By Wesley Newton, JD Candidate L’22
In the 1976 Copyright Act, “material object” referred to, among other things, the physical substance in which studios imprinted recordings. This 1976 definition of “material object” was intended to be forward-looking, including fixation by “any method now known or later developed.” As digital methods have developed over time, the phrase “material object” has become an increasingly technical term of art. New statutes and technologies have led to clarifications and divergent definitions by courts and Congress.
In a 2018 ruling, the Second Circuit interpreted “material object” as used in the Copyright Act. Capitol Records, LLC v. ReDigi Inc., 910 F.3d 649 (2nd Cir. 2018). ReDigi, an internet platform, facilitated the resale of digital music files. If users wanted to resell digital music, they used ReDigi’s software to verify that they had bought the music from lawful internet vendors such as iTunes. After ensuring that the music was not pirated, ReDigi allowed these sellers to upload their music to an online marketplace where buyers could download or stream the music second-hand. Two record companies sued ReDigi, alleging that its marketplace enabled unauthorized reproduction of phonorecords, defined by the 1976 Act as “material objects in which sounds . . . are fixed.”
In defense, ReDigi asserted that its resales remained fair use since it did not duplicate phonorecords. ReDigi analogized its platform to a railroad which disassembled the file into “packets” to be transferred from the first purchaser’s station to ReDigi’s station. When a packet departed the first purchaser’s station, ReDigi “simultaneously” removed the packet from that first computer. When all the packets arrived at ReDigi’s station, ReDigi reconstructed the file. ReDigi thus ensured that “the entire file never exist[ed] in two places at once.” Nevertheless, the court held that ReDigi reproduced files. The court reasoned that ReDigi’s reconstruction of files in its platform and in the second buyers’ computers created “new material object[s]” which constituted new phonorecords.
This January, the D.C. Circuit distinguished definitions of “material object” in Alliance of Artists & Recording Cos. v. DENSO Int'l Am., Inc., 947 F.3d 849 (D.C. Cir. 2020). Auto manufacturers such as General Motors and Ford designed “in-vehicle audio recording devices,” which allowed drivers to copy music from CDs to hard drives for later listening. The 1992 Audio Home Recording Act (AHRA) required manufacturers of certain “digital audio recorders” to prevent unauthorized copying and pay royalties. However, the court held that the AHRA did not cover the in-vehicle devices, reasoning that the AHRA only applied to recorders that produced “digital music recording[s].” Hard drives with copied music did not qualify as digital music recordings because hard drives contained other code and thus were not sound-specific “material object[s].”
The plaintiffs unsuccessfully argued that the “material object” encompassed not the entire hard drive but only sections containing sounds. The court, however, determined that the “material object” of digital music recordings under the AHRA encompassed the entire hard drive, not just musical sections. The court distinguished this strict AHRA definition of “material object” from the more flexible Copyright Act definition, which recognized phonorecord “material object[s]” within larger servers and computers. As the court clarified, the terms “phonorecord” and “digital music recording” were not mere synonyms from different eras: the Copyright Act defined phonorecords as “material object[s]” containing sounds, while the AHRA defined digital music recordings as “material object[s]” exclusively containing sounds.
As the DENSO court noted, innovation required further legislation to clarify the definition of “material objects” in digital home recordings. That opinion concluded that the interpretation of the AHRA, and perhaps the broader debates around “material object,” remain similarly incomplete, awaiting on-point cases and (potentially) more legislation.