Corp. v. Universal City Studios, Inc., the Supreme Court held that the use of VCR recording technology by consumers to make home copies of broadcast programs for viewing at another time ("time-shifting") constituted a non-infringing "fair use" of the copyrighted material. The consumer electronics industry, together with consumer groups, argued that the Sony Court recognized a general right to engage in home taping of copyrighted materials for personal use; the music industry argued that Sony was decided on narrow grounds and did not give the Court's general imprimatur to home taping.
In 1990, music publishers and songwriters filed a class action suit for copyright infringement against Sony Corporation, which had begun to market DAT (Digital Audio Tape) recorders. During the course of the litigation, negotiations were undertaken to develop a general non-judicial solution to the digital audio recording controversy. The recording industry, recording artists, songwriters, music publishers, the consumer electronics industry, and consumer groups all participated in the negotiations.
The negotiations culminated in 1991 in a compromise agreement among the interested parties, which was presented to Congress as the basis for legislation. The AHRA embodies the essential terms of that compromise. The compromise involves a basic quid pro quo between the music industry on the one hand and the consumer electronics industry and consumers on the other. In February 1992, Tandy Corp. (now RadioShack) CEO John Roach explained this joint effort, and its importance to industry and consumers, to a subcommittee of the House Judiciary Committee:
|“||[L]ast year, when music and consumer electronics industry representatives were before the Senate Commerce Committee, your colleagues in the other chamber asked us to work out a compromise. Today, I can report that we have. . . . [T]his historic compromise is embodied in the legislation before you today.
. . . This legislation enables consumers to make recordings for their own private, noncommercial use; eliminates manufacturer or retailer liability for alleged copyright infringement; and fosters music industry support for the new generation of digital recording formats.
Of special importance to Tandy is the protection the bill would afford manufacturers and retailers from copyright infringement actions based on consumer audio taping practices. This would create a more stable environment for the introduction of new products and formats, allowing us to focus on marketing strategies instead of litigation strategies.
The Act combines legal and technological protection for sound recordings. The Act requires a serial copy management system (SCMS) in all digital audio recording devices and digital audio interface devices imported, manufactured or distributed in the United States. Such a system allows unlimited first generation digital copying of sound recordings, but prevents the making of digital copies from copies.
The hardware is programmed to read certain coding information contained in the "digital subcode channel" of digital sound recordings and broadcasts. Based on the information it reads, the hardware circuitry will permit unrestricted copying, permit copying but label the copies it makes with codes to restrict further copying, or disallow copying entirely.
The Act prohibits the importation, manufacture or distribution of any device, or the offering or performance of any service, the primary purpose of which is to circumvent any program or circuit which implements a serial copy management system.
The Act also establishes a royalty system through which importers and manufacturers of digital audio recording devices and digital audio recording media make royalty payments on each device or medium they distribute. Such payments are collected by the Copyright Office and distributed annually to record companies, performers, music publishers and songwriters. The appointing and distributing agent for fees paid pursuant to the AHRA is the Alliance of Artists and Recording Companies (AARC).
In exchange for these benefits, the AHRA provides manufacturers and importers of of audio equipment, sellers of digital recording devices, marketers of blank recordable media and consumers with prescribed statutory immunity from suits for copyright infringement. The Act provides:
|“||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.||”|
By its terms, Section 1008 disallows two kinds of actions for copyright infringement. The first are actions "based on the manufacture, importation, or distribution" of the specified recording devices and recording media. The second are actions "based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings." Section 1008 bars any action for copyright infringement "under Title 17 of the U.S. Code based on these activities."
Application to Computers
Because the Act defines "digital musical recording" as a "material object" that does not include "one or more computer programs," the Act does not cover songs fixed on computer hard drives and extends only to recordings from the material objects in which songs are otherwise normally fixed, such as recorded compact discs (CDs), digital audio tapes (DATs), audio cassettes, long-playing (LP) albums, digital compact cassettes, and mini-discs.
- See generally H.R. Rep. No. 873(I), 102nd Cong., 2nd Sess. 11-13 (1992) ("House Report"), reprinted in 1992 U.S. Code Cong. & Admin. News ("USCCAN") 3581-83; S. Rep. No. 294, 102nd Cong., 2nd Sess. 30-45 (1992) ("Senate Report").
- See House Report at 11-12, reprinted in 1992 USCCAN at 3581-82; Senate Report at 31.
- 464 U.S. 417 (1984).
- Senate Report at 33 & n.16.
- See House Report at 13, reprinted in 1992 USCCAN at 3583; Senate Report at 33-34.
- Audio Home Recording Act of 1991: Hearing Before the Subcomm. on Intell. Prop. and Jud. Admin., House Comm. on the Judiciary, 102nd Cong. 152-53 (1992) (prepared statement of Mr. Roach, Chairman of the Board, Tandy Corporation).
- See 17 U.S.C. §1001 et seq.
- See 17 U.S.C. §1002. See also H.R. Rep. No. 102-873(I), 102nd Cong., 2nd Sess., reprinted in 1992 U.S.C.C.A.N. 3578, 3579-80, 3583 n.15.
- 17 U.S.C. §§1003 (obligation), 1004 (payments), 1006 (entitlement to receive share of payments), and 1007 (procedures for distributing royalty payments).
- Id. §1008.
- 17 U.S.C. §1001(5).
- See Recording Indus. Ass'n of America v. Diamond Multimedia Sys., Inc., 180 F.3d 1073 (9th Cir. 1999).
- Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights, at 11 n.23.