CONGRESS had been waiting for the Supreme Court to decide the Betamax case before it proceeded to pass legislation. Now the court has announced that it wants to hear the case argued further next fall, which puts off a decision until next year. But since Congress intends to act in any event, why wait? Why not settle the question now in Congress, where it ought to be settled?
Congress has not delayed for the high-minded reasons that you may have heard--to allow the court to clarify the legal framework, and so forth. The real explanation, low-minded but practical, is that in a divided Congress each side was hoping to get some help from a favorable court decision. But the Supreme Court, in its present mood, is more likely to produce a fistful of diverse opinions that only add to the confusion.
The present version of the copyright law was passed in 1976, before video recording had become common. Two years ago an appellate court in California held, in a rather strained opinion, that you violate that law when you use your video cassette recorder at home to tape a copyrighted television program for your own use. If that's true, why has Congress never prohibited the practice, widespread for many years, of taping radio music?
It's obvious that Congress does not intend to make video recorders illegal or to try to prevent people from taping television shows. The real issue is whether to impose a special sales tax on recorders and tape to create a fund paying royalties to the owners of the copyrights. That might add up to quite a lot of money, which helps explain the vigor of the legal discussion, not to say lobbying, that surrounds the issue at the Capitol.
But it's a fundamentally bad idea. Copyright protection properly applies only to commercial use. If people tape programs at home only for their own pleasure, that should not be regarded as an infringement, and the producer is not entitled to additional royalties. If the tape is to be sold or rented, that is an altogether different issue, and there the royalty is legitimate. But if you set your recorder to tape a program on a night when you are going to be out, so that you can watch it on the following evening instead, it is hard to see why you should be required to contribute to a fund for the benefit and further fattening of the movie and television industry.
Sen. Dennis DeConcini has written a bill to make that distinction clear, and will now make another effort to get it moving. The issue is clear. There's no need for Congress to wait for further court hearings.