Home videotaping gets the OK

One thing you have to say for a written constitution, or at least for the American form of it, is that in a turbulent world, where none of us can be sure for long what are the limits of public behaviour, what's lawful to do, what is outrageous, when and when not to say, 'You can't do that there 'ere', in this country at least there is a final arbiter, as there is not in most parliamentary countries.

It's the Supreme Court of the United States. It has the final say on a range of things at issue as vast as human behaviour itself. It has ruled on capital punishment, religious authority, racial discrimination, whether a baseball club can allow a player to seek a fatter contract, whether an insurance company can hold stock in an undertaker's firm (it can't), whether women employed by a television network as news commentators are employed for their looks or their intelligence – that's gone through two courts and is in doubt – whether a convicted man who fears for the brutality of men's prisons has a constitutional right to be incarcerated in a women's prison (he can't), whether a merger of big businesses has got too big for healthy competition and should be broken up into smaller companies, whether you and I, getting on a bus and hearing mechanical music being piped at us, can claim that our rights to peaceable assembly have been violated. In a Washington case, the court said yes, they had been.

All these things and many, many more have been ruled on and this week, the court pronounced on the very touchy question of whether I am a criminal. On the docket, the case was not listed as Universal City Pictures and Walt Disney Productions versus Alfred Alistair Cooke, but it might just as well have been. The defendant was the Sony Corporation but implied in the suit was the status of me as a criminal co-conspirator – me and about nine million other residents of this country who, the movie companies said, did knowingly and wilfully, deprive the said companies of their just recompense by illegally taping the products of such companies on a home video recorder.

The movie companies did not file suit against me and the other eight million for the obvious reason that the mere accumulation of writs would have choked the printing presses and then the mails. The defendant of the first part, the Sony Corporation, manufactures the machines on which the sneaky nine million throw the switch and record for free 'Gone With the Wind' or 'Star Wars' or whatever which, before the invention of the video recorder, we should have had to see by slapping down our money at the box office or watching on television in replay, along with the accompanying, ensnaring commercials.

Some of you may recall the hullabaloo three years ago when an appeals court in California ruled in favour of the movie companies and declared, in effect, that home recording was a criminal act. We were all pretty scared then but greatly relieved when experts in copyright law said that rounding up the criminals would require maybe many thousands of federal agents to catch us at it by breaking into our homes, which would then bring up another protection of the constitution, which the far-seeing Americans of 1791 had the wit to write into the Bill of Rights, to wit, the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.

In other words, as many lawyers said at the time, if the law came to forbid home taping, it would be as difficult to enforce as the constitutional amendment of 1920 forbidding home consumption of illegally manufactured intoxicating liquors.

That was the infamous 18th Amendment to the constitution – a noble but disastrous law that created a whole generation of criminal bootleggers. It also, human nature being what it is, made legal liquor impossible to get and illegal liquor as tantalising as Eve's apple, whereupon millions of respectable Americans who otherwise wouldn't have drunk at all got an irresistible itch to taste the forbidden nectar.

By the time I arrived in this country in 1932, there was hardly a household from the mansions of state governors down to the cottages of humble, dirt farmers that didn't have some of the illegally manufactured hooch locked away in a safe or a desk or in the barn.

Well, eight years after the movie companies sued Sony, the issue has exhausted the jurisdiction of all the lower courts and came at last, this week, to the court of courts – to the nine old men, we used to say, now to the eight old men and one not-so-old woman. And it was an enormous relief, I can tell you, to open the paper on Wednesday morning and there read in a headline the wonderful, the liberating word, 'Innocent'.

In the original document of the suit, the movie producers did say that the home taping of copyrighted movies involved burglary but the producers, out of their deep compassion and also their horse sense about what was possible, were not going after you and me in the first instance, that would come later. The prime villain was the company or companies that made the machines that corrupted the homebody taper. The producers' main point is that once a film was out and exhibited and had collected the money on its first showing, that would be the limit of the producers' revenues. The resale value, they said, was drastically diminished.

Put it another way, the producers were saying that not only would fewer people go and see a movie they'd missed at its first public showing, but that once it was sold for television, people would tape it and the TV networks would not pay vast sums to show it again. Anyone in the movie business or the television business will tell you that the producers certainly have a point.

Now the point which has everything to do with copyright law is so knotty that the Supreme Court heard oral arguments over a year ago, apparently could not achieve a majority decision and then heard oral arguments all over again during this term. The copyright law had a massive overhauling in 1976 after Congress had sweated away on it for several years. The overhauling was made necessary by the invasion of new technology in the business of printing, especially the arrival of photocopiers which made it possible – which made it common practice everywhere – for readers, students, libraries, to photograph a book, a paper, a magazine and use it instead of having to buy a copy of the original, but even since 1976, technology has been coming on at a gallop.

The revised copyright law does not mention home video recorders. I have to rub my eyes at that date. I remember when a friend of mine did a television series and he was about to sign a contract with the production company for a simple fee. His lawyer looked over the contract, amended it to allow royalties for replays of the programme and then astonished both sides, including his client, the author, by saying, 'Wait a minute! There's nothing in here about video cassette sales!' The author said, 'Video cassettes? There's no such thing!' His lawyer said, 'No, but there's going to be!' That was in 1972. 'How right he was! ' as his client, the author, often said, over and over to himself with deep satisfaction.

Well, the case of Universal City and Walt Disney Productions versus Sony was rejected at first by a federal district court in California. On appeal, it went to the United States Court of Appeals in California and it alarmed us all, the sneaky nine million, by reversing the ruling and upholding the studios, ordering the lower court to make some provision for damages. The idea then was that the lower court would work out a system of royalty payments to be made by Sony to the studios. This meant, of course, that Sony would pass the royalty on to the home taper by raising the price of the recording machines and the price of blank tapes.

We though that would be it and we grumbled, only slightly, at the coming increase in price. But Sony went on to the Supreme Court and finally, on Tuesday, the court said it did not find that the copyright law had been violated and that consumers – that's us – were not breaking any law because there is, so far, no law to break.

As the judge who wrote the majority opinion put it, 'It is not our job to apply laws that have not yet been written'. The same judge, Justice Stephens, said that all the precedents in copyright law provided no guidance. The nearest analogy he could cite was a doctrine in patent – or 'Pah-tent' – law called Staple Article of Commerce. Now this says that if you hold a patent – a 'Pah-tent' – on something that is legitimately used in commerce and somebody else uses it for an illegal or improper purpose, you will not be held responsible for his or her misuse, but even then Justice Stephens said it didn't exactly fit the case of home taping.

It's a tricky issue, no question. The court's vote was a bare five to four majority. So, at some point, one judge swayed the verdict. What the court said in the end was, 'Now it's up to Congress to make a relevant law' and, needless to say, the movie producers have sworn to fight for one. So far, the Congress is only mildly interested. I'll bet several of them are diligent home video tapers.

On another and vital subject, the small town of Fairfield, Iowa has recently been inundated with thousands of the disciples of the Maharishi School of Transcendental Meditation and many of them want to stay. After a mass meditation in December, the guru's disciples remarked that the stock market had gone up, the weather improved and Mr Shultz and Mr Gromyko were going to meet in Stockholm. They maintain not only that they feel better after a bout of meditating, but that their new sense of peace can affect the whole world and bring in Utopia.

In the meantime, the town is clogged with traffic, the college is overrun by meditators and the city fathers are in a tizzy. One of them, gazing at the horrendous problems of housing, traffic, sewage, said, 'If they want to spread peace end enlightenment on the face of the earth, they'd better start with Fairfield, Iowa.'

And a storekeeper noticing that the temperature had just gone down to 25 below zero Fahrenheit said, 'If this is Utopia, we don't want any more of it!'

This transcript was typed from a recording of the original BBC broadcast (© BBC) and not copied from an original script. Because of the risk of mishearing, the BBC cannot vouch for its complete accuracy.

Letter from America audio recordings of broadcasts ©BBC

Letter from America scripts © Cooke Americas, RLLP. All rights reserved.