FAQs

Digital Millennium Copyright Act of 1998 (“DMCA”) Q. Why did Congress pass the DMCA? Q. With respect to home recording, what was the main purpose of the DMCA? Q. What provisions prevent DMCA provisions from dictating the design of home recording devices or interfering with consumer viewing? Q. Does the “so long as” clause imply any exception to the “no mandate” provision? Federal Communications Commission And Digital Video Home Recording And Viewing Q. Why is the FCC involved in home recording issues? Q. Does the draft cable industry license pose a threat to home viewing and recording? Q. Which products would be subject to this license in order to operate on a digital cable system? Q. I receive digital signals through a box provided by my cable operator or through a digital satellite system. Should I be concerned? Q. When might the FCC act? How can I learn more, and who should I contact? Digital Audio Home Recording Q. In recent congressional testimony, the Chairman of the Recording Industry Association of America (“RIAA”) said that it is not “fair use” to make a copy of your own CD to play in your car. Does any law or court case say this? Q. Didn’t the Audio Home Recording Act of 1992 (“AHRA”) settle what is or isn’t allowable for audio home recording? Digital Millennium Copyright Act of 1998 (“DMCA”) Q. Why did Congress pass the DMCA? A. The World Intellectual Property Organization (“WIPO”) drafted an international treaty that requires signatory nations to enforce particular rights in their own laws. Some believed that further U.S. legislation was necessary to implement U.S. adherence to the treaty. The result was the DMCA. That is why it is sometimes referred to as the “WIPO Treaty Implementing Legislation”. Q. With respect to home recording, what was the main purpose of the DMCA? A. As originally drafted by the Clinton Administration, the DMCA could have required home recording, viewing and listening products to respond to any “technical measure” added to a program by a copyright holder — even if this would have blocked or degraded viewing or listening, or prevented all home recording. HRRC and our allies intervened to limit the scope to more closely approximate the original scope of the treaty, which was external “circumvention” of technical measures that were already effective, rather than their imposition through a design mandate. Q. What provisions prevent DMCA provisions from dictating the design of home recording devices or interfering with consumer viewing? A. At HRRC’s initiative, the no mandate and playability provisions were added. The “no mandate” provision (17 U.S.C. 1201(c)(3)) says that the DMCA cannot be interpreted so as to require consumer electronics, computer, or telecommunications products, or their components, to be designed to conform to “technical measures,” so long as the DMCA is otherwise complied with. The “playability” language (in the Conference Report) says that such “technical measures” need not be complied with at the expense of quality receipt of the programming. Q. Does the “so long as” clause imply any exception to the “no mandate” provision? A. Only one. Section 1201(k) provides that some analog VCRs must comply with the prevalent “Macrovision” technology, but contains “encoding rules” that limit the application of such technology to assure that consumers can make at least one generation of recordings of most cable, satellite and broadcast programming. (There are no such encoding rules in the DMCA generally.) Statements by Reps. Bliley and Boucher, and Senator Ashcroft—the key congressional proponents of the “no mandate” clause — explain that this is the sole exception. Federal Communications Commission And Digital Video Home Recording And Viewing Q. Why is the FCC involved in home recording issues? A. The FCC was charged by Congress with deregulating the market for cable “Navigation Devices” (e.g., set-top boxes) so that, in a way consistent with cable system security, competitive digital consumer electronics and PC products could enter the marketplace. Under FCC proceedings to implement this instruction, the Commission must approve a draft license, offered by the cable industry, to enable competitive manufacturers to provide such devices to consumers in accordance with cable industry specifications. Q. Does the draft cable industry license pose a threat to home viewing and recording? A. Yes. The license would allow program providers to block the transmission of certain programs to DTV receivers if, in the judgment of the program provider, the program is not sufficiently protected against unauthorized copying. It would also prevent recording capacity in licensed products, unless specifically approved by the program provider, and could allow the cable utility of the product to be terminated at any time by the cable provider, based on home recording considerations. Q. Which products would be subject to this license in order to operate on a digital cable system? A. Television receivers, VCRs, PCs, and any other product designed to operate on a digital cable system. Q. I receive digital signals through a box provided by my cable operator or through a digital satellite system. Should I be concerned? A. Yes. These restrictions are being pushed on cable operators by the Motion Picture Association of America (“MPAA”) and its members. You can bet that whatever they can impose on DTV cable products they will demand of other equipment providers, as well. Q. When might the FCC act? How can I learn more, and who should I contact? A. The FCC is likely to make some decision by mid-September. Learn more from the FCC area of this site. Express your concern, through the HRRC. You can contact the FCC through www.fcc.gov. Digital Audio Home Recording Q. In recent congressional testimony, the Chairman of the Recording Industry Association of America (“RIAA”) said that it is not “fair use” to make a copy of your own CD to play in your car. Does any law or court case say this? A. No. Audio home recording is covered by the general principles of fair use recognized in the Betamax case. In the HRRC view, the law as interpreted by the Supreme Court protects the sale of home recording devices, both video and audio, to consumers, and recognizes that the fair use rights of consumers include private, noncommercial home recording, such as making a tape for your car. Q. Didn’t the Audio Home Recording Act of 1992 (“AHRA”) settle what is or isn’t allowable for audio home recording? A. The AHRA said that consumers can’t be sued for home recording using a “digital audio recorder” covered by the act. To understand how this approach was arrived at, and which devices are included as “digital audio recorders,” see our legislative history compilation and our link to the Rio opinion.