LEGALIZING HOME TAPING OF AUDIO AND VIDEO RECORDINGS
ISSUE BRIEF NUMBER IB82075
Paul S. Wallace, Jr.
American Law Division
T H E LIBRARY OF CONGRESS
CONGRESSIONAL RESEARCH SERVICE
MAJOR ISSUES SYSTEM
D A T E ORIGINATED 07/08/82
FOR ADDITIONAL INFORMATION CALL 287-5700
Various Members of Congress have proposed amendments to the Copyright Act
that would provide a blanket exemption for noncommercial home audio and video
off-air recording. The major
thrust of the copyright owners' opposing
position is if you cannot protect what you own, or a t least receive some
compensation for its use, you own nothing. This is countered by those who
feel the purpose of the copyright law i s to promote broad public availability
of artistic products and when the copyright owners decide to use the
distribution mechanism of the public airwaves, they have to accept the
premises of the public airwaves.
There is a general consensus among all groups that no one seeks to forbid
anyone from taping either audiovisual works or sound recordings, whether
copyrighted or not. The main concern a t this time is whether copyright
owners shall in some way be reasonably compensated for the home taping use of
their copyrighted works.
Or, Jan. 1 7 , 1984, the Supreme
Court pronounced ,its decision in Sony
Corporation of America v. Universal City Studios.
The Court decided, i n a
5-to-4 decision, that home video recording does not violate the copyright law
when the tapes of television programs are for private use.
BACKGROUND AND POLICY ANALYSIS
In November 1975, the Sony Corporation began marketing
the Betamax, a
videotape recorder (VTR) that enables television owners to record broadcasts
using a "pause switch" during
and replay them on their own Sets, and
recording or a "fast-forward switchw during playback
commercials. Universal City Studios and Walt Disney Productions, both owners
of copyrighted films that Betamax owners can tape from television broadcasts,
sued to enjoin the manufacture and sale of the videotape, alleging copyright
infringement, for which Sony was said to be directly, contributorily, or
vicariously liable. Universal City Studios, Inc. v. Sony Corp., 480 F. Supp.
4 2 9 , 432
videorecording did not infringe the plaintiff's copyright and that even if it
did, the VTR manufacturer could not be held liable for infringement under any
theory of liability. Id. at 432.
The District Court first addressed the question of
videotaping constitutes infringement, characterizing its inquiry as a search
for the proper balance between "the need for wide availablity of audiovisual
works against the need for monetary reward to authors to assure production of
Id. After reviewing the legislative history of the copyright
protection accorded sound recordings in 1971, the court determined
"Congress did not intend intend to restrain the home use [video] copying at
issue here." Id. at 447. In 1971 Congress dealt with the growing problem
S.Rept. 92-72, 92d Congress, 1st session, 7-8
amending the 1909 law to give sound recordings limited copyright protection.
Sound Recording Amendment of 1971, P.L. 92-140, section 1 (a), 85 Stat.
(amending 1 7 U.S.C. 1 (1970) (current version at 1 7 U.S.C. 114(b)
[ ~ u p p . I1
The District Court found that the legislative history
amendment indicates that Congress did not intend to give the holders of sound
recording copyrights protection against non-commercial home
because granting such protection was not "worth the privacy and enforcement
problems (480 F. Supp. at 446) which restraint of home-use recording would
480 F. Supp. a t 446. Reasoning that the home-use sound-recording
exemption was carried over to the Ommibus 1976 Copyright Act (Id. at 444-45),
the court extended the rationale of that exclusion to home videorecording and
they found an implied exception to section 106 for such non-commecial use.
The District Court also was convinced that the challenged practices in the
case, qualify as a "fair use" exemption under the "fair use" criteria set
forth in section 1 0 7 of the 1976 Copyright Act, 1 7 U.S.C. 107.
On Oct. 1 9 , 1981, a three-judge panel of the U.S. Court of Appeals for the
Ninth Circuit reversed four of the five C 0 n C l U s i O n ~ of law of the District
Universal City Studios v. Sony Corp. of America, 6 5 S F F . d
Cir. 1981). It affirmed only the holding that retail store demonstration
recording was a "fair use." The appellate court's conclusions were decided on
the basis of two questions:
(a) whether the District Court committed error
in finding a n implied videorecording exception in the exclusive rights given
to copyrighted owners under section 106 of the Copyright Act of 1976, and (b)
whether home videorecording constitutes "fair use."
The Ninth Circuit found, among other things, that the "fair usev doctrine
that allows use of copyrighted materials for news reporting, teaching,
scholarship and research when such use does not compete with the reasons for
which the material was made is not applicable to unauthorized home videotapes
of copyrigkted material.
While the District Court was heavily influenced by the fact that in-home
taping of sound recordings had not been halted by
the copyright laws and
therefore concluded that there was a similarly implied home videorecording
exception (apart from the fair use doctrine), the Court of Appeals stated
that this conclusion was erroneous.
"While the sound recording situation is
analogous, there are a number of reasons why sound recordings should receive
different judicial treatment...
First, the copyright statute treats sound
recordings and audiovisual works as separate categories of
Second, much of the underlying
rationale for the home
recording of sound recordings is simply not applicable to videorecording."
6 5 9 F.2d 966-67.
The Ninth Circuit Court of Appeals ruled that it could find no explicit
exemption from copyright law for home videorecording in the Copyright Act of
1976 (P.L. 94-533).
Following the decision by the Court of Appeals in Universal City Studios
v. Sony Corp. of America, congressional reaction was swift.
have been introduced to overturn the ruling by exempting home off-air
videotaping from copyright liability.
The comparative analysis regarding the judicial treatment of sound
recordings and audiovisual works by the Court of Appeals gave rise to
discussions which suggested that the unauthorized
home audio recording of
copyrighted works also was subject to protection
under the 1976 Copyright
The answer to this question is not clear and legislation has been
proposed to permit noncommercial audio, as well as video recording in private
Within days of the Appellate Universal City Studios, Inc. v. Sony Corp. of
America (Betamax) decision, two bills were introduced to overturn the ruling
by exempting home videotaping from copyright liability.
First to propose
(Oct. 2 1 , 1981) were Senator D e Concini
Representative Parris (H.R. 4808).
These bills would protect owners of video recorders
(estimated a t 3
million i n the U.S.) from being charged with copyright violations a s long as
they record television programs for their own use.
The bills provide that the recording of copyrighted works on a video
recorder is not an infringement of copyright if "the recording is made for
private use and the reccrding is not used in a commercial nature."
Supporters of S. 1758 and H.R. 4808 argued that home video recorders are
not used to create movie libraries, but rather to enable owners to view
programs at a'time other than that scheduled by the television station.
is commonly referred to as "time shifting."
Opponents of S. 1758 and H.R. 4808 argued that opposition was most visible
from segments of the entertainment indnstry with direct interest in creative
property; legislation expressive of their case was soon forthcoming.
On Dec. 1 6 , 1981, Senator Mathias introduced an amendment
1242) to S. 1758, which included Senator De Concini's language protecting
individual tapers but would require the manufacturers of video recorders and
blank tape to pay a royalty on each machine and blank tape sold. The amount
of the royalty would be set by the Copyright Xoyalty Tribunal, which was
established under the 1976 Copyright Act.
The Tribunal would also be
responsible for distributing the royalty fees to those who own
On Feb. 9 , 1982, Representative Edwards introduced H.R.
similar to S. 1758. On Mar. 3 , 1982, H.R. 5705 was amended to include audio
machines (tape recorders).
On Mar. 4 , 1982, Senator Mathias' legislation was
similarly amended (Amendment No. 1333).
Both of these proposals were the
focus of hearings held on Apr. 12-14, and on June 2 0 ,
Subcommittee on Courts, Civil Liberities, and the Administration of Justice.
In hearings before the House subcommittee, as reported in the Patent,
2 2 , 1982, at p.
1 , Jack
Trademark and Copyright Journal, No. 576, Apr.
Valenti, President of the Motion Picture Association
testified that his membership vigorously Supports H.R.
Mr. Valenti, H.R. 5705 "is a compromise to complex legal and legislative
problems and is thoroughly hospitable to the Constitution itself."
he said, would permit home use of audio and video cassette recorders
and protect the property rights of authors and entrepreneurs
It achieves these dual goals, Mr. Valenti stated, with
First, it provides an exemption for individuals from any liability for
infringement of copyrignt if the audio or video recording is made for private
use of family members and others in their immediate household;
Second, it requires chat importers or manufacturers of audio and video
recording devices and audio tapes register .with the U.S.
and thereafter on a semi-annual basis deposit with the Register of Copyrights
information relating to the number of recorders
manufactured and distributed;
Third, it directs the Copyright Royalty Tribunal to determine appropriate
and reasonable royalty fees to be paid by the manufacturers and importers who
distribute audio and video recorders and tapes in order to provide copyright
owners of motion pictures, other audiovisual works and musical works with
fair compensation for the use of their creations;
Fourth, it establishes a system for the distribution of the royalty fees
to copyright owners on a yearly basis through the Copyright Royalty Tribunal;
Fifth, it imposes penalties for violation of these
with existing copyright law; and
Sixth, it allows owners of (1) phonorecords of sound recordings or
copies of motion pictures or other audiovisual works to dispose of such
phonorecords or copies by rental, lease or lending for commercial advantage,
only with the permission of copyright owners. This is called the "fair
Mr. Valenti indicated thac legislation such as H.R. 4 8 0 e and S.1758 not
Only fail to recognize the property rights of copyright owners, but they also
fall to compensate the owners of copyrighted programs for u n ~ u s t caking of
their property, thus clearly v ~ o l a t i n gthe Fifth Amendment.
According to Mr. Stanley M. Gortikov, President of the Recording Industry
Association of America (RIAA), H.R.
5705 establishes a copyright royalty
system that will create a fair incentive for the recording of music.
Other organizations that testified in Support of H.R.
5705 included the
Directors Guild of America, Inc., the International Alliance of Theatrical
Stage Employees and Moving Picture Machine Operators of the United States and
Canada, the American Guild of Authors and Composers, and the National Music
Publishers' Association, Inc.
Opposition to the compulsory license (statutory license permitting use of
the copyrighted work without the express permission of the copyright owner in
exchange for payment of royalties and fulfillment of the statutory termsj
provision of H.R. 5705 was led by attorney Charles D. Ferris, who appeared on
behalf of the Home Recording Rights Coalition.
In summary, Mr. Ferris stated
that the Coalition believed the tremendous service VCRs provide the American
people in the video marketplace is one important factor in determining
whether their home use should be viewed as a "fair use" exemption to the
copyright laws. The ultimate goal of the copyright law is to promote
First Amendment value of increased access to diverse speech.
This same goal
is furthered by the unfettered availability and use of VCRs.
the coalition, copyright holders are not harmed by such u s e , as was noted by
the District Court.
In light of their benefits and the absence of harm,
Congress should follow the reasoning of the District Court in the Betamax
case and grant an exemption to the copyright laws for the home use of VCRs.
Rewarding artists, Mr. Ferris maintained, "is not the sole, nor even the
dominant, purpose of the copyright statute."
Balanced against the need to
compensate authors, he stated, "is the public need
for access to their
Economist Nina W. Cornell indicated that the mechanisms for collection and
disbursment of the royalties would themselves "require the establishment of a
new, continuous, and costly regulatory program within an agency that has not
been notably successful at running the programs already entrusted
With respect to the proposed abolition of the "first sale" doctrine, Ms.
Cornell argued that such a proposal, if enacted, would raise the rental price
to consumers significantly and greatly increase the costs of enforcing
copyright laws. "If the first sale doctrine was abolished,''
"anyone who sells o r rents a cassette without permission would be liable [for
Also testifying against the compulsory
Chairman of the Board of McCann-Erickson Worldwide, an advertising agency,
maintained that most people will not cut out the commercials when they tape
he said, "we will continue to sponsor free TV and to
pay for audiences that include tapers."
Legislators and lobbyists on both
sides believed that some type of
legislation would pass the 97th Congress, but no one was sure of what form it
On Mar. 1 2 , 1982, the Supreme Court was called upon to resolve the
question of whether in-home videotapinq of copyrighted works constitutes a
copy right infringement. Sony Corp. of America 5 Universal City Studios,
1981), cert. granted, June 1 4 , 1982
InC., 659 F . 2 6 963 (9th Cir.
81-1687). According to the petitioners, the Ninth Circuit erred in ruling
that a finding of l1fair useN is not justified where the copies made by home
videorecording are used for the same purpose as the original.
"intrinsic usef1 argument, petitioners contend was rejected by the U.S.
of Claims in Williams & Wilkens Co. v. U.S., 4 8 7 F. 26 1345 (Ct. Cls.
a f f l d by an equally divided Court, 420 U.S. 376 (1975).
The petitioners also challenge the Ninth
Circuit's conclusion that
manufacturers of VCRs are liable, per se, a s contributory infringers.
Finally, the petitioners protested the Ninth Circuit's suggestion that "a
judicially created compulsory license" might resolve the conflict.
is no statutory provision nor decisional precedent for compulsory
as a remedy for any copyright infringementN, they argue.
While the petitioners noted that the Ninth Circuit's decision prompted
instant congressional reaction, they contend that only the Supreme Court "can
settle the question of whether home videorecording has been, now i s , or will
On Jan. 1 7 , 1 9 8 4 , the Supreme Court decieed that a home use of a video
The Court's disposition
tape recorder is a "fair usew of copyrighted works.
of the case was based upon its conclusion that time-shifting is the primary
use of VTRs.
The Court described time-shifting as the procedure whereby a
VTR is used to record a broadcast program at its time of transmission
subsequent viewing a t the convenience of the individual.
Although no bills were enacted in the 97th Congress, congressional
opponents of the ninth circuit's "Betamaxl' decision quickly renewed their
efforts to change the controversial ruling.
In the 98th Congress, Senator
Charles McC. Mathias and Representative Don Edwards introduced three bills
1030, S. 32/H.R. 1027, and S. 33/H.R.
1029) in an effort to
resolve t h e controversy surroundings in-home
taping of copyrighted works.
Three bills were proposed instead of t h e o m n i b u s bills
(s. 1 7 3 8 / ~ . R . 5705)
proposed i n t h e 9 7 t h C o n g r e s s , i t was r e p o r t e d , because t h e i s s u e s a d d r e s s
different concerns which merit separate consideration by Congress.
Under t h e " H o m e Recording Act of 1 9 8 3 , " (S. 31/H.R. 1030),
a n individual
would be exempt from liability if t h e recording i s f o r t h e p r i v a t e u s e of
individual or members of h i s family.
I n return f o r t h e
manufacturers a n d i m p o r t e r s o f video a n d a u d i o recording e q u i p m e n t and blank
tapes would b e required t o pay a r o y a l t y f e e t o the c o p y r i g h t owners.
1 7 5 8 and H.R.
However, S. 3 1 a n d H.R. 1 0 3 0 a r e unlike Amendment 1 3 3 3 to S.
5705, introduced in the 9 7 t h C o n g r e s s , b e c a u s e they encourage royalty r a t e s
based upon t h e f r e e market, rather than r a t e s established by
t h e Copyright
3 1 and H.R.
1 0 3 0 e n c o u r a g e private
negotiation between the parties to the controversy.
Under this a r r a n g e m e n t ,
voluntary a g r e e m e n t s entered i n t o pursuant t o this process would
o n the parties.
T h o s e w h o a r e unable to reach a n a g r e e m e n t , would b e
required to submit t o compulsory binding arbitration under t h e supervision of
the Register of Copyrights.
In his statement on t h e i n t r o d u c t i o n of H.R.
l C 3 0 , Representative Edwards said "there i s n o requirement, nor shouid there
that t h e copyright owner prove economic harm in order
be such a requirement
to establish infringement."
1 2 9 Cong.Rec.H.198
Two separate bilio
S. 32/H.R. 1 0 2 7 ("Record R e n t a l Amendment o f 1983")
and S. 33/H.R. 1 C 2 3 !"Consumer Video Sales-Rental of 1933) w e r e introduced b y
Senator Mathias and Represent,ative Edwards to make
clear t h a t , under
copyright l a w s , prerecorded video cassettes a n d a u d i o records a n d
not be rented unless authorized by t h e c o p y r i g h t owner.
T h e n e t effect of
which would clarify t h e Copyright Act's " f i r s t s a l e w d o c t r i n e , 1 7 U.S.C.
(a), to establish explicitly a commercial lending right in t h e copyright
owner share i n t h e revenues produced i n t h e rental market.
The. bills and t h e introductory remarks appear in the Congressional Record.
129Cong.Rec. S254-261 (daily ed.
Jan. 2 6 , 1983);
1 2 9 Cong.
(daily ed. Jan. 2 7 , 1983).
Amends the copyright l a w to exempt t h e h o m e recording of copyrighted works
on home video recorders f o r private h o m e , noncommerical u s e f r o m copyright
Introduced Jan. 3 , 1 9 8 3 ; referred t o the C o m m i t t e e o n t h e
Referred to Subcommittee on C o u r t s , Civil L i b e r t i e s , and t h e
Administration of J u s t i c e , Feb. 4, 1983.
3 2 (~athis)/H.R. 1 0 2 7 (Edwards)
Amends t h e copyright l a w with respect t o r e n t a l , l e a s e o r l e n d i n g of sound
Introduced Jan. 2 7 , 1 9 8 3 ; referred to the C o m m i t t e e on the
Judiciary. Referred to Subcommittee on C o u r t s , Civil L i b e r t i e s , and t h e
Administration of J u s t i c e , F e b . 4, 1983.
athi his) /H.R.
1 0 2 9 (Edwards)
Amends t h e copyright l a w with respect t o
motion pictures and other audio-visual works.
referred to the Committee on the Judiciary.
Referred to Subcommittee on
Courts, Civil Liberties, and the Administration of Justice, Feb. 4 , 1983.
Amends the copyright law to exempt from liability individuals who tape
video and audio programming for private use. Would establish a mechanism for
compensating copyright owners for the use of their property.
26, 1983; referred to the Committee on the Judiciary.
Subcommittee on Patents, Copyrights and Trademarks, Feb. 25, 1983.
Amends the copyright law to exempt the private, non-commercial
and use of copyrighted works on a video recorder from being considered
Introduced Jan. 25, 1983; referred to Committee on
Referred to Subcommittee on Patents,
Trademarks, Feb. 2 2 , 1983.
Committee on the Judiciary. Copyright
infringements (audio and video recorders).
Congress, 1st and 26 sessions, on S. 175E. Nov. 3 0 , 1981,
and Apr. 21, 1982. Washington, U.S. Govt. Print. Off.,
Serial No. 5-97-84.
Senate. Committee on the Judiciary.
Subcommittee on Patents, Copyrights and Trademarks.
Video and audio home taping.
Hearing, 98th Congress,
1st session. Oct. 25, 1983. Washington, U.S. Govt. Print.
"Serial no. 5-98-75"
Committee on the Judiciary.
on Courts, Civil Liberties, and the Administration of Justice.
Hearings, 9 7 t h . C o n g . ,
Home recording of copyrighted words.
2nd sess., on H.R. 4783, H.R. 4794, H.R. 4808, H.R. 5250,
H.R. 5488, and H.R. 5705.
April 1 2 , 1 3 , 1 4 , June 24, August
11, September 22 and 23, 1982. Serial No. 9 7 , Part I.
Washington, U.S. Govt. Print. Off., 1983. 6 9 9 p. Part 11.
Hearings, 97th Cong., 2nd sess., Wahsington, U.S. Govt. Print.
CHRONOLOGY OF EVENTS
The U.S. Supreme Court pronounced its decision
in Sony Corp. of America v. Universal City
Studios Inc. (Betamax) which reversed the U.S.
Court of Appeals for the Ninth Circuit.
5-to-4 decision, the Court decided that home use
of a video tape recorder is a "fair u s e w of
The Supreme Court restored Sony Corp. of America v.
Universal City Studios Inc. (Betamax) to the calendar
for reargument during the October 1983 term.
The Srpreme Court heard oral arguments in Sony Corp.
of America v. Universal City Studios Inc. (Case No.
House Subcommittee on Courts, Civil Liberties, and
Administration of Justice held a hearing on H.R.
5705, Home Recording Act of 1982.
The Supreme court granted cert. in sony Corp. of
America v. Universal City Studios, Inc.
Senate Committee on Judiciary held hearings on
House Subcommittee on Courts, Civil Liberties, and
the Administration of Justice held hearings on
several copyright audio/video bills.
The Supreme Court was asked to review the Sony Corp.
of America v. Universal City Studios, Inc.= (Betamax)
The U.S. Court of Appeals for the Ninth Circuit pronounced
its decision in Sony Corp. of America v. Universal City
Studios, Inc., which reversed the U.S. District Court for
The U.S. District for Central California decided in
Sony Corp. of America v. Universal City Studios that
noncommercial home use video recording of material
broadcast over the airwaves does not constitute
ADDITIONAL REFERENCE SOURCES
All's Fair in Love and Private Video Recording
Copyright Infringement Issues in the Sony Case.
University Law Review, v. 30, 1981: 621-651.
111. Universal City Studios, Inc. v. Sony Corp.:
Looks Different on Videotape.
Virginia Law Review, v. 6 6 , 1980:
Review, v. 33, 1961: 695-706.
Home Recording and Reproduction of Protected Works.
Bar Association Journal, v. 68, 1982: 42-45.