Maximum disruption via VCR

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The movie “Never Give an Inch” was the lesser-known of two 1970s films based on Ken Kesey novels (“One Flew over the Cuckoo’s Nest” being the notorious one), but it’s easily the more significant in cable industry history for two reasons.

First, “Never Give an Inch” was the first movie ever shown on the HBO premium service when it made its 1972 debut (by then the movie had been renamed “Sometimes a Great Notion”). Second, the Universal Pictures film was one of a handful of televised programs recorded in the late 1970s by a man named William Griffiths, using a newfangled device known as a Betamax.

Griffiths taped about 20 minutes of “Never Give an Inch,” along with a couple of episodes of the Universal television series “Baa, Baa Black Sheep” and “Holmes and Yo Yo.” Each were cited in testimony Griffiths delivered in 1976 to the U.S. District Court for the Central District of California, where he was a witness in a high-stakes battle between Sony Corp. and Universal Studios, two powerful participants in the media-technology ecosystem of the day.

Griffiths was the everyman of the trial. He was recruited by the law firm representing Universal Studios, and his testimony was meant to demonstrate to the court the manner in which users were employing these new machines. Fortuitously, as it turned out, Griffiths and other Betamax users seemed principally occupied by the practice of “time shifting,” or recording programs to watch at a later time. Separate surveys introduced during the trial by Sony and by Universal had come to the same conclusion: that the predominate application for Betamax VCRs was to time-shift television.

The U.S. District Court for the Central District of California considered the testimony from Griffiths and a parade of industry figures, and concluded that Sony was doing nothing illegal by making and selling VCRs. But the U.S. Court of Appeals for the Ninth Circuit saw things differently, ruling in 1981 that Sony did indeed contribute to copyright infringement by peddling machines that could capture somebody else’s TV show. VCRs, the Court of Appeals scolded, are sold “for the primary purpose of reproducing television programming,” a practice the Court said would diminish the potential market.

That set the stage for the seminal 1984 U.S. Supreme Court ruling, henceforth to be known as the “Betamax Decision.”

In a 5-4 decision (Justice Powell was the swing vote), the Supreme Court came to a narrowly articulated decision: that using a Betamax to record and “time shift” television programs did not constitute harm to the value of copyrighted works. Consequently, when Sony sold a Betamax, because the machine could be used for the perfectly legal purpose of time-shifting, there was no infringement of copyrights.

The Betamax Decision, 20 years old as of January, remains very much part of the firmament of electronic media today. It seems quaint today, in the age not of Aquarius but Morpheus (and Grokster and Kazaa) that a humble VCR would have so threatened the established media order. But the Betamax was a sort of sneak-peek into the future, an early-stage inkling of what was to come as technology and innovation butted up against content producers bent on controlling distribution.

In 2002, when an entire “A-List” of media companies sued digital video recorder maker ReplayTV on the pretense that its “Send Show” feature skirted the dark side of copyright law, the ghosts of Betamax could be heard rumbling to life. Media industry attorneys argued that Betamax established only a narrow legitimacy for home recording as it relates to time-shifting. ReplayTV’s legal team replied that its digital recorder is essentially a better VCR. The two sides were building a different argument, but both were pulling on the same lever: The Betamax Decision.

Betamax rears its head, too, in the FCC’s November, 2003, adoption of the copy protection mechanism known as the “broadcast flag,” a digital message stream, embedded within high-definition program signals, that proscribes redistribution of digital television programs beyond the household. “We wish to reemphasize that our action herein in no way limits or prevents consumers from making copies of digital broadcast television content,” the commission said, offering a formal tip of the cap to Betamax.

Today, almost anything that can record and store media content – from DVRs to Apple iPods – is here in large part because of the Betamax Decision. In homage to that fact, the Home Recording Rights Coalition planted a vintage-1970s Betamax VCR in the center of the press room at the Consumer Electronics Association’s 2004 convention, encased as if a jewel inside a glass box.

One of the industry figures who might have appreciated the gesture was Fred Rogers, the TV production executive best known as “Mr. Rogers” from the PBS series of the same name. Rogers, who died in 2003, also testified in the Betamax case. Unlike most of the television powers of the era, he said he liked the idea of people being able to tape his show. “Maybe I’m going on too long,” Rogers told the Court, “but I just feel that anything that allows a person to be more active in the control of his or her life, in a healthy way, is important.”

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