In 2014, we have many means that allow us to view television programs and other media on demand, at our convenience. It seems as though there were never any question that we could lawfully record television programs for viewing at a more convenient time. But it was not always thus.
Today is the thirtieth anniversary of Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), which established that principle by a narrow 5-4 vote. Unlike so many of today’s Supreme Court of the United States decisions, the split within the Court was not along ideological lines. Justice Stevens wrote the majority opinion, in which Chief Justice Burger and Justices Brennan, White, and O’Connor joined. Justice Blackmun wrote the dissent, for himself and Justices Marshall, Powell, and Rehnquist.
Sony manufactured Betamax video tape recorders (“VTR’s”). Universal and Walt Disney Productions sued Sony because consumers who bought Sony’s VTR’s used them to record programming on which Universal and Disney held copyrights. There was no claim that Sony itself infringed any copyrights.
The district ruled in favor of Sony, but the Ninth Circuit reversed, held Sony liable for contributory infringement, and directed the district court to fashion appropriate equitable relief, including a potential injunction on the sale of VTR’s. The Supreme Court reversed the Ninth Circuit and exonerated Sony.
The majority said that the sale of copying equipment cannot constitute contributory infringement “if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.” The Betamax VTR’s met this standard. Though Universal and Disney objected to recording of their copyrighted content, there was evidence that holders of copyrights of many other programs, including Fred Rogers of “Mister Rogers Neighborhood,” who testified at trial, did not object.
Besides, much home recording and use of the VTR’s involved mere “time-shifting”– recording a program, which otherwise would have been watched live when aired, to watch at another time instead. Universal and Disney conceded that, as of the time of trial, “there had been no actual harm to date” from time-shifting, and their efforts to show future harm were unpersuasive. The majority thus concluded that this use of the VTR’s for at-home, non-c0mmercial viewing was a “fair use” and not violative of the Copyright Act.
Justice Stevens concluded “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. It may well be that Congress will take a fresh look at this new technology, just as it so often has examined other innovations in the past. But it is not our job to apply laws that have not yet been written.” As the law then stood, the sale of Betamax VTR’s did not constitute a contributory infringement.
Ironically, Sony’s Betamax was quickly overtaken by a competing technology, the VHS recorder. The Betamax soon landed in the dustbin of history. But not before the Betamax had been at the center of this landmark case, which paved the way for on-demand viewing of copyrighted works without penalty either to ourselves or to those who make on-demand viewing possible.