The Supreme Court, without explanation, ordered a new hearing yesterday on whether home videotaping of television shows is a copyright crime.
A decision on home taping, which has been anxiously anticipated by both the creative community in Hollywood and the rapidly growing home video industry, could have a heavy impact on consumers and industry alike. The court could have authorized home taping, required payment of royalties on video recorders and cassettes or outlawed the machines.
A decision by the Supreme Court was also hoped for by Congress, which had been looking for judicial guidance in this controversial copyright question. Several bills on home taping had been "placed on the back burner," said congressional sources, pending the court's expected ruling today.
However, the court's delay has prompted speculation that Congress may try to move legislation before the court ultimately rules.
"From our point of view, we're going to take this as a signal from the court that Congress should act," said Romano Romani, a legislative director for Sen. Dennis DeConcini (D-Ariz.). "We're going to mount a full-scale attempt to get S. 175 enacted."
The bill, proposed by DeConcini earlier this year, would declare home video taping a "fair use" under existing copyright law and thus exempt from any royalty payments.
The DeConcini bill is opposed to the Home Recording Act of 1983, introduced by Sen. Charles McC. Mathias Jr. (R-Md.), which would impose a royalty fee on video cassette recorders and cassettes that manufacturers would pay and presumably pass on to their customers.
The proceeds would be distributed to film and television producers as compensation for the recording of their copyrighted work. The bill also seeks similar compensation for record companies and artists for songs taped off the radio.
An aide to Mathias on the Senate subcommittee on patents, copyrights and trademarks said the senator will decide "within the next two weeks" whether to press forward with his legislation. "If there is a confluence of pressure from the concerned parties," the aide said, "the odds are good that there will be legislation."
The debate then, sources said, will not be on whether consumers should be permitted to tape, but whether they should have to pay a royalty. If so, the key question becomes how much of a royalty. The answer could mean hundreds of millions of dollars to Hollywood.
The home taping case began its journey to the Supreme Court in 1976 when Universal Studios and Walt Disney Productions Co. filed suit against Sony Corp., charging that its "Betamax" videocassette recorder would lead to copyright violations. The two sought damages from Sony.
To the astonishment of many in the legal community, the 9th U.S. Ciruit Court of Appeals in 1981 sided with the movie companies. Legislation immediately emerged in both houses of Congress to exempt video cassette owners. However, when the Supreme Court agreed to hear Sony's appeal in 1982, the bills went into a holding pattern.
Several observers believe that pattern will continue despite the new delay. "The congressional attitude was in the posture of waiting for a Supreme Court decision," said Charles Ferris, the former Federal Communications Commission chairman who is counsel to the Home Recording Rights Coalition, "and I think that will continue."
However, Jack Valenti, president of the Motion Picture Association of America and one of the more ardent supporters of video cassette royalties, said, "We are going to push forward on this full-throttle. When this suit was filed, there were 30,000 video cassette recorders in this country; by the end of this year, there will be 9 million. Every day that passes is a day of loss for creative people."
The Betamax debate is part of the larger question of how new technologies have eroded existing perceptions of copyright law. Later this month, the House subcommittee on courts, civil liberties and the administration of justice will hold hearings on copyright and technological change. The hearings are expected to address both the home video recording question as well as copyright issues raised by computers and computer programs, such as unauthorized copying of programs on computer discs.