Published by Randall Krause on Sunday, June 5, 2005 [Permalink] [Return to Top]
Stream-Ripping May Still Be Protected Under Fair-Use
(The following editorial first was published in the June 5, 2005 issue of RAIN.)
Is recording Internet radio broadcasts a non-infringing use of the copyrighted works therein? This appears to be the new conundrum of U.S. copyright law.
It's hard to dispute the long sacred practice of "time shifting broadcast programming" as evidenced by the Sony Betamax case (which permitted recording a television show for later home viewing on the grounds that the transmission was made available under license to the public). And the subsequent decision by the Supreme Court in the Diamond Rio case to uphold space-shifting (transferring recordings through a computer hard drive onto a portable digital media device) only further ratified the consumer's right to copy purchased music recordings for personal, noncommercial purposes from one medium directly onto another.
But do these same fair use doctrines still apply in a day-and-age of all digital media in which the recording industry has a greater stake? And what are the exact implications of archiving time-shifted programs and otherwise modifying them (including breaking them into individual segments) for later viewing?
Unfortunately, the jury is still out when it comes to these issues, in particular their implications with respect to the Digital Millennium Copyright Act. The DMCA already has provisions restricting digital broadcast services on the Internet from facilitating the recording of their own transmissions by end-users. However, it is important to note that these prohibitions do not to apply to computer software products independent of the same Webcasting service, even if such applications (and the end-users themselves) purposefully enable the recordings to be made -- with the specific exception that they do not circumvent copy control measures and that they do not engage in otherwise contributory infringement with regards to the copyrighted works.
Perhaps the Audio Home Recording Act, if properly amended, could prove to be the ideal solution to this and other copyright concerns that now plague consumers. By adapting the AHRA to effectively tax the makers of computer-based digital audio recording software and hardware -- rather than consistently thwarting end-users themselves from making personal, noncommercial use of music to which they have fair use rights -- then it would be possible to achieve a more satisfactory balance between the rights of copyright holders and consumers. Such an amendment would not only serve to better justify time-shifting and space-shifting practices in light of the DMCA, it would help to further (rather than stifle) technological innovation while also providing for adequate compensation through royalties to the music industry in exchange for waiving claims of copyright infringement against consumers for the use of such new media technologies.
Randall E. Krause
Executive Director
Small Webcaster Community Initiative
info@smallwebcaster.org
