maintain that this omission was intentional and supports their position that private copying of audio tapes is not a fair use.

3

The conflict between consumers and copyright proprietors over home taping intensified during the early eighties when the courts were considering whether or not the use of videocassette recorders to tape off the air infringed the copyright of the owner of the material being taped. The courts had a difficult time resolving this issue. In the complex "Betamax" litigation, 4 the copyright owners of motion pictures taped off the air alleged that the sale of the Betamax videocassette recorder constituted contributory copyright infringement by presenting the means to infringe. Plaintiffs asserted that Sony sold videocassette recorders (VCRs) with the knowledge that they would be used to make copies of copyrighted works. The district court ruled in favor of Sony and the other defendants; the appellate court reversed, but the Supreme Court ultimately ruled in favor of Sony, finding that such taping was a fair use. The Court based its decision on two grounds. First, section 107 of the Copyright Act was interpreted to permit taping for purposes of delayed viewing · "time-shifting." Second, copyright owners had voluntarily broadcast these programs over the airwaves for home viewing.

The "Betamax" decision is limited as a precedent. It does not answer all of the questions posed by private copying. For example, it does not deal with copying for the purpose of building a videotape library, or

3 See Nimmer, Copyright Liability for Audio Hos Recording: Dispelling the Betamax Myth, 68 Va.L.Rev. at 1509-1510.

Universal City Studios. Inc. v. Sony Corp., 464 U.S. 417 (1984) rev'g 659 F.2d 963 (9th Cir. 1981), revʼg 480 F. Supp. 429 (C.D. Cal. 1979).

off-air taping of cable and pay television programming. "Betamax" answers even fewer questions respecting audio home taping because different assumptions prevail vis-a-vis videotaping and audiotaping. Individuals replay audiotapes more frequently than they do videotapes; they tape with the intention of retaining audiotapes and consequently amass large personal libraries of audiotapes. Most consumers use videotape as blank tape,

recording over or erasing a program once it has been viewed.

After careful examination of the opinions and conclusions of the commentators and its own review of the legislative history, the Copyright Office concludes that there does not exist an exemption for home recordings in the current Copyright Act, nor is there conclusive evidence demonstrating that Congress intended home recording to be a sanctioned fair use under the current Act. Thus, the question of whether home taping is a fair use of the prerecorded works copied must be determined in accordance with section 107 of the Copyright Act.

While the Copyright Office acknowledges that there does exist some legislative history from the 1971 Sound Recording Act suggesting that home taping of sound recordings is permissive, the Office is not convinced that such history survived the general revision of the copyright laws in 1976. The Home Recording Rights Coalition (HRRC) has put forward two theories as to why the 1971 Sound Recording Act protects home taping activities: special 5 exemption and fair use. The special exemption position is based on the House Report to the Sound Recording Act, quoted above. The fair use argument

5 See HRRC comments submitted in response to the Copyright Office's Notice of Inquiry published in the Federal Register on October 24, 1990. 55 FR 42916 (1990).

is principally supported by a floor statement of Rep. Kastenmeier in which he noted that "unrestricted audio home taping prevailed then and was considered both presently and under the proposed law to be fair use."6

The Copyright Office is not persuaded by the argument that the 1971 House Report created a special exemption for home taping. The Office believes that had Congress wished to exculpate home taping from copyright liability, it would have expressly done so in the statute. Furthermore, the Office does not believe that the "Home Recordings" provision of the 1971 House Report was intended to either create or recognize a special exemption. The House Report noted that home taping was "common and unrestrained," and that copyright holders in sound recordings under the bill would be "in no different position from that of the owners of copyright in recorded musical compositions over the past 20 years." The Report intentionally equated the rights of copyright holders in sound recordings with those of the underlying musical works. Obviously, there was no recognized exemption for home taping of musical works in the 1909 Copyright Act -- only the provisions of the fair use doctrine. It, therefore, seems likely that the House Report was referring to home taping as a recognized fair use of a sound recording, but not as an activity specifically exempted from the protections of the copyright laws.

That the House Report was referring to home taping as a fair use, rather than an exempted activity, is further supported by the floor statement of Representative Kastenmeier. Kastenmeier called specific attention to the "Home Recordings” passage in the House Report, and stated that the practice

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of home taping "is considered both presently and under the proposed law to be fair use." Kastenmeier's statement and the House Report do not seem to be a pronouncement that home taping per se is fair use, but rather a recognition that, at the time of passage of the Sound Recording Act, home taping for private purposes could constitute a fair use of a copyrighted work.

Given the Copyright Office's view that the House Report and Kastenmeier statement were offered in 1971 as a recognition of then existing law as to the permissibility of home taping as fair use, it must be determined what significance, if any, the statements have on current copyright law. The Office notes several criticisms offered against the statements: namely, that the Senate did not join the House Report in 1971 and that the statements are confined to sound recordings only as an amendment of the 1909 Act. However, the most important issue is to what extent the statements survived, or have relevance, to the 1976 Copyright Act.

The HRRC argues that because the Congress made clear in the 1976 Act that it intended to continue the doctrine of fair use as developed under the 1909 Act, and because it declared home taping for private use to be a fair use in 1971, then home taping remains a fair use under the present law. This position, however, seems to attach undue importance to the 1971 Kastenmeier statement and House Report. As noted above, the Kastenmeier statement and House Report indicate a recognition of existing fair use law, not a legislative pronouncement as to what the law would be in the future. It is interesting to note that none of the parties to this proceeding, nor the legal commentators, offer evidence demonstrating how home copying of prerecorded works were treated by the courts under a fair use analysis prior

to 1971. Furthermore, although the House Report and Representative Kastenmeier stated that they were articulating the current law, they too offered no cases or support for their position. This is not surprising since there was no case dealing expressly with the issue of home taping of prerecorded works for personal use. Although home audio taping was "common and unrestrained," no copyright owners had pursued an infringement action. Arguably the House Report and the Kastenmeier statement can be seen as no more than an opinion as to how home taping should be treated under a fair use analysis, rather than a recognition of existing law.

Because the fair use status of home taping was not clearly established in the law at the time of the 1971 Sound Recording Act, the House Report and the Kastenmeier statement have diminished significance. Indeed, as Professor Nimmer candidly points out, "[t]he most one can fairly attribute to the House Report, then, is an opinion that home recording constitutes fair use.” 7 We must put the language of the 1971 House Report in its legal context because fair use was solely a judicial doctrine in 1971, and the courts had not ruled on whether or not all home recording constituted fair

use.

Even if one assumes that, with respect to sound recordings, Congress adopted the position in 1971 that home taping constituted fair use, the evidence suggests that such a position did not survive the general revision of the copyright law in 1976. First, while Congress adopted wholesale in 1976 many sections of the 1971 House Report on sound recordings, the passage regarding home recording was pointedly omitted. Obviously the

7 Nimmer, supra note 3, at 1511.