The legal difference between making mix tapes in the old-school analog day and in the new (more restrictive) digital age

If you're old like me you might have, back in the day, mixed tapes of various songs from LPs in your collection and passed them around with your friends. And then later, if you're like me, when everything was finally digital, you might have mixed songs from your computer hard-drive and saved the mix to a CD and after listening to it in your car for a few weeks, passed it along to one or another of your friends.

Interestingly, there is apparently a legal difference in the two acts. From the Citizen Media Law Project Blog -

The Copyright Act gives the author of a sound recording (say, a recording artist) exclusive rights to make reproductions, prepare derivative works, distribute copies to the public, and to perform the copyrighted work publicly by means of a digital audio transmission. 17 U.S.C. § 114. Making a mix tape may implicate several of these exclusive rights. Putting the mix tape on your website for download would be distribution of the work to the public. A visitor to your blog downloading the file would be another instance of copyright infringement.

But wait, what about all of those mix tapes we exchanged with friends and family back in the day? Was all of that copyright infringement? No: many of those analog mix tapes were covered by the safe harbor established in the Audio Home Recording Act of 1992 ("AHRA"), which barred infringement actions for private, noncommercial musical recordings. When it comes to digital mix tapes however, your computer isn't an audio recording device covered by AHRA. See RIAA v. Diamond, 180 F.3d 1072, 1078 (9th Cir. 1999).