Are you old enough to recall setting your nightly schedule by “what’s on tonight”? Can you imagine not being able to binge watch an entire season of Game of Thrones or The Bachelor? What if there had never been any Blockbuster Video stores?
That is the world two Hollywood studios aimed to give us in the early 1980s, when they sued all the way up to the U.S. Supreme Court attempting to make home-video recorders illegal. Why? Because people were pirating copyrighted movies and making copies for their friends? No, that’s not why manufacturers sold VCRs. But their machines made such illegal uses possible. So, the studios wanted to make VCRs illegal.
Justice Stevens wrote the Court’s opinion, which changed TV watching and the movie business forever. It was a big win for consumer convenience, and, dare I say, freedom.
Does that logic sound familiar?
It’s precisely the same argument anti-gun activists make when they try to hold gun manufacturers liable for criminal misuse of ordinary rifles which they misname “assault weapons,” such as the commonly-owned AR-15 semi-automatic rifle.
Gun companies work under some of the tightest regulations of any industry. They comply with reams of federal restrictions, or else the feds would shut them down. But gun-grabbers peddle the mantra that none of this is enough - that gunmakers should be targets of bankrupting lawsuits when criminals abuse their products.
So, what do the VCR and the AR-15 have in common? Universal City Studios and Walt Disney Productions wanted the courts to ban Betamaxes (Sony’s product and the first VCR) because the studios claimed it infringed on their copyrights. These studios didn’t want TV viewers to be free to choose to watch what they wanted, when they wanted. They wanted the courts, not the consumers, to decide how ordinary folks spent their Saturday nights. And these two studios came within a hair’s breadth of outlawing the VCR through lawsuits seeking to hold the VCR manufacturers liable for the illegal acts of the users of their products.
Sony, with supporting testimony from Mr. Rogers (yes, that Mr. Rogers) and a local PBS station, won initially in federal trial court. But Universal and the Mouse House prevailed before the 9th Circuit Court of Appeals, which ruled that video recording devices should be banned.
Sony appealed to the Supreme Court, but one man stood in their way. Drumroll please . . . Justice John Paul Stevens. Stevens persuaded just enough members of the Court to vote his way. In 1984, the Court ruled 5-4 in Sony v. Universal City Studios to allow VCRs to be sold to consumers. Justice Stevens wrote the Court’s opinion, which changed TV watching and the movie business forever. It was a big win for consumer convenience, and, dare I say, freedom.
[caption id="attachment_179851" align="aligncenter" width="1920"]
Betamax[/caption]
Stevens’ sensible logic was this:
“[T]he sale of copying equipment [VCRs], like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it [the product] need merely becapable of substantial non-infringing uses.” (Emphasis added.)
Justice Stevens analogized to “other articles of commerce” in his decision. So, the logic of his ruling as a precedent applies to much more than VCRs. It also covers firearms.
Let’s apply the Justice Stevens Test (and the Betamax precedent) to the much-maligned AR-15 and similar semi-automatic rifles, which biased media outlets call “assault rifles,” in deference to anti-gun talking points.
By any objective measure, the AR “is widely used for legitimate, unobjectionable purposes.” It passes the Supreme Court’s “Stevens’ Test.”
The AR-15 is the most popular rifle in America. About 1.3 million are sold every year, and Americans own 15 to 20 million “modern sporting rifles” of this type. The National Shooting Sports Foundation estimates one in every ten guns produced each year is such a rifle. They are used for sport shooting, hunting, and self-defense. The percentage of such rifles used in crimes is hardly measurable.
By any objective measure, the AR “is widely used for legitimate, unobjectionable purposes.” It passes the Supreme Court’s “Stevens’ Test.”
And what of the manufacturers and sellers of these firearms? If you simply substitute “AR-15” for “copying equipment” and “illegal activity” for “infringement,” the Stevens Test again makes the proper conclusion clear:
“[T]he sale of [AR-15s], like the sale of other articles of commerce, does not constitute contributory [illegal activity] if the product is widely used for legitimate, unobjectionable purposes.”
Manufacturers of the AR-15 shouldn’t be subject to civil liability or legal harassment when an AR-15 is misused to commit crimes. No different than a manufacturer of a VCR or DVD player being subject to liability or harassment if those devices are used to break the law.
[caption id="attachment_179853" align="aligncenter" width="1920"]
VHS Tapes[/caption]
Congress followed this logic in 2005 when it passed the Protection of Lawful Commerce in Arms Act, meant to stem the tide of liability suits filed against gunmakers and sellers by anti-Second Amendment activists, for the criminal misuse of guns. While that act restrained that torrent, Second Amendment haters are constantly concocting new legal theories to circumvent it, alleging that the sale of what they mislabel as “military style” rifles to the public is somehow “negligent,” even though such sale is perfectly legal. Such lawsuits shouldn’t prevail, but they cost gun makers and sellers millions in legal fees. Indeed, the process is the punishment.
Perhaps you’re thinking that willful copyright infringement isn’t a “real” crime and so it can’t be fairly compared with criminal misuse of guns. The law disagrees.
Look no further than the Connecticut Supreme Court’s recent decision in the Sandy Hook shooting case. There, the victims’ family members are trying hold gun manufacturers responsible for the actions of Adam Lanza, who killed his mother, stole her AR-15, murdered innocent children and then shot himself. Rather than dismiss this case as legally absurd, the court allowed the case to go forward, giving the families an opportunity to prove their case against the firearms manufacturer.
Perhaps you’re thinking that willful copyright infringement isn’t a “real” crime and so it can’t be fairly compared with criminal misuse of guns. The law disagrees. Willful copyright infringement is a felony punishable by enormous fines and imprisonment for five years. Just read the FBI warning on copyrighted movies.
It’s ironic, but Justice Stevens later showed himself to be no friend of the right to keep and bear arms. After leaving the bench, he called for the repeal of the Second Amendment. This occurred after his dissent in the Supreme Court’s Heller decision, which upheld the individual right of law-abiding citizens to possess firearms.
But in the Betamax case, Justice Stevens proved a true friend of liberty. And the sound logic of his decision – that lawful industries aren’t to blame for the misuse of their products - should vindicate gunmakers and gun sellers today.
Attorney Mark W. Smith is a Presidential Scholar at the King’s College in New York City and the author of “#Duped: How the Anti-Gun Lobby Exploits the Parkland School Shooting and How Gun Owners Can Fight Back.”
