Re: Copyright and MP3 issues

On Fri, 30 Apr 1999, Jessica Litman <litman[_at_]mindspring.com> wrote:
>
> On 4/29/99, Sabrina McLaughlin <smclaughlin1[_at_]doc.gov> wrote:
> >
> > Professor Litman is quite right, although there is a strange and
> > unseemly complication in that the AHRA does not DEFINE what a Serial
> > Copy Management System IS... (Even the legislative history on this
> > makes it difficult to track down, because new technology makes such a
> > defined system -- designed with DAT machines in mind -- more or less
> > obsolete. So the fallback question becomes: what systems are (there
> > aren't) certified under the law as prohibiting unauthorized serial
> > copying.
>
> Industry negotiated a voluminous (that is, nearly 80 page)
> detailed "technical reference document" defining SCMS in very precise
> terms, and that document was in fact incorporated by reference in the
> version of the bill that initially passed the Senate -- the Senate
> version also required a complicated rulemaking by the Commerce
> Department. The version passed by the House deleted the incorporation
> by reference, but retained a slimmed down version of the rulemaking.
> The unofficial understanding was that the system defined in the
> technical reference document was agreed by all the relevant industry
> groups to comply with whatever the statute required an SCMS to do.
> The general opinion seemed to be that as technology developed, Commerce
> would certify as an SCMS any system that did the same thing as the
> system defined in the technical reference document. I believe that
> the Commerce Department has never gotten around to the rulemaking, and
> there doesn't seem to have been any pressure from any industry group
> to inspire it to do so. DAT machines never gained enough market share
> to make it worth it.
>
> If the _Rio_ case ends up holding that MP3 players fall within
> the terms of the AHRA, then I would expect some industry lobbying
> of Commerce to redefine SCMS in terms that make sense for current
> technology. It seems equally likely, though, that the court will
> hold that Congress didn't intend AHRA to apply to computer hardware
> or software at all.

It's a common misperception that the AHRA was about DAT and only DAT. In the previous Congress, a bill had been introducd widely known as the "DAT Bill," even though it was addressed to any digital recorders and media used primarily to record music. The RIAA backed away from that bill after the DCC and Minidisc audio recording formats were introduced, claiming that the "DAT Bill" was too DAT-centric. So, from its inception, the AHRA was negotiated with the clear understanding that it would apply to any music-primary digital recording format and interface.

Nor was the Technical Reference Document limited to DAT, or DAT, Minidisc and DCC, in its application. The TRD set forth general rules and examples. The specific examples dealt with the applications that were best understood -- the DAT recording format and the IEC 958 digital interface -- but was not meant to be exclusive in its application to these technologies.

While the bill, as drafted in the private sector and accepted in the Senate, was a compromise and hence imprecise in several respects, it did, as Jessica points out, contain explicit ties to the TRD, including a definition of SCMS. It was in the House Judiciary IP subcommittee that the bill was chopped down to "DART Lite," and the explicit links to the TRD were cut off.

Nevertheless, IMHO it should still be clear that one does not have to anticipate a Secretary of Commerce ruling to deal with the Rio and that, within the contemplation of the AHRA and the TRD as ultimately linked to the AHRA, the Rio complies with SCMS and the technical obligations of the Act. This point of view is admirably spelled out in the amicus appellate brief filed by Bruce Joseph on behalf of the Consumer Electronics Manufacturers Ass'n, one of the private sector parties involved in the legislation.

Bob Schwartz
McDermott, Will & Emery
D.C.
<shebam[_at_]concentric.net> Received on Sun May 02 1999 - 16:20:34 GMT