The guy who makes unauthorized use of your Chrysler is a car thief, and is subject to prosecution, whether it is recovered intact or not. Protection of property is one of the key functions of law.
But there is property and there is property. Your car, your home, your wallet clearly should be protected from uses you don't approve. Even books, songs and ideas are protected by copyright and patent law. It doesn't take much imagination in this electronic age to conclude that the law's protection ought to extend as well to electronic signals.
Of course it ought to. The question is: how?
Sony, whose Betamax system pioneered the home recording of television broadcasts, has been found liable for contributory infringement of copyright in a case brought by Universal City Studios. Sony has appealed all the way to the Supreme Court. It's hard to imagine a satisfactory decision.
Universal, presumably accepting the impossibility of banning the use of videocassette recorders, of which some 5 million are already in private use, wants the government to collect and distribute a royalty of $50 on the sale of each recorder and $2 on blank videotapes. The recording industry-- facing a similar problem in the "theft" of its music from records and radio broadcasts by owners of home tape recorders--wants a similar user fee.
The industry argues convincingly that technology has made it possible for people to acquire its products without purchasing them. It argues less convincingly that the solution lies in taxing the technology.
I use my videocassette recorder primarily to capture TV movies I would otherwise miss. My neighbor uses his primarily for showing rented movies (on which royalties have already been paid). I use my stereo tape deck for copying and preserving phonograph records on which the royalty already has been paid, for copying records borrowed from friends, and for recording music (or presidential addresses or political debates) off the air. Should the industry collect a fee from the guy who sold me my equipment--a fee that would certainly be passed along to me?
The blank tapes I use in these "thefts" are exactly the same as those I use for taping interviews in the course of my newspaper work. Why should ASCAP collect a royalty on my recording of an interview with a member of the local school board?
I cannot see how the necessary distinctions could be drawn among these various uses and, as a result, I cannot see how the Supreme Court can hand down a ruling that will make sense to both me and the movie and recording industries.
It gets worse. It is now possible to buy "dish" antennas that make it possible to "steal" satellite signals of HBO, Super TV, the all-sports network and virtually everything entrepreneurs sell over cable TV systems. Clearly, the sellers of these supposedly limited broadcasts are hurt if you can skip past them and take their signals directly from the air. But what should--what can--the government do to protect such intangible property?
Jack Shafer, in a nicely balanced piece in the May issue of Inquiry magazine, concedes that the industry has a point.
"The invention of cameras, phonographs, radios, and photocopiers all raised similar questions," he says. "Legal precedent strongly supports rewarding copyright holders for the sale or rental of their works."
But technology has introduced new, perhaps unsolvable, problems. Shafer suggests that the entertainment industry "stop looking for ways to punish 'fair use' home taping by using the power of government to collect taxes." It would make more sense, he says, for the movie industry to capture the market by sharply reducing the cost of its prerecorded videotapes (presently around $70). Make them cheap enough, he argues, and home users might find it unattractive to spend $15 for a blank tape.