Inducing Unintended Consequences for Libraries

By Newton Minow and Mary Minow

This is the first time I've written a blog entry, but my daughter asked me to relay my experience as the lawyer for the American Library Association during the Sony Betamax case. I told Mary I would do it if she would collaborate and do most of the work.

On a visit to Japan, Mr. Akio Morita, a founder of Sony, showed me an early version of the Betamax. Later, when the Betamax case came up, I thought it would be a good idea to show that much more was at stake than the pocketbooks of the video recorder manufacturers and distributors.

I suggested that the American Library Association weigh in. Bob Wedgeworth, Executive Director of ALA agreed. Mary Hutchings and I wrote an amicus curiae brief urging reversal of the Ninth Circuit decision.

Libraries and the Sony case

The trial court had ruled that home-use copying made possible by the new technology, the Betamax, was fair use. The Ninth Circuit appellate court reversed, saying that home video recording did not constitute fair use.

The appellate court looked disparagingly at a landmark court case for libraries, Williams & Wilkins v. U.S. In 1975, the U.S. Supreme Court upheld the right of libraries to make copies for interlibrary loan as "fair use." That case was quite different from Sony, the appellate court said, calling it the "Dred Scott decision of copyright law." Interlibrary loan copies made by the National Library of Medicine were necessary for society. Without them, "serious damage" could result to medical science. This was different from video tape copies of TV shows, the Ninth Circuit wrote, because

"there is no corresponding countervailing societal benefit to "weigh" against the copyright interests of the author. We do not mean to suggest that increased access to such Disney products as "Chip and Dale/Mixed Nuts" is not a benefit to society. We only mean to say that the consequences attendant upon reduced consumer control of access do not in any way correspond to the deleterious consequences of reduced access identified by the Court of Claims in Williams & Wilkins Co."

American Library Association argument to the Supreme Court in the Sony case

We argued that requiring this kind of countervailing social benefit (the tremendous value of medical research in Williams & Wilkins) would seriously affect public access to information and severely constrict the traditional roles of libraries. Libraries cannot predict or know with any degree of certainty whether the reproduction of an article for a patron is of sufficient social benefit to satisfy such a standard. Such a standard would create a dichotomy between entertainment and education which would restrict public access to information.

Further, as the trial court opinion said, courts should not need to determine whether the "New Mickey Mouse Club" is "mere entertainment," or "educational," or "informational," or "beneficial." As the Supreme Court wrote in Stanley v. Georgia, "The line between the transmission of ideas and mere entertainment is much too elusive for this Court to draw, if indeed such a line can be drawn at all."

Supreme Court Ruling in Sony case and aftermath

As we all know, the Supreme Court ruled 5-4 that home recording on the Betamax video recorder was fair use. Famously, it wrote that the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement of a copyright if the product is widely used for legitimate, unobjectionable purposes, or even if merely capable of substantial noninfringing uses.

The irony is that the movie studios lost the case, yet profited enormously by the unforeseen consequences of the ruling. Today the movie industry makes more money from video rentals than it does from theater releases.

Why the INDUCE Act is bad for libraries and society at large

Others have written about the impact the Inducing Infringements of Copyright Act (IICA) legislation would have on thwarting new advances in technology. Back during the Betamax case, we didn't foresee TIVO and all the technological innovations yet to come. The point is, you can't let law impede inventions and technology.

I'd like to add that the Act could make the "fair use" defense by libraries all but disappear. As written, even noncommercial use is not a safe harbor under the Act. Even assuming that is amended to exclude noncommercial use, would libraries need to screen each and every user as to whether a copy would be for commercial use? Building on our argument in Sony, libraries cannot predict or know with any degree of certainty whether the reproduction of an item for a patron will end up having a commercial use.

INDUCE could shift the library away from its traditional role as information provider who leaves responsibility for copyright compliance to the library patron. Instead, to cover itself from liability, it may need to audit library patron uses to make sure the library does not intentionally aid, abet, induce, or procure an infringing copy. Even if the law were to clarify that a library had no responsibility to audit patron use, a question still remains if a library discovers a patron downloading copyrighted material. Should the librarian question the patron? Report the patron to the copyright owner? Will patrons continue to frequent the library if librarians turn into copyright police?

Such inquiries would be antithetical to the judicially-recognized role of libraries in Minarcini v. Strongville City School District as "a mighty resource in the free market place of ideas."

Readers comments welcomed.*
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*Bold print text added August 15, 2004

Cases cited

Minarcini v. Strongville City School District, 541 F. 2d 577, 582 (6th Cir. 1976).

Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984); 104 S. Ct. 774; 78 L. Ed. 2d 574; 1984 U.S. LEXIS 19; 52 U.S.L.W. 4090; 220 U.S.P.Q. (BNA) 665; 224 U.S.P.Q. (BNA) 736. see also Universal City Studios v. Sony for appellate and district court opinions.

Stanley v. Georgia, 394 U.S. 557, 566, 89 S. Ct. 1243, 1248, 22 L. Ed. 2d 542 (1969).

Williams & Wilkins Co. v. United States, 487 F.2d 1345, 203 Ct. Cl. 74 (Ct. Cl. 1973), aff'd by an equally divided court, 420 U.S. 376, 95 S. Ct. 1344, 43 L. Ed. 2d 264 (1975).

Universal City Studios v. Sony Corporation, 659 F.2d 963 (9th Cir. 1981); 1981 U.S. App. LEXIS 16798; 211 U.S.P.Q. (BNA) 761.

Universal City Studios v. Sony Corporation, 480 F. Supp. 429; 1979 U.S. Dist. LEXIS 9390; 203 U.S.P.Q. (BNA) 656; 5 Media L. Rep. 1737 (C.D. Cal. 1979).

Comments

[Bob Schwartz]

I posted this Blog entry to reflectors of some D.C. groups that support fair use. The Senate Judiciary staff is going to be urging opponents to move to "middle ground" positions. This statement from Mr. Minow, offering some additional perspectives and history, and going to the inherent problems with an "induce" approach, should be very helpful and will be much appreciated.

[Mary Minow]

Quick thanks to Ross Housewright, Miriam Nisbet and Laura Norvig for their comments on this blog entry when it was an earlier draft.