| Contacts: | Jeff Joseph tel: 703 907-7664 e-mail: jjoseph@CE.org |
Megan Pollock tel: 703-907-7668 e-mail: mpollock@CE.org |
HRRC Concerned Over RIAA Statement Debunking Fair Use
FCC Filing Betrays Motive to Attack Reasonable and Customary Consumer Practices
| Arlington, Virginia | 2/11/2005 |
The Home Recording Rights Coalition (HRRC) today expressed concern over the Recording Industry Association of America's (RIAA) assertion this week to the Federal Communications Commission that home recordings made from digital audio (DAB) broadcasts for personal, private non-commercial use are "not protected against a claim of infringement by the fair use defense in Section 107 of the Copyright Act." HRRC chairman Gary Shapiro observed that this RIAA position signals a broader content industry objective: to remove fair use protection from home recording itself, and to require content owner authorization whenever consumer electronics and information technology products encounter copyrighted content.
"This is truly a radical statement. In the Betamax decision, the Supreme Court ruled that it was legal for Americans to record free-over-the-air content. Twenty years later, copyright holders are again claiming that tens of millions of Americans who make recordings for personal use - including use of a TiVo or digital video recorder - are copyright criminals. This is a slippery slope and at the bottom of this slope there are no fair use rights," said Shapiro. "The true objective of many major copyright proprietors has now been stated; we need to fight to preserve Betamax and make sure fair use and innovation are not compromised."
RIAA made the assertion in a February 7 letter to the Federal Communications Commission (FCC) that it filed in the Digital Audio Broadcast Docket (No. 99-325), in response to Electronic Frontier Foundation comments filed in October, 2004. RIAA added that it "does not oppose" the "manual recording of DAB broadcasts" - but failed to explain how, if such home recording is not fair use, RIAA's own forbearance of "opposition" would protect consumers, technologists, and retailers from suit by any copyright proprietor wishing to file suit. Moreover, its opposition to all non-"manual recording" would threaten to stamp out all innovative technologies that enable automatic recording of audio programming akin to TiVO, PVRs and the VCR.
RIAA's position highlights the dangers posed by any narrowing of the Betamax doctrine. Most consumers acquire audiovisual and music content on a clearly legal and authorized basis, but without any explicit authorization to record it. If RIAA is correct that any home recording other than the particular "time shifting" held to be fair use in Betamax is unlawful, then any other home recording, via a personal video recorder such as a TiVo or a personal audio recorder such as an iPod, would be an infringement. Indeed, only a few years ago, several motion picture studios claimed in federal court that furnishing a home video recorder that locates programming via an electronic program guide, and organizes content for storage and retrieval, constitutes an illegal "inducement" to infringe. Similarly to the RIAA position, representatives of the Motion Picture Association of America say that they do not "oppose" consumer use of TiVos and similar consumer electronics, cable, and satellite devices. Yet MPAA and its members also take the position that such recording is not fair use and, unless specifically authorized in every case, constitutes copyright infringement.
Shapiro said that in responding to the proposed "Induce Act" in the last Congress, HRRC expressed concern that consumer electronics and information technology devices that make home recordings of programming that is lawfully received would be subject to ban on the basis of "inducement" claims. He said HRRC is equally concerned over the treatment of home recording from authorized sources under any judicial doctrine of "active inducement." The RIAA filing underscores this concern.
About HRRC:
The Home Recording Rights Coalition, founded in 1981, is a leading advocacy group for consumers' rights to use home electronics products for private, non-commercial purposes. The members of HRRC include consumers, retailers, manufacturers and professional servicers of consumer electronics products. Further information on this and related issues can be found on the HRRC website, www.hrrc.org.