Expanding Preferential Treatment Under the Record Rental Amendment Beyond the Music Industry

Abstract:     
In January 2007, the Sixth Circuit Court of Appeals decided Brilliance Audio, Inc. v. Haights Cross Communications, Inc. and answered a lingering question concerning the Copyright Act that had persisted for over twenty years. The court decided whether the protections offered to the music industry under the poorly drafted Record Rental Amendment of 1984 also extended to audiobooks and other non-musical works. This Act deprives owners of items such as tapes and compact discs from renting those items to others without the consent of the copyright owners of the recorded song and the written lyrics and music - a right historically granted to consumers under the first sale doctrine. Ultimately, the court held that the special protections granted by the Record Rental Amendment were limited to the music industry. However, both the majority and vigorous dissenting opinions highlighted the differing interpretations of the Act's applicability and set the stage for a circuit split. This article first explores the text and historical developments of copyright law's first sale doctrine and the Record Rental Amendment and the Sixth Circuit's interpretation thereof. Next, it examines whether the Record Rental Amendment should be amended to include audiobooks and other non-musical works and ultimately suggests two alternative amendments Congress should adopt to resolve future conflicts and avoid a split amongst the circuits.

Keywords: record rental amendment, music, phonorecords, first sale doctrine, first sale, audiobook, sound recording

JEL Classifications: K00, K19, K29, K39, O34, L82

Accepted Paper Series