Chicago Tribune

Friday, October 23, 1981

Everyman a copyright infringer

A federal court of appeals has just jolted the highly competitive home videotape industry, ruling that it is illegal to tape broadcasts covered by copyright without paying a royalty to the copyright owner.

This is the latest in the law's troubled efforts to catch up with sprinting communications technology. Already the photocopy machine has made it possible for anyone to pirate copies of articles and books. Home cassette and reel to reel audio tape decks hooked up to record from the radio have made everyman his own record producer. And now the ready availability of home videotape machines is beginning to make television programs fair game.

The idea of the copyright law is to give the creators of prose and poetry and music and drama a monopoly over their work for a specific period of time so that they will have an incentive to produce it. If everyone can make copies of the work without paying a royalty, that incentive is diminished.

The federal appeals court in San Francisco merely ruled that the copyright law passed by Congress did not create an exemption for home videotaping of television programs. If this interpretation holds up in the U.S. Supreme Court, some mechanism for paying royalties will have to be found unless Congress amends the law to . create an exemption.

It will take some imagination to come up with

such a nechanism. It is impossible to know, tor example, who is taping what in the privacy of their own homes. If a fee is tacked onto the price of every recording machine or every cassette sold, this will unfairly impose a payment on those who use their recorders to make home recordings -of-their-children-growing up or to play tapes purchased or rented from firms that do pay royalties.

As with the photocopy machine and the audio tape deck, there is a problem of spending dollars to collect dimes. Each individual, noncommercial royalty payment would probably be quite small. but the cost of a system to collect them might be large.

The federal appeals court in San Francisco was not wrong to grapple with the issue. It was only doing its job in interpreting the law Congress gave it. But the courts cannot fashion a complete settlement of this issue. It will take the kind of compromises and negotiations that Congress specializes in to balance all the interests. Congress should have another go at the copyright law to try to come up with some solution to the problem that will preserve the creator's monopoly over the fruits of his work while not robbing people of the convenience that the new technology offers.

The decision in San Francisco should not be allowed to put the videotape industry on freeze frame. It should get Congress going on fast forward to amend the law to keep abreast of technology.

A

OCT 22 199!

CHICAGO, ILL.
SUN-TIMES

Needless static on TV recorders

Absurdity sometimes tinges court decisions,
especially when the law lags behind technol-
ogy. One such ruling came in California this
week, when a U.S. Court of Appeals reversed
a lower federal court decision about the
Betamax video recorder produced by Sony.

The appeals court ruled in favor of the two
film studios that started the suit five years
ago. It said Sony, retailers, advertising agen-
cies and private users of videotape machines
could be liable for copyright infringement if
they recorded TV programs off the air.

Under copyright law, unauthorized duplica-
tion of protected materials for profit is of
course illegal. Monday's decision, if upheld,
extends that idea greatly-and with a twist.

By holding Sony liable, it presents some
Interesting questions. Do we sue Xerox be-
cause someone could copy the Sun-Times
illegally? Is Kodak liable for illegal photo-
graphs? Is Memorex guilty if someone
wrongly dubs an Ella Fitzgerald tape?

Obviously, film studios can't go after indi-
vidual owners of the 3 million video recorders
now in U.S. use. Thus Sony, plus other

recorder-makers sure to be mentioned in
further action, become high-profile targets.

The appeals court told the lower court to
work out some remedy for the studios. W
wonder how, in fairness, it can be done.
considering that no one can say with certai
ty how any particular video recorder will be
used. And it's too late for total ban on tr
machines: The video revolution is rolling right
along, and there's no rewind button on it.

That's why we suspect the California dec:-
sion won't stand-either in a Supreme Court
reversal, or because Congress can rewrite
communications law to protect innocuous.
not-for-profit use of home video machines.

The Wall Street Journal Oct. 28, 1981

TV Tape and Red Tape

When we read the other day of a court ruling which, if upheld, could possibly result in putting Sony Betamax salesmen in jail, we decided that something misfired in the judicial process. How could it be that manufacturers, retailers and users of videotape recorders could be in violation of federal copyright law any more than sellers of photocopiers or audiotape recorders?

The dichotomy is the result of poorly written law, inconsistent court decisions and the legal challenges presented by the rapid advance in technology. Last week's ruling by the Ninth U.S. Circuit Court of Appeals in California, which declared that home use of videotape recorders violates the copyrights on movies and television programs, shows that Congress and the courts have yet to come to grips fully with the conflict between the use of modern technology and established copyright monopolies.

The quintessential law of copyright -and patents-is contained in the Constitution: "To promote the prog ress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right of their respective writings and discoveries." The Supreme Court has said, "The economic philosophy behind the clause... is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare."

The intent of the law is to help advance the public good and not to safeguard self-aggrandizement. To this end, however, the law recognizes that some amount of economic monopoly

must be afforded to writers, artists and scientists if the public good is to be well served. Who would devote so much time, energy and money to art and science if the fruits of these labors could be freely exploited by someone else for personal gain?

The copyright laws written by Congress have often been ill-suited to achieve these joint goals. As a result, the courts have created a doctrine of "fair use." which basically permits a limited infringement on "exclusive rights" to copyrighted material for -private, non-commercial use. From 1955 to 1976, Congress worked on new copyright legislation in the hopes of clarifying some of these conflicts between the copyright holder's rights and the rights of the public to use the material. The unsatisfactory results of Congress's work is a copyright law that is even more confusing than before and that still fails to keep up with the advances of technology. For instance, a special exemption is given for the recording of sound broadcasts and recorded material at home by audio-tape recorders. But Congress did not even mention videotape recorders in the legislation.

The Sony case will probably end up in the Supreme Court. We would hope the judges would ignore much of the legalese that now engulfs copyright law and reflect instead on the intent embodied in the Constitution. The development of videotape recorders certainly contributed to the public welfare. It is doubtful that their use by millions of Americans at home will somehow adversely affect the development of science and the arts.