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creation of sound recordings resulting from the fixation of nonmusical sounds.

“(4)(A) A ‘digital audio recording medium' is any material object, now known or later developed, in a form commonly distributed for use by individuals (such as magnetic digital audio tape cassettes, optical discs, and magneto-optical discs), that is primarily marketed or most commonly used by consumers for the purpose of making digital audio copied recordings by use of a digital audio recording device.

"(B) Such term does not include any material object

"(i) that embodies a sound recording at the time it is first distributed by the importer or manufacturer, unless the sound recording

has been so embodied in order to evade the obligations of section 1011 of this title; or

"(ii) that is primarily marketed and most commonly used by consumers either for the purpose of making copies of motion pictures or other audiovisual works or for the purpose of

making copies of nonmusical literary works, in

cluding, without limitation, computer programs

or data bases.

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"(5) 'Distribute' means to sell, resell, lease, or assign a product to consumers in the United States,

or to sell, resell, lease, or assign a product in the United States for ultimate transfer to consumers in

the United States.

"(6) An 'interested copyright party' is—

"(A) the owner of the exclusive right under section 106(1) of this title to reproduce a sound recording of a musical work that has been embodied in a phonorecord lawfully made under this title that has been distributed to the public;

"(B) the legal or beneficial owner of, or the person that controls, the right to reproduce in a phonorecord a musical work that has been embodied in a phonorecord lawfully made under this title that has been distributed to the public;

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“(7) An ‘interested manufacturing party' is any person that imports or manufactures any digital

audio recording device or digital audio recording me

dium in the United States, or any association of

such persons.

"(8) "Manufacture' includes the production or assembly of a product in the United States.

"(9) A 'music publisher' is a person that is authorized to license the reproduction of a particular musical work in a sound recording.

“(10)(A) A ‘professional model product' is an audio recording device—

"(i) that is capable of sending a digital audio interface signal in which the channel status block flag is set as a 'professional' interface,

in accordance with the standards and specifica

tions set forth in the technical reference docu

ment or established under an order issued by

the Secretary of Commerce under section 1022(b);

"(ii) that is clearly, prominently, and permanently marked with the letter 'P' or the word 'professional' on the outside of its packaging, and in all advertising, promotional, and descriptive literature, with respect to the device, that

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is available or provided to persons other than

the manufacturer or importer, its employees, or

its agents; and

“(iii) that is designed, manufactured, marketed, and intended for use by recording profes

sionals in the ordinary course of a lawful busi

ness.

"(B) In determining whether an audio recording device meets the requirements of subparagraph (A)(iii), factors to be considered shall include

"(i) whether it has features used by recording professionals in the course of a lawful

business, including features such as

"(I) a data collection and reporting system of error codes during recording and playback;

"(II) a record and reproduce format providing 'read after write' and 'read after read';

"(III) a time code reader and generator conforming to the standards set by the Society of Motion Picture and Television Engineers for such readers and generators;

and

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"(IV) a professional input/output interface, both digital and analog, conform

ing to standards set by audio engineering

organizations for connectors, signaling formats, levels, and impedances;

"(ii) the nature of the promotional materials used to market the audio recording device; "(iii) the media used for the dissemination of the promotional materials, including the intended audience;

"(iv) the distribution channels and retail outlets through which the device is disseminat

ed;

"(v) the manufacturer's or importer's price for the device as compared to the manufactur

er's or importer's price for digital audio recording devices implementing the Serial Copy Management System;

"(vi) the relative quantity of the device manufactured or imported as compared to the size of the manufacturer's or importer's market

for professional model products;

"(vii) the occupations of the purchasers of the device; and

"(viii) the uses to which the device is put.

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