Thirty years ago this week, the Supreme Court said that it was legal for people to make home recordings of TV shows. That decision, Sony v. Universal (and often called "the Betamax case"), said that home taping was a fair use, and not copyright infringement. It is rightfully praised as showing that individuals using new technologies to make personal copies weren’t pirates; that fair use wasn’t just for teachers, media critics, or journalists. Ordinary consumers had the protections of fair use, too, when making use of a new technology to consume the media they liked and had a right to (since they paid for it or it was given to them).
But occasionally, Sony seems to be a less-than-complete victory. And a large part of that is because it’s based on fair use. Fair use is a fundamental part of our copyright laws, intended to make sure that they don’t end up hampering free speech, personal rights, or other constitutional principles. But knowing what uses are fair isn’t an exact science. Fair use was designed to be flexible, so that it could be applied to lots of new, unanticipated situations. But that means that the law provides general guidelines that make clear cases easy, but that leave a lot of gray areas in the middle. This leads to a couple of troubling consequences.
The bigger problem, though, is that today’s consumer makes dozens (or hundreds) more copies in the course of her day than the average American of 1984. Any time you use a computer, you’re making copies, whether you want to or not. It’s not just that your laptop has the ability to make copies; it’s that it needs to make copies in order to work. If you're reading this on a computer screen, you've made a copy of it. Listening to an mp3 makes copies of portions of it as you listen. The buffering you computer is doing as it loads a streaming video? Copying. Copying is more pervasive and more essential than it ever was.
Thirty years ago, if you weren’t a print shop or a large media company, you would only be making copies if you used a specialized machine designed for copying—audiocassettes for music, videotapes for TV and movies, a photocopier or mimeograph for text. Computer programs were less mainstream, and the home computers that ran them certainly didn’t have the power or storage capacity to deal with most media.
So finding individual fair uses makes sense for specific categories, and it can pave the way for entire industries, sure. But can we expect to go to court every time someone comes up with a new way people can make personal, non-commercial uses of media they’ve already paid for?
But fair use isn’t the only way we can balance copyright laws. Copyright law has other limitations and exceptions built in to it—doctrines that apply across the board, regardless of the specific technology at work. For instance, while you can’t exhibit a movie publicly without permission, you can watch it at home to your heart’s content. Or if you’re the legal owner of a lawfully made copy of a work, you’re allowed to sell or distribute it any way you want.
It’s time that copyright law recognized that copying, by itself, doesn’t hurt copyright owners. Certainly, you want to prevent piracy, but the number of pirated copies made each day is completely dwarfed by the number of legitimate copies made through simple computer use. Our making of those copies is so automatic and so necessary that we don’t even think to count them—until someone decides to use them as leverage in a lawsuit.
So why not ease some of the burden placed on fair use by creating a clearly defined right for people to make personal, non-commercial copies and adaptations? So long as those uses don’t affect the author’s market for the copyrighted work, they should be found to be legal—and without having to even consider the various other factors that can complicate fair use arguments. This wouldn’t just keep computer and electronics companies out of trouble, it also would remove a sword that hangs over the heads of consumers as they go about their daily digital lives.
It’s a step that might have seemed a leap in 1984, just after Sony was decided—a case about a particular kind of machine being used for a particular purpose. But thirty years of experience and progress has shown us that the driving force behind the Sony decision’s continued relevance isn’t just the legal doctrine of fair use, but the simpler idea that we should be able to make of personal uses of the media we love. And that’s an idea that, regardless of the cases in the courts right now, is more relevant than ever.
Siy is vice prsident of Legal Affairs at Public Knowledge.