OPINION: Testing ground

Despite the billions it has made for the studios over the past three decades, the home video business has never gotten a lot of respect, either from Hollywood or from the self-anointed “visionaries” who have been predicting the demise of packaged media since at least the Reagan Administration.

There are many reasons for that, as much cultural and sociological as financial, which I won’t bother going into here. But the odd disdain with which it is sometimes regarded has often blinded people to the industry’s important role in the economic, technologic and legal evolution of the entertainment industry in general.

Its most important legal contribution, of course, was the seminal “Betamax” case (Sony v. Universal), which led to a landmark Supreme Court ruling in 1984 on the limits of copyright law.

The case established the legal principle that technologies with “substantial non-infringing uses” cannot be banned simply because they can also be used to infringe copyrights.

More important, it established that technology developers, in this case Sony, could not be held liable for the infringing activities, so long as the technology has substantial non-infringing uses.

The ruling paved the way legally for everything from the personal computer, to the digital video recorder to the iPod, all of which can be used to infringe copyrights but are perfectly legal to sell and own.

Less recognized today, but equally important, was the reaffirmation of the first-sale doctrine in copyright law brought about by the advent of the video rental business.

Despite fierce initial opposition from the studios—including efforts to get Congress to prohibit it—the growth of the video rental business vividly demonstrated that robust new business can emerge from limitations on copyright.

The video rental business was an unlicensed—but legal—use of copyrighted works that ultimately benefitted copyright owners as much as users.

Although the operation of the first-sale doctrine in the digital realm remains a subject of debate, the principle that limitations on copyright owners’ exclusive rights can encourage entrepreneurship and innovation should not be.

A third important legal precedent to emerge from the home video business, all but forgotten today, is the Video Privacy Protection Act otherwise known as the “Bork law.”

In 1988, some enterprising reporters dug up and published the video rental records of Supreme Court nominee Robert Bork, prompting Congress to move quickly to make such disclosures illegal except in response to a warrant.

Its potential new relevance became evident earlier this month, when the judge overseeing Viacom’s copyright infringement suit against YouTube ordered the video-sharing site to turn over the login names and IP addresses of everyone who has ever watched a video on YouTube or any other place on the Web where a YouTube video was embedded.

Although the judge ruled that the login names and IP addresses is not “personally identifying” information, and could therefore be disclosed, the case immediately pushed the issue of online privacy front and center.

Since then, some legal scholars have suggested that the Bork law may once again come into play.

“I am unaware of any decisions assessing whether an online video provider like YouTube is covered by the VPPA, but it is written in sufficiently media-neutral terms that it appears that YouTube would be covered,” University of Chicago law professor Randy Picker wrote in a recent blog post. “If so, that triggers a number of obligations. The VPPA requires the destruction of records containing personally identifiable information ‘as soon as practicable, but no later than one year from the date the information is no longer necessary for the purpose for which it was collected.’”

YouTube and others keep such records for at least 18 months.

The issue is just beginning to percolate. But once again, a legal principle that emerged from the home video business could prove critical to shaping future technology and public policy debates.