(B) Such term does not include any material object-
(i) that embodies a sound recording at the time it is first distributed
by the importer or manufacturer; or
(ii) that is primarily marketed and most commonly used by consumers
either for the purpose of making copies of motion pictures or other
audiovisual works or for the purpose of making copies of nonmusical
literary works, including computer programs or data bases.
(5)(A) 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.
(B) A "digital musical recording" does not include a material object-
(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.
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