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The Eighties Club
The Politics and Pop Culture of the 1980s
January 1984
Supreme Court Rules Home Use of VCRs Okay
The Supreme Court's decision in the case of Sony v. Universal City Studios, involving the home use of video recorders and the federal copyright law, determined that the former did not infringe on the latter as long as the copied material was not used for profit. By the end of 1983 there were eight million video recorders in use in the U.S.; that number would soar as the legality of home recording seemed settled. Nonetheless, the studios lobbied Congress for a law that would attach a royalty or surcharge to the sale of VCRs and blank tapes.

Supreme Court OKs Use of Video Recorders in Homes

5-4 Decision in Copyright Case:
The Supreme Court Jan. 17 ruled, 5-4, that the noncommercial home use of video cassette recorders did not violate the federal Copyright Act of 1976. The decision in Sony v. Universal City Studios had been one of the most eagerly awaited of the current high court term.
According to the video industry, an estimated 10% of U.S. households had VCRs, with about eight million machines in use at the end of 1983. VCR sales in 1984 were expected to be over five million.
The ruling was a victory for Sony Corp., manufacturer of the popular Betamax VCR, and a defeat for Walt Disney Productions and Universal City Studios (a unit of MCA Inc.) The studios had argued that the home taping of copyrighted films and television shows violated their property rights and deprived them of revenues.
The Supreme Court, reversing a 1981 ruling by the U.S. 9th Circuit Court of Appeals, held that home taping did not infringe on the copyright law unless the copied material was used for a "commercial or profit-making purpose."
Justice John Paul Stevens, writing for the five-member majority, concluded that noncommercial home taping fell within the so-called "fair use" exception to copyright laws. The doctrine permitted the limited use of copyrighted materials.
Stevens focused part of his opinion on the legality of "time-shifting," or the recording of programs for later viewing. "Time-shifting," he said, "merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge."
He continued: "One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible."
Stevens maintained that the court had no choice but to rule as it did because Congress had failed specifically to include video technology in the copyright laws. "It is not our job to apply laws that have not been written," he said.
The dissenters, led by Justice Harry A. Blackmun, criticized the majority for its sweeping view of the "fair use" doctrine. Blackmun contended that such a view risked "eroding the very basis of copyright law by depriving authors of control over their works."
Justices Lewis F. Powell Jr., Thurgood Marshall and William H. Rehnquist joined Blackmun.
Both the majority and minority voting alignments crossed ideological lines. (or example, Marshall and Rehnquist rarely voted together in split decisions.) The dissent, 44 pages, was longer than the 37-page majority opinion, suggesting to some observers that one or more justices had switched sides before the ruling was announced.
The ruling left open the possibility that the film and television studios could persuade Congress to curb home taping. The studios favored a surcharge or royalty on the sale of VCRs and blank tapes.

21 January 1984

Video Cassette Recorders: Naughty No Longer
When Aunt Betsy next has to decide between watching "As the World Turns" and attending the neighbourhood quilting bee, she will have a legal way out of her dilemma: she can set her video cassette recorder to tape the soap opera while she is out, and watch it later. The practice was not, in effect, curtailed before, in the sense that anyone would have fined Aunt Betsy or locked her up, but it was the contention in the courts between the film companies (Universal City and Walt Disney), which claimed that video taping was an infringement of the copyright laws, and the makers of the cassette recorders (Sony), who said it was no such thing. The Supreme Court has now decided that individuals in their own homes are free to make recordings for their own use.
The court had sat on the case for more than two years, delaying the ruling that was expected last summer because the arguments were so complex. The eventual decision, by five to four, still left several justices fretting that the 1976 copyright law was being undermined. Authors and film makers, they argued, would lose control of their work and, if they received no royalty payment for it, might also lose their impulse to create. These are the arguments used by the film studios, which contend that home tapers are building up libraries of their films to view them again and again -- not to any critical or educational end, as the copyright law would allow, but purely for their own amusement.
Whether amusement amounts to a "fair use" of copyright material has, in fact, been left rather moot by the justices. They believed, however, as surveys show, that most home tapers are simply recording multifarious television programmes to watch later, and that to attach any royalty or surcharge to compensate film producers is unreasonable. The television networks, more sensibly, count users of video cassette recorders as regular viewers and use this to their advantage, both in the ratings battles and in the sums of money they extract from advertisers.
About 8.3m American households, or 10% of the total, have video cassette recorders (compared with 25% in Britain). Many more will doubtless get them now that private taping is legal. The cost, at $400-1,000 each, and with no rental market, is steep; but with a blank tape costing $8-15, as against $60 for a recorded film or $30 for a music video, the long-term savings may be tempting to many. And that, of course, is why the film companies are running to congress to see if it will still agree to a royalty charge on video cassette recorders or tapes, notwithstanding anything the court has said.

Albany, N.Y., 20 January 1984
Like many others who have attempted to intrude on a man's castle, the movie producers who opposed home video taping wound up losing their battle in the U.S. Supreme Court.
They should have known better -- or at least sought better legal counsel. It isn't the homeowner who devalues the worth of creative artists. It's the blank cassette tape, and that's something Congress can remedy.
Anyone with a teen-age daughter knows the value of blank audio tape. One fan of, say, Culture Club might loan the latest album to a friend, who reciprocates by loaning her the latest album by Police. Then, by using an audio cartridge costing a dollar or more, each can record the other's albums and save anywhere from $6 to $9.
That's all to the good for the young fans and their cost-conscious parents, but it cuts into recording profits.... That, in turn means less risk money is available to record newer artists. Technology stifles variety.
The impact of home video is not so readily apparent, but it's no less significant. A network that formerly produced a show with an anticipated return from reruns now has to think again. If the show can be taped at the homeowner's convenience, a large segment of the rerun market -- composed of those whose work or other commitments prevented their viewing the show the first time around -- will be substantially diminished. So will advertising revenue.
The same impact applies to pay cable services such as HBO, where films are shown on a repertory basis to accommodate all viewers' schedules. The more homes that tape the movies, however, the less reason to repeat them so often -- and the less cash the films can command.
Justice John Paul Stevens had little choice but to dismiss the movie producers' suit because the legal code lags so far behind technological advances as to be obsolete.
That leaves it to Congress to revise copyright laws in the best interests of producers, creative artists, and manufacturers of video equipment alike. A royalty on each blank cassette sold seems to be the fairest way of achieving those ends.

Saginaw. Mich., 20 January 1984
Suppose you buy a book, magazine or this newspaper. Suppose further that the publisher says you must read the book only between 7 and 8 p.m., the magazine from 9 to 10, and so on.
An absurd supposition? That's what the television and movie industry tried to sell to the Supreme Court.
Fortunately, a majority this week recognized that the videocassette recorder, or VCR, is, in the main, only a tool for individual freedom of choice. It does for the visual image what movable type did for the written word. Its normal use is no more a violation of copyright laws than lending a book to a friend -- or re-reading the one you already bought.
But owners of home video recorders are not home free quite yet. The court left a loophole and invited Congress to jump through. In his majority opinion, Justice John Paul Stevens said Congress may "take a fresh look at this new technology."
That "fresh" look is likely to be the same old story: Greed. Squadrons of lobbyists will plug Congress for royalties to be added to the price of each recorder and tape. Billions of consumer dollars are at stake if the nine million VCRs already sold grow to the 50 million that Jack Valenti, head of the motion-picture association, foresees in home use.
The most common of those uses are to tape programs for later viewing, or to play prerecorded tapes. In either case, the producers and performers have already been paid for their work -- quite well, judging by the level of industry wages.
The same VCR Hollywood tried to outlaw actually has given it a bonanza that otherwise would not exist. Last year, the six major studios raked in $820 million from sales of pre-recorded films, more than from network and pay-TV combined....
There are other uses for the machines. But they are already illegal, as the FBI demonstrated in its raids Tuesday on alleged "bootlegging" operations in Mount Pleasant and Alma....

Toledo, Ohio, 25 January 1985
By its agonized 5-4 decision condoning the home videotaping of copyrighted entertainment, the U.S. Supreme Court has simply recognized the inevitable -- that millions of gadget-happy Americans are not about to be denied their electronic piracy hobby.
The plaintiffs, Universal City Studios and Walt Disney productions, surely must rue their decision eight years ago to file suit against the Sony Corp., a leading manufacturer of videocassette recorders. While they had legal justification for doing so -- a federal appeals court ruled in their favor and four Supreme Court justices supported their position -- the problem was not one which should have been before the courts.
The question of whether home taping actually hurts the producers of entertainment and inhibits the production of artistic material involves a clash of economic interests that can better be resolved by Congress. The movie studios would have been better off pursuing their interests on Capitol Hill than in the courts.
As it is, the court has spoken on behalf of the consumers -- the users of video tape recorders -- who are numerous enough to be a political force in their own right. It would be a bold congressman who would vote to reverse the Supreme Court's decision and, as a means of enriching the copyright holders, impose a tax on videotape machines and tapes in order to distribute the proceeds to them.
The United States traditionally has been something of a rogue nation when it comes to protecting a copyright, which is a legal monopoly on the right to exploit and enjoy the fruits of one's intellectual labors. Of course, not everything one sees on television is of high intellectual content. Would anyone bother to videotape the "Gong Show" or the "Dukes of Hazzard"?
Copyright protection is legitimate and desirable as long as the legal monopoly it confers ultimately benefits the public. But attempting to stop  home taping is patently impossible. Modern technology once again has run rampant over the dogmas of copyright law....