`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Decided January 28, 2020
`
`Argued October 15, 2019
`
`
`No. 18-7141
`
`ALLIANCE OF ARTISTS AND RECORDING COMPANIES, INC., ON
`BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED,
`APPELLANT
`
`v.
`
`DENSO INTERNATIONAL AMERICA, INC., ET AL.,
`APPELLEES
`
`
`Consolidated with 18-7172
`
`
`Appeals from the United States District Court
`for the District of Columbia
`(No. 1:14-cv-01271)
`
`
`Richard B. Dagen argued the cause for appellant. With
`him on the briefs was Russell Steinthal. Daniel K. Oakes
`entered an appearance.
`
`
`Andrew Grimm was on the brief for amicus curiae Digital
`Justice Foundation, Inc. in support of plaintiff-appellant and
`reversal.
`
`
`Scott A. Keller argued the cause for appellees. With him
`on the brief were Paul J. Reilly, Benjamin A. Geslison, Steven
`
`
`
`

`

`2
`J. Routh, Melanie L. Bostwick, Annette L. Hurst, Andrew
`Phillip Bridges, David Hayes, Armen Nercessian, Seth David
`Greenstein, Robert S. Schwartz, David D. Golden, Jessica L.
`Ellsworth, Kirti Datla, William D. Coston, Megan S.
`Woodworth, and Frank C. Cimino, Jr. E. Desmond Hogan
`entered an appearance.
`
`
`Jonathan Band was on the brief for amici curiae The
`Computer & Communications Industry Association, et al. in
`support of affirmance.
`
`
`Before: HENDERSON and ROGERS, Circuit Judges, and
`EDWARDS, Senior Circuit Judge.
`
`Opinion for the Court filed by Senior Circuit Judge
`
`EDWARDS.
`
`
`EDWARDS, Senior Circuit Judge: This case involves
`actions filed by Appellant Alliance of Artists and Recording
`Companies, Inc. (“AARC” or “Appellant”) pursuant to the
`Audio Home Recording Act of 1992 (“Act” or “AHRA”), 17
`U.S.C. §§ 1001-1010. On July 25, 2014, AARC filed a lawsuit
`against General Motors LLC, DENSO International America,
`Inc., Ford Motor Company, and Clarion Corporation of
`America (“GM/Ford action”) for alleged violations of the Act.
`A second, substantially similar lawsuit was filed by AARC on
`November 14, 2014, against FCA US LLC and Mitsubishi
`Electric Automotive America, Inc. (“FCA action”). On
`February 9, 2015, the District Court consolidated the cases.
`
`In each case, AARC claimed that in-vehicle audio
`recording devices that copy music from CDs onto hard drives
`within the devices, allowing the music to be played back inside
`the vehicle even without the CDs, are “digital audio recording
`device[s]” under the Act. 17 U.S.C. § 1001(3). Based on this
`
`
`
`

`

`3
`assertion, AARC alleged that the three suppliers of the devices
`(DENSO, Clarion, and Mitsubishi), along with the three
`automobile manufacturers that sold vehicles containing the
`recording devices
`(General Motors, Ford, and FCA)
`(collectively “Appellees”) had violated the Act by failing to
`pay royalties and adopt
`the required copying control
`technology with respect to the devices.
`
`On March 23, 2018, after several years of litigation, see
`All. of Artists & Recording Cos., Inc. v. Gen. Motors Co.
`(AARC I), 162 F. Supp. 3d 8 (D.D.C. 2016); All. of Artists &
`Recording Cos., Inc. v. Gen. Motors Co. (AARC II), 306 F.
`Supp. 3d 413 (D.D.C. 2016); All. of Artists & Recording Cos.,
`Inc. v. Gen. Motors Co. (AARC III), 306 F. Supp. 3d 422
`(D.D.C. 2018), the District Court granted Appellees’ joint
`motion for summary judgment, see AARC III, 306 F. Supp. 3d
`at 441. On the same date, the District Court entered an Order
`confirming its judgments. This Order resolved all the claims in
`the FCA action and all but the claims based on GM’s flash-
`drive devices in the GM/Ford action. On September 18, 2018,
`AARC filed a notice of appeal in the FCA action. On October
`23, 2018, the District Court granted AARC’s unopposed Rule
`54(b) motion to enter final judgment as to the hard-drive claims
`in the GM/Ford action. However, the court reserved judgment
`on the flash-drive claims and those claims remain pending
`before the District Court. AARC then filed a timely notice of
`appeal in the GM/Ford action, and this court consolidated the
`appeals.
`
`
`This appeal raises challenging issues regarding the
`coverage of the AHRA. The Act was passed to address
`important questions emanating from the advent of digital audio
`tape (“DAT”) recordings in the late 1980s. As digital audio
`recorders became more common, the prospect of “home
`copying” loomed as a major issue. Both the companies that
`
`
`
`

`

`4
`produced the devices and the consumers who used them faced
`uncertain liabilities under prevailing copyright law. And
`musicians and record companies, for their part, were concerned
`that high-quality digital copies would cause serious drops in
`authorized sales of music recordings. The enactment of the
`AHRA embodied “a historic compromise” intended to address
`these issues. S. REP. NO. 102-294, at 33 (1992).
`
`
`The AHRA exempts the manufacture and use of certain
`digital audio recorders from copyright infringement actions,
`thereby dispelling legal uncertainties and ensuring that
`consumers will have access to the technology. In exchange, the
`AHRA imposes royalties on certain digital audio recorders and
`media. The Act also requires covered digital audio recorders to
`include systems that prevent them from making second-
`generation copies (i.e., copies of copies), thereby offering some
`protection to the rights of copyright holders.
`
`In this case, Appellant contends that the “AHRA covers all
`consumer devices that (1) are capable of digitally reproducing
`recorded music, and (2) the recording functions of which are
`designed or marketed for the primary purpose of doing so.” Br.
`for Appellant at 10. Appellant contends that the District Court
`erred in holding “that the output of Defendants’ recording
`devices must contain ‘only sounds’ and material ‘incidental’ to
`such sounds” to be subject to the proscriptions of the Act. Id.
`at 2. Finally, Appellant argues that, in any event, “Defendants’
`devices met the district court’s test because they stored music
`to hard drive partitions, which function essentially as separate
`hard drives,
`that met
`this purported
`‘only sounds’
`requirement.” Id. The District Court rejected Appellant’s
`claims. AARC III, 306 F. Supp. 3d 422. We do as well.
`
`As a preliminary matter, Appellees argue that AARC’s
`appeal of the District Court’s judgment in the FCA action is
`
`
`
`

`

`5
`untimely because it was filed 179 days after the District Court’s
`Order issued on March 23, 2018. As we explain below, there is
`no reason for us to address this issue. Our jurisdiction over
`AARC’s appeal in the GM/Ford action is clear. Therefore, we
`have jurisdiction in a “companion case” that presents the same
`merits questions as the FCA action, and this permits us to
`“decline[] to decide th[e] jurisdictional question” in the FCA
`action. Emory v. United Air Lines, Inc., 720 F.3d 915, 920
`(D.C. Cir. 2013) (alterations in original) (quoting Steel Co. v.
`Citizens for a Better Env’t, 523 U.S. 83, 98 (1998)).
`
`On the merits, we affirm the judgments of the District
`Court. First, we hold that a digital audio recorder is covered by
`the AHRA only if it can make a “digital audio copied
`recording” that is also a “digital musical recording” as that term
`is defined by the Act. Second, we hold that, because it is
`undisputed that the hard drives in Appellees’ devices do not
`contain “only sounds,” they do not qualify as “digital musical
`recording[s]” and, therefore, the devices do not qualify as
`“digital audio recording device[s]” subject to the Act. Third,
`we reject AARC’s partition theory. We hold that, at least where
`a device fixes a reproduction of a digital musical recording in
`a single, multi-purpose hard drive, the entire disk, and not any
`logical partition of that disk, is the “material object” that must
`satisfy the definition of a “digital musical recording” for the
`recording device to qualify under the Act. These matters are
`explained in detail in the succeeding sections of the opinion.
`
`
`
`
`

`

`6
`I. BACKGROUND
`
`
`A. The Audio Home Recording Act of 1992
`
`
`1. The Historical Context
`
`
`Advances in digital recording technology, together with
`
`lingering questions about the legal status of home recording,
`set the stage for the disagreements and compromises that
`produced the Audio Home Recording Act of 1992, Pub. L. No.
`102-563, 106 Stat. 4237 (codified at 17 U.S.C. §§ 1001-1010).
`
`
`The Technology. In the mid-1980s, consumer electronics
`manufacturers introduced digital audio recorders to the U.S.
`market that made it possible for consumers without any special
`technical expertise to make digital copies of music recordings.
`These recorders, which eventually included DAT recorders,
`compact disc (“CD”) recorders, digital compact cassette
`recorders, and mini-disc recorders, represented a significant
`departure from the status quo because they could produce
`copies (and copies of those copies) without introducing the
`hisses, pops, or other distortions that were characteristic of
`analog audio recorders. As a result, digital audio recorders
`diminished the incentive of consumers to purchase authorized
`copies of music recordings. The music industry feared that
`high-quality digital copies would displace authorized sales of
`music recordings. See S. REP. NO. 102-294, at 34-35.
`
` The Law. In the 1980s, a “legal cloud . . . hovered over
`home taping of sound recordings.” 137 CONG. REC. S11,846
`(daily ed. Aug. 1, 1991) (statement of Sen. DeConcini). The
`status of home copying under copyright law had been in doubt
`since Congress first granted copyrights in sound recordings in
`the early 1970s. In 1981, the U.S. Court of Appeals for the
`Ninth Circuit issued its decision in the so-called Betamax case,
`
`
`
`

`

`7
`Universal City Studios, Inc. v. Sony Corp. of Am., 659 F.2d 963
`(9th Cir. 1981), holding that the noncommercial private video
`taping of broadcast television shows constituted copyright
`infringement. However, in 1984, the Supreme Court reversed
`this decision, holding that private home taping of television
`broadcasts for the purposes of “time-shifting” constituted a fair
`use of the copyrighted programming. The Court’s decision
`“emboldened DAT manufacturers to claim immunity” for
`home audio taping. 2 MELVILLE B. NIMMER & DAVID NIMMER,
`NIMMER ON COPYRIGHT § 8B.01[B] (2019) [hereinafter 2
`NIMMER ON COPYRIGHT] (discussing Sony Corp. of Am. v.
`Universal City Studios, Inc., 464 U.S. 417 (1984)).
`
` The dispute over taping continued, however:
`
`
`
`The electronics industry . . . maintained that the
`Betamax decision applied to virtually all home taping
`while songwriters, music publishers, performers, and
`recording companies . . . insisted that the decision
`applie[d] to a very limited set of facts, i.e. home video
`taping for time-shifting purposes. Consequently the
`controversy
`.
`.
`. continued and in fact [was]
`exacerbated by the increasing refinement of audio
`recording technology.
`
`
`S. REP. NO. 102-294, at 31; see also H.R. REP. NO. 102-780, pt.
`1, at 18 (1992).
`
`
`The Compromise. Ultimately, these competing forces
`pushed the principal stakeholders to the negotiating table. By
`1991, the music industry and the consumer electronics industry
`reached an agreement that set the groundwork for the AHRA.
`See S. REP. NO. 102-294, at 33; H.R. REP. NO. 102-780, pt. 1,
`at 19. The compromise agreement consisted of three basic
`parts: First, manufacturers would be required to ensure that
`
`
`
`

`

`8
`their digital audio recorders included copy-control systems –
`the “Serial Copy Management System” or an equivalent – to
`prevent second-generation copying. Second, manufacturers
`and distributers of covered digital audio recorders (and covered
`recording media, like blank tapes) would pay modest but
`certain royalties to a fund established by the Act. Third, both
`manufacturers and consumers would enjoy immunity from
`copyright infringement actions based on the noncommercial
`use of covered digital audio recorders. Thus, the overall
`compromise was designed to “create[] an atmosphere of [legal]
`certainty” for the consumer electronics industry, S. REP. NO.
`102-294, at 51, “compensate copyright owners and creators for
`sales displaced by home taping of copyrighted music,” id. at
`32, and thereby “ensure the right of consumers to make . . .
`digital audio recordings of copyrighted music for their private,
`noncommercial use,” id. at 30.
`
`The Computer Industry. One last point on historical
`
`context is critical. As Congress refined the proposed legislation
`to adequately capture
`the contours of
`the “historic
`compromise,” it was simultaneously attuned to the interests
`and concerns of third-party stakeholders – and to the concerns
`of the computer industry in particular. As we explain below,
`the legislative history of the AHRA indicates that at least two
`features of the enacted legislation were meant to ensure that
`personal computers and computer storage media generally
`would not be subject to the Act. See, e.g., Recording Indus.
`Ass’n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072,
`1078 n.6 (9th Cir. 1999) (noting the computer industry’s view
`that, had computers not been excluded from the AHRA, “the
`computer industry would have vigorously opposed passage of
`the Act”).
`
`
`First, the definition of “digital audio recording device”
`includes a “primary purpose” requirement. See 17 U.S.C.
`
`
`
`

`

`9
`§ 1001(3). As a result, personal computers, though often
`capable of functioning as digital audio recorders in the relevant
`sense – think, for instance, of personal computers with CD
`recorders – generally are not subject to the Act because their
`“recording function is designed and marketed primarily for the
`recording of data and computer program[s].” S. REP. NO. 102-
`294, at 48 (contrasting a personal computer with a peripheral
`device dedicated to digital audio recording); H.R. REP. NO.
`102-780, pt. 1, at 27 (“Also, [the AHRA] does not cover
`general purpose computers because the primary purpose of
`their recording function is not to make digital audio copied
`recordings.”).
`
`
`Second, Congress opted to replace the term “phonorecord”
`in several key provisions of the Act “[a]fter consultation with
`the computer and telecommunications industries,” because “it
`became apparent that the term ‘phonorecord’ and its attendant
`definitions might be overly broad” and might “inadvertently
`encompass some form of technology that was not intended.” S.
`REP. NO. 102-294, at 35. In its place, Congress inserted a
`specialized term – “digital musical recording” – that was
`substantially narrower. A “phonorecord” is, in relevant part, a
`“material object[] in which sounds . . . are fixed.” 17 U.S.C.
`§ 101. In contrast, a “digital musical recording” is a “material
`object . . . in which are fixed, in a digital recording format, only
`sounds” and no “computer programs.” Id. § 1001(5)(A)(i),
`(B)(ii). In adopting this narrower term, Congress “intended to
`cover those objects commonly understood to embody sound
`recordings,” S. REP. NO. 102-294, at 36, like “recorded
`compact discs, digital audio tapes, . . . digital compact
`cassettes, and mini-discs,” id. at 36 n.36, and to exclude any
`objects that “contain[] computer programs or data bases,” id. at
`46.
`
`
`
`

`

`10
`
`2. The Text of the Act
`
`
`
`
`
` The AHRA as finally enacted included three principal
`parts: First, a series of nested definitions of the covered
`technologies, “carefully tailored so as to limit the effect of the
`[AHRA] to audio recording,” S. REP. NO. 102-294, at 45, while
`also aiming
`to
`remain “technologically neutral”
`to
`accommodate future technological developments in digital
`audio recording, id. at 35. Second, a series of provisions
`specifying the substantive terms of the Act. And, third, a
`provision governing the remedial authority of federal district
`courts.
`
`
`The Controlling Statutory Definitions. As noted above,
`the Act does not regulate digital audio recording as such.
`Rather, “the Act places restrictions only upon a specific type of
`recording device,” Diamond, 180 F.3d at 1075 – i.e., a type that
`qualifies as a “digital audio recording device” under the
`AHRA. Section 1001(3) defines a “digital audio recording
`device” as:
`
`any machine or device of a type commonly distributed
`to individuals for use by individuals, whether or not
`included with or as part of some other machine or
`device, the digital recording function of which is
`designed or marketed for the primary purpose of, and
`that is capable of, making a digital audio copied
`recording for private use . . . .
`
`
`17 U.S.C. § 1001(3) (emphasis added). In other words, a digital
`audio recorder is covered by the AHRA only if it satisfies both
`a “primary purpose” and a “capability” test. The Act proceeds
`to make an explicit exception for “professional model
`products,” id. § 1001(3)(A), as well as for “audio recording
`
`
`
`

`

`11
`equipment that is designed and marketed primarily for the
`creation of sound recordings resulting from the fixation of
`nonmusical sounds,” like dictation machines or answering
`machines, id. at § 1001(3)(B).
`
`
`Next, the Act defines the “digital audio copied recording”
`that an audio recorder must be “capable of . . . making” in order
`to count as a digital audio recording device:
`
`
`A “digital audio copied recording” is 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.
`
`
`Id. § 1001(1) (emphasis added).
`
`
`Finally, the Act defines the term “digital musical
`recording” that figures in the definition of a “digital audio
`copied recording” and in other provisions of the AHRA.
`Section 1001(5)(A) states that a “‘digital musical recording’ is
`a material object—”
`
`
`(i) in which are fixed, in a digital recording format,
`only sounds, and material, statements, or instructions
`incidental to those fixed sounds, if any, and
`
`(ii) from which the sounds and material can be
`perceived, reproduced, or otherwise communicated,
`either directly or with the aid of a machine or device.
`
`
`Id. § 1001(5)(A)(i)-(ii) (emphasis added). Section 1001(5)(B)
`clarifies that a “‘digital musical recording’ does not include a
`material object—”
`
`
`
`
`

`

`12
`(i) in which the fixed sounds consist entirely of
`spoken word recordings, or
`
`(ii) in which one or more computer programs are
`fixed, except that a digital musical recording may
`contain statements or instructions constituting the
`fixed sounds and incidental material, and statements
`or instructions to be used directly or indirectly in order
`to bring about the perception, reproduction, or
`communication of the fixed sounds and incidental
`material.
`
`
`Id. § 1001(5)(B)(i)-(ii) (emphasis added).
`
`
`As explained above, Congress, in consultation with the
`computer industry, adopted this complex definition to replace
`the reference to “phonorecord.” The most critical change was
`the requirement that a digital musical recording contain “only
`sounds” and material
`incidental
`to
`those sounds – a
`requirement underscored by the exclusion of any object that
`contains “one or more computer programs” other than
`programs that bring about “the fixed sounds.” In adopting this
`term, Congress sought to capture “those objects commonly
`understood to embody sound recordings.” S. REP. NO. 102-294,
`at 36.
`
`
`The Substantive Terms of the Act. There are several
`important points to be made about the provisions of the AHRA
`that give effect to the substantive terms of the “historic
`compromise.”
`
`
`First, the Act states that “[n]o person shall import,
`manufacture, or distribute any digital audio recording device
`. . . that does not conform to . . . the Serial Copy Management
`System” or does not include a comparable copy-control system
`
`
`
`

`

`13
`to prevent second-generation copying. 17 U.S.C. § 1002(a).
`Similarly, the Act prohibits anyone from encoding digital
`musical recordings with incorrect copyright or copy-generation
`information or from otherwise circumventing a device’s copy-
`control system. Id. § 1002(c)-(d).
`
`Second, the Act provides that “[n]o person shall import
`into and distribute, or manufacture and distribute, any digital
`audio recording device . . . unless such person” files notice with
`the Register of Copyrights, submits regular statements of
`account, and pays royalties according to a schedule set out in
`the Act. Id. § 1003; see also id. §§ 1004-1007 (detailing the
`process by which royalties are calculated, paid, and then
`collected by
`interested copyright holders); 37 C.F.R.
`§§ 201.27-.31 (2019) (further detailing these processes).
`
`Third, the Act grants immunities from certain copyright
`infringement actions. Section 1008 provides that:
`
`
`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.
`
`
`Id. § 1008. In short, sections 1002 to 1008 of the AHRA set out
`the substantive benefits and burdens that Appellees would be
`subject to if their devices fit within the Act’s definitions.
`
`
`Remedies for Infringements of the Act. Finally, the Act
`contains a civil remedies section, which empowers “interested
`
`
`
`

`

`14
`copyright part[ies]” injured by violations of the copy-control
`and royalties provisions to “bring a civil action in an
`appropriate United States district court against any person for
`such violation[s].” Id. § 1009(a). The courts may, as
`appropriate, award injunctive relief, actual or statutory
`damages, and reasonable attorney’s fees to the prevailing party.
`See id. § 1009(c)-(d). In addition, a court may order any digital
`audio recording devices or digital musical recordings involved
`in violations of § 1002 to be impounded or modified under
`certain conditions. See § 1009(f) (“[T]he court may order the
`impounding, on such terms as it deems reasonable, of any
`digital audio recording device, digital musical recording, or
`device specified in section 1002(c) that is in the custody or
`control of the alleged violator . . . .”); id. § 1009(g)(1)-(2)
`(“[T]he court may, as part of a final judgment or decree finding
`a violation of section 1002, order the remedial modification or
`the destruction of any digital audio recording device, digital
`musical recording, or device specified in section 1002(c) that
`. . . does not comply with, or was involved in a violation of,
`section 1002, and . . . is in the custody or control of the violator
`or has been impounded under subsection (f).”).
`
`
`B. Procedural History
`
`
`On July 25, 2014, AARC filed a lawsuit against GM and
`Ford and their suppliers DENSO and Clarion (“GM/Ford
`action”) alleging failure to comply with the AHRA’s
`requirements. On November 14, 2014, AARC filed a second,
`substantially similar lawsuit against FCA and its supplier
`Mitsubishi (“FCA action”). In both lawsuits, AARC’s central
`allegation was that Appellees manufactured or distributed in-
`car entertainment systems that enabled consumers to copy
`audio CDs to on-board hard disk drives (and, in the case of
`some GM models, solid-state “flash” drives) for later playback.
`In AARC’s view, this feature made Appellees’ in-car systems
`
`
`
`

`

`15
`“digital audio recording device[s]” under the Act and, thus,
`made Appellees subject to the Act’s registration, royalty, and
`copy-control requirements. On February 9, 2015, the District
`Court ordered these actions consolidated pursuant to Rule 42
`of the Federal Rules of Civil Procedure.
`
` In February 2016, the District Court denied Appellees’
`motions to dismiss for failure to state a claim and for judgment
`on the pleadings. In doing so, however, the court adopted
`Appellees’ preferred interpretation of the term “digital audio
`copied recording.” Specifically, the District Court held that a
`“digital audio copied recording” – the “output” of a covered
`recording process – must also be a “digital musical recording”
`under the Act. AARC I, 162 F. Supp. 3d at 8-22. In the District
`Court’s view, “the most revealing textual clue” is the word
`“another” in the definition of “digital audio copied recording.”
`Id. at 18. The District Court concluded that “the only plausible
`reason that Congress would specify that a [digital audio copied
`recording] made via direct copy would be from another [digital
`musical recording] is if the [digital audio copied recording]
`itself is also a [digital musical recording].” Id. The District
`Court found that this interpretation was reinforced by the Act’s
`immunity and remedy provisions and was consistent with the
`Act’s history and purpose. See id. at 18-20. The court then
`concluded that, although typical computer hard drives would
`not qualify as “digital musical recording[s],” AARC’s
`complaint sufficed to make it plausible that at least some of
`Appellees’ challenged devices might qualify. See id. at 22-23.
`The District Court denied AARC’s motion for reconsideration
`but granted its motion for clarification, noting that AARC I did
`not preclude AARC from raising its partition theory in
`subsequent proceedings. See AARC II, 306 F. Supp. 3d. at 418-
`20.
`
`
`
`
`

`

`16
` The parties then embarked on an initial phase of discovery
`to determine whether Appellees’ hard drives contain
`disqualifying computer programs or data. (A second phase,
`focused on GM’s flash drives, is pending.) In short, the
`undisputed evidence in the record shows that Appellees’
`devices fix digital reproductions of audio CDs in single-platter
`hard disk drives that also contain programs and data not
`incidental to those sounds. For example, the Clarion devices
`supplied to Ford “contain[] software and data, including
`software for displaying vehicle climate information; software
`for playing satellite radio, AM/FM radio, and sound files from
`DVDs, audio CDs and data CDs; software for displaying video
`from
`the
`rear view camera; software
`for uploading
`photographs, and also data for maps . . . .” AARC III, 306 F.
`Supp. 3d at 431 (internal quotation marks and brackets omitted)
`(quoting Defs.’ Statement of Undisputed Facts ¶ 1(d),
`reprinted in Joint Appendix (“J.A.”) 310-11). The evidence
`produced in discovery also indicates that Appellees’ devices
`copy CDs to specific hard drive partitions – to subdivisions of
`the drives, defined by software, that can function as
`independent drives – and that these partitions arguably contain
`“only sounds” and materials incidental to those sounds.
`
` On March 23, 2018, the District Court granted Appellees’
`joint motion for summary judgment. AARC III, 306 F. Supp. 3d
`422. First, the District Court affirmed its position that an audio
`recorder is a “digital audio recording device” only if it is
`capable of making a “digital audio copied recording” that is
`itself a “digital musical recording” under the Act. Id. at 425-26.
`Second, the court found that, “based on the evidence presented,
`. . . the hard drives in Defendants’ devices contain all sorts of
`programs and other materials, such that they do not qualify as
`[digital musical recordings], and as a result, the devices
`themselves are not [digital audio recording devices] subject to
`the AHRA.” Id. at 428-29. Finally, the District Court rejected
`
`
`
`

`

`17
`AARC’s alternative theory that Appellees’ devices are digital
`audio recording devices because they copy music to hard drive
`partitions that contain “only sounds” and therefore qualify as
`“digital musical recording[s].” The District Court ruled that a
`hard drive partition is not a “material object” for purposes of
`§ 1001(5), because it lacks a “distinct physical identity such
`that it can be considered a ‘material object’ apart from the hard
`drive on which it exists.” Id. at 432. The District Court also
`held that, even if partitions were “material object[s],” “AARC
`has failed to establish that the AHRA’s statutory definitions
`require consideration of a smaller unit of output than the hard
`drive as a whole.” Id. at 429. In fact, the court reasoned,
`AARC’s theory is fundamentally at odds with Congress’s
`choice to make an object’s status as a “digital musical
`recording” depend on what else besides music is fixed in it. See
`id. at 440.
`
` On March 23, 2018, the District Court issued a
`Memorandum Opinion. The court also issued a separate Order
`with the following clauses:
`
`
`the accompanying
`in
`reasons stated
`the
`For
`Memorandum Opinion, it is hereby ORDERED that
`Defendants’ Joint Motion for Summary Judgment is
`GRANTED. It is FURTHER ORDERED that
`Plaintiff’s Motion for Partial Summary Judgment as
`to GM and Denso, Plaintiff’s Motion for Partial
`Summary Judgment as to Ford and Clarion, and
`Plaintiff’s Motion for Partial Summary Judgment as
`to FCA and Mitsubishi, are DENIED.
`
`
`J.A. 583 (citations to the docket omitted). This Order resolved
`all the claims in the FCA action, and all but the flash-drive
`claims in the GM/Ford action.
`
`
`
`
`

`

`18
`On September 18, 2018, AARC filed a notice of appeal in
`the FCA action. The timeliness of that notice is addressed
`below. On October 23, 2018, the District Court granted
`AARC’s unopposed Rule 54(b) motion to enter final judgment
`as to the hard-drive claims in the GM/Ford action. However,
`the court reserved judgment on the flash-drive claims, which
`remain pending in the District Court. AARC then filed a timely
`notice of appeal in the GM/Ford action, and this court
`consolidated the appeals.
`
`
`II. ANALYSIS
`
`
`A. Standard of Review
`
`
` We review de novo the District Court’s grant of summary
`judgment and its underlying interpretation of the AHRA.
`Bartko v. U.S. Dep’t of Justice, 898 F.3d 51, 63 (D.C. Cir.
`2018) (“This Court reviews a district court’s grant of summary
`judgment de novo.”); United States v. Cordova, 806 F.3d 1085,
`1098 (D.C. Cir. 2015) (per curiam) (“We review questions of
`statutory interpretation de novo.”). Summary judgment for
`Appellees is appropriate only if, viewing the evidence in the
`light most favorable to AARC, Arrington v. United States, 473
`F.3d 329, 333 (D.C. Cir. 2006), there is “no genuine dispute as
`to any material fact and [Appellees are] entitled to judgment as
`a matter of law,” FED. R. CIV. P. 56(a).
`
`B. Jurisdiction
`
`
` In response to our order to the parties to address this
`court’s jurisdiction over AARC’s appeal in the FCA action,
`Appellees now argue that we lack jurisdiction because AARC
`filed its notice of that appeal out of time. In general, “[t]he time
`limits established by Rule 4(a) [of the Federal Rules of
`Appellate Procedure] are ‘mandatory and jurisdictional.’” Kidd
`
`
`
`

`

`19
`v. District of Columbia, 206 F.3d 35, 38 (D.C. Cir. 2000)
`(quoting Moore v. South Carolina Labor Bd., 100 F.3d 162,
`163 (D.C. Cir. 1996) (per curiam)). Rule 4(a) says that a party
`must file notice of appeal “within 30 days after entry of the
`judgment.” FED. R. APP. P. 4(a)(1)(A). And that 30-day clock
`starts when judgment is entered in the civil docket and (1) that
`judgment is also set out in a “separate document” or (2) 150
`days pass – whichever is earlier. FED. R. CIV. P. 58(a), (c); FED.
`R. APP. P. 4(a)(7)(A)(ii).
`
` AARC filed a notice of appeal in the FCA action 179 days
`after the District Court entered its summary judgment order in
`the docket. Therefore, AARC’s notice was in time if the
`document containing the District Court’s final judgment did
`not satisfy Rule 58’s “separate document” requirement, in
`which case AARC had 180 days to file. Appellees contend that
`the District Court’s Order – a document containing the ordering
`clauses reprinted above – is a “separate document” for
`purposes of Rule 58 because it is separate from the court’s
`Memorandum Opinion and “omits legal reasoning.” Br. for
`Appellees at 23 (citing Kidd, 206 F.3d at 39). AARC, for its
`part, argues that the District Court’s final judgment in the FCA
`action must also be separate from the court’s merely
`interlocutory order in the consolidated GM/Ford action, given
`the Supreme Court’s instruction that cases consolidated
`pursuant to Rule 42 “retain their ‘independent character’” and,
`thus, require “separate decrees or judgments.” Br. for
`Appellant at 13-14 (quoting Hall v. Hall, 138 S. Ct. 1118, 1125,
`1128 (2018)).
`
` It is unnecessary for us to determine th