> or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings

Well, the act protects people from getting sued for making copies for themselves. It doesn't say anything about distributing those copies to other people. If that interpretation was correct, then the non-commercial use of Napster would be legal as well.
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Ninti - MK IIa 60GB Smoke, 30GB, 10GB