Co-writing today’s post is Jonathan Band
of policybandwidth,
with CCIA’s Matthew
Schruers, on the recently-announced retirement of Justice John Paul
Stevens:
JUSTICE
STEVENS INVENTED THE INTERNET
Justice John Paul Stevens’s announcement
that he will resign
from the Supreme Court at the end of this term has caused a flood of
newspaper
articles and blogs about the most significant opinions he authored
during his
34 years on the Court. With the
exception of an insightful piece
by Joe Mullin at Corporate Counsel, the media has largely overlooked one
of his
opinions that has had a direct daily impact on virtually all Americans:
the
majority opinion in Sony v.
Universal, decided by the Supreme Court in 1984. This
decision is the legal foundation of
the Digital Age.
The case involved the lawfulness of the
Betamax
video-cassette recorder manufactured by Sony. The motion picture studios
took the position that the
Betamax contributed to copyright infringement by allowing consumers to
tape
over-the-air broadcasts of television programs. After a five-week trial,
a federal district court in
California ruled that Sony was not liable for contributory infringement.
The U.S. Court of Appeals for the Ninth
Circuit reversed the district court, and found that Sony did contribute
to
infringement.
By a 5-4 vote, the Supreme Court
reversed the Ninth
Circuit. Justice Stevens in his
opinion for the majority explained that copyright law’s fair use
doctrine
permitted a consumer to tape an over-the-air broadcast for later viewing
– what
Justice Stevens called “time-shifting.” Interpreting the fair use
doctrine to permit
widespread, systematic copying by consumers for private use was truly
revolutionary.
Equally revolutionary was the standard
Justice Stevens articulated
for contributory infringement. The
Copyright Act does not define when the manufacturer of a device should
be
liable for the infringing conduct of the device’s consumers. Relying on
language in the Patent Act,
Justice Stevens ruled that so long as a device is “capable of
substantial
noninfringing uses,” the manufacturer of the device cannot be liable for
infringing copies consumers make with the device.
These two holdings enabled an explosion
of innovation that
all of us enjoy in our daily lives. All digital devices, including
personal computers, DVRs, and
iPods, allow consumers to make copies.
Justice Stevens’s opinion made clear that the manufacturers of these
devices were not liable for infringements made with the devices because
the
devices were also capable of substantial noninfringing uses – the fair
use
private copies. This meant that
companies could invest in the development of new digital technologies
without
the incurring the risk of enormous liability for the potential misuses
of those
technologies by some of their consumers.
Justice Stevens did more than just write
the majority
opinion in this decision that is the legal foundation of the Digital
Age. He also played a decisive role in
changing the direction of the Supreme Court from affirming the Ninth
Circuit to
reversing it. When Justice
Thurgood Marshall’s papers were opened to the public after his death, it
became
evident how skillfully Justice Stevens had maneuvered the Court in a new
course
(see Jon Band’s 1994 article).
At the internal conference held by
Supreme Court after the
oral argument in 1983, a majority of justices appeared to support
affirming the
Ninth Circuit’s finding that Sony contributed to copyright infringement.
Justice Blackmun was assigned the task
of writing the majority opinion.
Justice Blackmun fashioned an opinion that quickly gained the approval
of Justices Marshall, Rehnquist, and Powell.
Meanwhile, Justice Stevens built a
consensus to reverse the
Ninth Circuit. His initial outline
of what he expected would be a dissenting opinion focused on the theory
that section
106 of the Copyright Act did not prohibit a person from making of a
single
copy for private use. Justices
Brennan and White disagreed with this theory; they believed that the
Copyright
Act did prohibit the making of a single copy. Nonetheless, they
indicated that the copying in this case
might fall within the fair use doctrine under section
107 of the Copyright Act.
Over a series of drafts, Justice Stevens
moved away from his
section 106 theory and towards the Brennan/White fair use approach. Once
Justice Stevens satisfied Justices Brennan and White, he convinced Chief
Justice Burger to join them.
That left Justice O’Connor with the
deciding vote. Justice Blackmun refused to make
changes to his opinion that she requested, declaring that “[f]ive votes
are not
that important to me when I feel that proper legal principles are
involved. It therefore looks as
though you and I are in substantial disagreement.” Justice O’Connor then
began working with Justice Stevens,
who was willing to accommodate her concerns about the appropriate
standard for
contributory infringement. Eventually she joined his opinion, and
Justice
Stevens had five votes necessary to reverse the Ninth Circuit.
By convincing a majority of the Court to
change direction
and find Sony innocent of infringement, Justice Stevens eliminated a
major
obstacle to the creation of the Internet. Companies could now build the
innovative products and
services that comprise the Internet without fear of crippling copyright
liability.
