It’s a beautiful day in the neighborhood

As a child of the mid-1970s, I grew up relishing my trips in Fred Rogers’ neighborhood. With his trademark calm, he reinforced the lessons that my parents taught me about dealing with others, respecting adults and spending every day learning something new about the world around me.

Stomach cancer claimed the life of Fred Rogers just weeks before it took my grandmother in 2003, but were Mr. Rogers still alive, he would have turned 85 on Wednesday of this week. The Internet was abuzz with tributes to him and memories of his life lessons and the way in which he delivered them to his young audience.

What few people know, however, is the power that Fred Rogers held over our legislative, judicial and political processes. You can easily find video of Mr. Rogers’ testimony before the U.S. Senate Subcommittee on Communications in 1969, testimony that may single-handedly have preserved the funding that established the Public Broadcasting System. But this is a column about our legal processes and so it is only fitting to focus on the huge impact that Fred Rogers had on a case that affects the most fundamental way that we now watch and enjoy television.

The year was 1976. Jimmy Carter and Gerald Ford were battling for the Presidency. The bestselling car in America was the Oldsmobile Cutlass. I was still in diapers. That same year Sony Corporation imported a brand new electronic device that would revolutionize television viewing around the world– the video cassette recorder. Oh, sure, it was Betamax, not VHS, but the concept was the same: record it now, watch it later.

The movie studios and television networks hated the very concept. Suddenly their captive audience wasn’t captive anymore. Worse yet, that audience could now fast forward through the commercials and the sponsors certainly weren’t going to like that (or pay as much for it). Two of the giants in the copyright protection world – Disney and Universal – filed suit against Sony in Federal District Court in California. Because the order of parties sometimes switches based on who appeals the trial court decision, the case became known as Sony Corporation vs. Universal City Studios, Inc., but it is commonly referred to as “the Betamax case.”

The trial court received testimony from a variety of sources. One of the witnesses was a minister and children’s television host from Pittsburgh, Pennsylvania, by the name of Fred Rogers. At the time of his testimony his input was just a small part of a huge case and was not thought to be of any major impact– certainly not weightier than that of any number of other witnesses in the case. The District Court found that the ‘time-shifting’ involved in the case was a fair use and that there was a First Amendment right of the public involved.

Not satisfied, the studios appealed and the Ninth Circuit U.S. Court of Appeals overturned the District Court decision ruling that there was nothing involved but the copying of another company’s product and that Sony was therefore complicit in massive copyright infringement. Had the case ended there, the act of ‘time-shifting’ would have been illegal and we might never have had VCRs, DVRs or other methods of recording television programming.

Sony appealed the case to the U.S. Supreme Court. It appeared that the Court was going to uphold the 9th Circuit decision but Justice Stevens persuaded Justices Brennan and O’Connor (who was, coincidentally, in Columbus this week) to change their votes and so Sony prevailed in the case by the slimmest of margins, 5–4.

Part of what convinced the Justices was the trial testimony of Fred Rogers. In fact, Stevens used his words as proof that there were television producers who welcomed the copying of their programs, a key finding to the legal underpinning of the majority decision. For Rogers, it was about making healthy choices. If it was better for someone’s family to watch the Neighborhood at a time other than when their local PBS station showed it, why should he stop them? He argued that they should be empowered to make those decisions for themselves.

Indeed, that was the key fact for the Supreme Court’s majority– some people might engage in illegal copying using a VCR, but many would engage in perfectly legal time-shifting that they were invited to do by the producers of free broadcasts. Rogers’ words are the reason we now have DVR technology and why that technology is legal.

It’s a beautiful day in the neighborhood.

David Hejmanowski is a Magistrate and Court Administrator of the Delaware County Juvenile Court and a former Assistant Prosecuting Attorney.