Beaver vs. Disney

"I CANT IMAGINE anyone trying to deny folks in their home the right to tape off a common carrier," said Ed Asner, head of the Screen Actors Guild But Walt Disney Studios and Universal City Studios could imagine all that and more. When Sony corporation first introduced video cassette recorders (VCR's), the same people who brought you Peter Pan and Donald Duck and his alleged "nephews" hauled Sony, four Betamax retailers, an advertising agency, and an individual Betamax owner into court for copyright infringement.

It's easy to see why the studios could fear the new faugled machines. With a Betamax, a devoted fan of Leave It to Beaver could easily tape all of the shows now running in syndication and never have any incentive to keep on watching the reruns. No repeat viewing on I.V.-means no lucrative residuals for the studio and occasionally, for the actors.

Even suppose our mythical Beaver tan did watch the reruns each day, but sometime later in the evening-"time-shifting," as the original District Court decision characterized it. When he comes home to watch the show, he can escape the repeated ads for Golden Hits of the '60s and gold-plated Ginzu knives just by a timely manipulation of the last-forward button on the VCR. As Jack Valenti, president of the Motion Picture Association of America, says. "If you're an advertiser and suddenly the message you're paying millions of dollars for is being eliminated in maybe two thirds of the audience before it even has a chance to view it, then you're not going to pay as much for it."

But rather than simply calmly stating their grievances before Congress, which makes the copyright law, the studios dragged out their big legal guns who in turn dragged out their most twisted legal logic. The Supreme Court ruled 5-4 against Disney and Universal--but the decision should never have been that close.

Stephen A. Kroft, the lawyer representing Disney and Universal, claimed that Sony effectively "contributed" to copyright infringement since the Betamax could be used for unfair use. Under the fair-use doctrine certain forms of reproduction of copyright material are acceptable--as Section 107 of the Copyright Act of 1976 says: "for purposes such as criticism, comment, news reporting, teaching, scholarship or research."

Not content merely to suppose that individual Betamax users violate copyright when "time-shifting" certain shows. Kroft went still farther, calling for compensation from Sony and even a ban on Betamax use and sales. Closely questioning Kroft on this logic. Chief Justice Warren Burger asked if photocopying manufacturers would similarly be liable say "if Xerox or another maker advertises that this is a good way to copy books?" Said Kroft: "I would say that a seller of photocopying machines would be liable." In fact, under further questioning Kroft even suggested there would be copyright infringement even if Xerox did not so advertise since, in Burger's words, "any literate person knows about Xerox."

But if one follows this line of reasoning to its logical conclusion, would not a printing press itself also serve as an illicit aid to reproducing copyrighted material without permission? Why not also ban pens, since they too can be used to copy down protected material? After all, the bulk of student plagiarism from copyrighted material goes via the pen from the text to the note card or legal pad. Imagine this same Kroft arguing in some medieval court that peasants illegally pass on the tales of the traveling minstrel and so demand that some farmer's tongue be removed.

But surely both one's tongue, one's Bic, and one's Betamax can all be used for some fair use--even if only for making home video productions of Junior's Bar Mitzvah. To ask for an injunction banning Betamaxes because the have the potential for abuse seemingly deviates little from the mythical feudal prince who rips out his subjects' tongues. If we cannot ban handguns even with their great and proven potential for abuse, then how absurd to ban VCR's solely for their potential for abuse.

Yet three members of the Court joined Justice Black man in supposing just nearly that. Tracing copyright law back to a constitutional desire to "Promote the Progress of Science and useful Arts, by securing for limited time to Authors and Inventors the exclusive right of their respective Writings," Blackmun then concludes that "at least when the proposed use is an unproductive one, a copyright owner need only prove a potential for harm to the market for or the value of the copyrighted work."

But Blackmun and the three other judges pass roughly over their notions of "unproductive use" and potential harm "to the market for or the value of the copyrighted work." At the very least, the reproduction used by teachers and scholars may be useful for showing examples of television shows in a television criticism class for scholarship, teaching or research as defined by the copyright act itself. Whatever the original fears of Disney and Universal over the uses of Betamax, the remaining 90 percent or more of the industry has yet to express any legal challenge.

Just what market harm is at stake? Blackmun suggests that writers and producers may lose some of their constitutionally-sanctioned incentive to create if VCR use goes unfettered. But the concerns over reproduction of the tapes center largely around fears of top producers--how many people outside of lowa would bother to tape the morning farm report on the local news? Given the multimillion that many of these top producers make, it can hardly be that Larry Hagman of al. will ditch Dallas because some people might pass over the commercials or skip the rerun syndication because the tapes are already in their library.

WHATEVER THE rhetoric, whatever the legal "reasoning," the producers never had much of a chance in court and most of them knew that. In fact, many were even surprised at the closeness of the decision and the lengthy Blackmun dissent which out-paged the majority opinion.

"The decision," said Asner, "throws it into the lap of Congress to create a small tax on blank tapes and machines." From this tax, which Vallenti now suggests be $25 a machine and 25 cents a tape--enough to produce some $57 million in 1982--would come the compensation to the studios for the losses they have incurred. Already, Senator Charles Mathias (D-Md.), chairman of the Senate Judiciary Subcommittee on Patents and Copyrights, has introduced such legislation in Congress. On the Hill, the producers face a tough fight as their lobbyists compete with the claims of the millions of voting Betamax owners spread across the Congressional districts.

But by citing their practical losses, the producers may have a good chance--as long as they leave their flimsy legal arguments in the records of the Supreme Court.