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cided what the experience of watching a movie in your living
room would look like: they’d licensed out their programming for
use on a machine called a DiscoVision, which played big LP-sized
discs that were read-only. Proto-DRM.
The copyright scholars of the day didn’t give the VCR very good
odds. Sony argued that their box allowed for a fair use, which is
defined as a use that a court rules is a defense against infringe-
ment based on four factors: whether the use transforms the work
into something new, like a collage; whether it uses all or some
of the work; whether the work is artistic or mainly factual; and
whether the use undercuts the creator’s business model.
The Betamax failed on all four fronts: when you time-shifted
or duplicated a Hollywood movie off the air, you made a non-
transformative use of 100 percent of a creative work in a way that
directly undercut the DiscoVision licensing stream.
Jack Valenti, the mouthpiece for the motion-picture industry,
told Congress in 1982 that the VCR was to the American film in-
dustry “as the Boston Strangler is to a woman home alone.”
But the Supreme Court ruled against Hollywood in 1984, when
it determined that any device capable of a substantial non-
infringing use was legal. In other words, “We don’t buy this
Boston Strangler business: if your business model can’t survive
the emergence of this general-purpose tool, it’s time to get an-
other business model or go broke.”
Hollywood found another business model, as the broadcasters
had, as the Vaudeville artists had, as the music publishers had,
and they made more art that paid more artists and reached a
wider audience.
There’s one thing that every new art business model had in
common: it embraced the medium it lived in.
This is the overweening characteristic of every single success-
ful new medium: it is true to itself. The Luther Bible didn’t suc-
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