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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.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.