106(1) of the Copyright Act,6 "the Congressional intent [vis-a-vis Section 106(1)] was that home-use sound recording was not prohibited." Then, as an alternative holding, the district court concluded that, in any event, the defendants' activities were defensible as "fair use" under Section 107.7 The fair use defense is considered later in this Memorandum.8 Focusing now on the supposed exemption, the district court's conclusion in this regard rests on two premises, each of which is in error. The first erroneous premise is that an audio home recording exemption was created as a part of the Sound Recording Amendment of 1971. The second erroneous premise is that such an exemption was incorporated in the current Copyright Act of 1976. We now proceed to an analysis of each of these premises. 6 "Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords . . . ." 17 U.S.C. § 106. 7 The district court found that "the legislative history of the new Act shows that Congress did not intend to restrain the home-use copying at issue here." 480 F. Supp. at 447. It then added that "even if this finding were erroneous," the doctrine of fair use would constitute a defense. Id. 8 See III infra. The Sound Recording Amendment of 19719 amended the Copyright Act of 1909 so as to provide for the first time copyright in sound recordings.10 The text of the Amendment itself contained no special mention of audio home recording, nor was there any such mention in the Senate proceedings which preceded its enactment of the Amendment. After Senate enactment, the measure went to the House Judiciary Committee, and its Report on the Amendment included a passage which was heavily relied upon by the district court in the Betamax case, and is the main source of the claim that a statutory exemption for audio home recording was adopted in the 1971 Amendment. That passage reads as follows: 9 Act of October 15, 1971; P.L. 92-140, 85 Stat. 391. 10 This is to be contrasted with copyright in the musical or other underlying works which may be the subject of such recording. Copyright in such underlying works had been recognized under the 1909 Act since its inception (as well as under prior copyright laws). Those not familiar with copyright are sometimes puzzled by the distinction between a copyright in a musical work and a copyright in a sound recording of such musical work. The copyright in the musical work inheres in the composer of the music, whose rights may be acquired by a music publisher. The copyright in a sound recording inheres in those responsible for the artistic rendition of such musical work as captured in phonorecord (e.g., phonograph record or tape) form. This includes the orchestra, the singer, the record company, etc. See generally Nimmer on Copyright, § 2.10[A][2] (1981). 5. "In approving the creation of a limited copyright in years. Does the above passage justify the conclusion of the Betamax district court that an audio home recording exemption (apart from the general doctrine of fair use) was contained in the Sound Recording Amendment of 1971? There are several different reasons which compel the contrary conclusion that no such exemption was created. There is first the fact that the 1971 Amendment was itself legislation limited to the creation of copyright in sound recordings, and did not (in this context) purport to affect the copyright in musical or other works which may be contained in such sound recordings. Therefore, the purported noninfringing status of "home recording" referred to in the House Report could at most be applicable to the sound recording copyright, not to the copyright in any underlying works which may be contained 11 H.R. Rep. No. 92-487, 92d Cong., 1st Sess. 7 (1971). 6 therein. It is true that the House Report offers the opinion that home recording would not infringe the copyright in any such underlying works, but this could be nothing more than the 1971 Congress' opinion as to the meaning of the 1909 Act, and as such not a statement of legislative intent.12 In addition there is the fact that the above-quoted statement in the House Report was never joined in by the Senate. As far as that body is concerned, there is only the language of the statutory amendment itself, which certainly on its face carries no implication of any form of exemption. Even if one assumed that all of the voting members from the House side intended that a home recording exemption should be regarded as implicit in the statutory language, without evidence of a similar intent upon the part of those voting on the Senate side there is no justification for reading the exemption into the 1971 Amendment. Finally, and perhaps most fundamentally, the abovequoted statement in the House Report in itself does not purport to create an exemption apart from the general doctrine of fair use. The Committee statement that "it is not the intention 12 United States v. Price, 361 U.S. 304, 313 (1960); Rainwater v. United States, 356 U.S. 591, 593 (1958). 7 The the context of the preceding and succeeding sentences. preceding sentence states that "it is the intention of the Committee that this limited [sound recording] copyright not grant any broader rights than are accorded to other copyright proprietors under the existing title 17." The succeeding sentence makes the point even more explicit: "the record producers and performers would be in no different position from that of the owners of copyright in recorded musical compositions over the past 20 years.' This, then, directly contradicts the Betamax district court's assumption that the 1971 Amendment created a special home recording exemption. To the contrary, sound recording copyright owners are to be "in no different position" than other copyright owners had been prior to the 1971 Amendment. Since there is no basis whatsoever for a claim (and no one appears to make a claim) that pre-1971 there was, apart from the doctrine of fair use, any basis for exempting home recording of copyrighted works from the reach of the Copyright Act, it follows that no such exemption was created under the 1971 Amendment. If there were any disparity in this regard as between the House Committee Report and the individual statements of legislators and others, the Report would, of course, prevail. It will be seen, however, that the Betamax district court's further reliance upon such individual statements by Chairman |