rejecting reliance on equivocal legislative history where statutory text is clear
How later courts described this case
- rejecting reliance on equivocal legislative history where statutory text is clear
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2019 Decided January 28, 2020
No. 18-7141
ALLIANCE OF ARTISTS AND RECORDING COMPANIES, INC., ON
BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED,
APPELLANT
v.
DENSO INTERNATIONAL AMERICA, INC., ET AL.,
APPELLEES
Consolidated with 18-7172
Appeals from the United States District Court
for the District of Columbia
(No. 1:14-cv-01271)
Richard B. Dagen argued the cause for appellant. With
him on the briefs was Russell Steinthal. Daniel K. Oakes
entered an appearance.
Andrew Grimm was on the brief for amicus curiae Digital
Justice Foundation, Inc. in support of plaintiff-appellant and
reversal.
Scott A. Keller argued the cause for appellees. With him
on the brief were Paul J. Reilly, Benjamin A. Geslison, Steven
2
J. Routh, Melanie L. Bostwick, Annette L. Hurst, Andrew
Phillip Bridges, David Hayes, Armen Nercessian, Seth David
Greenstein, Robert S. Schwartz, David D. Golden, Jessica L.
Ellsworth, Kirti Datla, William D. Coston, Megan S.
Woodworth, and Frank C. Cimino, Jr. E. Desmond Hogan
entered an appearance.
Jonathan Band was on the brief for amici curiae The
Computer & Communications Industry Association, et al. in
support of affirmance.
Before: HENDERSON and ROGERS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: This case involves
actions filed by Appellant Alliance of Artists and Recording
Companies, Inc. (“AARC” or “Appellant”) pursuant to the
Audio Home Recording Act of 1992 (“Act” or “AHRA”), 17
U.S.C. §§ 1001-1010. On July 25, 2014, AARC filed a lawsuit
against General Motors LLC, DENSO International America,
Inc., Ford Motor Company, and Clarion Corporation of
America (“GM/Ford action”) for alleged violations of the Act.
A second, substantially similar lawsuit was filed by AARC on
November 14, 2014, against FCA US LLC and Mitsubishi
Electric Automotive America, Inc. (“FCA action”). On
February 9, 2015, the District Court consolidated the cases.
In each case, AARC claimed that in-vehicle audio
recording devices that copy music from CDs onto hard drives
within the devices, allowing the music to be played back inside
the vehicle even without the CDs, are “digital audio recording
device[s]” under the Act. 17 U.S.C. § 1001(3). Based on this
3
assertion, AARC alleged that the three suppliers of the devices
(DENSO, Clarion, and Mitsubishi), along with the three
automobile manufacturers that sold vehicles containing the
recording devices (General Motors, Ford, and FCA)
(collectively “Appellees”) had violated the Act by failing to
pay royalties and adopt the required copying control
technology with respect to the devices.
On March 23, 2018, after several years of litigation, see
All. of Artists & Recording Cos., Inc. v. Gen. Motors Co.
(AARC I), 162 F. Supp. 3d 8 (D.D.C. 2016); All. of Artists &
Recording Cos., Inc. v. Gen. Motors Co. (AARC II), 306 F.
Supp. 3d 413 (D.D.C. 2016); All. of Artists & Recording Cos.,
Inc. v. Gen. Motors Co. (AARC III), 306 F. Supp. 3d 422
(D.D.C. 2018), the District Court granted Appellees’ joint
motion for summary judgment, see AARC III, 306 F. Supp. 3d
at 441. On the same date, the District Court entered an Order
confirming its judgments. This Order resolved all the claims in
the FCA action and all but the claims based on GM’s flash-
drive devices in the GM/Ford action. On September 18, 2018,
AARC filed a notice of appeal in the FCA action. On October
23, 2018, the District Court granted AARC’s unopposed Rule
54(b) motion to enter final judgment as to the hard-drive claims
in the GM/Ford action. However, the court reserved judgment
on the flash-drive claims and those claims remain pending
before the District Court. AARC then filed a timely notice of
appeal in the GM/Ford action, and this court consolidated the
appeals.
This appeal raises challenging issues regarding the
coverage of the AHRA. The Act was passed to address
important questions emanating from the advent of digital audio
tape (“DAT”) recordings in the late 1980s. As digital audio
recorders became more common, the prospect of “home
copying” loomed as a major issue. Both the companies that
4
produced the devices and the consumers who used them faced
uncertain liabilities under prevailing copyright law. And
musicians and record companies, for their part, were concerned
that high-quality digital copies would cause serious drops in
authorized sales of music recordings. The enactment of the
AHRA embodied “a historic compromise” intended to address
these issues. S. REP. NO. 102-294, at 33 (1992).
The AHRA exempts the manufacture and use of certain
digital audio recorders from copyright infringement actions,
thereby dispelling legal uncertainties and ensuring that
consumers will have access to the technology. In exchange, the
AHRA imposes royalties on certain digital audio recorders and
media. The Act also requires covered digital audio recorders to
include systems that prevent them from making second-
generation copies (i.e., copies of copies), thereby offering some
protection to the rights of copyright holders.
In this case, Appellant contends that the “AHRA covers all
consumer devices that (1) are capable of digitally reproducing
recorded music, and (2) the recording functions of which are
designed or marketed for the primary purpose of doing so.” Br.
for Appellant at 10. Appellant contends that the District Court
erred in holding “that the output of Defendants’ recording
devices must contain ‘only sounds’ and material ‘incidental’ to
such sounds” to be subject to the proscriptions of the Act. Id.
at 2. Finally, Appellant argues that, in any event, “Defendants’
devices met the district court’s test because they stored music
to hard drive partitions, which function essentially as separate
hard drives, that met this purported ‘only sounds’
requirement.” Id. The District Court rejected Appellant’s
claims. AARC III, 306 F. Supp. 3d 422. We do as well.
As a preliminary matter, Appellees argue that AARC’s
appeal of the District Court’s judgment in the FCA action is
5
untimely because it was filed 179 days after the District Court’s
Order issued on March 23, 2018. As we explain below, there is
no reason for us to address this issue. Our jurisdiction over
AARC’s appeal in the GM/Ford action is clear. Therefore, we
have jurisdiction in a “companion case” that presents the same
merits questions as the FCA action, and this permits us to
“decline[] to decide th[e] jurisdictional question” in the FCA
action. Emory v. United Air Lines, Inc., 720 F.3d 915, 920
(D.C. Cir. 2013) (alterations in original) (quoting Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 98 (1998)).
On the merits, we affirm the judgments of the District
Court. First, we hold that a digital audio recorder is covered by
the AHRA only if it can make a “digital audio copied
recording” that is also a “digital musical recording” as that term
is defined by the Act. Second, we hold that, because it is
undisputed that the hard drives in Appellees’ devices do not
contain “only sounds,” they do not qualify as “digital musical
recording[s]” and, therefore, the devices do not qualify as
“digital audio recording device[s]” subject to the Act. Third,
we reject AARC’s partition theory. We hold that, at least where
a device fixes a reproduction of a digital musical recording in
a single, multi-purpose hard drive, the entire disk, and not any
logical partition of that disk, is the “material object” that must
satisfy the definition of a “digital musical recording” for the
recording device to qualify under the Act. These matters are
explained in detail in the succeeding sections of the opinion.
6
I. BACKGROUND
A. The Audio Home Recording Act of 1992
1. The Historical Context
Advances in digital recording technology, together with
lingering questions about the legal status of home recording,
set the stage for the disagreements and compromises that
produced the Audio Home Recording Act of 1992, Pub. L. No.
102-563, 106 Stat. 4237 (codified at 17 U.S.C. §§ 1001-1010).
The Technology. In the mid-1980s, consumer electronics
manufacturers introduced digital audio recorders to the U.S.
market that made it possible for consumers without any special
technical expertise to make digital copies of music recordings.
These recorders, which eventually included DAT recorders,
compact disc (“CD”) recorders, digital compact cassette
recorders, and mini-disc recorders, represented a significant
departure from the status quo because they could produce
copies (and copies of those copies) without introducing the
hisses, pops, or other distortions that were characteristic of
analog audio recorders. As a result, digital audio recorders
diminished the incentive of consumers to purchase authorized
copies of music recordings. The music industry feared that
high-quality digital copies would displace authorized sales of
music recordings. See S. REP. NO. 102-294, at 34-35.
The Law. In the 1980s, a “legal cloud . . . hovered over
home taping of sound recordings.” 137 CONG. REC. S11,846
(daily ed. Aug. 1, 1991) (statement of Sen. DeConcini). The
status of home copying under copyright law had been in doubt
since Congress first granted copyrights in sound recordings in
the early 1970s. In 1981, the U.S. Court of Appeals for the
Ninth Circuit issued its decision in the so-called Betamax case,
7
Universal City Studios, Inc. v. Sony Corp. of Am., 659 F.2d 963
(9th Cir. 1981), holding that the noncommercial private video
taping of broadcast television shows constituted copyright
infringement. However, in 1984, the Supreme Court reversed
this decision, holding that private home taping of television
broadcasts for the purposes of “time-shifting” constituted a fair
use of the copyrighted programming. The Court’s decision
“emboldened DAT manufacturers to claim immunity” for
home audio taping. 2 MELVILLE B. NIMMER & DAVID NIMMER,
NIMMER ON COPYRIGHT § 8B.01[B] (2019) [hereinafter 2
NIMMER ON COPYRIGHT] (discussing Sony Corp. of Am. v.
Universal City Studios, Inc., 464 U.S. 417 (1984)).
The dispute over taping continued, however:
The electronics industry . . . maintained that the
Betamax decision applied to virtually all home taping
while songwriters, music publishers, performers, and
recording companies . . . insisted that the decision
applie[d] to a very limited set of facts, i.e. home video
taping for time-shifting purposes. Consequently the
controversy . . . continued and in fact [was]
exacerbated by the increasing refinement of audio
recording technology.
S. REP. NO. 102-294, at 31; see also H.R. REP. NO. 102-780, pt.
1, at 18 (1992).
The Compromise. Ultimately, these competing forces
pushed the principal stakeholders to the negotiating table. By
1991, the music industry and the consumer electronics industry
reached an agreement that set the groundwork for the AHRA.
See S. REP. NO. 102-294, at 33; H.R. REP. NO. 102-780, pt. 1,
at 19. The compromise agreement consisted of three basic
parts: First, manufacturers would be required to ensure that
8
their digital audio recorders included copy-control systems –
the “Serial Copy Management System” or an equivalent – to
prevent second-generation copying. Second, manufacturers
and distributers of covered digital audio recorders (and covered
recording media, like blank tapes) would pay modest but
certain royalties to a fund established by the Act. Third, both
manufacturers and consumers would enjoy immunity from
copyright infringement actions based on the noncommercial
use of covered digital audio recorders. Thus, the overall
compromise was designed to “create[] an atmosphere of [legal]
certainty” for the consumer electronics industry, S. REP. NO.
102-294, at 51, “compensate copyright owners and creators for
sales displaced by home taping of copyrighted music,” id. at
32, and thereby “ensure the right of consumers to make . . .
digital audio recordings of copyrighted music for their private,
noncommercial use,” id. at 30.
The Computer Industry. One last point on historical
context is critical. As Congress refined the proposed legislation
to adequately capture the contours of the “historic
compromise,” it was simultaneously attuned to the interests
and concerns of third-party stakeholders – and to the concerns
of the computer industry in particular. As we explain below,
the legislative history of the AHRA indicates that at least two
features of the enacted legislation were meant to ensure that
personal computers and computer storage media generally
would not be subject to the Act. See, e.g., Recording Indus.
Ass’n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072,
1078 n.6 (9th Cir. 1999) (noting the computer industry’s view
that, had computers not been excluded from the AHRA, “the
computer industry would have vigorously opposed passage of
the Act”).
First, the definition of “digital audio recording device”
includes a “primary purpose” requirement. See 17 U.S.C.
9
§ 1001(3). As a result, personal computers, though often
capable of functioning as digital audio recorders in the relevant
sense – think, for instance, of personal computers with CD
recorders – generally are not subject to the Act because their
“recording function is designed and marketed primarily for the
recording of data and computer program[s].” S. REP. NO. 102-
294, at 48 (contrasting a personal computer with a peripheral
device dedicated to digital audio recording); H.R. REP. NO.
102-780, pt. 1, at 27 (“Also, [the AHRA] does not cover
general purpose computers because the primary purpose of
their recording function is not to make digital audio copied
recordings.”).
Second, Congress opted to replace the term “phonorecord”
in several key provisions of the Act “[a]fter consultation with
the computer and telecommunications industries,” because “it
became apparent that the term ‘phonorecord’ and its attendant
definitions might be overly broad” and might “inadvertently
encompass some form of technology that was not intended.” S.
REP. NO. 102-294, at 35. In its place, Congress inserted a
specialized term – “digital musical recording” – that was
substantially narrower. A “phonorecord” is, in relevant part, a
“material object[] in which sounds . . . are fixed.” 17 U.S.C.
§ 101. In contrast, a “digital musical recording” is a “material
object . . . in which are fixed, in a digital recording format, only
sounds” and no “computer programs.” Id. § 1001(5)(A)(i),
(B)(ii). In adopting this narrower term, Congress “intended to
cover those objects commonly understood to embody sound
recordings,” S. REP. NO. 102-294, at 36, like “recorded
compact discs, digital audio tapes, . . . digital compact
cassettes, and mini-discs,” id. at 36 n.36, and to exclude any
objects that “contain[] computer programs or data bases,” id. at
46.
10
2. The Text of the Act
The AHRA as finally enacted included three principal
parts: First, a series of nested definitions of the covered
technologies, “carefully tailored so as to limit the effect of the
[AHRA] to audio recording,” S. REP. NO. 102-294, at 45, while
also aiming to remain “technologically neutral” to
accommodate future technological developments in digital
audio recording, id. at 35. Second, a series of provisions
specifying the substantive terms of the Act. And, third, a
provision governing the remedial authority of federal district
courts.
The Controlling Statutory Definitions. As noted above,
the Act does not regulate digital audio recording as such.
Rather, “the Act places restrictions only upon a specific type of
recording device,” Diamond, 180 F.3d at 1075 – i.e., a type that
qualifies as a “digital audio recording device” under the
AHRA. Section 1001(3) defines a “digital audio recording
device” as:
any machine or device of a type commonly distributed
to individuals for use by individuals, whether or not
included with or as part of some other machine or
device, the digital recording function of which is
designed or marketed for the primary purpose of, and
that is capable of, making a digital audio copied
recording for private use . . . .
17 U.S.C. § 1001(3) (emphasis added). In other words, a digital
audio recorder is covered by the AHRA only if it satisfies both
a “primary purpose” and a “capability” test. The Act proceeds
to make an explicit exception for “professional model
products,” id. § 1001(3)(A), as well as for “audio recording
11
equipment that is designed and marketed primarily for the
creation of sound recordings resulting from the fixation of
nonmusical sounds,” like dictation machines or answering
machines, id. at § 1001(3)(B).
Next, the Act defines the “digital audio copied recording”
that an audio recorder must be “capable of . . . making” in order
to count as a digital audio recording device:
A “digital audio copied recording” is a reproduction
in a digital recording format of a digital musical
recording, whether that reproduction is made directly
from another digital musical recording or indirectly
from a transmission.
Id. § 1001(1) (emphasis added).
Finally, the Act defines the term “digital musical
recording” that figures in the definition of a “digital audio
copied recording” and in other provisions of the AHRA.
Section 1001(5)(A) states that a “‘digital musical recording’ is
a material object—”
(i) in which are fixed, in a digital recording format,
only sounds, and material, statements, or instructions
incidental to those fixed sounds, if any, and
(ii) from which the sounds and material can be
perceived, reproduced, or otherwise communicated,
either directly or with the aid of a machine or device.
Id. § 1001(5)(A)(i)-(ii) (emphasis added). Section 1001(5)(B)
clarifies that a “‘digital musical recording’ does not include a
material object—”
12
(i) in which the fixed sounds consist entirely of
spoken word recordings, or
(ii) in which one or more computer programs are
fixed, except that a digital musical recording may
contain statements or instructions constituting the
fixed sounds and incidental material, and statements
or instructions to be used directly or indirectly in order
to bring about the perception, reproduction, or
communication of the fixed sounds and incidental
material.
Id. § 1001(5)(B)(i)-(ii) (emphasis added).
As explained above, Congress, in consultation with the
computer industry, adopted this complex definition to replace
the reference to “phonorecord.” The most critical change was
the requirement that a digital musical recording contain “only
sounds” and material incidental to those sounds – a
requirement underscored by the exclusion of any object that
contains “one or more computer programs” other than
programs that bring about “the fixed sounds.” In adopting this
term, Congress sought to capture “those objects commonly
understood to embody sound recordings.” S. REP. NO. 102-294,
at 36.
The Substantive Terms of the Act. There are several
important points to be made about the provisions of the AHRA
that give effect to the substantive terms of the “historic
compromise.”
First, the Act states that “[n]o person shall import,
manufacture, or distribute any digital audio recording device
. . . that does not conform to . . . the Serial Copy Management
System” or does not include a comparable copy-control system
13
to prevent second-generation copying. 17 U.S.C. § 1002(a).
Similarly, the Act prohibits anyone from encoding digital
musical recordings with incorrect copyright or copy-generation
information or from otherwise circumventing a device’s copy-
control system. Id. § 1002(c)-(d).
Second, the Act provides that “[n]o person shall import
into and distribute, or manufacture and distribute, any digital
audio recording device . . . unless such person” files notice with
the Register of Copyrights, submits regular statements of
account, and pays royalties according to a schedule set out in
the Act. Id. § 1003; see also id. §§ 1004-1007 (detailing the
process by which royalties are calculated, paid, and then
collected by interested copyright holders); 37 C.F.R.
§§ 201.27-.31 (2019) (further detailing these processes).
Third, the Act grants immunities from certain copyright
infringement actions. Section 1008 provides that:
No action may be brought under this title alleging
infringement of copyright based on the manufacture,
importation, or distribution of a digital audio
recording device, a digital audio recording medium,
an analog recording device, or an analog recording
medium, or based on the noncommercial use by a
consumer of such a device or medium for making
digital musical recordings or analog musical
recordings.
Id. § 1008. In short, sections 1002 to 1008 of the AHRA set out
the substantive benefits and burdens that Appellees would be
subject to if their devices fit within the Act’s definitions.
Remedies for Infringements of the Act. Finally, the Act
contains a civil remedies section, which empowers “interested
14
copyright part[ies]” injured by violations of the copy-control
and royalties provisions to “bring a civil action in an
appropriate United States district court against any person for
such violation[s].” Id. § 1009(a). The courts may, as
appropriate, award injunctive relief, actual or statutory
damages, and reasonable attorney’s fees to the prevailing party.
See id. § 1009(c)-(d). In addition, a court may order any digital
audio recording devices or digital musical recordings involved
in violations of § 1002 to be impounded or modified under
certain conditions. See § 1009(f) (“[T]he court may order the
impounding, on such terms as it deems reasonable, of any
digital audio recording device, digital musical recording, or
device specified in section 1002(c) that is in the custody or
control of the alleged violator . . . .”); id. § 1009(g)(1)-(2)
(“[T]he court may, as part of a final judgment or decree finding
a violation of section 1002, order the remedial modification or
the destruction of any digital audio recording device, digital
musical recording, or device specified in section 1002(c) that
. . . does not comply with, or was involved in a violation of,
section 1002, and . . . is in the custody or control of the violator
or has been impounded under subsection (f).”).
B. Procedural History
On July 25, 2014, AARC filed a lawsuit against GM and
Ford and their suppliers DENSO and Clarion (“GM/Ford
action”) alleging failure to comply with the AHRA’s
requirements. On November 14, 2014, AARC filed a second,
substantially similar lawsuit against FCA and its supplier
Mitsubishi (“FCA action”). In both lawsuits, AARC’s central
allegation was that Appellees manufactured or distributed in-
car entertainment systems that enabled consumers to copy
audio CDs to on-board hard disk drives (and, in the case of
some GM models, solid-state “flash” drives) for later playback.
In AARC’s view, this feature made Appellees’ in-car systems
15
“digital audio recording device[s]” under the Act and, thus,
made Appellees subject to the Act’s registration, royalty, and
copy-control requirements. On February 9, 2015, the District
Court ordered these actions consolidated pursuant to Rule 42
of the Federal Rules of Civil Procedure.
In February 2016, the District Court denied Appellees’
motions to dismiss for failure to state a claim and for judgment
on the pleadings. In doing so, however, the court adopted
Appellees’ preferred interpretation of the term “digital audio
copied recording.” Specifically, the District Court held that a
“digital audio copied recording” – the “output” of a covered
recording process – must also be a “digital musical recording”
under the Act. AARC I, 162 F. Supp. 3d at 8-22. In the District
Court’s view, “the most revealing textual clue” is the word
“another” in the definition of “digital audio copied recording.”
Id. at 18. The District Court concluded that “the only plausible
reason that Congress would specify that a [digital audio copied
recording] made via direct copy would be from another [digital
musical recording] is if the [digital audio copied recording]
itself is also a [digital musical recording].” Id. The District
Court found that this interpretation was reinforced by the Act’s
immunity and remedy provisions and was consistent with the
Act’s history and purpose. See id. at 18-20. The court then
concluded that, although typical computer hard drives would
not qualify as “digital musical recording[s],” AARC’s
complaint sufficed to make it plausible that at least some of
Appellees’ challenged devices might qualify. See id. at 22-23.
The District Court denied AARC’s motion for reconsideration
but granted its motion for clarification, noting that AARC I did
not preclude AARC from raising its partition theory in
subsequent proceedings. See AARC II, 306 F. Supp. 3d. at 418-
20.
16
The parties then embarked on an initial phase of discovery
to determine whether Appellees’ hard drives contain
disqualifying computer programs or data. (A second phase,
focused on GM’s flash drives, is pending.) In short, the
undisputed evidence in the record shows that Appellees’
devices fix digital reproductions of audio CDs in single-platter
hard disk drives that also contain programs and data not
incidental to those sounds. For example, the Clarion devices
supplied to Ford “contain[] software and data, including
software for displaying vehicle climate information; software
for playing satellite radio, AM/FM radio, and sound files from
DVDs, audio CDs and data CDs; software for displaying video
from the rear view camera; software for uploading
photographs, and also data for maps . . . .” AARC III, 306 F.
Supp. 3d at 431 (internal quotation marks and brackets omitted)
(quoting Defs.’ Statement of Undisputed Facts ¶ 1(d),
reprinted in Joint Appendix (“J.A.”) 310-11). The evidence
produced in discovery also indicates that Appellees’ devices
copy CDs to specific hard drive partitions – to subdivisions of
the drives, defined by software, that can function as
independent drives – and that these partitions arguably contain
“only sounds” and materials incidental to those sounds.
On March 23, 2018, the District Court granted Appellees’
joint motion for summary judgment. AARC III, 306 F. Supp. 3d
422. First, the District Court affirmed its position that an audio
recorder is a “digital audio recording device” only if it is
capable of making a “digital audio copied recording” that is
itself a “digital musical recording” under the Act. Id. at 425-26.
Second, the court found that, “based on the evidence presented,
. . . the hard drives in Defendants’ devices contain all sorts of
programs and other materials, such that they do not qualify as
[digital musical recordings], and as a result, the devices
themselves are not [digital audio recording devices] subject to
the AHRA.” Id. at 428-29. Finally, the District Court rejected
17
AARC’s alternative theory that Appellees’ devices are digital
audio recording devices because they copy music to hard drive
partitions that contain “only sounds” and therefore qualify as
“digital musical recording[s].” The District Court ruled that a
hard drive partition is not a “material object” for purposes of
§ 1001(5), because it lacks a “distinct physical identity such
that it can be considered a ‘material object’ apart from the hard
drive on which it exists.” Id. at 432. The District Court also
held that, even if partitions were “material object[s],” “AARC
has failed to establish that the AHRA’s statutory definitions
require consideration of a smaller unit of output than the hard
drive as a whole.” Id. at 429. In fact, the court reasoned,
AARC’s theory is fundamentally at odds with Congress’s
choice to make an object’s status as a “digital musical
recording” depend on what else besides music is fixed in it. See
id. at 440.
On March 23, 2018, the District Court issued a
Memorandum Opinion. The court also issued a separate Order
with the following clauses:
For the reasons stated in the accompanying
Memorandum Opinion, it is hereby ORDERED that
Defendants’ Joint Motion for Summary Judgment is
GRANTED. It is FURTHER ORDERED that
Plaintiff’s Motion for Partial Summary Judgment as
to GM and Denso, Plaintiff’s Motion for Partial
Summary Judgment as to Ford and Clarion, and
Plaintiff’s Motion for Partial Summary Judgment as
to FCA and Mitsubishi, are DENIED.
J.A. 583 (citations to the docket omitted). This Order resolved
all the claims in the FCA action, and all but the flash-drive
claims in the GM/Ford action.
18
On September 18, 2018, AARC filed a notice of appeal in
the FCA action. The timeliness of that notice is addressed
below. On October 23, 2018, the District Court granted
AARC’s unopposed Rule 54(b) motion to enter final judgment
as to the hard-drive claims in the GM/Ford action. However,
the court reserved judgment on the flash-drive claims, which
remain pending in the District Court. AARC then filed a timely
notice of appeal in the GM/Ford action, and this court
consolidated the appeals.
II. ANALYSIS
A. Standard of Review
We review de novo the District Court’s grant of summary
judgment and its underlying interpretation of the AHRA.
Bartko v. U.S. Dep’t of Justice, 898 F.3d 51, 63 (D.C. Cir.
2018) (“This Court reviews a district court’s grant of summary
judgment de novo.”); United States v. Cordova, 806 F.3d 1085,
1098 (D.C. Cir. 2015) (per curiam) (“We review questions of
statutory interpretation de novo.”). Summary judgment for
Appellees is appropriate only if, viewing the evidence in the
light most favorable to AARC, Arrington v. United States, 473
F.3d 329, 333 (D.C. Cir. 2006), there is “no genuine dispute as
to any material fact and [Appellees are] entitled to judgment as
a matter of law,” FED. R. CIV. P. 56(a).
B. Jurisdiction
In response to our order to the parties to address this
court’s jurisdiction over AARC’s appeal in the FCA action,
Appellees now argue that we lack jurisdiction because AARC
filed its notice of that appeal out of time. In general, “[t]he time
limits established by Rule 4(a) [of the Federal Rules of
Appellate Procedure] are ‘mandatory and jurisdictional.’” Kidd
19
v. District of Columbia, 206 F.3d 35, 38 (D.C. Cir. 2000)
(quoting Moore v. South Carolina Labor Bd., 100 F.3d 162,
163 (D.C. Cir. 1996) (per curiam)). Rule 4(a) says that a party
must file notice of appeal “within 30 days after entry of the
judgment.” FED. R. APP. P. 4(a)(1)(A). And that 30-day clock
starts when judgment is entered in the civil docket and (1) that
judgment is also set out in a “separate document” or (2) 150
days pass – whichever is earlier. FED. R. CIV. P. 58(a), (c); FED.
R. APP. P. 4(a)(7)(A)(ii).
AARC filed a notice of appeal in the FCA action 179 days
after the District Court entered its summary judgment order in
the docket. Therefore, AARC’s notice was in time if the
document containing the District Court’s final judgment did
not satisfy Rule 58’s “separate document” requirement, in
which case AARC had 180 days to file. Appellees contend that
the District Court’s Order – a document containing the ordering
clauses reprinted above – is a “separate document” for
purposes of Rule 58 because it is separate from the court’s
Memorandum Opinion and “omits legal reasoning.” Br. for
Appellees at 23 (citing Kidd, 206 F.3d at 39). AARC, for its
part, argues that the District Court’s final judgment in the FCA
action must also be separate from the court’s merely
interlocutory order in the consolidated GM/Ford action, given
the Supreme Court’s instruction that cases consolidated
pursuant to Rule 42 “retain their ‘independent character’” and,
thus, require “separate decrees or judgments.” Br. for
Appellant at 13-14 (quoting Hall v. Hall, 138 S. Ct. 1118, 1125,
1128 (2018)).
It is unnecessary for us to determine the proper application
of Rule 58’s “separate document” requirement to the facts of
this case. In general, of course, we must assure ourselves of our
jurisdiction before addressing the merits. Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 583 (1999). But there are
20
several narrow exceptions to that rule, and this case falls in one.
“[W]here ‘the merits question [is] decided in a companion
case, with the consequence that the jurisdictional question
could have no effect on the outcome,’ courts are free to
‘decline[ ] to decide th[e] jurisdictional question.’” Emory v.
United Air Lines, Inc., 720 F.3d 915, 920 (D.C. Cir. 2013)
(second, third, and fourth alterations in original) (quoting Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 98 (1998)); see
also Sherrod v. Breitbart, 720 F.3d 932, 937 (D.C. Cir. 2013)
(explaining that a court may assume jurisdiction when the
merits decision is “foreordained” by another of the court’s
decisions).
Here, crucially, there is no doubt about our jurisdiction
over AARC’s appeal in the GM/Ford action. Therefore, we
have jurisdiction in a “companion case” that presents the same
merits questions as the FCA action, and our decision in the
companion case will effectively “foreordain” our decision in
the FCA action. As a result, our disposition of the matter before
us will not “carr[y] th[is] court[] beyond the bounds of
authorized judicial action,” Steel Co., 523 U.S. at 94, because
we will not be using “the pretermission of the jurisdictional
question as a device for reaching a question of law that
otherwise would have gone unaddressed,” id. at 98. We
therefore turn to the merits issues common to both appeals
without regard to whether we have jurisdiction over AARC’s
appeal in the FCA action.
21
C. The Issues Regarding the Meaning of the Audio Home
Recording Act of 1992
1. A “Digital Audio Copied Recording” Must Also Be a
“Digital Musical Recording” Under the AHRA
The first merits question in this case concerns the proper
interpretation of the AHRA’s definition of “digital audio
copied recording.” This statutory term is critical because a
digital recording technology, including any of Appellees’ CD-
copying devices, is covered by the Act only if it is “capable of
. . . making a digital audio copied recording.” 17 U.S.C.
§ 1001(3). The parties are at odds over whether the Act’s
definition of the term “digital audio copied recording” implies
that digital audio copied recordings must also be “digital
musical recording[s]” under the Act.
The District Court offered the following diagram to
illustrate the relationship between the relevant statutory terms:
AARC I, 162 F. Supp. 3d at 12. The central question in this case
is whether the “outputs” on the righthand side must be “digital
musical recording[s]” under the Act. We hold that they must
be. That is, Appellees’ devices are subject to the restrictions of
the AHRA only if they are capable of making reproductions of
22
digital musical recordings, which reproductions are themselves
digital musical recordings.
Our reading of the Act is compelled by the word “another”
in the definition of “digital audio copied recording.” A digital
audio copied recording is a “reproduction . . . of a digital
musical recording, whether that reproduction is made directly
from another digital musical recording or indirectly from a
transmission.” 17 U.S.C. § 1001(1) (emphasis added). The
ordinary meaning of “another” in this context is “one more in
addition to one or a number of the same kind.” WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY 89 (1993); see also 1
OXFORD ENGLISH DICTIONARY 495 (2d ed. 1989) (“A second,
further, additional.”). As the District Court correctly noted, the
most plausible reason that Congress would say that a
reproduction “made directly” would be from another digital
musical recording is if the reproduction itself is also a digital
musical recording.
Other provisions in the AHRA reinforce this interpretation
of “digital audio copied recording.” Most important, the Act
provides immunity from suit “based on the noncommercial use
by a consumer of [digital audio recording devices or digital
audio recording media] for making digital musical
recordings.” 17 U.S.C. § 1008 (emphasis added). This
provision makes no mention of immunity for making digital
audio copied recordings, but instead digital musical recordings.
That silence suggests that Congress intended that digital audio
copied recordings be digital musical recordings. In addition,
the Act empowers courts to impound or order the modification
of “any digital audio recording device, digital musical
recording, or [device designed to bypass the copy-control
system of a digital audio recording device]” that meets certain
further conditions. Id. § 1009(f)-(g). Once again, no reference
to digital audio copied recordings.
23
If, as AARC contends, the Act’s definitions include digital
audio copied recordings that are not digital musical recordings,
then the Act’s immunity and remedial provisions would not
make much sense. Under AARC’s view, the Act would afford
immunity only when consumers make one kind of digital audio
copied recording rather than another. And the Act would give
the courts certain remedial authority only when they confront
one kind of digital audio copied recording rather than another.
There is no indication that Congress intended such a curious
result. If, on the other hand, a digital audio copied recording
simply is a special kind of digital musical recording (viz., one
that is the output of a covered digital copying process), then
Congress’s failure to make special provision for digital audio
copied recordings is no surprise. By covering digital musical
recordings, it covers digital audio copied recordings as well.
Because the text of § 1001(1) is clear, “there is no reason
to resort to legislative history.” United States v. Gonzales, 520
U.S. 1, 6 (1997). Still, it is worth emphasizing that our
interpretation of “digital audio copied recording” is consistent
with the Act’s history and purpose. As explained above, the
AHRA was intended to encompass a specific kind of recording
technology. It is notable, then, that the digital audio recorders
that Congress treated as models for the AHRA’s definitions –
principally DAT and CD recorders – typically produced copies
of digital musical recordings that were themselves digital
musical recordings. For example, a CD recorder is typically
capable of making “another digital musical recording.” As a
result, the legislative history is (at the very least) consistent
with the claim that, in giving effect to the underlying
compromise, Congress expected that current and future digital
audio recording devices would operate by making “another
digital musical recording.”
24
AARC argues that this interpretation of the Act is
“hypertechnical” and inconsistent with the AHRA’s text,
history, and purpose. We find no merit in these arguments,
which rest on equivocal legislative history and AARC’s sense
of sound policy. After all, “[e]ven for those of us who make use
of legislative history, ambiguous legislative history cannot
trump clear statutory language.” Nat’l Ass’n of Mfrs. v. Dep’t
of Def., 138 S. Ct. 617, 634 n.9 (2018) (internal quotation
marks omitted) (quoting Milner v. Dep’t of Navy, 562 U.S. 562,
572 (2011)). And in general, “[t]he best evidence of [a law’s]
purpose is the statutory text,” W. Va. Univ. Hosps., Inc. v.
Casey, 499 U.S. 83, 98 (1991), and most certainly when that
text is the result of carefully negotiated compromise among the
stakeholders who will be directly affected by the legislation.
It is quite clear here that AARC’s textual arguments are
meritless. For AARC’s theory to prevail – for the definition of
“digital audio copied recording” to encompass both digital
musical recordings and other digital copies – we would have to
ignore the word “another” in the phrase “another digital
musical recording.” But there is nothing in the text of § 1001(1)
or anywhere else in the text of the AHRA to support AARC’s
proposed revision.
AARC points out that an earlier, unenacted version of the
AHRA defined a “digital audio copied recording” as
a reproduction of a phonorecord in a digital recording
format, whether that reproduction is made directly
from another phonorecord or indirectly from a
transmission.
Br. for Appellant at 35 (quoting earlier proposed legislation in
both the House and Senate). Because a “phonorecord” is an
object in which sounds – but not necessarily “only sounds,” 17
25
U.S.C. § 101 – are fixed, a reproduction of a phonorecord
would typically qualify as a phonorecord, even if the output
had other data fixed in it, so the word “another” did not impose
meaningful limits on the output side. As AARC puts it, “the
result would have been identical had [the definition] referred to
a reproduction made directly from . . . ‘a phonorecord.’” Br. for
Appellant at 35. This is an interesting point, but it is irrelevant.
The problem with AARC’s argument is that Congress deleted
the reference to phonorecord in the enacted version of the Act.
When Congress substituted the term “digital musical
recording” in the enacted legislation, the phrase “another
digital musical recording” was decidedly not interchangeable
with the phrase “a digital musical recording.” The first phrase
clearly imposes the “only sounds” requirement on the output
side, the second does not.
AARC maintains that the late change in the legislation was
not a “closely consider[ed]” choice to restrict both the inputs
and outputs of the copying process. Id. Rather, according to
AARC, it was an effort by Congress to restrict the input side
alone, and Congress simply failed to appreciate the effect of
leaving the word “another” in place. In AARC’s view, a clue
that Congress did not mean to restrict the outputs – and, thus,
that it meant to delete “another” in favor of a less restrictive
term – is that Congress left the phrase “in a digital recording
format” in the definition of a “digital audio copied recording.”
This phrase would be redundant, AARC points out, if digital
audio copied recordings were themselves digital musical
recordings, because digital musical recordings are “in a digital
recording format” by definition. See 17 U.S.C. § 1001(5)(A)(i).
We find it far more straightforward to read “in a digital
recording format” as surplusage than to read “another” out of
the AHRA entirely. See Microsoft Corp. v. i4i Ltd. P’ship, 564
U.S. 91, 106 (2011) (“[T]he canon against superfluity assists
26
only where a competing interpretation gives effect to every
clause and word of a statute.” (internal quotation marks and
citation omitted)). It is simple enough to explain why the
redundant phrase “in a digital recording format” might have
been overlooked in the drafting process. For one thing, the
change merely confirmed that outputs of the copying process
would be digital. For another, the revised text that created the
surplusage was embedded in the complex, multi-part definition
of “digital musical recording.” In contrast, we find no
comparably strong evidence that the word “another” can be
explained as a simple drafting error. On the contrary, that term
was in the AHRA from the start, which suggests that Congress
always envisioned that inputs and outputs would be of the same
general kind. And this conclusion is reinforced by the fact that
Congress shaped the text to fit digital audio recorders whose
outputs were typically digital musical recordings.
We could go on, but it would be pointless. AARC’s
fundamental problem is that it seeks to rely on ambiguous
legislative history that cannot possibly trump clear statutory
language.
We understand that time and technological change may
have rendered the AHRA’s compromise less palatable to
AARC and its constituents. Some commenters have observed
that the increased role of computers in digital audio recording
has made the AHRA’s role more marginal than its proponents
envisioned. 2 NIMMER ON COPYRIGHT § 8B.02[A][1][a][ii]
(“[T]he failure of [DAT recorders and other technologies at the
heart of the Act] to ever make much penetration into the
consumer marketplace renders the AHRA’s focus, in hindsight,
misguided.”). It is certainly likely that the disputes before
Congress would have been conducted on different terms in
2002 than they were in 1992, given the rise of computer-based
audio recording technologies during that ten-year stretch. See
27
Aaron L. Melville, The Future of the Audio Home Recording
Act of 1992: Has It Survived the Millennium Bug?, 7 B.U. J.
SCI. & TECH. L. 372, 383-86, 388-96 (2001) (explaining, from
the perspective of 2001, how the rise of MP3s and the Ninth
Circuit’s decision in Diamond made the AHRA “rapidly . . .
outdated,” id. at 374). Still, we cannot enforce the law that
AARC thinks Congress should have written rather than the
carefully negotiated text that Congress adopted. Ultimately, if
AARC and its supporters “have persuasive arguments in
support of the change of law they advocate, it is Congress they
should persuade.” Capitol Records, LLC v. ReDigi Inc., 910
F.3d 649, 664 (2d Cir. 2018).
2. Appellees’ Hard Disk Drives Are Not “Digital Musical
Recording[s]” and, Therefore, Their Devices Are Not
“Digital Audio Recording Device[s]” Under the
AHRA
We turn next to the in-car CD-copying devices at issue in
this case. We hold that Appellees’ devices are not “digital
audio recording device[s]” subject to the Act because the
undisputed evidence shows that the hard drives to which their
devices reproduce audio CDs are not themselves digital
musical recordings under the Act. As a result, Appellees’
devices are not “capable . . . of making digital audio copied
recording[s]” and, therefore, they fall outside the Act’s
carefully negotiated definitions.
To start, it is well-established that typical computer hard
drives are not “digital musical recording[s]” under the AHRA
because they fall in § 1005(B)(ii)’s explicit exception for
objects that contain “one or more computer programs.” The
Ninth Circuit adopted this position in Recording Industry Ass’n
of America v. Diamond Multimedia Systems, Inc., 180 F.3d
28
1072 (9th Cir. 1999), and its understanding of the AHRA has
proved influential. As the Ninth Circuit wrote:
The typical computer hard drive . . . is, of course, a
material object. However, hard drives ordinarily
contain much more than “only sounds, and material,
statements, or instructions incidental to those fixed
sounds.” Indeed, almost all hard drives contain
numerous programs (e.g., for word processing,
scheduling appointments, etc.) and databases that are
not incidental to any sound files that may be stored on
the hard drive.
Id. at 1076 (citation omitted). As a result, the court reasoned,
the typical computer hard drive is not a digital musical
recording under the Act. Id.; see also id. at 1077 (“There are
simply no grounds in either the plain language of the definition
or in the legislative history for interpreting the term ‘digital
musical recording’ to include songs fixed on computer hard
drives.”); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004,
1024 (9th Cir. 2001) (“[T]he Audio Home Recording Act does
not cover the downloading of MP3 files to computer hard
drives,” in part because “computers do not make ‘digital
music[al] recordings’ as defined by [the Act].”).
To be sure, the Ninth Circuit confronted this question in a
context that differs from the situation in this case. There, a hard
drive served as the input to the copying process and, thus, the
question was whether a digital copy created from a hard drive
counted as “a reproduction . . . of a digital musical recording.”
But this difference does not make the Ninth Circuit’s
interpretation of the statutory term “digital musical recording”
any less persuasive, and we adopt its interpretation here. No
material object can count as a digital musical recording if it
contains “one or more computer programs” that are not
29
incidental to any sounds fixed in that object, and that includes
typical hard disk drives.
The critical question in discovery during the proceedings
before the District Court was whether the hard disk drives in
Appellees’ CD-copying devices were “typical computer hard
drives” in these key respects. The undisputed answer is “yes.”
As the District Court explained:
Based on the evidence and information gathered
during the discovery period in this case, it is clear that
the hard drives in Defendants’ multimedia devices
are, indeed, “full of non-music data and computer
programs,” as Defendants previously maintained.
Indeed, each of the hard drives in Defendants’ devices
“includes computer programs, data, or other material”
that are not incidental to the fixed sounds, and though
the exact contents vary based on device, the in-vehicle
systems include such things as navigation software,
DVD players, displays of album art and information,
and AM/FM and satellite radio functions.
AARC III, 306 F. Supp. 3d at 430-31 (citations omitted); see
also id. at 431 (summarizing the contents of several of
Appellees’ systems in more detail); J.A. 327-34 (documenting
the undisputed facts about Appellees’ devices). Therefore, we
agree with the District Court that, even interpreting the
evidence in the light most favorable to AARC, Appellees’ CD-
recording devices are not capable of making reproductions of
digital musical recordings that are themselves digital musical
recordings. As a result, Appellees are entitled to judgment as a
matter of law because their devices are not “digital audio
recording device[s]” subject to the AHRA.
30
AARC concedes that if a “digital audio copied recording”
must be a “digital musical recording,” and if Appellees’ devices
qualify only if their entire hard disk drives are “digital audio
copied recording[s],” then Appellees’ devices are not “digital
audio recording device[s]” subject to the AHRA. But AARC
disputes the truth of the second condition. (The first, too, of
course, but we have already rejected that view.) Specifically,
AARC argues that Appellees’ in-car CD-copying devices can
be covered by the Act if they reproduce digital musical
recordings to specific hard drive partitions that qualify as
digital musical recordings under the Act. We reject AARC’s
partition theory as incompatible with the proper, context-
sensitive interpretation of the statutory text.
A hard drive partition is a subdivision of the storage disk
that can function as a separate drive. Hard drives are typically
partitioned to make it easier to organize files, or to back up or
protect data, or to improve performance. To create partitions, a
computer is programmed, using a “partition table,” to treat
ranges of “logical block addresses” as distinct storage drives.
J.A. 339. These addresses correspond to locations or regions of
the physical storage disk. Id. For example, though every
storage drive must contain at least one partition, id. at 338,
some disk drives are further partitioned into address blocks that
correspond to concentric circles on the physical disk. The
following image offers a simple example of a partitioned drive:
31
See, e.g., id. at 375 (using a similar diagram to illustrate one
possible set of partitions). There is nothing in the concept of a
hard drive partition that requires the address blocks to
correspond to contiguous regions of single disks, however. A
computer could be programmed to treat locations at different
parts of one disk – or even locations scattered across different
disks – as a functionally unified storage drive. Id. at 339.
The evidence appears to indicate that Appellees’ devices
contain hard drive partitions dedicated to music storage, see id.
at 376-430 (partially under seal), and that is what we shall
assume here. AARC says that, although some properties of
hard drive partitions depend on “the perspective of the
[computer’s] operating system and applications,” Br. for
Appellant at 44, partitions “are not abstractions,” id. at 43.
Rather, according to AARC, partitions are “tangible, well-
defined regions of a hard drive’s ‘platter,’ the metes and
bounds of which could be traced on the platter, such that one
could physically touch one partition or another.” Id. at 43-44.
Given its view of partitions, AARC contends that hard drive
partitions are “material object[s]” within the ordinary meaning
of those words. AARC thus concludes that if partitions are
material objects, then they can also be “digital musical
recording[s]” so long as they satisfy the rest of the requirements
set out in § 1001(5). Id. at 43.
32
Metaphysically speaking, AARC’s position is interesting.
It fails, however, pursuant to the norms of statutory
interpretation that govern our review of this matter. We can
grant that, at least in some contexts, the physical region
corresponding to a hard drive partition is a “material object” in
ordinary English. But that does not settle the question of
whether Appellees’ hard drive partitions are the “material
object[s]” that matter when applying the AHRA to devices that
copy music to single-platter, multi-purpose hard drives. To
answer that question, we must read the phrase “material object”
in § 1001(5) in the proper context. See, e.g., Yates v. United
States, 574 U.S. 528, 532 (2015) (plurality opinion)
(interpreting “tangible object” to exclude a fish, given the
Sarbanes-Oxley Act’s focus on objects involved in
recordkeeping). And we know that, in enacting the AHRA,
Congress had a particular kind of “material object” in mind,
exemplified by the objects involved in digital audio recording
at the time, like digital audio tapes, compact discs, and mini-
discs. That understanding must guide our application of the
term “material object” under § 1001(5).
In the case before us, we have no trouble concluding that
the storage disks contained in typical hard drives, like the
recordable tapes and discs that lawmakers considered in 1992,
are the sorts of “material object[s]” that the AHRA
contemplates serving as “digital musical recording[s]” if they
otherwise satisfy the Act’s terms. See S. REP. NO. 102-294, at
46 (“The intention is for the term ‘[digital musical recording]’
to cover objects commonly understood to embody sound
recordings and their underlying works, such as recorded
compact discs (CD’s) . . . [and] digital audio tapes
(DAT’s) . . . .”); id. at 49 (listing “magnetic digital audio tape
cassettes, optical discs, and magneto-optical discs” as
examples of the kinds of “digital audio recording media” that
33
Congress expected consumers to use in “making digital audio
copied recordings”). We also have no trouble concluding that
the drive partitions at issue in this case are not subject to the
strictures of the Act. We therefore hold that, at least where a
device fixes a reproduction of a digital musical recording in a
single-platter hard drive disk, the entire disk, and not any
logical partition of that disk, is the “material object” that must
satisfy the definition of a “digital musical recording” for the
recording device to qualify under the Act.
Our commonsense, context-sensitive reading of the
AHRA is confirmed by the fact that AARC’s proposed
alternative has no clear limiting principle. At bottom, AARC’s
strategy in this case is to zero in on the area of a material object
where sounds are fixed and then apply § 1001(5)’s “only
sounds” test. But this idea, taken to its limits, would imply that
any material object containing sounds is a material object that
can pass the “only sounds” test. All one need do is focus on the
part of the object where music files are fixed and ignore the
data fixed in other regions of the object. The problem, of
course, is that this divide-and-apply strategy risks collapsing
the distinction between “phonorecords” and “digital musical
recording[s]” that Congress was careful to erect. AARC
responds that we “do[] not need to determine the outer bounds
of Congress’s definition in this case,” because partitions are
“far more similar to drives (which even the district court agrees
are material objects) than are individual digital music files.” Br.
for Appellant at 52. But this response simply dodges the
question. As the District Court aptly noted, it is only by
considering all the relevant logical implications – and not just
the convenient ones – that we can decide whether a reading of
the statutory text adequately captures Congress’s intent. See
AARC III, 306 F. Supp. 3d at 440. The problem with AARC’s
proposed stopping point is that it shifts the focus from
Congress’s explicit instruction to look at whether sounds are
34
fixed in an object of a certain sort to an inquiry into whether
sounds are fixed in something that arguably functions like such
an object.
AARC’s other arguments are similarly misplaced. AARC
points to decisions of other courts that a “portion of” or
“segment of” or “location on” a hard drive can constitute a
“phonorecord” – and hence a “material object,” 17 U.S.C.
§ 101 – for purposes of copyright law. Br. for Appellant at 49
(citing Capitol Records, LLC v. ReDigi Inc., 910 F.3d 649, 657
(2d Cir. 2018) and London-Sire Records, Inc. v. Doe 1, 542 F.
Supp. 153, 171 (D. Mass. 2008)). AARC argues that our
position is inconsistent with these decisions. We disagree.
Our view is not that a hard drive partition could never be
a “material object” as that term is used in Title 17. We take no
position on that. Our view is only that a partition is not the
object that should be subjected to the § 1001(5) analysis under
the AHRA when (as here) a device makes digital copies on a
typical single-disk hard drive. The definitions of
“phonorecord” and “digital musical recording” both use the
term “material object,” but the term arises in different contexts,
serves different purposes, and (thus) makes different kinds of
objects salient. We find AARC’s arguments based on the in
pari materia canon unconvincing for similar reasons. See
Wachovia Bank v. Schmidt, 546 U.S. 303, 315-16 (2006)
(reasoning that “location” means something different in
provisions governing venue and subject-matter jurisdiction,
despite the in pari materia presumption, because those “are not
concepts of the same order”).
D. Matters Not Decided
In closing, we underscore, first, that we leave many
important questions about the AHRA unaddressed. Thus, we
35
do not pass judgment on Appellant’s alternative theory that a
device qualifies as a “digital audio recording device” only if its
copied outputs “are separate from a recording device.” Br. for
Appellee at 51. And, although we agree with Diamond about
the meaning and application of the term “digital musical
recording” to typical computer hard drives, we take no position
on Diamond’s conclusion that the device at issue in that case
was not subject to the AHRA because, in copying music from
a typical hard drive, it did not make “a reproduction . . . of a
digital musical recording” either “directly” or “indirectly from
a transmission.” See 180 F.3d at 1076-81 (discussing 17 U.S.C.
§ 1001(1)).
Second, although our analysis may have implications in
other cases, “[w]e cannot now answer more precisely how the
[AHRA] or other provisions of the Copyright Act will apply to
technologies not before us.” Am. Broad. Cos. v. Aereo, Inc.,
573 U.S. 431, 450 (2014). Any such questions “should await a
case in which they are squarely presented.” Id. at 451 (internal
quotation marks and citation omitted).
Third, we note that, in holding that Appellees’ devices fall
outside the scope of the AHRA, we do not hold (or even
suggest) that Appellees fall outside the reach of copyright law
entirely. We understand that Appellees may be subject to the
liabilities and defenses otherwise provided in Title 17 (or other
laws), as may be applicable. See, e.g., A&M Records, Inc. v.
Napster, Inc., 239 F.3d 1004, 1024 (9th Cir. 2001) (holding that
Napster could not invoke § 1008 as a defense to copyright
infringement claims because its technology did not fit within
the AHRA’s definitions).
Finally, we again note that, to the extent that AARC and
its supporters are “concerned with the relationship between the
development and use of [digital audio recording] technologies
36
and the [AHRA], they are of course free to seek action from
Congress.” Aereo, 573 U.S. at 451.
III. CONCLUSION
For the reasons set forth above, we affirm the judgments
of the District Court.
So ordered.