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> 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 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?

lvspiff 7mo ago
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 7mo ago
  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 7mo ago
    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 7mo ago
    > 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.
nine_k 7mo ago
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.
- dhosek 7mo ago
  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.
- Joker_vD 7mo ago
  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.
pavon 7mo ago
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 7mo ago
  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.
  - indymike 7mo ago
    Camcorders were not, but cameras and portable battery powered tape decks were.
  - Aerroon 7mo ago
    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.
- bahmboo 7mo ago
  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 7mo ago
    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.
WarmWash 7mo ago
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.
- AlexCoventry 7mo ago
  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 7mo ago
    They’re talking about the judges on the Sony/Betamax case, not the new one.
- fragmede 7mo ago
  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 7mo ago
    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.
thaumasiotes 7mo ago
> 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-be-changed-from-messiah/ https://volokh.com/2013/08/12/judge-orders-that-childs-name-...
HDThoreaun 7mo ago
> 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
GolfPopper 7mo ago
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 7mo ago
  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.

lvspiff 7mo ago

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 7mo ago
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 7mo ago
  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 7mo ago
  > 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.

nine_k 7mo ago

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.

dhosek 7mo ago
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.
Joker_vD 7mo ago
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.

pavon 7mo ago

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 7mo ago
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.
- indymike 7mo ago
  Camcorders were not, but cameras and portable battery powered tape decks were.
- Aerroon 7mo ago
  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.
bahmboo 7mo ago
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 7mo ago
  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.

WarmWash 7mo ago

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.

AlexCoventry 7mo ago
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 7mo ago
  They’re talking about the judges on the Sony/Betamax case, not the new one.
fragmede 7mo ago
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 7mo ago
  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.

thaumasiotes 7mo ago

> 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-be-changed-from-messiah/ https://volokh.com/2013/08/12/judge-orders-that-childs-name-...

HDThoreaun 7mo ago

> 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

GolfPopper 7mo ago

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 7mo ago
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.