The Inside Story
It is hard now to imagine that the VCR ever was opposed by the movie industry. But in 1976, Universal City Studios filed suit against Sony Corporation, the manufacturer of the Betamax VCR. The charge was contributory copyright infringement, based on the allegation that home taping off-the-air was unlawful.
Sony won at trial, but in 1981, the U.S. Court of Appeals for the Ninth Circuit reversed the verdict. The Ninth Circuit’s decision essentially outlawed the VCR by deeming home time-shift recording to be copyright infringement, and Sony Corporation (the maker of the Betamax VCR) to be a contributory infringer. The Supreme Court heard oral argument in the case in January 1983, but could not reach a decision by the end of that term -- a highly unusual event. The Court held the case over into a second term, heard a second oral argument in October 1983, and then, in January 1984, decided to reverse the Ninth Circuit by only one vote.
The papers of the late Justice Thurgood Marshall give us an intriguing behind-the-scenes look at the Justices’ deliberations -- and reveal that, in fact, the Court almost ruled that consumer time-shifting of television programming was copyright infringement.
Some Facts:
· Five Justices had voted to deny certiorari (that is, not to hear the case). Justices Brennan, White, Marshall, Rehnquist and Powell thus would have let stand the decision of the Ninth Circuit (that time-shifting is copyright infringement).
· The vote after the first oral argument was to affirm the Ninth Circuit. Justice Blackmun was assigned to write the majority opinion, Justice Stevens the dissent.
· Justice Stevens’ draft dissent argued that there was an express exemption under the copyright laws for making a single copy of a copyrighted work for noncommercial use. In a January 24, 1983 memo to Justice Blackmun, Stevens attempted to sway others in the majority to his views by articulating three policy reasons to reverse:
"(1) the privacy interests implicated whenever the law seeks to control conduct within the home;
(2) the principle of fair warning that should counsel hesitation in branding literally millions of persons as lawbreakers; and
(3) the economic interest in not imposing a substantial retroactive penalty on an entrepreneur who has successfully developed and marketed a new and useful product, particularly when the evidence as found by the District Court indicates that the copyright holders have not yet suffered any harm."
Stevens concluded: "I feel very strongly that the consequences of an affirmance would be most unfortunate both to the public at large and to the courts that will have to confront these problems,... ."
· Justice Brennan at first had believed that the Ninth Circuit opinion should be affirmed in part, so as to hold that time-shifting was fair use but keeping those tapes ("librarying") was infringement. However, in a June 14, 1983 memo, Justice Brennan changed his position and decided that the Ninth Circuit should be reversed outright.
· Justice White wrote that he was "not at all convinced that Congress intended each home recorder of copyrighted works to be an infringer, whether he records sound or video." His June 17, 1983 memorandum to Justice Brennan suggested that the opinion should only hold that Sony was not liable as a contributory infringer, and that the Court should not decide whether home recording was infringement. Justice Stevens responded that if five votes supported that position, he would recast his dissenting memorandum into a majority opinion taking that view.
· Justice O’Connor agreed in part with Justice Stevens, but was willing to side with Justice Blackmun -- if he would agree to send the case back to the District Court to determine whether the copyright holders suffered any harm. Toward the close of the term, Justice O’Connor asked Justice Blackmun to alter his draft opinion to reflect her views that certain videotaping may qualify as fair use and that copyright holders always retained the burden of persuading the court that copying causes harm. Justice O’Connor also asked Justice Blackmun to state in his opinion that there could be no contributory infringement if either a substantial proportion of what is available for copying is not copyrighted or, if copyrighted, that
the copying was not objectionable to the copyright holder.
· By the end of that term, the Justices still could not reach a final decision, so the case was held over until the next term. When the Court heard the second oral argument in October, 1983, six Justices voted to reverse the Ninth Circuit (Justices Stevens, Burger, Brennan, White, Powell and O’Connor) and three to affirm (Justices Blackmun, Marshall and Rehnquist). In the final opinion, Justice Powell rejoined Justice Blackmun, making the vote 5-4 to reverse.
