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Can we donate TV tapes to an archives?

Have you ever recorded a program on your television and then watched it at a later time?

Silly question, isn’t it?

16CH_DVROf course you have. Even The Legal Genealogist has. We all have. It’s a common, accepted, simple process to be able to see a program we’re not home to see.

But that simple process was the subject of a major decision of the United States Supreme Court — a case decided 30 years ago last week1 … a case that still produces questions today.

And one of those questions came from a reader who is an archivist at a western genealogical library: “Can videotapes recorded legally at home — thanks to the Sony case — be donated to a library or other institution and made available for viewing, not for duplication, just like any other manuscript materials?”

The case the archivist refers to — a fight between Sony, which manufactured the Betamax home video recorder, and Universal Studios, one of the major movie producers — had initially produced a decision that the recording technology didn’t infringe copyright law.2 That decision was then reversed by the Ninth Circuit Court of Appeals.3

It was only when the case reached the Supreme Court that the decision was reached that changed the face of the entertainment world: it allowed the technology,4 and today more than half of all American homes have a digital video recorder.5

So… when we as genealogists start thinking about what we’re going to do with everything we own when we downsize or in our estate planning, what about those tapes? Can we, as our archivist friend asks, donate them to a library or other archives — and can the archives then make them available to others the way it would any donated materials?

And as with so many copyright questions, there’s an easy part and a hard part to the answer.

The easy part is: can we donate recordings we’ve made of television programs, and can a library or archives accept them, without running afoul of the law?

There’s little doubt that the answer there is yes. The federal copyright law has a specific provision that says that anyone who owns a legal copy of a copyrighted item “is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy…”6 So, since the Sony case allows us as individuals to make the recordings in the first place for our own use, the law allows us to give those recordings away.

The hard part is: what can — and what should — a library or archives do with them? This is a harder question because the outer limits of that 30-year-old Supreme Court decision are still being explored by the courts. The Supreme Court just agreed this month to hear another case involving rebroadcasts via cloud computing.7

So I put the question to Peter B. Hirtle of Cornell University’s Copyright Information Center, who is also a Research Fellow in the Berkman Center for Internet & Society at Harvard University. Peter’s background is as an archivist himself — he holds an MA in History from Johns Hopkins and an MLS with a concentration in archival science from the University of Maryland and is a Fellow and Past President of the Society of American Archivists.

Like The Legal Genealogist, he shares his views as an individual only — “I am not giving legal advice,” he warns — and he suggests that the libraries and archives faced with a donation “use archival judgment.” He said:

If it is an important research collection and the material is not otherwise available for purchase, I think that scholarly concerns should prevail. I would be very restrictive, however, on how I might make the material available for research. Allowing people to view it on site would probably be okay; … (and in) certain cases, it may also be okay to make copies as fair use research copies. But if it is material that is available for purchase or through other licensed mechanisms (think someone’s collection of taped Simpsons episodes) and the primary purpose of the donation is to avoid paying for a commercial set, then I would have a problem.8

My own take is exactly the same: the institution isn’t going to be accepting a recording of a Superbowl game and then charging admission to show it to patrons in its auditorium. At least not legally! So it needs to consider why it would want a recording and what use its patrons might make of it.

For us as genealogists, then, the first question would be whether a recording would be of value to a library or archives. The answer to that might change depending on where we are and what kinds of recordings we might have. A library that specialized in the history of major league sports might be delighted to have the only existing recordings of an entire season of, say, the worst football team in history, while another library that didn’t have that focus and was geographically distant from the city where that team played might well not want the recordings at all.

As we make our donation decisions, we need to think history, think research, think value to the institution and its mission as a library or an archive.

And the library or archive, in turn, needs to think of the donation exactly the way it would any archival material: what value does it have, why would it use its space for this item (rather than telling a patron to buy a copy from the local store)?

And we all need to keep an eye out for court cases that might change the analysis down the road.

Who knows? Maybe someday that collection of taped Simpsons episodes might have another use…


Image: Modified from an image by user c.achau, Openclipart

  1. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).
  2. Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429 (C.D. Cal. 1979).
  3. Universal City Studios v. Sony Corp. of America, 659 F.2d 963 (9th Cir. 1981).
  4. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. at 456.
  5. Editorial Board, “What the 1984 Betamax ruling did for us all,” Los Angeles Times online, posted 17 Jan 2014 ( : accessed 20 Jan 2014).
  6. 17 U.S.C. §109(a).
  7. Order, ABC Inc. v. Aereo, Inc., No. 13-461, U.S. Supreme Court, 10 Jan 2014.
  8. Hirtle to Russell, email, 14 Jan 2014.
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