In a footnote, the Supreme Court quoted the actual testimony of Mister Rogers. It is worth reading that testimony today, if for no other reason than you can practically hear his inimitable “voice” discussing the subject much as you would imagine him doing on his celebrated TV show:
Some public stations, as well as commercial stations, program the “Neighborhood” at hours when some children cannot use it. I think that it’s a real service to families to be able to record such programs and show them at appropriate times. I have always felt that the advent of all this new technology that allows people to tape the “Neighborhood” off-the-air, and I’m speaking for the “Neighborhood” because that’s what I produce, that they then become much more active in the programming of their family’s television life. Very frankly, I am opposed to people being programmed by others. My whole approach in broadcasting has always been “You are an important person just the way you are. You can make healthy decisions.” Maybe I’m going on too long but I just feel that anything that allows a person to be more active in the control of his or her life, in a healthy way, is important. Id. at 445 n.27.
We all know how the case turned out, particularly if we have been taping TV shows, movies and sporting events for as long as we can remember. To be sure, the Supreme Court did reverse the 9th Circuit’s decision and thus ruled in favor of Sony, but it did so by only a razor-thin 5-4 majority. Ironically, the dissenting justices included Harry Blackmun and Thurgood Marshall, who — at least in other arenas — gave Fred Rogers a run for his money when it came to espousing personal freedom.
So the next time your child or grandchild wants to watch a rerun of “Mr. Rogers’ Neighborhood,” tape it instead and save it for later. In fact, just for the heck of it, tape the next episode of “The Practice” or “Law & Order,” or what have you, and watch it the next night. And remember Fred Rogers, who helped make it possible in his own unique way.
Roy H. Wepner is a partner with the intellectual property law firm of Lerner, David, Littenberg, Krumholz & Mentlik in Westfield, N.J.