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By Root 2023 0

did so because prior to that the law had effectively permitted "record piracy," and the hearings, impelled by the rise of large-scale piratical enterprises, had been a turning point. They had rendered the prospect of home searches moot by permitting noncommercial, domestic taping. But this permissionwas not explicitly reiterated in the subsequent Copyright Act of 1976.32 Moreover, unlike sound recordings, movies had been protected by copyright ever since 1912. In their case there had never been an explicit allowance for noncommercial copying. The only refuge of the video taper seemed therefore to lie in the fuzzy, almost ineffable notion of "fair use."

Long recognized as a peculiarly difficult and controversial subject-as it still is today- fair use represented a compromise central to the conundrum of intellectual property. There clearly must be occasions when the principle of property has to leak a little. The use of quotes in criticism or research is an evident example. The conventionally accepted origin of a concept of fair use to address such occasions occurred in 1841, when W. W. Story decided that a 350-page excerpt of George Washington's published correspondence did not qualify It was "piracy," he ruled, not "justifiable use" or (in British Lord Chancellor Eldon's phrase) "fair quotation."33 But Story famously remarked that the question of how to tell fair from unfair use was almost metaphysical, involving distinctions "very subtile and refined, and, sometimes, almost evanescent." Only in 1976 did a statute attempt such a definition. It listed four "factors": the purpose and character of the use (profit or nonprofit/educational); the nature of the work; the "substantiality" of the extract; and the consequences of the use for the market of the original. Even these were to be included in a decision about fairness, not decisive for that decision. The House report of the time contented itselfwith noting that fair use was "an equitable rule ofreason," for which no definition was possible.

The major contention in the Court therefore arose overwhether home copying was "fair." John Paul Stevens thought it was. Home-produced copies had never mattered until taping came along, he pointed out, and the 1971 hearings had then resolved the issue. This being so, the threat to privacy involved in any attempt to "control conduct within the home" must take precedence. Furthermore, holding Sony liable for contributory infringement would leave the corporation with a "truly staggering" bill: the statutory amount of S io o per copywould add up to billions of dollars. Such an absurd punishment would discourage the development of new technologies-hardly the purpose of copyright.34 Thurgood Marshall, however, claimed that while fair use quotation in a review or critique served the public interest because it was productive, home taping was intrinsically unproductive and therefore should not qualify. Moreover, the letter of the law stated that use need not affect an actual market value in order to be disqualified-it was enough to show that it impinged on apo- tential value. The industry had never yet been able to show a real loss from home taping, rather to its embarrassment, but it had shown the potential for loss. Advertisers might well refuse to pay the same fees if they thought that viewers were pressing fast forward to skip through ("zap") commercials. As Marshall clung to this view, it became clear that a consensus was going to be hard to find. After "many late nights," the justices decided to start again.

A very unusual second hearing took place in a crowded courtroom on October 3. Universal's parent had just announced record results, and the judges seemed more worried about policing millions of homes than about industry revenues.35 That impression was confirmed when the final decision was announced onJanuary 17,1984. Splitting 5-4, the Court decided in favor of Sony, with Stevens writing the opinion. The VCR did have substantial noninfringing uses, they concluded, of which time-shifting was one. Stevens particularly noted that the