464 U.S. 417 (1984)*

Do you like your shiny new MP3 player? Or that DVD/CD burner you got for Christmas? How about those live Phish songs that you downloaded off of Grokster? Did you record My Big Fat Obnoxious Fiancée on your TiVo last night? All of these items and virtually anything else that can record, store or transmit music or movies owes their existence to the oft-maligned Sony Betamax VCR, and their legal status to a Supreme Court decision that happened 20 years ago this week.

I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.
MPAA Chairman Jack Valenti,
testimony in front of The House of Representatives

After nearly a decade of false starts and overhyped press releases, home television recording finally reached the American masses in November 1975 with the release of the Sony Betamax. Although it was not the first home video system (that would probably be the Ampex Signature V), it was the first to receive any sort of successful market penetration. The advertisements for the recorder touted the fact that it allowed you to "time shift" TV shows and movies – you could record shows for viewing at a later time, or even keep the tapes you had made in order to build your own "video library."

Almost immediately, Sony was sued by Universal Studios and Walt Disney Studios claiming that the Betamax recorder allowed people to make unauthorized copies of their movies and violate their copyrights. Because Sony had created and sold the VCRs, they would be liable for contributory infringement. Almost all of Hollywood was behind Universal and Disney in this, but those studios had their own reasons leading the charge. Disney was known for its zealous protection of its copyrights, and Universal was trying to buy some time until it's (non-recordable) DiscoVision format was ready for release.

The studios were looking for monetary damages, all of the profits Sony had made from the VCRs and an injunction barring them from manufacturing or selling any more Betamax recorders. Sony argued that time shifting can be constituted as fair use and that the VCRs were legal devices. The Federal District Court decided in favor of Sony that personal taping was fair use, and that even if it wasn't they could not be held liable for the actions of their customers, which the studios appealed. The Court of Appeals found that taping was copyright infringement and ordered the District Court to figure out a proper remedy for the problem, which Sony them appealed to the Supreme Court.

The Supreme Court released their decision on January 17, 1984. The majority opinion, written by Justice John Paul Stevens, ruled that home taping is fair use and that VCRs were legal devices. Justices Burger, Brennan, White, and O'Conner joined in the 5-4 decision, with Justices Blackmun, Marshall, Powell, and Rehnquist dissenting. It was later revealed that the recently appointed Sandra Day O'Connor had changed her vote at the last minute, giving Sony and the expansion of fair use the victory.

What the hell is fair use?

U.S. Law regarding fair use states:

The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

"(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

"(2) the nature of the copyrighted work;

"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

"(4) the effect of the use upon the potential market for or value of the copyrighted work.".

Notice that it doesn't say what exactly "fair use" is or is not, but rather gives a series of guidelines that can be used to determine whether a specific case is infringement or if it's fair use. The final decision is up to the judge in each case to figure out whether a use is infringing or fair.

Something that people (especially the government) has seemed to have forgotten in the past decade is that the main purpose of copyright is not to serve the financial interests of the content providers, but instead to motivate them to produce more works. The reward of exclusive rights for a limited time would induce people to create more works, which would reward the public because they all would eventually fall into the public domain after a short period of time. The key to the law is striking a balance between the rights granted to the copyright holders and the interests of the general public.

Justice Stevens' decision is in the spirit of what copyright law was originally all about. Home videotaping is a noncommercial, private use of technology. Despite the claims of the movie studios that taping would negatively impact the value of their work, they were unable to provide adequate proof, and there was even more testimony from the entertainment industry that supported the freedom of home taping, such as the major television networks, all of the major sports leagues and even some guidance from Mr. Rogers himself.1

Beta is dead. Why should I care about this now?

The legacy of the Betamax case lies in Section III, Paragraph 10 of the decision:

But in both areas the contributory infringement doctrine is grounded on the recognition that adequate protection of a monopoly may require the courts to look beyond actual duplication of a device or publication to the products or activities that make such duplication possible. The staple article of commerce doctrine must strike a balance between a copyright holder's legitimate demand for effective - not merely symbolic - protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.

What this section does is help pave the road for the digital world that we have today. It allows things like CD writers and P2P file-sharing applications to exist because even though they may be used for copyright infringement, they also have many uses that are not infringing on anyone's rights. What these devices are used for is up to the user, not the content providers or the government. This is why the RIAA is currently going after the infringing users of apps like Kazaa and not the people who distribute the program themselves.

Before this case, being able to make a personal copy of a copyrighted work was unheard of. The Betamax decision recognized that we have the right to time shift and space shift copyrighted works for our own personal use, such as backing-up our CD's onto a computer or downloading ROMs for old Nintendo games that we own.

Currently the Betamax decision is under assault by the major media companies in the hopes of gaining more control over their content and their copyrights. A provision in the Digital Millennium Copyright Act makes it illegal to crack any encryption or protection that a copyright holder places on their work, and makes it illegal to distribute tools for breaking that protection. The act also claims that nothing in it "shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use." These rules and contradictions fly in the face of the Betamax ruling and will probably require another ruling from the Supreme Court before it is all straightened out.


1An excerpt from Mr. Rogers testimony:

"Some public stations, as well as commercial stations, program the `Neighborhood' at hours when some children cannot use it. I think that it's a real service to families to be able to record such programs and show them at appropriate times. I have always felt that with the advent of all of this new technology that allows people to tape the `Neighborhood' off-the-air, and I'm speaking for the `Neighborhood' because that's what I produce, that they then become much more active in the programming of their family's television life. Very frankly, I am opposed to people being programmed by others. My whole approach in broadcasting has always been 'You are an important person just the way you are. You can make healthy decisions.' Maybe I'm going on too long, but I just feel that anything that allows a person to be more active in the control of his or her life, in a healthy way, is important."

How could anyone argue with Mr. Rogers?

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