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17 Colum.-VLA J.L. & Arts 427 (1992-1993)
The Marshall Papers: A Peek behind the Scenes at the Making of Sony v. Universal

handle is hein.journals/cjla17 and id is 437 raw text is: The Marshall Papers: A Peek Behind the Scenes
at the Making of Sony v. Universal
by Jonathan Band and Andrew J. McLaughlin*
In early 1993, shortly after Thurgood Marshall's death, the Library of
Congress opened his papers to the public.' Although Justice Marshall's
papers add little to our understanding of most of the copyright decisions
issued by the Supreme Court during his 24-year tenure on the nation's
highest bench, they do provide startling insights into Sony Corporation
of America v. Universal City Studios.2 This Article traces the evolution
of the Betamax opinions from the first conferences on the case in
January 1983 to the issuance of the decision in January 1984.
Justice Marshall's Betamax files contain many interesting revelations
about the case. First, the papers show that Justice Blackmun supplied
the fourth vote in favor of granting certiorari because he sought to affirm
the Ninth Circuit, which had found that home recording was not fair use.
Justice Blackmun was initially assigned the task of writing the majority
opinion, but when he failed to get a majority of the Court to join him, his
draft opinion became the dissent. Second, Justice Stevens' first draft of
what eventually became the majority opinion relied not on fair use, but
on the theory that private copying did not infringe any of the exclusive
rights under Section 106 of the 1976 Copyright Act. Third, the Justices'
correspondence reveals that Justice O'Connor proved to be the swing
vote. Although she initially favored affirming the Ninth Circuit, she had
considerable difficulty with some of Justice Blackmun's positions. He
accepted two sets of Justice O'Connor's revisions, but refused to yield to
a third set. By then, Justice O'Connor seems to have revised her
thinking on fair use, and she began to work with Justice Stevens'
Justice Marshall's Betamax files do not explain the origin of the
majority opinion's presumptions that commercial uses harm the market
for the copyrighted work and are unfair. What is clear after reading the
Betamax correspondence, however, is that the Supreme Court, at least
* Jonathan Band is a partner in the Washington, D.C. office of Morrison & Foerster.
Andrew J. McLaughlin is a third-year student at the Harvard Law School. The authors
would like to acknowledge the assistance of Professor Paul Goldstein in the preparation of
this Article.
Copyright © 1994 Jonathan Band and Andrew J. McLaughlin
1. Neil A. Lewis, Rare Glimpses of Judicial Chess and Poker, N.Y. TIMES, May 25, 1993,
at Al.
2. 464 U.S. 417 (1984) (hereinafter Betamax).

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