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medium: they could be
copied.
Moreover, your personal library
of Betamax recordings of the Sunday night movie would eat into
the market for DiscoVision discs: Why would anyone buy a pre-
recorded video cassette when they could amass all the video they
needed with a home recorder and a set of rabbit-ears?
The Supreme Court threw out these arguments in a 1984 5-4
decision, the “Betamax Decision.” This decision held that the VCR
was legal because it was “capable of sustaining a substantially
non-infringing use.” That means that if you make a technology
that your customers
can
use legally, you’re not on the hook for the
illegal stuff they do.
This principle guided the creation of virtually every piece of
IT invented since: the Web, search engines, YouTube, Blogger,
Skype, ICQ, AOL, MySpace... You name it, if it’s possible to vio-
late copyright with it, the thing that made it possible is the Be-
tamax principle.
Unfortunately, the Supremes shot the Betamax principle in
the gut two years ago, with the Grokster decision. This decision
says that a company can be found liable for its customers’ bad
acts if they can be shown to have “induced” copyright infringe-
ment. So, if your company advertises your product for an infring-
ing use, or if it can be shown that you had infringement in mind
at the design stage, you can be found liable for your customers’
copying. The studios and record labels and broadcasters
love
this
ruling, and they like to think that it’s even broader than what the
courts set out. For example, Viacom is suing Google for inducing
copyright infringement by allowing YouTube users to flag some of
their videos as private. Private videos can’t be found by Viacom’s
copyright-enforcement bots, so Viacom says that privacy should
be illegal, and that companies that give you the option of privacy
should be sued for anything you do behind closed doors.
The gutshot Betamax doctrine will bleed out all over the in-
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