IV
Even though it cannot directly reproduce a digital music recording, the Rio would nevertheless be a digital audio recording device if it could reproduce a digital music recording "from a transmission." 17 U.S.C. S 1001(1).
A
[11] The term "transmission" is not defined in Act, although the use of the term in the Act implies that a transmission is a communication to the public. See id. S 1002(e) (placing restrictions upon "[a]ny person who transmits or otherwise communicates to the public any sound recording in digital format") (emphasis added). In the context of copyright law (from which the term appears to have been taken), "[t]o `transmit’ a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent." 17 U.S.C. S 101. The legislative history confirms that the copyright definition of "transmission" is sufficient for our purposes here. The Act originally (and circularly) provided that "[a ] `transmission’ is any audio or audiovisual transmission, now known or later developed, whether by a broadcast station, cable system, multipoint distribution service, subscription service, direct broadcast satellite, or other form of analog or digital communication." S. Rep. 102-294, at *10. The Senate Report provides a radio broadcast as an example of a transmission. See id., at *119 (referring to "a transmission (e.g., a radio broadcast of a commercially released audio cassette)."). The parties do not really dispute the definition of transmission, but rather, whether indirect reproduction of a transmission of a digital music recording is overed by the Act.
B
RIAA asserts that indirect reproduction of a transmission is sufficient for the Rio to fall within the Act’s ambit as a digital audio recording device. See 17 U.S.C. S 1001(1) (digital audio recording devices are those devices that are capable of making "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") (emphasis added). Diamond asserts that the adverb "indirectly" modifies the recording of the underlying "digital music recording," rather than the recording "from the transmission." Diamond effectively asserts that the statute should be read as covering devices that are capable of making a reproduction of a digital musical recording, "whether that reproduction is made directly[,] from another digital musical recording[,] or indirectly[,] from a transmission."
[12] While the Rio can only directly reproduce files from a computer hard drive via a cable linking the two devices (which is obviously not a transmission), the Rio can indirectly reproduce a transmission. For example, if a radio broadcast of a digital audio recording were recorded on a digital audio tape machine or compact disc recorder and then uploaded to a computer hard drive, the Rio could indirectly reproduce the transmission by downloading a copy from the hard drive. Thus, if indirect reproduction of a transmission falls within the statutory definition, the Rio would be a digital audio recording device.
1
[13] RIAA’s interpretation of the statutory language initially seems plausible, but closer analysis reveals that it is contrary to the statutory language and common sense. The focus of the statutory language seems to be on the two means of reproducing the underlying digital music recording -- either directly from that recording, or indirectly, by reproducing the recording from a transmission. RIAA’s interpretation of the Act’s language (in which "indirectly" modifies copying "from a transmission," rather than the copying of the underlying digital music recording) would only cover the indirect recording of transmissions, and would omit restrictions on the direct recording of transmissions (e.g., recording songs from the radio) from the Act’s ambit. This interpretation would significantly reduce the protection afforded by the Act to transmissions, and neither the statutory language nor structure provides any reason that the Act’s protections should be so limited. Moreover, it makes little sense for the Act to restrict the indirect recording of transmissions, but to allow unrestricted direct recording of transmissions (e.g., to regulate second-hand recording of songs from the radio, but to allow unlimited direct recording of songs from the radio). Thus, the most logical reading of the Act extends protection to direct copying of digital music recordings, and to indirect copying of digital music recordings from transmissions of those recordings.
2
Because of the arguable ambiguity of this passage of the statute, recourse to the legislative history is necessary on this point. Cf. Moyle v. Director, Office of Workers’ Compensation Programs, 147 F.3d 1116, 1120 (9th Cir. 1998) ("[I]f the statute is ambiguous, [this court] consult[s] the legislative history, to the extent that it is of value, to aid in[its] interpretation."), cert. denied, 119 S. Ct. 1454 (1999). The Senate Report states that "a digital audio recording made from a commercially released compact disc or audio cassette, or from a radio broadcast of a commercially released compact disc or audio cassette, would be a `digital audio copied recording.’ " S. Rep. 102-294, at *119 (emphasis added). This statement indicates that the recording of a transmission need not be indirect to fall within the scope of the Act’s restrictions, and thus refutes RIAA’s proposed interpretation of the relevant language. Moreover, the statement tracks the statutory definition by providing an example of direct copying of a digital music recording from that recording, and an example of indirect copying of a digital music recording from a transmission of that recording. Thus the legislative history confirms the most logical reading of the statute, which we adopt: "indirectly" modifies the verb "is made " -- in other words, modifies the making of the reproduction of the underlying digital music recording. Thus, a device falls within the Act’s provisions if it can indirectly copy a digital music recording by making a copy from a transmission of that recording. Because the Rio cannot make copies from transmissions, but instead, can only make copies from a computer hard drive, it is not a digital audio recording device.7
