The progress of a technology that's sufficiently old often seems inevitable. Take the VCR. It seems like a foregone conclusion that people would be able to use them for playing *and* recording. Yet, people here in the United States almost created a reality in which recording from our televisions was not legal. In fact, the Supreme Court's decision to allow home recording in the landmark 1984 case, Universal Studios vs. Sony Corporation of America, went 5-4; one justice flipping and you wouldn't have to imagine that alternate reality because you'd be living it.
The case, as it was, revolved around whether recording a television program with a Betamax was a "fair use" under copyright law. Sony, the maker of the Betamax, argued that it was fair use. Universal argued that it was not. Fair use is one of the more debated provisions of copyright law as it is one of the best ways to squirm away from dealing with copyright in a formal way -- and because creative reuses of material tend to protect themselves from copyright questions with it.
Here's what the law, in this case, the Copyright Act of 1976, says about fair use:
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:
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
If it isn't entirely clear what should be called "fair use," well, you are not alone. One problem with the law, in my eyes, is that it allows companies to make huge claims of harm to the "value of the copyrighted work" without anyone having a very good methodology to determine the fairness of that valuation. That makes it easy for companies to deploy to defend their legacy businesses, even when it requires an extension of how people really think about copyright.
In this case, outlawing personal video recording would have been a very big step away from how copyright had been understood by judges or anyone else. As sociologist David Luckenbill argued in a review of the effort:
This was a radical proposition. Proponents sought to establish these ostensibly respectable activities as unlawful, as types of copyright infringement. Yet off-air recording and the manufacture and distribution of the VCR did not fit conventional conceptions of infringement. When the courts considered the question of home recording, for example, they typically used definitions of infringement that emphasized economic harm; for them, a form of reproduction was infringement if it was designed to turn a profit at the copyowner's expense or if it served to hurt the market for copyrighted works. Home recording did not fit this definition neatly... To many people (including judges) this activity seemed analogous to such respectable activities as recording a song from the radio or photocopying an article from a journal.
The problem, however, is that when holding up a new technology to an old law, it's difficult to see what analogies really do make sense. Our sense of "what's right" doesn't always match up very well with how the law could be applied to a new technology. That's one reason that the Betamax case bounced through the court system for quite some time, with two lower courts splitting on how to decide the case before it landed on the Supreme Court docket.
And beyond the structural issues, it turns out we may have an unlikely hero to thank for our ability to record television. Actually, I'm sure we have many, but let's pick on Mr. Rogers, who Mental Floss highlighted in their look back at the landmark case.
Rogers' statements in support of video recording were submitted by Sony's attorneys:
"I have always felt that with the advent of all of this new technology that allows people to tape the 'Neighborhood' off-the-air ... 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' ... 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."
Amazingly, the Supreme Court cited Rogers in siding with Sony, saying "[he] testified that he had absolutely no objection to home taping for noncommercial use and expressed the opinion that it is a real service to families to be able to record children's programs and to show them at appropriate times."
Imagine, though, if the case had gone the other way. The basic use of a VCR -- or any other device that could copy or record -- would have had to be radically altered. Whole generations of products might have been changed. If the entertainment industry had succeeded in criminalizing home recording, might digititizing an album have been conceived the same way? The path of home entertainment might have been radically altered, and not in a good way.
So, thanks, Mr. Rogers.
Image: Reuters. The president of the Philippines inspecting a VCR in 2004.
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