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JULY 3 | WASHINGTON--It's increasingly clear that the Supreme Court will have to revisit the Betamax case.

After 15 years in which Sony v. Universal held sway as the governing precedent in matters of home recording and recorders, technology has outstripped legal doctrine, raising a host of new questions not anticipated in 1984.

Is peer-to-peer software like a VCR? Does digitally deleting the commercials transform a fair-use copy into an infringing derivative work? And who should be liable if it does?

More to the point in legal circles, lower courts are having a difficult time agreeing on how to apply the old precedent to the new technology.

The Ninth Circuit Court of Appeals ordered Napster shut down until it could purge infringing song files from its network.

In the Grokster case, a federal district court judge ruled that the more decentralized Grokster and Morpheus networks were more like VCRs, which the court in the Betamax case said could not be banned so long as they were capable of "substantial non-infringing uses."

And in a wide-ranging opinion handed down last week in a case involving the P2P network Aimster, the Seventh Circuit Court of Appeals found fault with both of those earlier rulings.

The majority opinion in the Aimster case, in fact, all but defied the Supreme Court not to take up the issue. Penned by the widely respected jurist Richard Posner, the opinion drolly observes, "The Supreme Court made clear in the [Betamax] decision that the producer of a product that has substantial non-infringing uses is not a contributory infringer merely because some of the uses actually made of the product ... are infringing. How much more the Court held is the principal issue that divides the parties."

Should the Supreme Court decide to revisit Betamax, the stakes will be high for the studios, consumer electronics companies, computer makers, network operators, ISPs and, of course, consumers. Much will depend on the case the court chooses to hear.

The studios have long held that the Betamax precedent applies only to a very narrow range of circumstances--essentially the analog recording of free, over-the-air broadcasts for time-shifting purposes. Since P2P networks have nothing to do with time-shifting, studio lawyers have argued, Betamax has nothing to do with P2P, or with digital home recording, or sending digital recordings to friends, or deleting the commercials, or any other new uses made possible by digital technology.

Where the studios focused on behavior, however, others have focused on the Betamax court's analysis of the technology of the VCR--a device capable of multiple uses, including non-infringing ones.

In Grokster, the court held that at least some P2P networks are analogous to VCRs in that they're capable of substantial non-infringing uses and therefore legal.

In his opinion regarding Aimster, Posner implicitly rejects the technological analogy, arguing that the behavior of the users, not the technology, is at the heart of the Betamax case. Since Aimster offered no evidence that any of its members were actually using the network for non-infringing purposes, Posner wrote that the Betamax safe harbor is not available to it.

By that logic, the makers of any sort of recording device are potentially liable for the actions of their users.

In a passage that is already raising alarms, in fact, Posner argues that even under Betamax, "skipping the commercials by taping a program before watching it and then, while watching the tape, using the fast-forward button ... to skip over the commercials ... [is] unquestionably infringing."

Since that issue was not formally before the Seventh Circuit, Posner's finding is not binding. But it's a clear reference to the ReplayTV case and aimed as much to the Supreme Court as to the parties in Aimster.

The Betamax case shaped a generation of technology. When and how the Supreme Court decides to revisit the case will go a long way toward shaping the next one.