[jetrink]

Hilariously (and appropriately), the decision cites Sony Corp. of America v. Universal City Studios, Inc., also known as the "Betamax case."

> (a) “The Copyright Act does not expressly render anyone liable for infringement committed by another.” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 434.

> In Sony, copyright owners sued the maker and the retailers of the Betamax video tape recorder. Id., at 422. The tape recorder could be used to record copyrighted television programs for later personal viewing, which would not constitute infringement. Id., at 449. On the other hand, it could also be used to reproduce and sell copyrighted television programming, which would constitute infringement. Ibid. The lower court found the Betamax maker liable because the tape recorder was “not suitable for any substantial noninfringing use” and infringement “was either the most conspicuous use or the major use of the Betamax product.” Id., at 428 (internal quotation marks omitted). This Court reversed, concluding that “[t]he Betamax is . . . capable of substantial noninfringing uses”—like personal use—so “sale of such equipment to the general public does not constitute contributory infringement.” Id., at 456.

[frenchtoast8]

> The lower court found the Betamax maker liable because the tape recorder was “not suitable for any substantial noninfringing use” and infringement “was either the most conspicuous use or the major use of the Betamax product.”

I don't know anyone who sold television recordings, it was always for personal use. How could the lower court get this so wrong? Was this just one uninformed judge? Or was this actually less certain at the time?

[pavon]

The Ninth Circuit court of appeals understood correctly what the primary use of Betamax would be, but they believed that personal home recording was not fair use, and was thus copyright infringement. They interpreted the law as only allowing libraries to record TV or radio broadcasts.

The Supreme Court ruling for this case found that time-shifting was fair use, but only by a narrow 5-4 margin. Fair use could have gone in a completely different direction over the last 40 years if just one judge had voted differently on Betamax.

[bombcar]

We have to remember that at the time of the decision, there really wasn't any source of things to copy with a Betamax recording device besides commercial broadcast TV and other copyrighted materials.

Camcorders and such devices where you could make your own content were very rare, if available at all.

[Aerroon]

I don't think that justifies the decision though. People did personally own cameras. Also, broadcast TV might want to use it for copies themselves.

[indymike]

Camcorders were not, but cameras and portable battery powered tape decks were.

[bahmboo]

This speaks to first principles. I don't want judges making law - and any good judge doesn't want to make law. Laws are from elected legislatures. Of course this is all wishful thinking.

[autoexec]

If a judge had ruled differently in the Betamax case, we'd still have the ability to vote in representatives who'd enact a law that explicitly gave us the right to record for personal use. Judges should only have power to decide what a law means in situations where it's not already clear how or if the law applies.

[Henchman21]

Isn't "judges making law" a key feature of common law systems? IANAL, obviously, I would know the answer to such a basic question if I were. But this is my understanding, and given that this case is in the US and the US is based on common law, I'm genuinely curious if you're advocating the US change to civil law?

[jojobas]

Special interest groups throwing their money at suitable cases of random people to further their interests is not a key feature of common law, it's a very unfortunate side effect.

[bahmboo]

Judge's rulings set precedence. So as a judge you can point to another judge, usually up the chain, and say "this is what those laws mean". Legislators write laws that are very broad and ill defined. Almost on purpose. Then the judges have to figure it out. I don't like that. It is an ill defined spec and we dump the details onto a judge who may or may not have any idea of what is going on.

[cess11]

As it happens, natural language is "ill defined". This is an important piece of the argument for teleological justice, where the law is framed and interpreted according to the intent of the sovereign rather than some linguistic literalism.

By the involved professionals laws are commonly understood as norms, i.e. what is established through judgement in court when the instructions from the sovereign (and sometimes sources like common sense) are interpreted and applied to so called facts presented to the court during proceedings.

In this sense, what the politicians have their minions type down into some document isn't actually the law. Common law systems give judges more leeway in how to frame and interpret the sources of law than e.g. the swedish system, where politicians apply a process that produces a series of documents that explain and teleologically ground the text that parliament then votes on. This gives the sovereign a larger degree of influence over the instructions that judges use when creating law through their judgements.

As I understand it, this leeway in common law systems is thought to balance the latent tyranny of the sovereign, and function similar to constitutional courts in that judges can take the view of the people into account to a larger extent.

Not that I'd trust US jurisdictions in anything but certain business law settings, but some clever people thought and deliberated a lot when designing what they have over there.

[Henchman21]

So what is the difference between "setting precedence" and "making the law" in your view? Essentially there isn't one? I think legislators write vague laws not almost on purpose, but absolutely with purpose: to leave it up to the judge to interpret. But then, you don't like that judges exercise judgement, which is frankly really quite puzzling to me. That is explicitly their job, it's right there in the name. But why don't you like that? Oftentimes, someone has to figure it out. Why not someone who is used to exercising good judgement? You're absolutely right that it's an ill-defined spec, but we're not gathering requirements to develop some application, we're talking about law?

[pjc50]

This feels unavoidable when you have a new circumstance turning up in court? There's no "decline to have an opinion" option, the ruling has to go one way or the other.

How does this work in Civil Law jurisdictions? Do you get the opposite of precedent, similar cases having different outcomes until the legislature resolves it?

(it is something of a problem for the US that most of its really big important freedoms come from courts against more repressive legislatures, though)

[lvspiff]

I had a relative who setup a kinda "blockbuster" type service recording things and offering them out for rental. It really took off for VHS when he got HBO and recorded movies and then rented those. It wasnt a very lucrative hustle but it was an instance of what they didnt want to have happen

[frenchtoast8]

Absolutely this happened, but would you say that was the primary use case of the recording capabilities?

I'm trying to understand how a judge would say that the only practical use of backups were copyright infringement, since that is completely contrary to both my experiences and what I believe to be common sense. If the answer to my confusion is that this actually was the major use case and my experiences were rare, then that's fine. Otherwise, I can't help believe this is yet another case in recent history where judges are completely backwards on technological understanding, or maybe even under influence from copyright holders.

[wat10000]

This is the case that determined that recording TV broadcasts for your own personal use was not copyright infringement. They understood what the tech was used for, but they didn't know that this use was non-infringing until they made that decision.

[AnthonyMouse]

> Absolutely this happened, but would you say that was the primary use case of the recording capabilities?

I don't think I can understate the amount that I hate this line of reasoning.

Suppose we apply this logic to writable CDs. Some drives could only read but not write CDs and those devices cost less than the ones that could write. Moreover, the early writable drives were stupid expensive and because of that most people in those days only had readers.

Then in those early days, the usage of the drives would skew more heavily towards piracy, because it would be more common to spend $1000+ more on a CD writer if you're operating a commercial piracy operation and keeping it busy than if you just want to write something to a single CD instead of an entire $20 box of floppy disks once or twice a year.

A few years later the price of the writable drives has come down to almost as low as the price of the read-only drives and everybody has them and is using them for all kinds of legitimate things. But that doesn't happen if pointing to a high initial rate of piracy can get them banned before they get widely adopted for other purposes.

There's a reason why they said "substantial non-infringing use" instead of asking what percent of existing use it is at some specific point in time.

[GolfPopper]

In the late 80s and early 90s there was a great deal of blatantly pirated SF, Fantasy, and Anime videotapes for sale at conventions, typically recorded from OTA, satellite, or cable for Western stuff. Anime was typically better quality, copied from Japanese originals with fan dubs added. Some of it was "at cost" where you were paying other fans for the their time, equipment, and the tape. Others were more obviously for-profit, with higher prices and sometimes better quality.

To be clear, this was the only way to get most of the stuff being traded and sold. TV shows or films with no VHS release, or anime with no official dub or American format release.

[daveidol]

As a kid I used to buy bootleg Japanese Dragonball Z tapes from a legit store at the mall!

They sold them under the counter. I just wanted to know what was going to happen ahead of all my friends haha.

[thaumasiotes]

> How could the lower court get this so wrong?

There are no standards for lower court judges. They frequently do things that are grossly illegal.

Here's a US lower court judge who spontaneously ordered that a child's name be changed because of the judge's religious beliefs: https://volokh.com/2013/08/12/judge-orders-that-childs-name-...

[HDThoreaun]

> I don't know anyone who sold television recordings, it was always for personal use.

The claim was that recording for personal use was still copyright infringement

[WarmWash]

Given that that judgement was made in 1981, it's possible that the judges (who were likely a bunch of depression era old dudes) had zero knowledge or exposure, and had never even thought much about, personal video recording before a bunch of lawyers tried to explain it to them during the case.

We have see this happen repeatedly with modern tech cases.

[fragmede]

Judges asking things that are obvious to us make for great headlines and quotes, like "what is a website?" or "what is an API?" and "shows" how out of touch they are, but like a judge (trying to) define pornography, making sure the plaintiff, the defendant, and the judge are on the same page seems to me (I am not a lawyer) just good procedure. First everyone has to agree on what a website or an API is before passing judgment on legal matters concerning them that all parties will abide by.

[kstrauser]

Yeah, that makes sense. For the purposes of this court case we’re trying today, is an FTP server a website because you can view it in a browser? An Nginx server pointing to an empty directory? One that only returns 404s? One that only accepts POST and not GET? And is a website an API, because an automated client could send a request and get back a machine-parsable result? Is a JSON response an API? An XML response? An XHTML response? An RSS feed? An RSS feed that’s dynamically generated in response to query parameters?

Lots of things seem facepalmingly obvious until you start exploring the edges.

[lazyasciiart]

I worked with a team of developers who were totally confused by my attempt to call the thing we were creating a library or SDK and not an API. We built and released a JavaScript client library that talked to a proprietary server product. But if you were a customer, and you used it to build a JavaScript app, you would write code against the library’s API, right?

In the course of that discussion we definitely had some “what is an API” questions.

[wildzzz]

I doubt that. Home video recording, while a new thing in 1981, was not substantially different from making personal mixtapes on tape from radio or vinyl records which had been popular for decades. My grandfather had dozens of 4 track mixtape reels he made in the 60s. You could even go further back and say it wasn't any different than taking a photo of artwork for personal use. You didn't have to be that young in 1981 to understand what home video recording is.

[shiroiuma]

They had the ability to record video at home LONG before 1981. People had handheld "Super 8" film cameras ages before this, which they used to film their own home movies. Of course, this is a little different from videocassettes, just like LPs are different from audio cassettes, but it didn't take a genius to see that home video was going to move to videocassettes before long, they just needed cameras that could record directly to them instead of to film.

[ghaff]

And in fact you had big video cameras attached to battery packs going back to at least the 70s. The tech existed. It was just clunky and barely suitable for consumers.

[AlexCoventry]

Even complete legal novices like me know about the Sony/Betamax case, FWIW. It would shock me if a judge ruling on copyright implications of a technology didn't know about it.

[jeffgreco]

They’re talking about the judges on the Sony/Betamax case, not the new one.

[nine_k]

I suppose that selling is not necessary, distribution is. Record a movie off cable TV, share with your friends, and lo and behold, they're not going to buy the licensed VHS tape! And maybe even not going to subscribe to cable TV! Losses, losses everywhere.

[Joker_vD]

Several years ago, I've read about a similar case somewhere in Europe (Germany?): a group of friends gathered together for a party, and it was either some show on the cable, or they blared some broadcasted music on the loudspeakers, or something, but somehow the police got involved, and the guy at whose house they've gathered was found guilty for illegal broadcasting/retransmission, because apparently, if more than 3 people (without familial bonds) watch the same TV or something like that, then yeah, it's broadcasting, and you need the license and the rights to the material.

[dhosek]

I remember in 1980, when our school got a VCR and television (on a cart to allow it to be moved from one classroom to another). one of my teachers said that she wasn’t allowed to record something off the air at home and then show it in the classroom.

[purpleflame1257]

They were right. I never sold a taped VCR, but my parents used it to time shift Saturday morning cartoons every week.

[nine_k]

Time shifting for personal use is expressly legal (making a personal copy). It was also an early form of ad-blocking, because a VHS recorder could stop recording at a set time, thus skip a block of commercials, and then continue. There were suits about that, too.

[da_chicken]

The Betamax case that GP mentions is the same case that established that time-shifting is not copyright infringment. The law and courts were previously both mute on the subject.

[numbsafari]

... because if _use_ of a product creates a liability for the maker, you are very quickly headed toward liability for gun manufacturers. [ed: this is very much discussed in the decision, by the by]

Expect to see heavy lobbying from the music and video industry to create some kind of "Know your Customer" regime internet service providers in order to create such a liability.

I wouldn't call this a slam dunk for privacy or liberty, given what it is going to force the various actors to do in response.

For now, though, let the file sharing flow!

[pdonis]

Yes, the expression "hoist by their own petard" occurred to me when I saw that.