Litman describes in detail the arguments—and the compromises—that Stevens used to put together a majority of five justices that agreed with his fundamental position on the home copying issue. She also argues that Stevens’s efforts resulted in a majority opinion and a dissent authored by Justice Harry Blackmun that were both far less clear and tightly reasoned than the original drafts. The final opinion was “an awkward amalgamation of different arguments and rationales,” she writes.
Still, there’s no denying the historical importance of the opinion. In his Betamax opinion, Stevens wrote that although the video-recorder could be used to break copyright law—by copying whole programs and re-selling the tapes, for example—it was also “capable of substantial non-infringing use,” and consumers should not be deterred from using it for those purposes.
“The ruling that making a single copy for yourself of a broadcast movie was fair use… that was truly huge, and was a point on which the court was deeply divided,” says Bridges. The Betamax decision was written at a time when the Supreme Court was more cognizant of the appropriate limits of its power, he adds. “The Grokster court never once discussed deference to Congress. Grokster ignored the conservatism of the Betamax decision, in terms of what a court should do, as opposed to what Congress should do.”
Stevens believed that Congress didn’t intend to ban home copying it when it amended the country’s copyright laws by passing the 1976 Copyright Act. After all, he reasoned, Congress had extended copyright protection to sound recordings in 1971, and at that time made clear that the Copyright Act wouldn’t extend to consumer home taping. He felt video should be no different.
It’s an interesting intellectual exercise to imagine what would have developed had the court come out in favor of the entertainment industry rather than Sony. By the time the Betamax case reached the Supreme Court, the movie and television studios had already abandoned their hope for an injunction that would would sweep video recorders off store shelves, and had instead proposed that copyright law should simply entitle them to royalty payments on the devices. The entertainment industry also wanted levies on associated media, such as blank videotapes.
A ruling against Sony could have placed a heavy burden on the makers of video-recording devices and the emerging video rental industry. On the other hand, at least some in Congress were ready to fight for the right to home copying. After the Ninth Circuit issued its pro-entertainment industry ruling, legislation was introduced in Congress the very next day to legalize home video recording. Once the Supreme Court agreed to take up the Sony v. Universal case, Congress put the debate on hold. But 3 million people had already bought home video cassette recorders by 1982, and video rental stores were growing in popularity. (This despite the fact that at the time of trial, a Sony Betamax videocasette recorder cost the astronomical sum of $875, the equivalent of almost $2,000 in today’s dollars.)
Stevens’ belief that the government had no business messing around with the newfangled machines Americans were attaching to their televisions made him an outlier on the Supreme Court, but likely in the mainstream of public opinion. Indeed, the mainstream press hailed the Betamax decision as a necessary step forward. Washington Post entertainment critic Tom Shales called the decision “one small step for man, one giant kick in Big Brother’s pants.” He further wrote:
So, next time you’re TiVo-ing an episode of Remington Steele—or whatever it is the kids are watching these days—remember to give a quick thanks to Justice John Paul Stevens.