directly as a result of home taping amount to 325 million 42 albums per year. That loss is entirely distinct from any effects of video games or other cultural fads. One can deny the devastating impact of taping on the music industry only by ignoring the objective facts. 4. The Myth of the Teenage Taper A fourth myth created by opponents of the legislation is that most taping is done by teenagers, who cannot afford to purchase records. The Audits & Surveys study dispels this myth as well. Of the persons who engaged in any home taping during the month-long survey period, only 31 percent were between the ages of 10 and 17. By contrast, 39 percent of the tapers were aged 18 to 34, and another 25 percent were between 35 and 54. 43 (See chart on next page.) The vast majority of tapers, therefore, are not "poor teenagers." 41 Greenspan Statement at 7. 42 Audits & Surveys Report at 13. 43 Audits & Surveys Report at 23. IV. - 39 HOME AUDIO TAPING CONSTITUTES COPY- The home taping question gained national attention when the United States Court of Appeals for the Ninth Circuit held in the "Betamax" case - that off-theair taping of copyrighted television programming in the home for private use constitutes copyright 44 infringement. The Betamax case did not decide the issue of audio home taping. Some of those who urge Congress to reverse the Betamax decision, however, have employed the fallacious argument that video home taping should be exempted from copyright infringement liability because audio home taping is exempt under current law. Two separate points are at issue. First, hometaping proponents claim that home taping is exempt from the proscriptions of the Copyright Act of 1976. Alternatively, they argue that, even if home taping is not exempt, the "fair use" doctrine set forth in Section 107 of the statute relieves the home taper of any infringement liability. 44 Universal City Studios Inc. v. Sony Corp. of America, 659 F.2d 963 (9th Cir. 1981), cert. granted, 102 S. Ct. 2926 (1982) (No. 81-1687). A recent law review article (attached hereto as Appendix Five) by UCLA law professor Melville B. Nimmer, America's preeminent copyright scholar, demonstrates that this legal argument is wrong on both 1145 counts. Professor Nimmer concludes, as to the first point, that "there is not and never has been an exemption from copyright liability for audio home recording. Second, he concludes that audio home taping is not immunized from infringement liability on the basis of "fair use" because it does not meet the relevant tests Section 106(1) of the Copyright Act of 1976 grants the copyright owner a broad right to control reproduction 45 Nimmer, Copyright Liability for Audio Home Recording: Dispelling the Betamax Myth, 68 Va. L. Rev. 1505, 1506 (1982) [hereinafter cited as "Nimmer Article"]. 46 Id. 47 According to an international committee of copyright experts, home taping of video and audio materials is unlawful under the Universal Copyright Convention. Report of the Working Group on the Legal Problems Arising from the Use of Videocassettes and Audiovisual Discs ¶ 33 (1977), reprinted in Copyright 87, 90-91 (1977). 29-034 0-84--11 of the copyrighted work, subject only to the express history of the 1976 Act is devoid of any reference to an audio home recording exemption. The claim that the Copyright Act contains such an exemption rests upon a single passage in the House Judiciary Committee's report on the Sound Recording Amendment of 1971. That statute extended copyright 48 49 protection to sound recordings; it 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. For two reasons, these isolated references to home recording in the 1971 proceedings do not rise to the level of establishing an implied home-taping exemption under the 1976 Copyright Act. First, the 1971 Amendment itself contained no home recording exemption. There was absolutely no mention 48 See H.R. Rep. 487, 92d Cong., 1st Sess. 7 (1971), reprinted in [1971] U.S. Code Cong. & Ad. News 1566, 1572. 49 These additional comments are discussed in detail by Professor Nimmer. See Nimmer Article at 1511-14. |