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By Root 2017 0

of the home." The Chicago Tribune added bluntly and resonantly that the verdict made "Everyman a copyright infringer." It meant that "three million Americans ... are little more than modern-day pirates," warned columnist Philip Shenon-adding for good measure that "the average American" was probably now an offender. Lawrence Tribe even told Congress that home taping was forbidden by the Constitution. Arthur Levine, a Washington lawyer, identified the chang- ingplace of productive and creative technologies as the focus of the issue. Tape recorders, he pointed out, and imminently computers too, allowed citizens to "become their own printers and publishers, their own television producers and record recorders." Countless millions risked being defined as "instant criminals." Entrepreneurs bought advertising space to encourage panic buying of VCRs and tapes.29 Outlawing video would be tantamount to enacting Prohibition in the cultural sphere.

Sketches and op-ed pieces proliferated warning of some prospective video police force (fig. 15.2 is just one example), many of them unconsciously indebted to a long tradition of invoking teenage pirates. "Gray men in greatcoats" would break into your house to arrest toddlers, Americans read; AWACS planes would be deployed over suburbia to erase their tapes en masse by electromagnetic fields. (The Reagan administration was mired in a controversy over selling these aircraft to Saudi Arabia, so the conjunction leaped readily to mind.) G-men appeared in countless cartoons, "breaking down the bedroom door in search of contraband Mork and Mindy." Inconsequential as they may seem today, these parodic warnings had an effect. One commentator thought the prospect of such home invasions would provoke a backlash against big government in general, and bring about "the final collapse of American liberalism." More modestly, the industry lobbyist Jack Valenti was later heard to blame the RIAAs defeat on them. In the short run, they certainly helped prompt two bills to appear in Congress aiming to exempt all households from piracy charges, one representative having scribbled out a draft on the spot.30

FIGURE 15.2. The video police. "Metro police, Betamax squad." Chicago Tribune, November io, 1981, sec. 1, 17. © Tribune Media Services, Inc. All rights reserved. Reprinted with permission.

But what really did go on in the home? The perennial problem of answering that question loomed large and early. Universal quickly tried to tackle it by getting hold of a list of Betamax buyers in Los Angeles and dispatching private investigators after them. A judge swiftly intervened to stop this. Both sides then retreated to survey research of the kind pioneered by mid-century radio researchers. They identified two ways in which householders apparently used their video recorders. These were soon dubbed time-shifting and librarying. Time-shifting-recording a program for watching later-was the more benign. Librarying was more controversial, because it involved the preservation, not just the rescheduling, of programs. The implicit claim to a curatorial or custodial prerogative in librarying was also pertinent. In its higher forms it evoked a moral economy similar to that of the pirates of the fifties. (The copyright expert for Sony, it is worth noting, had cut his legal teeth in those opera cases.) Both practices played apart in the Supreme Court's two examinations of the issue, the first of which was on January M, 1983. By then it had attracted more amicus briefs than any other case in history, including one from the American Library Association. The studios lost no time in asserting that householders' routine practices were "no different than tape piracy." "The fact that it is at home," they insisted, "makes no difference."31 But with so many homes involved-it was forecast that videos would soon be in 40 percent of U .S. households-location made all the difference.

In their private deliberations the Supreme Court justices returned to the congressional hearings prior to the 1971 measure against home audio taping. They