references to home recording do not rise to the level of establishing an implied home audio taping exemption under current law. There are two reasons for reaching this conclusion. First, the 1971 Amendment itself contained no home recording exemption. There was no mention whatsoever of home recording in the Senate proceedings prior to the 1971 enactment. Thus, there is no justification for inferring a Congressional intent to create a home audio taping exemption either from the 1971 Amendment or its legislative history. Second, and even more significantly, the House references to home recording pertained to a statute that was repealed by the comprehensive general revision of the copyright law in 1976. The current legal status of home audio taping is therefore to be found not in the 1971 Amendment or its legislative history, but rather in the Copyright Act of 1976. As already noted, neither that Act nor its legislative history contains any 21/ These additional comments are discussed in detail by Professor Nimmer in his memorandum. (Appendix Seven, at 7-12.) exemption for home audio taping beyond the defense of fair use. Indeed, the legislative history of the new law incorporates verbatim much of the language contained in the House report accompanying the 1971 Amendment, but entirely omits the passage referring to home recording. Thus, as Professor Nimmer concludes, "[e]ven if . . . it be assumed that an audio recording exemption were somehow contained in the 1971 Amendment, it must be concluded that any such exemption was not carried over into the general revision of copyright law as embodied in the Copyright Act of 1976." at 12.)22/ B. Home Audio Taping Does Not (Appendix Seven, The second issue is whether home taping, even if not exempt under the 1976 Act, nevertheless 22/ This conclusion is reinforced by the "Betamax" decision, in which it was held that: "The statute itself and the House and constitutes a "fair use" of the copyrighted sound recording and is therefore not an infringing act. The doctrine of fair use contained in section 107 of the Copyright Act does immunize certain uses of copyrighted works from infringement liability based upon a consideration of four statutory factors.23/ However, Professor Nimmer demonstrates that none of these factors justifies the conclusion that home audio taping of copyrighted sound recordings should be considered a fair use. (Appendix Seven, at 19-26.) First, the judicial doctrine of fair use is generally limited to those cases where the purpose of 23/ These factors are: "(1) The purpose and character of "(2) The nature of the copyrighted "(3) The amount and substantiality "(4) The effect of the use upon the the use is "productive," i.e., where it involves use by a second author of a first author's work for purposes such as criticism, comment, news reporting, teaching, scholarship or research. The doctrine is not applicable where the user makes a copy merely for purposes of entertainment. Yet that is precisely the purpose involved in home audio taping of records. Such use clearly does not satisfy the first fair use factor. 24/ Second, a claim of fair use is less likely to be accepted where the nature of the work may be characterized as "entertainment" rather than information. Home audio taping of records obviously constitutes the copying of entertainment, not information. Third, the fair use defense is generally unavailable in cases where the entire copyrighted work is copied. Yet home audio taping invariably involves the reproduction of an entire musical composition or sound recording. Fourth, the defense of fair use is less and less applicable as the economic effect of the copying 24/ Nor can the purpose of home audio taping be characterized as "educational" or "noncommercial" within the meaning of the copyright law. 33 on the potential market for the copyrighted work becomes more and more severe. The studies, market statistics and economic analysis discussed in section II, above, vividly demonstrate the negative effect of home audio taping on the sales of records and pre-recorded tapes. Whatever the precise number of lost sales, there can be no doubt that it is substantial in the range of - $1 billion. And, as Professor Nimmer states: "[These] studies merely confirm what A separate consideration sometimes cited in support of the fair use defense is that audio home taping occurs in private homes. Professor Nimmer emphasizes that this does not make home taping a fair use: "This assumption that property rights No one would argue that one may destroy a book borrowed from a library as long as it is done within the four |