[DMCA-Activists] Betamax Freedom / RIP Dean Dunlavey

[Seth Johnson]

-------- Original Message --------
Subject: Remembering Betamax Case
Date: Fri, 04 Jul 2003 13:47:53 -0700
From: tom barger <address@hidden>

I am forwarding this LA Times article to a few of you who may wish to keep
it as a good analysis of what really happened in the momentous days of Sony
vs Universal ---"Betamax."

Perhaps it should be referred to as the first Mickey Mouse case---as an
early indicator of the wrong-headed efforts of Disney to stop technology
cold. I like to think that those of you who teach students can use this
article as a somewhat ironic and lay-written analysis of the obvious
implications. I like Young Fred's usage of the Xerox copy machine. But
reading this article confirms to me, as Leflaw would say irgearding the use
of "First Principles"--that the Betamax decision is a wide and nurturing
umbrella that still protects further generations of computer networks. It is
only too-popular to assert that every tenet of law is challengable.

The Supreme Court decision in Betamax was 5-4. One shudders to think of the
reverse outcome; and what would likely occur in these current times of
business-coddling courts.

Here's a hearty thank you on Independence Day for a hero---Dean Dunlavey.

> http://www.latimes.com/news/printedition/california/la-me-dunlavey4jul04,1,5146705.story

TOM

Dean Dunlavey, 77; Won Case to Allow VCR Taping
By Dennis McLellan, Times Staff Writer

Dean C. Dunlavey, a Los Angeles trial lawyer who gained national recognition
in 1984 after successfully arguing before the U.S. Supreme Court that
consumers have the right to videotape copyrighted movies and other programs
on television for their own \use, has died. He was 77.

Dunlavey died Saturday at a San Pedro hospital of complications from a fall.

As a partner in the Los Angeles firm of Gibson, Dunn & Crutcher, Dunlavey
tried nearly 100 cases during his 34-year legal career, including arguing
and winning several cases before the U.S. Supreme Court.

The most important was the landmark Sony Corp. of America vs.Universal City
Studios Inc., more commonly known as "the Betamax case."

Universal City Studios and Walt Disney Productions, seeking damages and an
injunction against the manufacture and sale of home video recorders, sued
Sony, which marketed the Betamax video recorder. Also named in the suit were
four retail distributors of Sony's Betamax, an advertising agency and a
single Betamax owner.

During a trial in U.S. District Court in California in 1979, the studios
argued that consumers' use of the Betamax infringed on the studios'
copyrights and that by making the devices available to the public those
named in the suit were "contributory infringers."

The District Court ruled in Sony's favor, but the U.S. 9th Circuit Court of
Appeals in San Francisco overturned that decision in 1981, saying Sony
infringed on the studios' copyrights by enabling videocassette recorder
owners to tape programs on television without paying royalties.

Sony then appealed to the U.S. Supreme Court.

As Sony's attorney, Dunlavey urged the justices, during the second of two
oral arguments in 1983, to reject the movie industry's view and allow
Americans to continue to have unrestricted use of the recorders. Dunlavey
contended that because the movie studios are paid for selling their product
to television, they are not entitled to further compensation if the movies
are recorded by viewers.

"The studios have been paid once. There's no reason they should be paid
twice," Dunlavey said.

Stephen Kroft, a Beverly Hills lawyer representing the movie studios, told
the justices that the VCRs constitute "a billion-dollar industry based on
the taking of someone else's property" and that  Sony is selling the
machines "for the primary purpose of recording copyrighted material."

 In its 5-4 decision in January 1984, the court ruled that consumers do not
violate federal copyright law when they use videocassette recorders to tape
television programs for their own use, nor do companies that make or sell
the VCRs violate the copyright law by making them available to the public.

The long-awaited decision in the high-stakes case was considered a major
victory for the electronics industry, which expected to have VCRs in about 9
million homes by the end of 1984.

A memo that circulated among the 300 lawyers at Gibson, Dunn & Crutcher
after the ruling praised Dunlavey, saying it is "universally agreed by all
Supreme Court watchers that Dean's oral argument made all the difference" in
the close case.

"To my dad, it wasn't that big a deal," Dean Geoffrey Dunlavey, a Costa Mesa
lawyer, said this week. "He was the kind of guy who was always spoiling for
a fight in a lawsuit. He loved to mix it up with people and have a battle of
wits with them. He viewed this as [just] another case, but because it was
such a seminal copyright case, that's how people tend to remember him."

As the senior Dunlavey told the Daily Journal, a Los Angeles-based legal
newspaper, shortly after his Supreme Court victory: "I have done nothing but
litigation since the day I walked in the door here. I can't think of a
better way of making a living than fighting with people and getting paid for
it."

Born in Waterloo, Iowa, on Oct. 31, 1925, Dunlavey spent a year at Iowa
State University before volunteering for the Army and serving as an infantry
captain in the Pacific during World War II.

After the war, he attended Harvard College on the GI Bill and earned a
bachelor's degree in chemistry in 1949. He received a doctorate in nuclear
chemistry from UC Berkeley in 1952, working with Nobel Prize winner Glenn T.
Seaborg and a team of scientists that created two trans-uranium elements,
berkelium and californium.

He then entered the law school at Berkeley, where he graduated first in his
class in 1955, served as editor-in-chief of the California Law Review and
joined the school's other top law students by being made a member of the
Order of the Coif.

Of his dramatic switch from nuclear chemistry to law, Dunlavey told the
Daily Journal: "I realized I wasn't going to be satisfied spending my life
in a laboratory. I'd been in the Army infantry in a combat unit, and I just
enjoy fighting with people, so where better to go than law?"

Dunlavey subsequently taught at Harvard Law School, where he also earned a
master's of law degree. He joined Gibson, Dunn & Crutcher in 1956 and was
named a fellow in the American College of Trial Lawyers in 1970. He retired
in 1990.

 In addition to Dean, Dunlavey is survived by his wife of 54 years, Dorian;
two other sons, Dudley and Dana; and four grandchildren.

A memorial service will be held at 2 p.m. July 19 at St. Peter's By the Sea
Presbyterian Church, 6410 Palos Verdes Drive South, Rancho Palos Verdes.

In lieu of flowers, the family requests that memorial donations be made to
the animal rescue organization Delta Rescue, P.O. Box 9, Glendale, CA 91209.