March 28, 2005 4:00 AM PST

FAQ: Betamax--tech's favorite ruling

On Tuesday morning, lawyers from Hollywood and the technology industry will meet at the U.S. Supreme Court to argue over the fate of peer-to-peer software. But they'll be spending much of their time talking about the VCR.

At the core of the file-swapping dispute is an interpretation of the 20-year-old decision that made Sony's Betamax legal to sell in the United States. Much of the subsequent consumer electronics industry has been built with that decision in mind, and now companies are worried that it's open for review.

The following list of frequently asked questions is a layman's guide to why the Betamax ruling matters today.

Isn't Tuesday's Supreme Court case about Grokster and file-swapping? What's all this about Betamax?
Two lower federal courts have ruled that file-swapping software companies--in this case, Grokster and Morpheus parent StreamCast Networks--aren't legally liable for the copyright infringement that happens on their peer-to-peer networks. For support, both courts pointed to the 1984 Supreme Court ruling that said Sony Betamax VCRs could be legally sold.

Many people inside the technology industry believe that the Betamax decision laid the foundation for much of the subsequent computer and consumer electronics industry. Some worry that a new ruling on the issue could change the legal ground rules for technology businesses.

How would my life be different without the Betamax decision?
The Betamax ruling established that it was possible to record media at home, as long as it was for personal use. It made sure that companies producing recording devices couldn't be sued, even if some people used them in illegal ways. If Betamax had gone the other way, the explosion in VCRs, rental movies, home DVDs and digital video recorders couldn't have happened, or would likely have been slower and more expensive.

The case also let personal computers, which can digitize and record audio and video, develop without restrictions.

What started the fight?
Sony released the Betamax video recorder for the United States market in 1976. Universal City Studios and Walt Disney Productions promptly sued Sony, contending that recording video at home was copyright infringement.

Why did they sue Sony, instead of the people making the recordings?
The studios made an argument called "contributory copyright infringement," saying that Sony was responsible for making large-scale copying possible.

What were video recorders actually being used for?
The case largely took place before the tape rental market had taken off. Surveys by Sony and the studios showed that the primary use for VCRs, at least in 1978, was recording TV content so it could be watched later.

Was recording a show at home actually illegal?
At the time, it wasn't clear. The studios said home recording was illegal if permission hadn't been granted beforehand. Some shows explicitly

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But they say "Own it on DVD!"
So, even though the media people and they're marketing arms
tout "Own It On DVD" we are really just licensing it for use.
Same goes for music. They say we own the CD. So if we "own"
it, shouldn't "we" be allowed to make the decisions of what we
want to do with the media. Or, "they" shouldn't be allowed to
tell us in their marketing that we can "own it" if we "buy" it.

I have yet to see anyone make a point regarding this fact.
Posted by gthomasdirect (2 comments )
Reply Link Flag
Somebody should sue them on this basis!
Somebody should sue them on this basis!

If they say you OWN IT, then you do! Those words are a binding contract!
Posted by hadaso (468 comments )
Link Flag
Not buying the rights
When you buy any recording, all you've ever bought was the "right" to use it. In the past, it was "permitted" (wink, wink) to make backup copies.

The passage of DMCA has changed all that. Now, all you're purchasing is the right to view THAT DVD - making backups is now specifically illegal. Even if there were no copy protection on the DVD, making unauthorized copies of digital media is illegal.
Posted by Jim Harmon (329 comments )
Link Flag
Did I pay for the music or the media itself?
If I have bought an album on vinyl, then why do I have to pay again when I want it on cd? I thought I bought he right to 'use' the music? Listen to it? I am not paying for the media it self am I? (That's only worth 1$...) Because in that case downloading wouldn't be illegal now would it?

I just don't get it....
Posted by huddie klein (70 comments )
Link Flag
And allot of harm the VCR did the movie studios right?
"I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."

I'd say it's a pretty good bet that the movie industry has done rather well from VCR's, and I'd say we're talking about Billions of dollars.

It is ridiculous that with each new generation of technology, we lose rights we previously, like being forced to watch the same anti piracy screens we've all seen hundreds of times before, and probably ads as well soon and being unable to fast forward though them to the actual content we paid for.

Thanks to the US's trade agreement, things are even worse in Australia as we don't have your Fair use laws, only the strong stuff. So using an ipod isn't even legal over here.

eventually these idiots in the music and film industries will go a step to far in removing our rights and well end up killing their own market, and then they will blame it on piracy. IF the supreme court doesn't uphold betamax, then the music and movie industries will suffer in the long term. believe it or not, it's for their own good that they are not permitted to kill the next generation of technology in the same way they tried to kill the VCR.


Posted by aabcdefghij987654321 (1721 comments )
Reply Link Flag
killing their market
Those big associations are known for not being terribly bright.

It could easily be argued that the recording industry has done more damage to their market than file sharing or anything else. For the most part, file sharing doesn't hurt it. Most of those files are terrible quality. But they are convenient for people to 'try' different music. If they really like something they'll usually buy it. Or they are people who can't afford it and wouldn't buy it anyways. However, maybe they'll become fans and make purchases at a later date when they can afford to do so. It's not like you get much from the radio anymore. All the stations have narrow formats and usually don't even tell you the name of a song that's played.

They problem is the lack of quality of product, and the greediness of the industry. There is no valid reason for CDs to be as expensive as they are when they are made for cents. The market has subsided because most people who had record/cassette collections have finished replacing what they want with CDs. One might say it was artifically inflated for a while because of that activity. On the other hand, people are not gonna spend money to replace everything again on some other format any time soon. And people are fed up. The best thing about the apple store is the return of singles again, and at a fair price.

So the heart of the situation has more to do with greed and lack of quality. The media industry will try to tie things up to force people into doing things their way, a monopoly. You have to buy CDs without hearing them, because you probably wouldn't want it if you did. You have to buy new copies every time they change technology, although you already bought the right to hear/see the media. So forth and so on. You should be able to just get what you want and convert it to whatever media you want to use at that moment.

They think they can make more money, but they will lose money in the end. It's all about short term gains, forgetting about the customer, and giving people no recorse. People will find a way, and by then the companies have done nothing but created ill will.
Posted by kxmmxk (320 comments )
Reply Link Flag
There could be a positive side . . .
When they destroy themselves from their own stupidity, artists will be much freer to experiment with directly marketing their products to their fans. I think the contracts the content industries put on artists to publish and distribute their work amounts to a form of extortion sometimes--I mean, don't they usually only get about 10 to 15%, and in many cases, that's only after the content companies cover their own costs.

Maybe after the current "regime" of content companies dies off, a new, more reasonable "regime" will take its place that will have more respect for their artists. It could happen.
Posted by (282 comments )
Link Flag
Let's Sue Remington
I must thank the recording industry. Had it not been for their agressive advertising campaign, I would never have known about the joys of peer to peer networks.

While we are throwing lawsuits around, how often is Remington sued because someone uses one of their firearms in the commission of a crime?
Posted by bennybob (7 comments )
Reply Link Flag
Well that would be like suing a car manufacturer for acts that a drunk driver does behind the wheel.

Or if a car thief hits someone while driving avay the stolen car.
Posted by Sboston (498 comments )
Link Flag
It's not file SHARING - it's THEFT
Getting free music/software/movies/whatever is THEFT. Don't try to salve your concience by pretending otherwise. A creator puts a part of their life (a month, a year, whatever), into creating something new. It's sold individually to customers. If they propogate that product, the creator is not being recompensed for their work, by the person who got the product for free.

Any brick-layer, painter, auto mechanic reading this want to work for me for a year - for free ? If I spend a year writing new software, I expect to get compensated, by everyone who wants to make use of it.

There can be NO way of mass marketing music/software/whatever, that allows sharing - except to charge the sharer for every person they share with. So, OK, you want to buy a CD & share with 1000 other people - fine, but you'll have to pay $10,000 per CD.

I'm not making any comment on whether the price per CD or DVD is out of line. I'm not commenting on whether commercial downloading processes charge a reasonable amount.

But I WORK for a living & I expect everyone who hires me (everyone who uses MY products) to pay for them - I'm not an bleeping charity.
Posted by (409 comments )
Reply Link Flag
So how should I get to your music?
You're probably right. But for me file-sharing has been a way of getting to know many artists I'd never heard of before and whose music I can't even buy here in holland.

In the end downloading has not caused me to buy less music.
Posted by huddie klein (70 comments )
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