If you read through U.S. copyright law, you will find a rather interesting passage:

§ 1008 · Prohibition on certain infringement actions
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.
copyright.gov

If you ask around, you will find that few consumers have ever heard of this section. That is quite curious since tens of thousands of lawsuits have been filed over this very consumer activity.

So what does this passage mean? Is it mearly a vestigial appendage of a bygone era? Well, we decided to find out.

When it comes to copyright law, there are few places to go for a straight answer. Every party seems to have their own spin. Fortunately for all things law there is a canonical source. Christian law has "The Bible". U.S. Law has the "Congressional Record".

The United States government is an arm of its citizenry. The people elect personal representatives to the congress in order to formalize common laws. It is the responsibility of these same representatives to convey the meaning of these laws back to the people. The Congressional Record is the verbatim transcription of their explanation of the law to the people.

H.R. 3204—AUDIO HOME RECORDING ACT OF 1992

(House of Representatives - September 22, 1992)
From the Congression Record beginning on page: H9032 

The Issue

Prior to 1992 there had been a long argument on the subject of consumer "home taping" of music. This reached a crescendo with the introduction of digital audio recorders.

As Mrs. Collins of Illinois explained it:

(Mrs. COLLINS)
Compact discs and compact disc players are examples of digital technology. In the mid-1980's, consumer electronics companies decided to market a new wave of digital audio technology to American consumers--the digital audio recorder. Unlike the familiar analog audio recorder, the digital audio recorder is capable of making virtually perfect copies of source music. With analog recorders, as one continues to make copies from copies, the sound quality deteriorates. With digital audio recorders, on the other hand, multigenerational copies--from the 1st generation to the 15th generation--maintain virtually perfect sound quality.

As could be expected, this technology scared the pants off the recording industry. They sued the recorder manufacturers (not consumers) in an attempt to block the sale of these devices. After protracted legal wrangling, Congress finally took a stand on the issue.

So where did our representatives stand on the concept of us consumers copying music? Well unsurprisingly, they stood with the people they represent. After all that is their role as our representatives.

(Mr. MOORHEAD)
Mr. Speaker, H.R. 3204 would make it clear that noncommercial taping of music by consumers is not a violation of copyright law. The debate over home taping of records goes back to 1970 when Congress first extended copyright protection for records but this legislation will end the 22-year-old debate and make it clear that home taping does not constitute copyright infringement.
…
I am not aware of any opposition to this bill. It has the support of industry, the Copyright Office, the consumers and the administration.
I urge your support.

Could it have been stated more clearly than, "...home taping does not constitute copyright infringement"?

Acutally yes.

(Mrs. COLLINS)
This compromise solution was reached through difficult negotiations by a coalition of the recording industry; songwriters and music publishers; electronics industry and groups that want consumers to continue to enjoy the benefits of private home taping.

There are three basic provisions of the legislation. First, it guarantees consumers the legal right to make analog or digital copies of musical recordings for noncommercial use. Also it prohibits lawsuits being brought against those that manufacture, import, or distribute a digital or analog audio recorder or medium.

So, "...guarantees consumers the legal right to make analog or digital copies...", is pretty strong. But did she mean just in some instances? Perhaps using only using specially vetted technogies?

(Mr. HUGHES)
H.R. 3204 removes the legal cloud over home copying of prerecorded music in the most proconsumer way possible: It gives consumers a complete exemption for noncommercial home copying of both digital and analog music, even though the royalty obligations under the bill apply only to digitally formatted music. No longer will consumers be branded copyright pirates for making a tape for their car or for their children.

Nope. Both Mr. Hughes and Mrs. Collins both clearly state the consumer's right applys to old fashioned "analog" technologies as well. With no special media, technology or royalties required.

(Mr. FISH)
At the same time, the bill resolves an issue that has been of great concern to consumers for the last two decades and that is the home taping of music. The bill makes clear that the home taping of music is not a violation of copyright law.

So it appears this is not a technical quibble. Rather it was congresses clear intention to make all non-commercial copying of music by a consumer "not a violation of copyright law".

Legal Changes

So what happened to change this law since 1992? Why are children still being "branded copyright pirates"?

Nothing. That is the law as it stands today.

The Lawsuits

So how is it that the RIAA has managed to file more than 17,000 lawsuits for consumer behavior that is actually legal?

Well technically, the RIAA is not suing consumers for making illegal copies. Clearly as stated above each alleged "downloader" has a right to make their own music phonorecordings for noncommercial use. Therefore according to the section 1008, any copies of music made by a consumer are legally made copies under Title 17.

So the RIAA is charging file-sharing "uploaders" with distributing copies. Interestingly, they charge this distribution as illegal even though both the uploader's and downloader's copies are being made legally.

Now personally, I always assumed that "illegal distribution" must be the result of distributing illegal copies. Go figure.