Law: Pandora's Tape

VTRs are legal for home use

The videotape recorder (VTR) is the television industry's first really new product for the home consumer since color sets. The compact device can record color or black-and-white television programs, play video cassettes, accept cassettes of prerecorded commercial shows and, with use of an optional camera, produce home movies, all playable on the user's own TV set. The VTR's primary function, taping TV shows off the air, has opened a new kind of Pandora's box. In 1976 two of the biggest movie production companies filed suit, charging Sony Corp., the first firm to market VTRs in the U.S., some of its retailers and others, with copyright infringement, interference with the sale of recorded programs to broadcasters and "unjust enrichment." They demanded that Sony stop manufacturing and distributing its Betamax VTR or, alternatively, modify the machine so that it would not record copyrighted material.

After a five-week trial in Los Angeles, Federal District Court Judge Warren J. Ferguson last week acquitted Betamax.

He ruled that "noncommercial home-use recording of material broadcast over the public air waves" is "fair use." The court also rejected the plaintiffs' claim that widespread use of VTRs would cause a decline in actual television viewing. Betamax owners will simply "rearrange" their viewing hours, said Judge Ferguson; they will "play their tapes when there is nothing on television they wish to see and no movie they want to attend." Moreover, the court noted, production of television programs by the plaintiffs, Universal City Studios, a wholly owned subsidiary of MCA Inc., and Walt Disney Productions, "is more profitable than it has ever been ... there was no concrete evidence to suggest that the Betamax will change the studios' financial picture." However, MCA, now beginning to market its own video discs, prerecorded shows also intended for the home screen, was worried about competition from VTRs.

Sony based its defense on the argument that copyright law permits home recording and that the "privacies of life" must be protected from government intrusion. In the words of the company's general counsel, Ira Gomberg, "A consumer has the right to do what he wants in his own home. If he wants to watch the 6 o'clock news at 10 o'clock, he has that right." That was Judge Ferguson's view too. "There is no way, nor should there be," he said, "for plaintiffs to limit the availability of alternatives to television viewing. Games, books, movies —even people—all divert potential viewers from the television set. It is impossible for plaintiffs or this court to isolate the diversion of Betamax from that of these competitors."