The Copying of Digital Content: Where We’ve Been and Where We’re Going

Before the ubiquity of the Internet, technology prognosticators spoke longingly of “digital convergence”—a future in which computers would be as likely to play music, record a television show or place a phone call as they were to balance a checkbook or print a letter.

To a surprising extent, their predictions are coming true. But while technologists may have been well prepared, lawmakers seem to have been caught by surprise. Statutes and legal rulings simply did not anticipate the scope or speed of this sea change, leaving widespread uncertainty about how the law treats digital information.

Nowhere is this uncertainty more evident than in the entertainment industry. Widespread broadband Internet access, recordable CDs and DVDs and increasingly powerful PCs have given the public the tools necessary to copy and distribute their music and movie libraries with pristine perfection. But confusion about the legality of doing so abounds, with industry executives taking every opportunity to denounce such activities as illegal.

Rules regarding the right to copy songs and movies may seem complex and inconsistent. But although the law in this area is still developing, there are some answers to be had. They usually derive from one of three sources:

• The “fair use” doctrine ensconced in the federal Copyright Act
  
  
• The Digital Millennium Copyright Act of 1998 (DMCA)
  
  
• The Audio Home Recording Act of 1992 (AHRA)

The source that provides the most direct guidance is also the narrowest in reach: the AHRA. It was enacted in 1992 in response to the development of the digital audiotape (DAT), a media that, for the first time, permitted consumers to make exact digital audio recordings.

The AHRA was intended as a compromise between those who wanted to codify a consumer's right to home taping of music and those who wanted to ensure that the advent of perfect digital copies did not bring about industry-crippling piracy. The Act offers consumers and digital audio equipment manufacturers immunity from suit for noncommercial copying of music, and it requires that digital audio recording devices incorporate technical measures to permit only “first generation” copies of digital music files. In other words, the devices must not allow copies of copies to be made.

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Joe Laferrera is a partner at the Boston firm of Gesmer Updegrove LLP (www.gesmer.com). He is a member of the litigation and employment departments and frequently advises clients on intellectual property and privacy matters. Reach him at joe.laferrera@gesmer.com.