Re: books on tape

Below the dashed line is a forwarded response to a thread from late June. The author, Professor Tyler Ochoa (Whittier Law School), unsubscribed from the list because he wasn't going to be accessing his e-mail account often enough and justifiably feared the build-up of mail. I sent him some of the messages on this topic, and I've excised copies of those messages from his response.

One note from me regarding what Tyler says below: Before the 1990 Amendment to 109, there was indeed no reference to computer software. The pre-1990 language read:

"Notwithstanding the provisions of subsection (a), unless authorized by the owners of copyright in the sound recording and in the musical works embodied therein, the owner of a particular phonorecord may not, for purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending. Nothing in the preceding sentence shall apply to the rental, lease, or lending of a phonorecord for nonprofit purposes by a nonprofit library or nonprofit educational institution."

Bob Stock
<bstock[_at_]ucla.edu>

On Mon, 30 Jun 1997, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> It seems to me they've pretty much covered the arguments for
> and against. I would add only that 109(b) is the product of two
> separate amendments: The Record Rental Amendment Act of 1984, and
> the Computer Software Rental Amendments Act of 1990. In other
> words, when it was first enacted, 109(b) didn't apply to computer
> software at all. I haven't gone back to check the original
> language, but I'm willing to bet it read something like the
> following: "unless authorized by the owners of copyright in the
> sound recording or in the musical works embodied therein." If so,
> that would lend additional support to Eric's view that sound
> recordings not embodying musical works are not covered.
> My copyright casebook doesn't quote the legislative history, but
> it states with regard to the 1984 amendment: "Notice that this
> legislation applies only to sound recordings embodying musical
> compositions, and not to motion pictures or other audiovisual
> works." Hardly a definitive or unambiguous statement, but perhaps
> an indication that Eric is correct.
>
> The subsequent addition of computer software in between the two
> clauses in the original version weakens the inference that only
> sound recordings embodying musical works are covered, but there is
> no indication that the 1990 amendment intended to change the scope
> of 109(b) except by adding computer software.
>
> So, if I'm correct about the original language, I'd be inclined
> toward Eric's view; but Mark is certainly correct that the existing
> language is at least ambiguous, and without reference to the
> legislative history, it could easily be construed to prohibit rental
> of books on tape. Given some members of this Court's penchant for
> "plain language" interpretation and their disdain for legislative
> history in general, it wouldn't surprise me if they went that way,
> but I think it would be incorrect given the history.
Received on Thu Jul 03 1997 - 01:26:28 GMT