Video tape copyright claim

As I was saying when the clock struck, I was slightly stunned, a week or so ago, to find that along with three million other residents of this country, I am a criminal or – if you will excuse the word – a 'putative' criminal. That's to say, I'm supposed to be one until a higher court rules otherwise.

Higher than what? Higher than an appeals court in San Francisco whose amazing judgment made three million video cassette recorder owners feel like those wary Americans of 50 years ago who secretly made alcoholic beverages in their own homes.

Perhaps I was always cut out for a life of stealthy crime. I'd not been in the United States a month before it was my turn to serve as host to my undergraduate neighbours at Yale and their girlfriends who'd come up to New Haven for what they call 'a football weekend'. The game itself was only the beginning. Afterwards, everybody went back to his room and his girl to the hotel, dressed up for the evening and assembled in somebody's rooms for cocktails.

Cocktails? But cocktails were illegal, were they not? They were, by an amendment, the 18th, to the constitution ratified as required by three-quarters of the states in 1919 and subsequently enacted into law by Congress. The text of the new law was brief and specific. It said, 'The manufacture, sale or transportation of intoxicating liquors within the importation thereof into or the exportation thereof from the United States and all territories subject to the jurisdiction thereof for beverage purposes is hereby prohibited.'

If anyone had shown me a copy of the 18th Amendment before I sailed into New York harbour I would, as a law-abiding, not to say a law-terrified subject, I would have been horrified but by 1932, the Prohibition Law had become as ridiculous in practice as one of those old New England blue laws which, on pain of a heavy fine, forbade unmarried couples to kiss in public and sent boys to jail for playing ball on Sunday.

Anyway, I got into the spirit of the thing without a trace of misgiving. On the Friday evening before the football game, a small, chunky man in an overcoat knocked on my door at Harkness College. He handed me a half-gallon bottle and I handed him in return two or three dollars, a heavy price in those days. The bottle contained alcohol – a colourless, volatile, inflammable liquid of primitive potency. From the chemist, I'd procured some distilled water and also a little bottle of juniper drops.

Under instruction from the neighbour who inhabited the rooms next to mine, I poured the alcohol into the bath, or bath tub as I was learning to say, stirred in the distilled water and sprinkled on it, as at a baptism, the juniper drops. This compound was allowed to settle overnight and next morning it was poured into several quart bottles. It made a terrific brew, compared with which the average bottle of gin today would be as guileless as mother's milk.

Talk about baptism by fire! Within ten minutes of the first draught nobody felt any pain, least of all the one or two heroes present who'd suffered violent injuries on the field. By 9 pm the place was as silent as an opium den, except for the sound of a wind-up gramophone emitting the voice of Fred Astaire and the band of Leo Reisman playing 'Night and Day'. You may think this an unworthy scene and so it was. Today, at such parties, not many of the undergraduates would be drinking hard liquor at all. Nowadays they seem to prefer white wine.

The failure of prohibition, its rapid decline from a noble experiment into a squalid industry making fortunes for families of gangsters, is easily explained. It's the old story of forbidden fruit, when the fruit is something as common and desirable as an apple or a banana. Once liquor was made legal again, as it was in 1933, drinking habits of the young, especially, changed drastically. They could have it any time they wanted, so they found, quite often, that they didn't want it.

I go into this allegory because it seems to me likely that some of the same disastrous consequences could follow on the ruling of that appeals court in San Francisco. Let me remind you of the history of the case.

Six years ago, 1975, the renowned Japanese firm of Sony introduced to this country the first video cassette recorder. It cost then a whopping thousand pounds but Sony had prepared the way with tantalising advertisement that proclaimed the New Age in which you would not have to stay home to see a favourite television programme or the nightly news. You set a clock and pressed a button and presto, it was recorded and you watched it any time you chose.

It occurred to people early on that this was a splendid device for amassing your own library of favourite or famous films and it occurred to the movie producers within the year that this might also become a very simple device for bankrupting them. At any rate, they went into panic and in 1976, Universal – the one big-time Hollywood studio in continuous operation – Universal and Walt Disney Productions sued Sony, charging them with abuse of the copyright law.

The filing of the suit did not make many headlines at the time. They were, as yet, too few purchasers of the marvellous gadget. I remember taking it up then with a close friend who was a specialist in theatrical law. Like any other outraged layman, I declared the suit to be preposterous in the sure knowledge that my lawyer would agree with me. 'You might as well,' I said, 'you might as well say that from now on only Eastman Kodak are allowed to take photographs, that all home-owned cameras must be destroyed since they prejudice the livelihood of professional photographers. After all, lots of people don't go to the local photographer for their wedding pictures any more. They have a friend who's a mean man with the latest Japanese camera.'

My lawyer was unimpressed. He told me that the copyright law is very subtle and has been much thought about and that, though like many other laws it can change with the times, he thought there were strong precedents to support the plaintiffs. 'It'll likely fail,' he said, 'the first time round but when it gets to the appeals court, they'll probably uphold the plaintiffs who claim that the action of your taping a film off the air is, by the present copyright laws, an act of piracy. The manufacturer of the recorder can be judged to be a pirate and the salesmen and the home users are contributory infringers of the copyright law.'

At the time it seemed unlikely, unreal, that the DA should come barging into my apartment and arrest me, if not as a pirate, then as a contributory infringer. We forgot about it until ten days ago when, as I reported, the ruling of the appeals court hit the front pages of most newspapers and was slammed across the Los Angeles Times as a banner headline.

It's big news now because there are three million American with home recorders and by 1986 it's calculated there'll be eight millions and so on and on. The two movie studios didn't just cite a flock of detail taken from the general body of the copyright law, they specified the doctrine of fair use which was incorporated into the copyright law and passed by Congress in 1976. The analogy the studios argued on was the case of an author who writes and publishes a book. If I have a copying machine at home, I could buy one book and make copies of it for my friends, thereby drastically reducing the author's royalties and his standard of living.

Come to think of it, if the suit had been brought against a machine that did just that, I would have been one of the first injured parties to howl for reparations. You can copy 200 words or a page maybe and quote it in a scholarly work and that constitutes fair use. Similarly, the studios contended, persuasively I should say, that if everybody who might have bought a print of a favourite film from Universal now taped it off the air instead, Universal, too, would suffer a catastrophic loss in its film sales, which it's been doing.

Incidentally, three years before the copyright law incorporated the fair use doctrine, the courts heard a case which allowed documents elaborately defined to be photocopied. Many lawyers now believe that that case may come to be re-opened since the judgment in San Francisco can be extended to saying that photocopying is wrong.

One Los Angelino, a professor of communications law at the University of California at Los Angeles, speaks for a lot of lawyers in thinking that if, as the present ruling implies, the owners of machines can be penalised, then the law is practically unenforceable. The middle class, he said, would be breaking the laws in their own homes and that, of course, is what happened with prohibition. It was a dangerous law to defy in the beginning but, in no time, one million, two million, thirty million citizens were going ahead and making their own liquor or buying it from bootleggers.

It didn't purify the republic, it created a new criminal class and I imagine that if, when Sony takes it up to the Supreme Court, that final arbiter upholds the studios, we could see the mushrooming of a vast, illegal taping industry.

Well, for now at any rate, the general guess is that this won't happen, that Congress will pass a new law requiring the manufacturers of video cassette recorders to pay a percentage of their gross sales into a general fund from which the movie and other producers can draw their royalty. That would mean, of course, a stiff hike in the price of recorders and tapes. We shall see.

We have seen this week that President Reagan won his battle to sell those AWACs to Saudi Arabia. He convinced many senators that Saudi Arabia is a relatively stable country but two other considerations, I believe, boosted them into a majority.

One is that the AWAC planes won't be delivered for another five years, by which time they'll surely be a new president. The other point, the clinching point for some wobbling senators was that if the Saudis hadn't got the planes from America, they expected to get them from Britain.

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.

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