Wednesday Writs: Betamax and Kramer Was Right About the Mail Rewind Edition

Editor’s Note: Em is away this week dealing with a family matter, so [L1] & [L2] are reviews of two of her Case of the Week write ups, along with some current links. Enjoy.

[L1]: (From 3/13/2019 Wednesday Writs) The turn of the century was the golden age of music piracy, when every college student with a computer and a modem was happily downloading virtually any song they wanted for free on a peer-to-peer file sharing network called Napster. Napster facilitated the searching of a particular song across all its users, who reveled in their abandon, often amassing hundreds or thousands of tracks on their PCs. That is, until the record companies got wise, and Napster wound up sued for copyright infringement in federal court- and lost. But the Napster case was not the beginning of at-home media “piracy”, as we see in Sony Corps. of America v. Universal City Studios, Inc., our case of the week.

In 1984, VCRs were still near-future technology, but its predecessor had been around for a few years: the Betamax Video Tape Recorder (VTR) by Sony. With Betamax, owners could record television shows onto beta tapes in the convenience of their own homes. The ability to watch one’s favorite program at one’s leisure- and skip commercials- was revolutionary. This displeased Universal, who owned the copyright on several television programs. Their response was to team up with Disney to file a lawsuit against Sony for facilitating copyright infringement by supplying the means by which the public could record their programming. The plaintiffs lost at trial in District Court, but the 9th Circuit reversed and held Sony liable for contributory infringement. Sony appealed to the Supreme Court.

The Supreme Court discussed the practice of “time shifting”, the phrase used to describe recording a program in order to watch it at a more convenient time. The Court did not find this to be of any damage to the copyright owners because it would actually served to enlarge their audience. (Napster would invoke a similar argument for the practice of “ripping” songs off of purchased CDs and making digital copies, calling it “space shifting”.) The 5-4 Court, ultimately finding that the recording was fair use and ruling against the copyright infringement claims, came to several conclusions that are really rather quaint in hindsight. For instance, the plaintiffs argued that the ability to skip commercials would impact them negatively, but the court questioned whether viewers would bother with the onerous process of fast forwarding. And it was noted that the likelihood of consumers amassing a library of recordings, another fear of the plaintiffs’, was small due to the relatively high cost of Betamax tapes.

The dissenting justices in the case disagreed that copyrights were not infringed by home recording under the relevant statutory framework. Furthermore, they disagreed that home recordings were an example of “fair use” because they understood fair use to be a use that benefits the public in some way, not simple the user. And the dissenters balked at the majority’s belief that the potential damage to the copyright holder was insignificant; they did not so readily discount that consumers would skip commercials or build libraries, a rather prescient concern.

Napster, whose case wound up no further than the 9th Circuit, would find no cover from the Betamax decision, however; the Court found that it had actual knowledge of the copyright infringement by its users, and that this infringement was commercial use, because it allowed people “to get for free something which they would ordinarily have to buy”, unlike the recording of broadcasts from public airways.

[L2]: (From 3/27/2019 Wednesday Writs)Remember that time on Seinfeld when Kramer decided to opt out of mail, sparking a feud with the very sinister Postmaster General, Wilfred Brimley? Turns out, Kramer was within his rights- partially. According to Rowan v. United States Post Office Department, our case of the week, a person may opt out of unsolicited advertisements- i.e., junk mail.

The case stems from a 1967 federal law that was intended to stop unsolicited offers of pornographic material from being sent to unwitting recipients, and possibly into the hands of children. The law provided that a person could notify the postmaster that he or she had received advertisements for “erotically arousing or sexually provocative” matter and wished not to in the future. The postmaster could then issue an order requiring the sender of such materials to remove that recipient from its mailing lists and cease any further mailings to the offended person. A group of publishers, mailing list brokers, distributors and others whose business was affected by the law filed suit, alleging violation of free speech and due process.

The case was instituted in the US District Court for the Central District of California and heard by a panel of three judges. The judges agreed the statute was constitutional as to any mail which fit the description of erotic or provocative, but limited their holding to materials of that nature. The plaintiffs appealed. In a unanimous opinion written by Justice Burger, the Supreme Court not only upheld the decision of the District Court, but affirmed a broader interpretation of the statute. The Court found that the postmaster’s order would apply to any further mailings of whatever kind by a particular sender, once a person notified the post office of their objection to mailings from that party. As to the First Amendment issue, the Court believed a person’s right to be unbothered in his or her home trumped the right of an advertiser:

Weighing the highly important right to communicate, but without trying to determine where it fits into constitutional imperatives, against the very basic right to be free from sights, sounds, and tangible matter we do not want, it seems to us that a mailer’s right to communicate must stop at the mailbox of an unreceptive addressee.

The Court further opined that, because the mailer has the opportunity to be heard once the postmaster has issued the order prohibiting future mailings, a violation of the order triggers rights to an administrative hearing before any sanction is issued and therefore there was no violation of due process.

In a concurrence written separately, Justice Brennan expressed concern that the decision of the head of household to request an order prohibiting mail from an entity could likewise result in preventing other, of age individuals living at that address to receive mail he or she may want. He found that a potential “constitutional difficulty”, but agreed with the Court’s affirmation of the law nevertheless.

At present, one may still contact the post office to request that a particular advertiser cease correspondence, but since it would be a full time job to keep up with all of the senders, tossing unwanted mail in the recycle bin or garbage is probably more efficient.

[L3] Harry and Meghan threaten legal action over paparazzi photos

[L4] 49ers file for ‘Hot Boyzz’ trademark ahead of 2020 Super Bowl, Cowboys’ DeMarcus Lawrence promises legal fight

[L5] The Staggering (and Uncovered) Legal Bills Facing Impeachment Witnesses

[L5] Blame the victims: Harvey Weinstein’s legal team claims it has ‘dozens’ of ‘loving’ emails from witnesses

[L6] Supreme Court won’t fast-track Obamacare case: The justices are unlikely to determine the health law’s fate before the election.

[L7] Religion and school choice on the line in ‘crucial’ Supreme Court case

[L8] The Washington Post has a question: Lawyers are leading U.S. colleges and universities more than ever before. Is that good or bad for higher education?

[L9]