have spread across the country and touched the lives of Americans in cities and towns large and small. They are the songwriters, music publishers, recording artists, vocalists, musicians, retailers, distributors, manufacturers and suppliers who depend on the vitality of the recording industry for their own livelihood. III. HOME AUDIO TAPING CONSTITUTES COPYRIGHT The home taping question gained national prominence when the federal Court of Appeals for the in the so-called Betamax case Ninth Circuit - - held that off-the-air taping of copyrighted television programming in the home for private use constitutes copyright infringement.17/ The Betamax case did not decide the issue of home audio taping. However, some of those who urge Congress to reverse the Betamax decision have employed the fallacious argument that home video taping should be exempted from copyright infringement liability because home audio taping is already exempt under current law. 17/ Universal City Studios Inc. v. Sony Corp. of America, 659 F.2d 963 (9th Cir. 1981), reh'g denied (9th Cir. Jan. 11, 1982), petition for certiorari filed (March 11, 1982). There are two separate points at issue. First, home taping proponents claim that home taping is actually exempt from the proscriptions of the Copyright Act of 1976. A second argument is that, even if home taping is not exempt, the "fair use" doctrine set forth in section 107 of the 1976 Act relieves the home taper of any infringement liability. As demonstrated in the attached memorandum prepared by America's preeminent copyright scholar, UCLA law professor Melville B. Nimmer, this legal argument utterly fails on both counts. Professor Nimmer concludes, as to the first point, that "[t]here is not and never has been an exemption from copyright liability for home audio recording." (Appendix Six, at 1.) Second, he concludes that home audio taping is not immunized from infringement liability on the basis of "fair use" because it does not meet the relevant tests prescribed by the Copyright Act. (Id.) A. There Is No Home Audio Taping Exemption The Copyright Act of 1976 creates a broad reproduction right in Section 106(1), subject only to the express exemptions contained in Sections 107 through 118. There is no home recording exemption in any of those sections. Moreover, the legislative history of the 1976 Act is devoid of any reference to a home recording exemption. The main source of the claim that there exists a "home audio recording exemption" is a single passage from the report of the House Judiciary Committee on the Sound Recording Amendment of 1971,18/ a statute that for the first time extended copyright protection to sound recordings and that was addressed to the problem of commercial record piracy. Additional comments on the home recording issue were made in hearing testimony and on the floor of the House.19/ These scattered 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 18/ See H.R. Rep. No. 92-487, 92nd Cong., 1st Sess. 7 (1971). 19/ These additional comments are discussed in detail by Professor Nimmer in his memorandum. (Appendix Six, at 7-12.) 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 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. if Thus, as Professor Nimmer concludes, "[e]ven 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." (Appendix Six, at 12.)20/ B. Home Audio Taping Does Not The second issue is whether home taping, even if not exempt under the 1976 Act, nevertheless 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.21/ 20/ This conclusion is reinforced by the "Betamax" decision, in which it was held that: "(2) The nature of the copyrighted [Footnote continued on following page] |