Infosys 204
Written Assignment #2
The Contract
On September 10, 2003, Web developer George Hotelling reported that he had managed to sell a song he downloaded from Apple’s iTunes store to Keith Elder. Hotelling had earlier attempted to sell the song using EBay, but the auction was cancelled by the auction service, which prohibits all sales of digital media. See Hotelling’s Blog at http://george.hotelling.net/90percent/geekery/impractical.php for details.
Under the “first sale” doctrine of copyright law, it is generally understood that consumers of books and other copyrighted materials may transfer ownership of their copy without regard to the rights of the owner of the copyright. “First Sale” was originally a common law doctrine, now codified under § 109(a) of the U.S. Copyright Act, 17 U.S.C. 101 et. seq. (2003).
At the time of passage of the Digital Millennium Copyright Act in 1998 (the most recent statute to make significant changes to U.S. copyright law), Congress heard extensive testimony on whether or not “first sale” was affected or ought to be affected by provisions in DMCA that made it unlawful for anyone to circumvent anti-copying technology such as encryption. The jury, so to speak, is still out.
Your assignment: Read the Apple Terms of Service Agreement (Appendix I), focusing your attention on the definitions and Sections 9(b) and 13, which deal respectively with Usage and Intellectual Property, and compare it to 17 U.S.C. § 109(a) (2003) (Appendix II).
Then, write a 2-3 page paper that:
(1) Indicates whether or not Hotelling violated the Apple Terms of Service Agreement and why you think so.
(2) Indicates whether or not you believe the Hotelling-Elder transaction should be allowed.
(3) Makes a “cogent socio-economic” argument (see Wexler v. Greenberg, 160 A.2d 430, 434 (Pa. 1960)) as to why you think the Hotelling-Elder transaction should be upheld or rejected by a court if the sale was challenged by Apple or another interested party. In other words, what larger social or economic goals would be served by allowing or prohibiting resale of iTune downloads?
Due Date: Tuesday, Sept 23, 2003
Hints and additional guidance:
- (1) and (2) together should take no more than ½ page. Devote the bulk of your words to (3).
- Do not argue in part (3) that the transaction should be upheld or rejected because the law is clear one way or the other. It is not!
- Likewise, do not argue that it is “fair” or “just” to allow or disallow the transaction. Those are conclusions. I want to know why.
- Remember Judge Posner’s advice: before you make any decision, be sure you understand the Hotelling-Elder transaction.
- Reread my memo on Assignment 1.
Additional
Information Sources
1. Apple Discussion Topic on iTunes Terms of Service Agreement - http://docs.info.apple.com/article.html?artnum=93050&sessionID=anonymous|11402973&kbhost=kbase.info.apple.com%3a80%2f
2. U.S. Copyright Office’s Executive Summary: Digital Millennium Copyright Act -http://www.copyright.gov/reports/studies/dmca/dmca_executive.html
3. Articles from CNet on the Hotelling-Elder transaction:
“iTunes auction treads murky legal ground” - http://news.com.com/2100-1025-5071108.html?tag=nl (Sept. 3, 2003)
“EBay mutes iTunes song auction” - http://news.com.com/2100-1027-5071566.html?tag=nl (Sept. 5, 2003)
“Apple: Reselling iTunes song ‘impractical’” - http://news.com.com/2100-1027_3-5072842.html?tag=rn (Sept. 8, 2003)
“Apple customer resells iTunes song” - http://news.com.com/2100-1027-5074086.html?part=dht&tag=ntop (Sept. 10, 2003)
Appendix I
iTunes Music Store
TERMS OF SERVICE
THIS IS A LEGAL AGREEMENT
BETWEEN YOU AND APPLE COMPUTER, INC. (“APPLE”) STATING THE TERMS THAT GOVERN YOUR
USE OF THE ITUNES MUSIC STORE SERVICE. THIS AGREEMENT—TOGETHER WITH ALL
UPDATES, ADDITIONAL TERMS, SOFTWARE LICENSES, AND ALL OF APPLE’S RULES AND
POLICIES—COLLECTIVELY CONSTITUTE THE “AGREEMENT” BETWEEN YOU AND APPLE. TO
AGREE TO THESE TERMS, CLICK “AGREE.” IF YOU DO NOT AGREE TO THESE TERMS, DO NOT
CLICK “AGREE,” AND DO NOT USE THE SERVICE. YOU MUST ACCEPT AND ABIDE BY THESE
TERMS AS PRESENTED TO YOU: CHANGES, ADDITIONS, OR DELETIONS ARE NOT ACCEPTABLE,
AND APPLE MAY REFUSE ACCESS TO THE ITUNES MUSIC STORE FOR NONCOMPLIANCE WITH
ANY PART OF THIS AGREEMENT.
1. Definition of the iTunes Music Store Service. Apple is the provider of the
iTunes Music Store (the “Service”) that permits you to purchase downloads of
digital content—such as sound recordings—under certain terms and conditions as
set forth in this Agreement.
2. Age requirements for use of the Service. This Service is available for
individuals over 18 years of age who can form legally binding contracts under
applicable law.
3. Objectionable Material. You understand that by using the Service, you may
encounter content that may be deemed offensive, indecent, or objectionable,
which content may or may not be identified as having explicit language.
Nevertheless, you agree to use the Service at your sole risk and that Apple
shall have no liability to you for content that may be found to be offensive,
indecent, or objectionable.
4. System Requirements. Use of the Service requires a compatible computer,
Internet access (fees may apply), and certain software (fees may apply), and
may require obtaining updates or upgrades from time to time. Because use of the
Service involves hardware, software, and Internet access, your ability to use
the Service may be affected by the performance of these factors. High speed
Internet access is strongly recommended. You acknowledge and agree that such
system requirements, which may be changed from time to time, are your
responsibility. The Service is not part of any other product or offering, and
no purchase or obtaining of any other product shall be construed to represent
or guarantee you access to the Service.
5. Policies and Rules. Your use of the Service and purchases made through it
are subject to Apple’s Sales Policies at http://www.info.apple.com/usen/musicstore/policies.html,
which can be readily viewed on the Service, and any end-user agreements or
other terms and conditions required for use of the Service, all of which are hereby
made a part of this Agreement. If you have not already read Apple’s Sales
Policies, you should do so now.
6. Apple’s Privacy Policy. Except as otherwise expressly provided for in this
Agreement, the Service is subject to Apple’s Privacy Policy at http://www.apple.com/legal/privacy/,
which is expressly made a part of this Agreement. If you have not already read
Apple’s Privacy Policy, you should do so now.
7. Your Information. You agree to provide accurate, current, and complete
information required to register with the Service and at other points as may be
required in the course of using the Service ("Registration Data").
You further agree to maintain and update your Registration Data as required to
keep it accurate, current, and complete. Apple may terminate your rights to any
or all of the Service if any information you provide is false, inaccurate or
incomplete. You agree that Apple may store and use the Registration Data you
provide (including credit card information) for use in maintaining your
accounts and billing fees to your credit card.
8. User Account and Security.
a. Account and Password. As a registered user of the Service, you may receive
or establish an account (“Account”). You are solely responsible for maintaining
the confidentiality and security of your Account. You should not reveal your
Account information to anyone else or use anyone else’s Account. You are
entirely responsible for all activities that occur on or through your Account,
and you agree to immediately notify Apple of any unauthorized use of your
Account or any other breach of security. Apple shall not be responsible for any
losses arising out of the unauthorized use of your Account.
b. Security. You understand that the Service, and products purchased through
the Service, such as sound recordings and related artwork (“Products”), include
a security framework using technology that protects digital information and
limits your usage of Products to certain usage rules established by Apple and
its licensors (“Usage Rules”). You agree to comply with such Usage Rules, as
further outlined below, and you agree not to violate or attempt to violate any
security components. You agree not to attempt to, or assist another person to,
circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with
any of the security components related to such Usage Rules for any reason
whatsoever. Usage Rules may be controlled and monitored by Apple for compliance
purposes, and Apple reserves the right to enforce the Usage Rules with or
without notice to you. You will not access the Service by any means other than
through software that is provided by Apple for accessing the Service. You shall
not access or attempt to access an Account that you are not authorized to
access. You agree not to modify the software in any manner or form, or to use
modified versions of the software, for any purposes including obtaining
unauthorized access to the Service. Violations of system or network security may
result in civil or criminal liability.
9. Purchase of Apple Content
a. Products Requirements. You acknowledge that use of Products may require the
use of other hardware and software products (e.g., the ability to make copies
of Products on physical media and render performance of Products on authorized
digital player devices), and that such hardware and software is your
responsibility. Once a Product is purchased and you receive the Product, it is
your responsibility not to lose, destroy, or damage the Product, and Apple
shall be without liability to you in the event of any loss, destruction, or
damage.
b. Use of Products. You acknowledge that Products contain security technology
that limits your usage of Products to the following Usage Rules.
Usage Rules.
Your use of the Products is conditioned upon your prior acceptance of the terms
of this Agreement.
You shall be authorized to use the Products only for personal, noncommercial
use.
You shall be authorized to use the Products on three Apple-authorized computers
at any time.
You shall be entitled to export, burn or copy Products solely for personal,
noncommercial use.
Any burning or exporting capabilities are solely an accommodation to you and
shall not constitute a grant or waiver (or other limitation or implication) of
any rights of the copyright owners in any content, sound recording, underlying
musical composition, or artwork embodied in any Product.
You agree that you will not attempt to, or encourage or assist any other person
to, circumvent or modify any security technology or software that is part of
the Service or used to administer the Usage Rules.
The delivery of Products does not transfer to you any commercial or promotional
use rights in the Products.
c. You agree that your purchase of Products constitutes your acceptance of and
agreement to use such Products solely in accordance with the Usage Rules, and
that any other use of the Products may constitute a copyright infringement. The
security technology is an inseparable part of the Products. The Usage Rules
shall govern your rights with respect to the Products, in addition to any other
terms or rules that may have been established between you and another party.
Apple reserves the right to modify the Usage Rules at any time.
d. You acknowledge that some aspects of the Service, Products, and
administering of the Usage Rules entails the ongoing involvement of Apple.
Accordingly, in the event that Apple changes any part of the Service or
discontinues the Service, which Apple may do at its election, you acknowledge
that you may no longer be able to use Products to the same extent as prior to
such change or discontinuation, and that Apple shall have no liability to you
in such case.
10. Territory. The Service is available only in the United States, and is not
available in any other location. You agree not to use or attempt to use the
Service from outside of the available territory, and that Apple may use
technologies to verify your compliance.
11. Agreement to Pay.
a. Payment for Products. You agree to pay for all Products you purchase through
the Service, and that Apple may charge your credit card for any Products
purchased, and for any additional amounts (including any taxes and late fees,
as applicable) as may be accrued by or in connection with your Account. YOU ARE
RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING APPLE WITH A
VALID CREDIT CARD FOR PAYMENT OF ALL FEES. All fees will be billed to the
credit card you designate during the registration process. If you want to
designate a different credit card or if there is a change in your credit card
status, you must change your credit card information online at the Account Info
section of the Service. (There may be a temporary disruption of your access to
the Service until Apple can verify the validity of the new credit card
information.)
b. Right to Change Prices and Availability of Products. Prices and availability
of any Products are subject to change at any time.
c. Electronic Signatures and Contracts. Your use of the Service includes the
ability to enter into agreements and/or to make purchases electronically. YOU
ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND
INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND PURCHASES. YOUR
AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL
RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SITE, INCLUDING
NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.
d. In order to access and retain your electronic records, you may be required
to have certain hardware and software, which are your sole responsibility.
12. Delivery of Products. On occasion, technical problems may delay or prevent
delivery of your Product. Your exclusive and sole remedy with respect to Product
that is not delivered within a reasonable period will be either replacement of
such Product, or refund of the purchase price paid for such Product, as
determined by Apple.
13. Intellectual Property.
a. Acknowledgement of Ownership. You agree that the Service, including but not
limited to graphics, audio clips, and editorial content, contains proprietary
information and material that is owned by Apple and/or its licensors, and is
protected by applicable intellectual property and other laws, including but not
limited to copyright, and that you will not use such proprietary information or
materials in any way whatsoever except for use of the Service in compliance
with the terms of this Agreement. No portion of the Service may be reproduced
in any form or by any means. You agree not to modify, rent, lease, loan, sell,
distribute, or create derivative works based on the Service, in any manner, and
you shall not exploit the Service in any unauthorized way whatsoever, including
but not limited to, by trespass or burdening network capacity.
b. Removal of Apple Content or Other Materials. Notwithstanding any other
provision of this Agreement, Apple and its licensors reserve the right to
change, suspend, remove, or disable access to any Products, content, or other
materials comprising a part of the Service at any time without notice. In no
event will Apple be liable for the removal of or disabling of access to any
such Products, content or materials under this Agreement. Apple may also impose
limits on the use of or access to certain features or portions of the Service,
in any case and without notice or liability.
c. Copyrights. All copyrights in and to the Service, including but not limited
to, the iTunes Music Store (including the compilation of content, postings,
links to other Internet resources, and descriptions of those resources), and
software, are owned by Apple and/or its licensors. THE USE OF THE SOFTWARE OR
ANY PART OF THE SERVICE, EXCEPT FOR USE OF THE SERVICE AS PERMITTED IN THESE
TERMS OF SERVICE, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL
PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES,
INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT.
d. Trademarks. Apple, the Apple logo, iTunes, and other Apple trademarks,
service marks, graphics, and logos used in connection with the Service are
trademarks or registered trademarks of Apple Computer, Inc. in the U.S. and/or
other countries. Other trademarks, service marks, graphics, and logos used in connection
with the Service may be the trademarks of their respective owners. You are
granted no right or license with respect to any of the aforesaid trademarks and
any use of such trademarks.
14. Termination.
a. Termination by Apple. If you fail, or Apple suspects that you have failed,
to comply with any of the provisions of this Agreement, including but not
limited to failure to make payment of fees due, failure to provide Apple with a
valid credit card or with accurate and complete Registration Data, failure to
safeguard your Account information, or violation of the Usage Rules or any
license to the software, Apple, at its sole discretion, without notice to you
may: (i) terminate this Agreement and/or your Account, and you will remain
liable for all amounts due under your Account up to and including the date of
termination; and/or (ii) terminate the license to the software; and/or (iii)
preclude access to the Service (or any part thereof).
b. Termination of the Service. Apple reserves the right to modify, suspend, or
discontinue the Service (or any part or content thereof) at any time with or
without notice to you, and Apple will not be liable to you or to any third
party should it exercise such rights.
15. General Compliance with Laws. The Service is controlled and operated by
Apple from its offices in the United States. You agree to comply with all
local, state, federal, and national laws, statutes, ordinances, and regulations
that apply to your use of the Service.
16. Enforcement of These Terms. Apple reserves the right to takes steps Apple
believes are reasonably necessary or appropriate to enforce and/or verify
compliance with any part of this Agreement (including but not limited to
Apple’s right to cooperate with any legal process relating to your use of the
Service and/or Products, and/or a third party claim that your use of the
Service and/or Products is unlawful and/or infringes such third party’s
rights). You agree that Apple has the right, without liability to you, to
disclose any Registration Data and/or Account information to law enforcement
authorities, government officials, and/or a third party, as Apple believes is
reasonably necessary or appropriate to enforce and/or verify compliance with
any part of this Agreement (including but not limited to Apple’s right to
cooperate with any legal process relating to your use of the Service and/or
Products, and/or a third party claim that your use of the Service and/or
Products is unlawful and/or infringes such third party’s rights).
17. No Responsibility for Third-Party Materials or Web sites. Certain content,
Products, and services available via the Service may include materials from
third parties. In addition, Apple may provide links to certain third party
websites. You acknowledge and agree that Apple is not responsible for examining
or evaluating the content or accuracy of any such third-party material or Web
sites. Apple does not warrant or endorse and does not assume and will not have
any liability or responsibility for any third-party materials or websites, or
for any other materials, products, or services of third parties. Links to other
websites are provided solely as a convenience to you.
18. Disclaimer of Warranties; Liability Limitations.
a. APPLE DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICE
WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME APPLE
MAY REMOVE THE SERVICE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SERVICE AT
ANY TIME, WITHOUT NOTICE TO YOU.
b. YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICE IS AT
YOUR SOLE RISK. THE SERVICE AND ALL PRODUCTS AND SERVICES DELIVERED TO YOU
THROUGH THE SERVICE ARE (EXCEPT AS EXPRESSLY STATED BY APPLE) PROVIDED “AS IS”
AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS
OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. BECAUSE SOME JURISDICTIONS DO
NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED
WARRANTIES MAY NOT APPLY TO YOU.
c. IN NO CASE SHALL APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES,
AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT,
INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE
OF ANY OF THE SERVICES OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF
THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY
CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF
ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA
THE SERVICE, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, APPLE’S
LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
d. APPLE SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU
IN CONNECTION WITH THE SERVICES, BUT YOU ACKNOWLEDGE AND AGREE THAT YOUR
SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND APPLE HEREBY DISCLAIMS
ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH
INFORMATION IN ANY WAY.
e. APPLE DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICE WILL BE FREE FROM
LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY
INTRUSION, AND APPLE DISCLAIMS ANY LIABILITY RELATING THERETO. YOU SHALL BE
RESPONSIBLE FOR BACKING UP YOUR OWN SYSTEM.
19. Waiver and Indemnity. BY USING THE SERVICE, YOU AGREE TO INDEMNIFY AND HOLD
APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND
LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF
THIS AGREEMENT, YOUR USE OF THE SERVICE, OR ANY ACTION TAKEN BY APPLE AS PART
OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT
OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED.
THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM APPLE, ITS
DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS
AS A RESULT OF ITS DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR
CONTENT, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE SERVICE, OR TO
TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A
RESULT OF APPLE’S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED.
THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR
CONTEMPLATED BY THIS AGREEMENT.
20. Changes. Apple reserves the right, at any time and from time to time, to
update, revise, supplement, and otherwise modify this Agreement and to impose
new or additional rules, policies, terms, or conditions on your use of the
Service. Such updates, revisions, supplements, modifications, and additional rules,
policies, terms, and conditions (collectively referred to in this Agreement as
"Additional Terms”) will be effective immediately and incorporated into
this Agreement. Your continued use of the iTunes Music Store following will be
deemed to constitute your acceptance of any and all such Additional Terms. All
Additional Terms are hereby incorporated into this Agreement by this reference.
21. Notices. Apple may send you notice with respect to the Service by sending
an email message to the email address listed in your Apple Account contact
information, by sending a letter via postal mail to the contact address listed
in your Apple Account contact information, or by a posting on the iTunes Music
Store. Notices shall become effective immediately.
22. Governing Law. The laws of the State of California, excluding its conflicts
of law rules, govern these Terms and your use of the Service. Your use of the
Service may also be subject to other local, state, national, or international
laws. You expressly agree that exclusive jurisdiction for any claim or dispute
with Apple or relating in any way to your use of the Service resides in the
courts of the State of California.
23. Miscellaneous. These Terms of Service constitute the entire agreement
between you and Apple and govern your use of the Service, superseding any prior
agreements between you and Apple. You also may be subject to additional terms
and conditions that may apply when you use affiliate services, third-party
content, or third-party software. If any part of these Terms of Service is held
invalid or unenforceable, that portion shall be construed in a manner
consistent with applicable law to reflect, as nearly as possible, the original
intentions of the parties, and the remaining portions shall remain in full
force and effect. Apple’s failure to enforce any right or provisions in these
Terms of Service will not constitute a waiver of such provision, or any other
provision of these Terms of Service. If any provision of this Agreement is
found by a court of competent jurisdiction to be invalid, the other provisions
will remain in full force and effect. Apple will not be responsible for
failures to fulfill any obligations due to causes beyond its control.
Appendix II
“First Sale” Doctrine
17
U.S.C. § 109 (2003). Limitations on exclusive rights: Effect of transfer
of particular copy or phonorecord
(a) . . . the owner of a
particular copy or phonorecord lawfully made under this title, or any person
authorized by such owner, is entitled, without the authority of the copyright
owner, to sell or otherwise dispose of the possession of that copy or
phonorecord. . . .
17. U.S.C. § 101 (2003). Definitions
(…)
"Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed.
"Phonorecords" are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "phonorecords" includes the material object in which the sounds are first fixed.