Many Americans are mourning John Paul Stevens, the retired Supreme Court justice who died Tuesday at age 99, as the liberal lion who stood for gay rights, campaign-finance reform and government power to regulate gun ownership.
All true. But let us never forget Stevens’ most transformational cultural contribution on the court — as the intellectual godfather of binge-watching.
Seriously: Stevens was the author of a landmark 1984 ruling that thwarted the entertainment industry’s efforts to control in-home video recording of television programs, clearing a legal path not only for the VCR but also for all the consumer-controlled viewing that followed it — from the DVD to Facebook to Netflix.
Long ago and far away, during the late 1970s, the hot new technology was something called the Betamax, a gizmo from Sony that enabled you to record your favorite TV show on a clunky cassette tape and then play it back at your convenience — or sell it.
Sensing, correctly, a threat to their absolute monopoly on copyrighted material, but unable to go after every homeowner in America, Hollywood took aim at Sony, suing in federal court to make the Japanese company either stop selling Betamaxes in the United States or pay handsomely for the right to do so.
“The VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone,” Motion Picture Association of America lobbyist Jack Valenti warned Congress in 1982.
Long story short, one appeals court in New York sided with Sony and one appeals court in California sided with the key plaintiff, Universal City Studios. Therefore, the Supreme Court had to settle the issue.
The court itself was bitterly divided and, according to subsequent historical accounts, there was a good deal of backstage wrangling.
Stevens fervently believed Sony was in the right, but his opinion started out as a dissent. Eventually, however, he assembled a narrow five-vote majority for his view that the maker of a device, like the Betamax, that has legitimate purposes that don’t infringe on copyright — such as copying a TV show to watch it later yourself — cannot be held liable for the illegitimate uses to which consumers might put it.
To rule otherwise, he reasoned, would essentially hold creators of new technology hostage to incumbent owners of intellectual property, thus hampering innovation and economic growth.
“If liability for contributory infringement were imposed on the manufacturer or seller of every product used to infringe — a typewriter, a camera, a photocopying machine — the ‘wheels of commerce’ would be blocked,” Stevens wrote.
In hindsight, it’s hard to see how Sony could have lost: One of the company’s expert witnesses in the lower court was the benign Fred Rogers, creator and host of PBS’ “Mister Rogers’ Neighborhood.” This paragon of friendliness testified that “he had absolutely no objection to home taping for noncommercial use and expressed the opinion that it is a real service to families to be able to record children’s programs and to show them at appropriate times,” Stevens’s opinion noted.
How myopic, by contrast, seemed dissenting Justice Harry Blackmun’s concern about “eroding the very basis of copyright law, by depriving authors of control over their works and consequently of their incentive to create.”
In any case, Hollywood adapted its business models and Stevens’ opinion created lasting legal protections for both makers and users of home recording technology. Without those protections, intellectual property law expert Robert Schwartz wrote in 2014:
“We could not today buy most consumer digital products or log on to most online services that search for, store, and respond to copyrighted information. All online services, as well as digital devices like DVRs, smartphones, and tablets, must routinely store and display copyrighted information and programming based on consumer searches and requests. Most do not or cannot require advance permission. The Internet itself would have remained a closed circuit primarily for government, educational, and industrial use.”
So next time you reach for the remote and begin surfing through the comedies on Hulu, take a moment to thank the man who made it all possible: Justice John Paul Stevens.