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We can buy technology to record TV shows ... thanks to Justice Stevens

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

On July 16, retired U.S. Supreme Court Justice John Paul Stevens passed away at 99. He served on the high court almost 35 years. He regarded himself as a judicial conservative, but he gained a reputation over time for opinions viewed as liberal.

According to Above the Law, in the world of intellectual property Justice Stevens was well known for his landmark opinion in the 1984 decision in Sony Corp. of America v. Universal City Studios, which held that Sony did not contribute to copyright infringement when it sold to the public its Betamax VCR for "time-shifting" recording of programs and films broadcast on television for later private viewing in homes.

Contributory copyright infringement

In the case, Universal and Disney alleged that members of the public had infringed on the plaintiffs' copyrighted works when they recorded them when they were broadcast on television and that Sony committed contributory infringement because it sold the equipment that allowed people to infringe.  

Fair use

The Supreme Court disagreed. Justice Stevens wrote in his opinion that the Copyright Act did not provide guidance to this question. Applying existing copyright law, the court found that the evidence showed that at-home time-shifting made possible by the Betamax technology constituted "fair use" of copyrighted, broadcast material.

Fair use is an exception that makes activity that might otherwise be infringing allowable. Several factors are weighed to decide whether a use is fair. In this case, the court emphasized the not-for-profit, noncommercial nature of private time-shifting recording. Also, even though users record entire shows or films, recording for later viewing of a copyrighted work that the owner had essentially invited them to watch free of charge anyway diminishes the usual weight against fair use of copying an entire work.

Harm to market or value

Finally, the court felt that the plaintiffs did not show that home time-shifting created a "meaningful likelihood of future harm" to the market for or value of the copyrighted recordings, again supporting a finding of fair use.

Further, the court said that Sony showed a "significant likelihood" that large numbers of those who own copyrighted television programming would be comfortable with private time-shifting recording of those copyrighted works. In addition, the evidence did not show "any likelihood of nonminimal harm to the potential market for, or the value of" the copyrighted works.

Justice Stevens and the majority concluded that because the VCR is "capable of substantial noninfringing uses," Sony could sell the technology without committing contributory copyright infringement. After all, Sony has "no direct involvement with any infringing activity."

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