to majority opinion
to dissenting opinion
Justice STEVENS delivered the opinion of the Court.
Petitioners manufacture and sell home video tape recorders. Respondents
own the copyrights on some of the television programs that are broadcast
on the public airwaves. Some members of the general public use video tape
recorders sold by petitioners to record some of these broadcasts, as well
as a large number of other broadcasts. The question presented is whether
the sale of petitioners' copying equipment to the general public violates
any of the rights conferred upon respondents by the Copyright Act.
Respondents commenced this copyright infringement action against petitioners
in the United States District Court for the Central District of California
in 1976. Respondents alleged that some individuals had used Betamax video
tape recorders (VTR's) to record some of respondents' copyrighted works
which had been exhibited on commercially sponsored television and contended
that these individuals had thereby infringed respondents' copyrights. Respondents
further maintained that petitioners were liable for the copyright infringement
allegedly committed by Betamax consumers because of petitioners' marketing
of the Betamax VTR's. [1]
Respondents sought no relief against any Betamax consumer. Instead, they
sought money damages and an equitable accounting of profits from petitioners,
as well as an injunction against the manufacture and marketing of Betamax
VTR's.
After a lengthy trial, the District Court denied respondents all the relief
they sought and entered judgment for petitioners. 480 F.Supp. 429 (1979).
The United States Court of Appeals for the Ninth Circuit reversed the District
Court's judgment on respondent's copyright claim, holding petitioners liable
for contributory infringement and ordering the District Court to fashion
appropriate relief. 659 F.2d 963 (1981). We granted certiorari, 457 U.S.
1116, 102 S.Ct. 2926, 73 L.Ed.2d 1328 (1982); since we had not completed
our study of the case last Term, we ordered reargument, --- U.S. ----, 103
S.Ct. 3568, 77 L.Ed.2d 1409 (1983). We now reverse.
An explanation of our rejection of respondents' unprecedented attempt to
impose copyright liability upon the distributors of copying equipment requires
a quite detailed recitation of the findings of the District Court. In summary,
those findings reveal that the average member of the public uses a VTR principally
to record a program he cannot view as it is being televised and then to
watch it once at a later time. This practice, known as "time- shifting,"
enlarges the television viewing audience. For that reason, a significant
amount of television programming may be used in this manner without objection
from the owners of the copyrights on the programs. For the same reason,
even the two respondents in this case, who do assert objections to time-shifting
in this litigation, were unable to prove that the practice has impaired
the commercial value of their copyrights or has created any likelihood of
future harm. Given these findings, there is no basis in the Copyright Act
upon which respondents can hold petitioners liable for distributing VTR's
to the general public. The Court of Appeals' holding that respondents are
entitled to enjoin the distribution of VTR's, to collect royalties on the
sale of such equipment, or to obtain other relief, if affirmed, would enlarge
the scope of respondents' statutory monopolies to encompass control over
an article of commerce that is not the subject of copyright protection.
Such an expansion of the copyright privilege is beyond the limits of the
grants authorized by Congress.
The two respondents in this action, Universal Studios, Inc. and Walt
Disney Productions, produce and hold the copyrights on a substantial number
of motion pictures and other audiovisual works. In the current marketplace,
they can exploit their rights in these works in a number of ways: by authorizing
theatrical exhibitions, by licensing limited showings on cable and network
television, by selling syndication rights for repeated airings on local
television stations, and by marketing programs on prerecorded videotapes
or videodiscs. Some works are suitable for exploitation through all of these
avenues, while the market for other works is more limited.
Petitioner Sony manufactures millions of Betamax video tape recorders and
markets these devices through numerous retail establishments, some of which
are also petitioners in this action. [2] Sony's Betamax VTR is a mechanism consisting of three
basic components: (1) a tuner, which receives electromagnetic signals transmitted
over the television band of the public airwaves and separates them into
audio and visual signals; (2) a recorder, which records such signals on
a magnetic tape; and (3) an adapter, which converts the audio and visual
signals on the tape into a composite signal that can be received by a television
set.
Several capabilities of the machine are noteworthy. The separate tuner in
the Betamax enables it to record a broadcast off one station while the television
set is tuned to another channel, permitting the viewer, for example, to
watch two simultaneous news broadcasts by watching one "live"
and recording the other for later viewing. Tapes may be reused, and programs
that have been recorded may be erased either before or after viewing. A
timer in the Betamax can be used to activate and deactivate the equipment
at predetermined times, enabling an intended viewer to record programs that
are transmitted when he or she is not at home. Thus a person may watch a
program at home in the evening even though it was broadcast while the viewer
was at work during the afternoon. The Betamax is also equipped with a pause
button and a fast-forward control. The pause button, when depressed, deactivates
the recorder until it is released, thus enabling a viewer to omit a commercial
advertisement from the recording, provided, of course, that the viewer is
present when the program is recorded. The fast forward control enables the
viewer of a previously recorded program to run the tape rapidly when a segment
he or she does not desire to see is being played back on the television
screen.
The respondents and Sony both conducted surveys of the way the Betamax machine
was used by several hundred owners during a sample period in 1978. Although
there were some differences in the surveys, they both showed that the primary
use of the machine for most owners was "time-shifting,"--the practice
of recording a program to view it once at a later time, and thereafter erasing
it. Time-shifting enables viewers to see programs they otherwise would miss
because they are not at home, are occupied with other tasks, or are viewing
a program on another station at the time of a broadcast that they desire
to watch. Both surveys also showed, however, that a substantial number of
interviewees had accumulated libraries of tapes. [3]
Sony's survey indicated that over 80% of the
interviewees watched at least as much regular television as they had before
owning a Betamax. [4] Respondents offered no
evidence of decreased television viewing by Betamax owners.
[5]
Sony introduced considerable evidence describing television programs that
could be copied without objection from any copyright holder, with special
emphasis on sports, religious, and educational programming. For example,
their survey indicated that 7.3% of all Betamax use is to record sports
events, and representatives of professional baseball, football, basketball,
and hockey testified that they had no objection to the recording of their
televised events for home use. [6]
Respondents offered opinion evidence concerning the future impact of the
unrestricted sale of VTR's on the commercial value of their copyrights.
The District Court found, however, that they had failed to prove any likelihood
of future harm from the use of VTR's for time-shifting. Id., at 469.
The lengthy trial of the case in the District Court concerned the private,
home use of VTR's for recording programs broadcast on the public airwaves
without charge to the viewer. [7]
No issue concerning the transfer of tapes to other persons, the use of home-recorded
tapes for public performances, or the copying of programs transmitted on
pay or cable television systems was raised. See 480 F.Supp. 429, 432-433,
442 (1979).
The District Court concluded that noncommercial home use recording of material
broadcast over the public airwaves was a fair use of copyrighted works and
did not constitute copyright infringement. It emphasized the fact that the
material was broadcast free to the public at large, the noncommercial character
of the use, and the private character of the activity conducted entirely
within the home. Moreover, the court found that the purpose of this use
served the public interest in increasing access to television programming,
an interest that "is consistent with the First Amendment policy of
providing the fullest possible access to information through the public
airwaves. Columbia Broadcasting System, Inc. v. Democratic National Committee,
412 U.S. 94, 102 [93 S.Ct. 2080, 2086, 36 L.Ed.2d 772]." 480 F.Supp.,
at 454. [8] Even when an entire copyrighted
work was recorded, the District Court regarded the copying as fair use "because
there is no accompanying reduction in the market for 'plaintiff's original
work.' " Ibid.
As an independent ground of decision, the District Court also concluded
that Sony could not be held liable as a contributory infringer even if the
home use of a VTR was considered an infringing use. The District Court noted
that Sony had no direct involvement with any Betamax purchasers who recorded
copyrighted works off the air. Sony's advertising was silent on the subject
of possible copyright infringement, but its instruction booklet contained
the following statement: "Television programs, films, videotapes and
other materials may be copyrighted. Unauthorized recording of such material
may be contrary to the provisions of the United States copyright laws."
Id., at 436.
The District Court assumed that Sony had constructive knowledge of the probability
that the Betamax machine would be used to record copyrighted programs, but
found that Sony merely sold a "product capable of a variety of uses,
some of them allegedly infringing." Id., at 461. It reasoned: "Selling
a staple article of commerce e.g., a typewriter, a recorder, a camera, a
photocopying machine technically contributes to any infringing use subsequently
made thereof, but this kind of 'contribution,' if deemed sufficient as a
basis for liability, would expand the theory beyond precedent and arguably
beyond judicial management. "Commerce would indeed be hampered if manufacturers
of staple items were held liable as contributory infringers whenever they
'constructively' knew that some purchasers on some occasions would use their
product for a purpose which a court later deemed, as a matter of first impression,
to be an infringement." Ibid.
Finally, the District Court discussed the respondents' prayer for injunctive
relief, noting that they had asked for an injunction either preventing the
future sale of Betamax machines, or requiring that the machines be rendered
incapable of recording copyrighted works off the air. The court stated that
it had "found no case in which the manufacturers, distributors, retailers,
and advertisors of the instrument enabling the infringement were sued by
the copyright holders," and that the request for relief in this case
"is unique." 480 F.Supp., at 465.
It concluded that an injunction was wholly inappropriate because any possible
harm to respondents was outweighed by the fact that "the Betamax could
still legally be used to record noncopyrighted material or material whose
owners consented to the copying. An injunction would deprive the public
of the ability to use the Betamax for this noninfringing off-the-air recording."
480 F.Supp., at 468.
The Court of Appeals reversed the District Court's judgment on respondents'
copyright claim. It did not set aside any of the District Court's findings
of fact. Rather, it concluded as a matter of law that the home use of a
VTR was not a fair use because it was not a "productive use."
[9] It therefore
held that it was unnecessary for plaintiffs to prove any harm to the potential
market for the copyrighted works, but then observed that it seemed clear
that the cumulative effect of mass reproduction made possible by VTR's would
tend to diminish the potential market for respondents' works. 659 F.2d,
at 974.
On the issue of contributory infringement, the Court of Appeals first rejected
the analogy to staple articles of commerce such as tape recorders or photocopying
machines. It noted that such machines "may have substantial benefit
for some purposes" and do not "even remotely raise copyright problems."
Id., at 975. VTR's, however, are sold "for the primary purpose of reproducing
television programming" and "virtually all" such programming
is copyrighted material. Ibid. The Court of Appeals concluded, therefore,
that VTR's were not suitable for any substantial noninfringing use even
if some copyright owners elect not to enforce their rights.
The Court of Appeals also rejected the District Court's reliance on Sony's
lack of knowledge that home use constituted infringement. Assuming that
the statutory provisions defining the remedies for infringement applied
also to the non-statutory tort of contributory infringement, the court stated
that a defendant's good faith would merely reduce his damages liability
but would not excuse the infringing conduct. It held that Sony was chargeable
with knowledge of the homeowner's infringing activity because the reproduction
of copyrighted materials was either "the most conspicuous use"
or "the major use" of the Betamax product. Ibid.
On the matter of relief, the Court of Appeals concluded that "statutory
damages may be appropriate," that the District Court should reconsider
its determination that an injunction would not be an appropriate remedy;
and, referring to "the analogous photocopying area," suggested
that a continuing royalty pursuant to a judicially created compulsory license
may very well be an acceptable resolution of the relief issue. 659 F.2d,
at 976.
Article I, Sec. 8 of the Constitution provides that: "The Congress
shall have Power ... to Promote the Progress of Science and useful Arts,
by securing for limited Times to Authors and Inventors the exclusive Right
to their respective Writings and Discoveries."
The monopoly privileges that Congress may authorize are neither unlimited
nor primarily designed to provide a special private benefit. Rather, the
limited grant is a means by which an important public purpose may be achieved.
It is intended to motivate the creative activity of authors and inventors
by the provision of a special reward, and to allow the public access to
the products of their genius after the limited period of exclusive control
has expired. "The copyright law, like the patent statute, makes reward
to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286
U.S. 123, 127 [52 S.Ct. 546, 547, 76 L.Ed. 1010], Chief Justice Hughes spoke
as follows respecting the copyright monopoly granted by Congress, 'The sole
interest of the United States and the primary object in conferring the monopoly
lie in the general benefits derived by the public from the labors of authors.'
It is said that reward to the author or artist serves to induce release
to the public of the products of his creative genius." United States
v. Paramount Pictures, 334 U.S. 131, 158, 68 S.Ct. 915, 929, 92 L.Ed. 1260.
As the text of the Constitution makes plain, it is Congress that has been
assigned the task of defining the scope of the limited monopoly that should
be granted to authors or to inventors in order to give the public appropriate
access to their work product. Because this task involves a difficult balance
between the interests of authors and inventors in the control and exploitation
of their writings and discoveries on the one hand, and society's competing
interest in the free flow of ideas, information, and commerce on the other
hand, our patent and copyright statutes have been amended repeatedly. [10]
"In enacting a copyright law Congress must consider ... two questions:
First, how much will the legislation stimulate the producer and so benefit
the public, and, second, how much will the monopoly granted be detrimental
to the public? The granting of such exclusive rights, under the proper terms
and conditions, confers a benefit upon the public that outweighs the evils
of the temporary monopoly." H.R.Rep. No. 2222, 60th Cong., 2d Sess.
7 (1909).
From its beginning, the law of copyright has developed in response to significant
changes in technology. [11] Indeed, it was the
invention of a new form of copying equipment--the printing press--that gave
rise to the original need for copyright protection. [12]
Repeatedly, as new developments have occurred in this country, it has been
the Congress that has fashioned the new rules that new technology made necessary.
Thus, long before the enactment of the Copyright Act of 1909, 35 Stat. 1075,
it was settled that the protection given to copyrights is wholly statutory.
Wheaton v. Peters, 33 U.S. (8 Peters) 591, 661-662, 8 L.Ed. 1055 (1834).
The remedies for infringement "are only those prescribed by Congress."
Thompson v. Hubbard, 131 U.S. 123, 151, 9 S.Ct. 710, 720, 33 L.Ed. 76 (1889).
The judiciary's reluctance to expand the protections afforded by the copyright
without explicit legislative guidance is a recurring theme. See, e.g., Teleprompter
Corp. v. CBS, 415 U.S. 394, 94 S.Ct. 1129, 39 L.Ed.2d 415 (1974); Fortnightly
Corp. v. United Artists, 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968);
White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 28 S.Ct. 319,
52 L.Ed. 655 (1908); Williams and Wilkins v. United States, 487 F.2d 1345,
203 Ct.Cl. 74 (1973), affirmed by an equally divided court, 420 U.S. 376,
95 S.Ct. 1344, 43 L.Ed.2d 264 (1975). Sound policy, as well as history,
supports our consistent deference to Congress when major technological innovations
alter the market for copyrighted materials. Congress has the constitutional
authority and the institutional ability to accommodate fully the varied
permutations of competing interests that are inevitably implicated by such
new technology.
In a case like this, in which Congress has not plainly marked our course,
we must be circumspect in construing the scope of rights created by a legislative
enactment which never contemplated such a calculus of interests. In doing
so, we are guided by Justice Stewart's exposition of the correct approach
to ambiguities in the law of copyright: "The limited scope of the copyright
holder's statutory monopoly, like the limited copyright duration required
by the Constitution, reflects a balance of competing claims upon the public
interest: Creative work is to be encouraged and rewarded, but private motivation
must ultimately serve the cause of promoting broad public availability of
literature, music, and the other arts. The immediate effect of our copyright
law is to secure a fair return for an 'author's' creative labor. But the
ultimate aim is, by this incentive, to stimulate artistic creativity for
the general public good. 'The sole interest of the United States and the
primary object in conferring the monopoly,' this Court has said, 'lie in
the general benefits derived by the public from the labors of authors.'
Fox Film Corp. v. Doyal, 286 U.S. 123, 127 [52 S.Ct. 546, 547, 76 L.Ed.
1010]. See Kendall v. Winsor, 21 How. 322, 327-328 [16 L.Ed. 165]; Grant
v. Raymond, 6 Pet. 218, 241-242 [8 L.Ed. 376]. When technological change
has rendered its literal terms ambiguous, the Copyright Act must be construed
in light of this basic purpose." Twentieth Century Music Corp. v. Aiken,
422 U.S. 151, 156, 95 S.Ct. 2040, 2043, 45 L.Ed.2d 84 (footnotes omitted).
Copyright protection "subsists ... in original works of authorship
fixed in any tangible medium of expression." 17 U.S.C. s 102(a). This
protection has never accorded the copyright owner complete control over
all possible uses of his work. [13] Rather, the Copyright Act grants the copyright holder
"exclusive" rights to use and to authorize the use of his work
in five qualified ways, including reproduction of the copyrighted work in
copies. Id., s 106. [14] All reproductions of
the work, however, are not within the exclusive domain of the copyright
owner; some are in the public domain. Any individual may reproduce a copyrighted
work for a "fair use;" the copyright owner does not possess the
exclusive right to such a use. Compare id., s 106 with id., s 107.
"Anyone who violates any of the exclusive rights of the copyright owner,"
that is, anyone who trespasses into his exclusive domain by using or authorizing
the use of the copyrighted work in one of the five ways set forth in the
statute, "is an infringer of the copyright." Id., s 501(a). Conversely,
anyone who is authorized by the copyright owner to use the copyrighted work
in a way specified in the statute or who makes a fair use of the work is
not an infringer of the copyright with respect to such use.
The Copyright Act provides the owner of a copyright with a potent arsenal
of remedies against an infringer of his work, including an injunction to
restrain the infringer from violating his rights, the impoundment and destruction
of all reproductions of his work made in violation of his rights, a recovery
of his actual damages and any additional profits realized by the infringer
or a recovery of statutory damages, and attorneys fees. Id., ss 502-505.
[15]
The two respondents in this case do not seek relief against the Betamax
users who have allegedly infringed their copyrights. Moreover, this is not
a class action on behalf of all copyright owners who license their works
for television broadcast, and respondents have no right to invoke whatever
rights other copyright holders may have to bring infringement actions based
on Betamax copying of their works. [16] As was
made clear by their own evidence, the copying of the respondents' programs
represents a small portion of the total use of VTR's. It is, however, the
taping of respondents own copyrighted programs that provides them with standing
to charge Sony with contributory infringement. To prevail, they have the
burden of proving that users of the Betamax have infringed their copyrights
and that Sony should be held responsible for that infringement.
The Copyright Act does not expressly render anyone liable for infringement
committed by another. In contrast, the Patent Act expressly brands anyone
who "actively induces infringement of a patent" as an infringer,
35 U.S.C. s 271(b), and further imposes liability on certain individuals
labeled "contributory" infringers, id., s 271(c). The absence
of such express language in the copyright statute does not preclude the
imposition of liability for copyright infringements on certain parties who
have not themselves engaged in the infringing activity. [17] For vicarious liability is imposed in virtually
all areas of the law, and the concept of contributory infringement is merely
a species of the broader problem of identifying the circumstances in which
it is just to hold one individual accountable for the actions of another.
Such circumstances were plainly present in Kalem Co. v. Harper Brothers,
222 U.S. 55, 32 S.Ct. 20, 56 L.Ed. 92 (1911), the copyright decision of
this Court on which respondents place their principal reliance. In Kalem,
the Court held that the producer of an unauthorized film dramatization of
the copyrighted book Ben Hur was liable for his sale of the motion picture
to jobbers, who in turn arranged for the commercial exhibition of the film.
Justice Holmes, writing for the Court, explained: "The defendant not
only expected but invoked by advertisement the use of its films for dramatic
reproduction of the story. That was the most conspicuous purpose for which
they could be used, and the one for which especially they were made. If
the defendant did not contribute to the infringement it is impossible to
do so except by taking part in the final act. It is liable on principles
recognized in every part of the law." 222 U.S., at 63, 32 S.Ct., at
22.
The use for which the item sold in Kalem had been "especially"
made was, of course, to display the performance that had already been recorded
upon it. The producer had personally appropriated the copyright owner's
protected work and, as the owner of the tangible medium of expression upon
which the protected work was recorded, authorized that use by his sale of
the film to jobbers. But that use of the film was not his to authorize:
the copyright owner possessed the exclusive right to authorize public performances
of his work. Further, the producer personally advertised the unauthorized
public performances, dispelling any possible doubt as to the use of the
film which he had authorized.
Respondents argue that Kalem stands for the proposition that supplying the
"means" to accomplish an infringing activity and encouraging that
activity through advertisement are sufficient to establish liability for
copyright infringement. This argument rests on a gross generalization that
cannot withstand scrutiny. The producer in Kalem did not merely provide
the "means" to accomplish an infringing activity; the producer
supplied the work itself, albeit in a new medium of expression. Petitioners
in the instant case do not supply Betamax consumers with respondents' works;
respondents do. Petitioners supply a piece of equipment that is generally
capable of copying the entire range of programs that may be televised: those
that are uncopyrighted, those that are copyrighted but may be copied without
objection from the copyright holder, and those that the copyright holder
would prefer not to have copied. The Betamax can be used to make authorized
or unauthorized uses of copyrighted works, but the range of its potential
use is much broader than the particular infringing use of the film Ben Hur
involved in Kalem. Kalem does not support respondents' novel theory of liability.
Justice Holmes stated that the producer had "contributed" to the
infringement of the copyright, and the label "contributory infringement"
has been applied in a number of lower court copyright cases involving an
ongoing relationship between the direct infringer and the contributory infringer
at the time the infringing conduct occurred. In such cases, as in other
situations in which the imposition of vicarious liability is manifestly
just, the "contributory" infringer was in a position to control
the use of copyrighted works by others and had authorized the use without
permission from the copyright owner. [18] This case, however, plainly does not fall in that
category. The only contact between Sony and the users of the Betamax that
is disclosed by this record occurred at the moment of sale. The District
Court expressly found that "no employee of Sony, Sonam or DDBI had
either direct involvement with the allegedly infringing activity or direct
contact with purchasers of Betamax who recorded copyrighted works off-the-air."
480 F.Supp., at 460. And it further found that "there was no evidence
that any of the copies made by Griffiths or the other individual witnesses
in this suit were influenced or encouraged by [Sony's] advertisements."
Ibid.
If vicarious liability is to be imposed on petitioners in this case, it
must rest on the fact that they have sold equipment with constructive knowledge
of the fact that their customers may use that equipment to make unauthorized
copies of copyrighted material. There is no precedent in the law of copyright
for the imposition of vicarious liability on such a theory. The closest
analogy is provided by the patent law cases to which it is appropriate to
refer because of the historic kinship between patent law and copyright law.
[19]
In the Patent Code both the concept of infringement and the concept of contributory
infringement are expressly defined by statute. [20]
The prohibition against contributory infringement is confined to the knowing
sale of a component especially made for use in connection with a particular
patent. There is no suggestion in the statute that one patentee may object
to the sale of a product that might be used in connection with other patents.
Moreover, the Act expressly provides that the sale of a "staple article
or commodity of commerce suitable for substantial noninfringing use"
is not contributory infringement.
When a charge of contributory infringement is predicated entirely on the
sale of an article of commerce that is used by the purchaser to infringe
a patent, the public interest in access to that article of commerce is necessarily
implicated. A finding of contributory infringement does not, of course,
remove the article from the market altogether; it does, however, give the
patentee effective control over the sale of that item. Indeed, a finding
of contributory infringement is normally the functional equivalent of holding
that the disputed article is within the monopoly granted to the patentee.
[21]
For that reason, in contributory infringement cases arising under the patent
laws the Court has always recognized the critical importance of not allowing
the patentee to extend his monopoly beyond the limits of his specific grant.
These cases deny the patentee any right to control the distribution of unpatented
articles unless they are "unsuited for any commercial noninfringing
use." Dawson Chemical Co. v. Rohm & Hass Co., 448 U.S. 176, 198,
100 S.Ct. 2601, 2614, 65 L.Ed.2d 696 (1980). Unless a commodity "has
no use except through practice of the patented method," ibid, the patentee
has no right to claim that its distribution constitutes contributory infringement.
"To form the basis for contributory infringement the item must almost
be uniquely suited as a component of the patented invention." P. Rosenberg,
Patent Law Fundamentals s 17.02[2] (1982). "[A] sale of an article
which though adapted to an infringing use is also adapted to other and lawful
uses, is not enough to make the seller a contributory infringer. Such a
rule would block the wheels of commerce." Henry v. A.B. Dick Co., 224
U.S. 1, 48, 32 S.Ct. 364, 379, 56 L.Ed. 645 (1912), overruled on other grounds,
Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 517,
37 S.Ct. 416, 421, 61 L.Ed. 871 (1917).
We recognize there are substantial differences between the patent and copyright
laws. But in both areas the contributory infringement doctrine is grounded
on the recognition that adequate protection of a monopoly may require the
courts to look beyond actual duplication of a device or publication to the
products or activities that make such duplication possible. The staple article
of commerce doctrine must strike a balance between a copyright holder's
legitimate demand for effective--not merely symbolic--protection of the
statutory monopoly, and the rights of others freely to engage in substantially
unrelated areas of commerce. Accordingly, the sale of copying equipment,
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 need merely be capable of substantial noninfringing
uses.
The question is thus whether the Betamax is capable of commercially significant noninfringing uses. In order to resolve that question, we need not explore all the different potential uses of the machine and determine whether or not they would constitute infringement. Rather, we need only consider whether on the basis of the facts as found by the district court a significant number of them would be non-infringing. Moreover, in order to resolve this case we need not give precise content to the question of how much use is commercially significant. For one potential use of the Betamax plainly satisfies this standard, however it is understood: private, noncommercial time-shifting in the home. It does so both (A) because respondents have no right to prevent other copyright holders from authorizing it for their programs, and (B) because the District Court's factual findings reveal that even the unauthorized home time-shifting of respondents' programs is legitimate fair use.
Each of the respondents owns a large inventory of valuable copyrights,
but in the total spectrum of television programming their combined market
share is small. The exact percentage is not specified, but it is well below
10%. [22] If they
were to prevail, the outcome of this litigation would have a significant
impact on both the producers and the viewers of the remaining 90% of the
programming in the Nation. No doubt, many other producers share respondents'
concern about the possible consequences of unrestricted copying. Nevertheless
the findings of the District Court make it clear that time- shifting may
enlarge the total viewing audience and that many producers are willing to
allow private time-shifting to continue, at least for an experimental time
period. [23]
The District Court found: "Even if it were deemed that home-use recording
of copyrighted material constituted infringement, the Betamax could still
legally be used to record noncopyrighted material or material whose owners
consented to the copying. An injunction would deprive the public of the
ability to use the Betamax for this noninfringing off-the-air recording.
"Defendants introduced considerable testimony at trial about the potential
for such copying of sports, religious, educational and other programming.
This included testimony from representatives of the Offices of the Commissioners
of the National Football, Basketball, Baseball and Hockey Leagues and Associations,
the Executive Director of National Religious Broadcasters and various educational
communications agencies. Plaintiffs attack the weight of the testimony offered
and also contend that an injunction is warranted because infringing uses
outweigh noninfringing uses." "Whatever the future percentage
of legal versus illegal home-use recording might be, an injunction which
seeks to deprive the public of the very tool or article of commerce capable
of some noninfringing use would be an extremely harsh remedy, as well as
one unprecedented in copyright law." 480 F.Supp., at 468.
Although the District Court made these statements in the context of considering
the propriety of injunctive relief, the statements constitute a finding
that the evidence concerning "sports, religious, educational, and other
programming" was sufficient to establish a significant quantity of
broadcasting whose copying is now authorized, and a significant potential
for future authorized copying. That finding is amply supported by the record.
In addition to the religious and sports officials identified explicitly
by the District Court, [24] two
items in the record deserve specific mention.
First is the testimony of John Kenaston, the station manager of Channel
58, an educational station in Los Angeles affiliated with the Public Broadcasting
Service. He explained and authenticated the station's published guide to
its programs. [25] For each program, the guide
tells whether unlimited home taping is authorized, home taping is authorized
subject to certain restrictions (such as erasure within seven days), or
home taping is not authorized at all. The Spring 1978 edition of the guide
described 107 programs. Sixty-two of those programs or 58% authorize some
home taping. Twenty-one of them or almost 20% authorize unrestricted home
taping. [26]
Second is the testimony of Fred Rogers, president of the corporation that
produces and owns the copyright on Mr. Rogers' Neighborhood. The program
is carried by more public television stations than any other program. Its
audience numbers over 3,000,000 families a day. He testified that he had
absolutely no objection to home taping for noncommercial use and expressed
the opinion that it is a real service to families to be able to record children's
programs and to show them at appropriate times. [27]
If there are millions of owners of VTR's who make copies of televised sports
events, religious broadcasts, and educational programs such as Mister Rogers'
Neighborhood, and if the proprietors of those programs welcome the practice,
the business of supplying the equipment that makes such copying feasible
should not be stifled simply because the equipment is used by some individuals
to make unauthorized reproductions of respondents' works. The respondents
do not represent a class composed of all copyright holders. Yet a finding
of contributory infringement would inevitably frustrate the interests of
broadcasters in reaching the portion of their audience that is available
only through time-shifting.
Of course, the fact that other copyright holders may welcome the practice
of time-shifting does not mean that respondents should be deemed to have
granted a license to copy their programs. Third party conduct would be wholly
irrelevant in an action for direct infringement of respondents' copyrights.
But in an action for contributory infringement against the seller of copying
equipment, the copyright holder may not prevail unless the relief that he
seeks affects only his programs, or unless he speaks for virtually all copyright
holders with an interest in the outcome. In this case, the record makes
it perfectly clear that there are many important producers of national and
local television programs who find nothing objectionable about the enlargement
in the size of the television audience that results from the practice of
time-shifting for private home use. [28] The seller of the equipment that expands those producers'
audiences cannot be a contributory infringer if, as is true in this case,
it has had no direct involvement with any infringing activity.
Even unauthorized uses of a copyrighted work are not necessarily infringing.
An unlicensed use of the copyright is not an infringement unless it conflicts
with one of the specific exclusive rights conferred by the copyright statute.
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 154-155, 95 S.Ct.
2040, 2043, 45 L.Ed.2d 84. Moreover, the definition of exclusive rights
in s 106 of the present Act is prefaced by the words "subject to sections
107 through 118." Those sections describe a variety of uses of copyrighted
material that "are not infringements of copyright notwithstanding the
provisions of s 106." The most pertinent in this case is s 107, the
legislative endorsement of the doctrine of "fair use." [29]
That section identifies various factors [30]
that enable a Court to apply an "equitable
rule of reason" analysis to particular claims of infringement. [31]
Although not conclusive, the first factor requires
that "the commercial or nonprofit character of an activity" be
weighed in any fair use decision. [32] If the Betamax were used to make copies for a commercial
or profit-making purpose, such use would presumptively be unfair. The contrary
presumption is appropriate here, however, because the District Court's findings
plainly establish that time-shifting for private home use must be characterized
as a noncommercial, nonprofit activity. Moreover, when one considers the
nature of a televised copyrighted audiovisual work, see 17 U.S.C. s 107(2),
and that timeshifting merely enables a viewer to see such a work which he
had been invited to witness in its entirety free of charge, the fact that
the entire work is reproduced, see id., at s 107(3), does not have its ordinary
effect of militating against a finding of fair use. [33]
This is not, however, the end of the inquiry because Congress has also directed
us to consider "the effect of the use upon the potential market for
or value of the copyrighted work." Id., at s 107(4). The purpose of
copyright is to create incentives for creative effort. Even copying for
noncommercial purposes may impair the copyright holder's ability to obtain
the rewards that Congress intended him to have. But a use that has no demonstrable
effect upon the potential market for, or the value of, the copyrighted work
need not be prohibited in order to protect the author's incentive to create.
The prohibition of such noncommercial uses would merely inhibit access to
ideas without any countervailing benefit. [34]
Thus, although every commercial use of copyrighted material is presumptively
an unfair exploitation of the monopoly privilege that belongs to the owner
of the copyright, noncommercial uses are a different matter. A challenge
to a noncommercial use of a copyrighted work requires proof either that
the particular use is harmful, or that if it should become widespread, it
would adversely affect the potential market for the copyrighted work. Actual
present harm need not be shown; such a requirement would leave the copyright
holder with no defense against predictable damage. Nor is it necessary to
show with certainty that future harm will result. What is necessary is a
showing by a preponderance of the evidence that some meaningful likelihood
of future harm exists. If the intended use is for commercial gain, that
likelihood may be presumed. But if it is for a noncommercial purpose, the
likelihood must be demonstrated.
In this case, respondents failed to carry their burden with regard to home
time-shifting. The District Court described respondents' evidence as follows:
"Plaintiffs' experts admitted at several points in the trial that the
time- shifting without librarying would result in 'not a great deal of harm.'
Plaintiffs' greatest concern about time-shifting is with 'a point of important
philosophy that transcends even commercial judgment.' They fear that with
any Betamax usage, 'invisible boundaries' are passed: 'the copyright owner
has lost control over his program.' " 480 F.Supp., at 467.
Later in its opinion, the District Court observed: "Most of plaintiffs'
predictions of harm hinge on speculation about audience viewing patterns
and ratings, a measurement system which Sidney Sheinberg, MCA's president,
calls a 'black art' because of the significant level of imprecision involved
in the calculations." Id., at 469. [35]
There was no need for the District Court to say much about past harm. "Plaintiffs
have admitted that no actual harm to their copyrights has occurred to date."
Id., at 451.
On the question of potential future harm from time-shifting, the District
Court offered a more detailed analysis of the evidence. It rejected respondents'
"fear that persons 'watching' the original telecast of a program will
not be measured in the live audience and the ratings and revenues will decrease,"
by observing that current measurement technology allows the Betamax audience
to be reflected. Id., at 466. [36] It rejected respondents' prediction "that live television
or movie audiences will decrease as more people watch Betamax tapes as an
alternative," with the observation that "[t]here is no factual
basis for [the underlying] assumption." Ibid. [37]
It rejected respondents' "fear that time-shifting
will reduce audiences for telecast reruns," and concluded instead that
"given current market practices, this should aid plaintiffs rather
than harm them." Ibid. [38] And it declared
that respondents' suggestion "that theater or film rental exhibition
of a program will suffer because of time-shift recording of that program"
"lacks merit." 480 F.Supp., at 467. [39]
After completing that review, the District Court restated its overall conclusion
several times, in several different ways. "Harm from time- shifting
is speculative and, at best, minimal." Ibid. "The audience benefits
from the time-shifting capability have already been discussed. It is not
implausible that benefits could also accrue to plaintiffs, broadcasters,
and advertisers, as the Betamax makes it possible for more persons to view
their broadcasts." Ibid. "No likelihood of harm was shown at trial,
and plaintiffs admitted that there had been no actual harm to date."
Id., at 468-469. "Testimony at trial suggested that Betamax may require
adjustments in marketing strategy, but it did not establish even a likelihood
of harm." Id., at 469. "Television production by plaintiffs today
is more profitable than it has ever been, and, in five weeks of trial, there
was no concrete evidence to suggest that the Betamax will change the studios'
financial picture." Ibid.
The District Court's conclusions are buttressed by the fact that to the
extent time-shifting expands public access to freely broadcast television
programs, it yields societal benefits. Earlier this year, in Community Television
of Southern California v. Gottfried, --- U.S. ----, ---- - ----, n. 12,
103 S.Ct. 885, 891-892, 74 L.Ed.2d 705 (1983), we acknowledged the public
interest in making television broadcasting more available. Concededly, that
interest is not unlimited. But it supports an interpretation of the concept
of "fair use" that requires the copyright holder to demonstrate
some likelihood of harm before he may condemn a private act of time-shifting
as a violation of federal law.
When these factors are all weighed in the "equitable rule of reason"
balance, we must conclude that this record amply supports the District Court's
conclusion that home time-shifting is fair use. In light of the findings
of the District Court regarding the state of the empirical data, it is clear
that the Court of Appeals erred in holding that the statute as presently
written bars such conduct. [40]
In summary, the record and findings of the District Court lead us to two
conclusions. First, Sony demonstrated a significant likelihood that substantial
numbers of copyright holders who license their works for broadcast on free
television would not object to having their broadcasts time- shifted by
private viewers. And second, respondents failed to demonstrate that time-shifting
would cause any likelihood of nonminimal harm to the potential market for,
or the value of, their copyrighted works. The Betamax is, therefore, capable
of substantial noninfringing uses. Sony's sale of such equipment to the
general public does not constitute contributory infringement of respondent's
copyrights.
"The direction of Art. I is that Congress shall have the power to
promote the progress of science and the useful arts. When, as here, the
Constitution is permissive, the sign of how far Congress has chosen to go
can come only from Congress." Deepsouth Packing Co. v. Laitram Corp.,
406 U.S. 518, 530, 92 S.Ct. 1700, 1707, 32 L.Ed.2d 273 (1972).
One may search the Copyright Act in vain for any sign that the elected representatives
of the millions of people who watch television every day have made it unlawful
to copy a program for later viewing at home, or have enacted a flat prohibition
against the sale of machines that make such copying possible.
It may well be that Congress will take a fresh look at this new technology,
just as it so often has examined other innovations in the past. But it is
not our job to apply laws that have not yet been written. Applying the copyright
statute, as it now reads, to the facts as they have been developed in this
case, the judgment of the Court of Appeals must be reversed.
It is so ordered.
* The syllabus constitutes no part of the opinion
of the Court but has been prepared by the Reporter of Decisions for the
convenience of the reader. See United States v. Detroit Lumber Co., 200
U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
1. The respondents also asserted causes of action
under state law and s 43(a) of the Trademark Act of 1946, 60 Stat. 441,
15 U.S.C. s 1125(a). These claims are not before this Court.up
2. The four retailers are Carter, Hawley, Hales,
Stores, Inc.; Associated Dry Goods Corp.; Federated Department Stores, Inc.;
and Henry's Camera Corp. The principal defendants are Sony Corporation,
the manufacturer of the equipment, and its wholly owned subsidiary, Sony
Corporation of America. The advertising agency of Doyle, Dane, Burnbock,
Inc., also involved in marketing the Betamax, is also a petitioner. An individual
VTR user, Willis Griffiths, was named as a defendant in the District Court,
but respondent sought no relief against him. Griffiths is not a petitioner.
For convenience, we shall refer to petitioners collectively as Sony. up
3. As evidence of how a VTR may be used, respondents
offered the testimony of William Griffiths. Griffiths, although named as
an individual defendant, was a client of plaintiffs' law firm. The District
Court summarized his testimony as follows: "He owns approximately 100
tapes. When Griffiths bought his Betamax, he intended not only to time-shift
(record, play-back and then erase) but also to build a library of cassettes.
Maintaining a library, however, proved too expensive, and he is now erasing
some earlier tapes and reusing them. "Griffiths copied about 20 minutes
of a Universal motion picture called 'Never Give An Inch,' and two episodes
from Universal television series entitled 'Baa Baa Black Sheep' and 'Holmes
and Yo Yo.' He would have erased each of these but for the request of plaintiffs'
counsel that it be kept. Griffiths also testified that he had copied but
already erased Universal films called 'Alpha Caper' (erased before anyone
saw it) and 'Amelia Earhart.' At the time of his deposition Griffiths did
not intend to keep any Universal film in his library. "Griffiths has
also recorded documentaries, news broadcasts, sporting events and political
programs such as a rerun of the Nixon/Kennedy debate." 480 F.Supp.,
at 436-437. Four other witnesses testified to having engaged in similar
activity. up
4. The District Court summarized some of the
findings in these surveys as follows: "According to plaintiffs' survey,
75.4% of the VTR owners use their machines to record for time-shifting purposes
half or most of the time. Defendants' survey showed that 96% of the Betamax
owners had used the machine to record programs they otherwise would have
missed. "When plaintiffs asked interviewees how many cassettes were
in their library, 55.8% said there were 10 or fewer. In defendants' survey,
of the total programs viewed by interviewees in the past month, 70.4% had
been viewed only that one time and for 57.9%, there were no plans for further
viewing." 480 F.Supp., at 438. up
5. "81.9% of the defendants' interviewees
watched the same amount or more of regular television as they did before
owning a Betamax. 83.2% reported their frequency of movie going was unaffected
by Betamax." 480 F.Supp., at 439. up
6. See Def.Exh. OT, Table 20; Tr. 2447-2450,
2480, 2486-2487, 2515- 2516, 2530-2534. up
7. The trial also briefly touched upon demonstrations
of the Betamax by the retailer petitioners which were alleged to be infringements
by respondents. The District Court held against respondents on this claim,
480 F.Supp., at 456-457, the Court of Appeals affirmed this holding, 659
F.2d, at 976, and respondents did not cross-petition on this issue. up
8. The court also found that this "access
is not just a matter of convenience, as plaintiffs have suggested. Access
has been limited not simply by inconvenience but by the basic need to work.
Access to the better program has also been limited by the competitive practice
of counterprogramming." 480 F.Supp., at 454. up
9. "Without a 'productive use', i.e. when
copyrighted material is reproduced for its intrinsic use, the mass copying
of the sort involved in this case precludes an application of fair use."
659 F.2d, at 971-972. up
10. In its report accompanying the comprehensive
revision of the Copyright Act in 1909, the Judiciary Committee of the House
of Representatives explained this balance: "The enactment of copyright
legislation by Congress under the terms of the Constitution is not based
upon any natural right that the author has in his writings, ... but upon
the ground that the welfare of the public will be served and progress of
science and useful arts will be promoted by securing to authors for limited
periods the exclusive rights to their writings. up
11. Thus, for example, the development and marketing
of player pianos and perforated roles of music, see White-Smith Music Publishing
Co. v. Apollo Co., 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655 (1908), preceded
the enactment of the Copyright Act of 1909; innovations in copying techniques
gave rise to the statutory exemption for library copying embodied in s 108
of the 1976 revision of the Copyright law; the development of the technology
that made it possible to retransmit television programs by cable or by microwave
systems, see Fortnightly Corp. v. United Artists, 392 U.S. 390, 88 S.Ct.
2084, 20 L.Ed.2d 1176 (1968), and Teleprompter Corp. v. CBS, 415 U.S. 394,
94 S.Ct. 1129, 39 L.Ed.2d 415 (1974), prompted the enactment of the complex
provisions set forth in 17 U.S.C. s 111(d)(2)(B) and s 111(d)(5) after years
of detailed congressional study, see Eastern Microwave, Inc. v. Doubleday
Sports, Inc., 691 F.2d 125, 129 (CA2 1982). By enacting the Sound Recording
Amendment of 1971, 85 Stat. 391, Congress also provided the solution to
the "record piracy" problems that had been created by the development
of the audio tape recorder. Sony argues that the legislative history of
that Act, see especially H.Rep. No. 487, 92nd Cong., 1st Sess., p. 7, indicates
that Congress did not intend to prohibit the private home use of either
audio or video tape recording equipment. In view of our disposition of the
contributory infringement issue, we express no opinion on that question.
up
12. "Copyright protection became necessary
with the invention of the printing press and had its early beginnings in
the British censorship laws. The fortunes of the law of copyright have always
been closely connected with freedom of expression, on the one hand, and
with technological improvements in means of dissemination, on the other.
Successive ages have drawn different balances among the interest of the
writer in the control and exploitation of his intellectual property, the
related interest of the publisher, and the competing interest of society
in the untrammeled dissemination of ideas." Foreword to B. Kaplan,
An Unhurried View of Copyright vii-viii (1967). up
13. See, e.g., White-Smith Music Publishing Co.
v. Apollo Co., 209 U.S. 1, 19, 28 S.Ct. 319, 323, 52 L.Ed. 655 (1908); cf.
Deep South Packing Co. v. Lathram Corp., 406 U.S. 518, 530-531, 92 S.Ct.
1700, 1707- 1708, 32 L.Ed.2d 273 (1972). While the law has never recognized
an author's right to absolute control of his work, the natural tendency
of legal rights to express themselves in absolute terms to the exclusion
of all else is particularly pronounced in the history of the constitutionally
sanctioned monopolies of the copyright and the patent. See e.g., United
States v. Paramount Pictures, 334 U.S. 131, 156-158, 68 S.Ct. 915, 928-929,
92 L.Ed. 1260 (1948) (copyright owners claiming right to tie license of
one film to license of another under copyright law); Fox Film Corp. v. Doyal,
286 U.S. 123, 52 S.Ct. 546, 76 L.Ed. 1010 (1932) (copyright owner claiming
copyright renders it immune from state taxation of copyright royalties);
Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 349-351, 28 S.Ct. 722, 725-726,
52 L.Ed. 1086 (1908) (copyright owner claiming that a right to fix resale
price of his works within the scope of his copyright); International Business
Machines v. United States, 298 U.S. 131, 56 S.Ct. 701, 80 L.Ed. 1085 (1936)
(patentees claiming right to tie sale of unpatented article to lease of
patented device). up
14. Section 106 of the Act provides: " 'Subject
to sections 107 through 118, the owner of copyright under this title has
the exclusive rights to do and to authorize any of the following: (1) to
reproduce the copyrighted work in copies or phonorecords; (2) to prepare
derivative works based upon the copyrighted work; (3) to distribute copies
or phonorecords of the copyrighted work to the public by sale or other transfer
of ownership, or by rental, lease, or lending; (4) in the case of literary,
musical, dramatic, and choreographic works, pantomimes, and motion pictures
and other audiovisual works, to perform the copyrighted work publicly; and
(5) in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works, including the individual
images of a motion picture or other audiovisual work, to display the copyrighted
work publicly." up
15. Moreover, anyone who willfully infringes
the copyright to reproduce a motion picture for purposes of commercial advantage
or private financial gain is subject to criminal penalties of one year imprisonment
and a $25,000 fine for the first offense and two years imprisonment and
a $50,000 fine for each subsequent offense, 17 U.S.C. s 506(a), and the
fruits and instrumentalities of the crime are forfeited upon conviction,
id., s 506(b). up
16. In this regard, we reject respondent's attempt
to cast this action as comparable to a class action because of the positions
taken by amici with copyright interests and their attempt to treat the statements
made by amici as evidence in this case. See Brief for Respondent, at 1,
and n. 1, 6, 52, 53 and n. 116. The stated desires of amici concerning the
outcome of this or any litigation are no substitute for a class action,
are not evidence in the case, and do not influence our decision; we examine
an amicus curiae brief solely for whatever aid it provides in analyzing
the legal questions before us. up
17. As the District Court correctly observed,
however, "the lines between direct infringement, contributory infringement,
and vicarious liability are not clearly drawn...." 480 F.Supp. 457-458.
The lack of clarity in this area may, in part, be attributable to the fact
that an infringer is not merely one who uses a work without authorization
by the copyright owner, but also one who authorizes the use of a copyrighted
work without actual authority from the copyright owner. We note the parties'
statements that the questions of petitioners' liability under the "doctrines"
of "direct infringement" and "vicarious liability" are
not nominally before this Court. Compare Respondents' Brief, at 9, n. 22,
41, n. 90 with Petitioners' Reply Brief, at 1, n. 2. We also observe, however,
that reasoned analysis of respondents' unprecedented contributory infringement
claim necessarily entails consideration of arguments and case law which
may also be forwarded under the other labels, and indeed the parties to
a large extent rely upon such arguments and authority in support of their
respective positions on the issue of contributory infringement. up
18. The so-called "dance hall cases,"
Famous Music Corp. v. Bay State Harness Horse Racing and Breeding Ass'n,
554 F.2d 1213 (CA1 1977) (racetrack retained infringer to supply music to
paying customers); KECA MUSIC, Inc. v. Dingus McGee's Co., 432 F.Supp. 72
(W.D.Mo.1977) (cocktail lounge hired musicians to supply music to paying
customers); Dreamland Ball Room v. Shapiro, Bernstein & Co., 36 F.2d
354 (CA7 1929) (dance hall hired orchestra to supply music to paying customers)
are often contrasted with the so-called landlord-tenant cases, in which
landlords who leased premises to a direct infringer for a fixed rental and
did not participate directly in any infringing activity were found not to
be liable for contributory infringement. E.g., Deutsch v. Arnold, 98 F.2d
686 (CA2 1938). In Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d
304 (CA2 1963) the owner of twenty-three chain stores retained the direct
infringer to run its record departments. The relationship was structured
as a licensing arrangement, so that the defendant bore none of the business
risk of running the department. Instead, it received 10% or 12% of the direct
infringer's gross receipts. The Court of Appeals concluded: "[The dance-hall
cases] and this one lie closer on the spectrum to the employer-employee
model, than to the landlord-tenant model. On the particular facts before
us, ... Green's relationship to its infringing licensee, as well as its
strong concern for the financial success of the phonograph record concession,
renders it liable for the unauthorized sales of the 'bootleg' records. "[T]he
imposition of vicarious liability in the case before us cannot be deemed
unduly harsh or unfair. Green has the power to police carefully the conduct
of its concessionaire; our judgment will simply encourage it to do so, thus
placing responsibility where it can and should be effectively exercised."
Id., at 308 (emphasis in original). In Gershwin Publishing Corp. v. Columbia
Artists Management, Inc., 443 F.2d 1159 (CA2 1971), the direct infringers
retained the contributory infringer to manage their performances. The contributory
infringer would contact each direct infringer, obtain the titles of the
musical compositions to be performed, print the programs, and then sell
the programs to its own local organizations for distribution at the time
of the direct infringement. Id., at 1161. The Court of Appeals emphasized
that the contributory infringer had actual knowledge that the artists it
was managing were performing copyrighted works, was in a position to police
the infringing conduct of the artists, and derived substantial benefit from
the actions of the primary infringers. Id., at 1163. In Screen Gems-Columbia
Music, Inc. v. Mark-Fi Records, Inc., 256 F.Supp. 399 (SDNY 1966), the direct
infringer manufactured and sold bootleg records. In denying a motion for
summary judgment, the District Court held that the infringer's advertising
agency, the radio stations that advertised the infringer's works, and the
service agency that boxed and mailed the infringing goods could all be held
liable, if at trial it could be demonstrated that they knew or should have
known that they were dealing in illegal goods. up
19. E.g., United States v. Paramount Pictures,
334 U.S. 131, 158, 68 S.Ct. 915, 929, 92 L.Ed. 1260 (1948); Fox Film Corp.
v. Doyal, 286 U.S. 123, 131, 52 S.Ct. 546, 548, 76 L.Ed. 1010 (1932); Wheaton
and Donaldson v. Peters and Grigg, 33 U.S. (8 Pet.) 591, 657-658, 8 L.Ed.
1055 (1834). The two areas of the law, naturally, are not identical twins,
and we exercise the caution which we have expressed in the past in applying
doctrine formulated in one area to the other. See generally, Mazer v. Stein,
347 U.S. 201, 217-218, 74 S.Ct. 460, 470, 98 L.Ed. 630 (1954); Bobbs-Merrill
Co. v. Straus, 210 U.S. 339, 345, 28 S.Ct. 722, 724, 52 L.Ed. 1086 (1908).
We have consistently rejected the proposition that a similar kinship exists
between copyright law and trademark law, and in the process of doing so
have recognized the basic similarities between copyrights and patents. The
Trade-Mark Cases, 100 U.S. 82, 91-92, 25 L.Ed. 550 (1879); see also, United
Drug Co. v. Rectanus Co., 248 U.S. 90, 97, 39 S.Ct. 48, 50, 63 L.Ed. 141
(1918) (trademark right "has little or no analogy" to copyright
or patent); McLean v. Fleming, 96 U.S. 245, 254 (1877); Canal Co. v. Clark,
13 Wall. 311, 322, 20 L.Ed. 581 (1871). Given the fundamental differences
between copyright law and trademark law, in this copyright case we do not
look to the standard for contributory infringement set forth in Inwood Laboratories
v. Ives Laboratories, 456 U.S. 844, 854-855, 102 S.Ct. 2182, 2188, 72 L.Ed.2d
606 (1982), which was crafted for application in trademark cases. There
we observed that a manufacturer or distributor could be held liable to the
owner of a trademark if it intentionally induced a merchant down the chain
of distribution to pass off its product as that of the trademark owner's
or if it continued to supply a product which could readily be passed off
to a particular merchant whom it knew was mislabeling the product with the
trademark owner's mark. If Inwood's narrow standard for contributory trademark
infringement governed here, respondents' claim of contributory infringement
would merit little discussion. Sony certainly does not "intentionally
induce[ ]" its customers to make infringing uses of respondents' copyrights,
nor does it supply its products to identified individuals known by it to
be engaging in continuing infringement of respondents' copyrights, see id.,
at 855, 102 S.Ct., at 2188. up
20. 35 U.S.C. s 271 provides: "(a) Except
as otherwise provided in this title, whoever without authority makes, uses
or sells any patented invention, within the United States during the term
of the patent therefor, infringes the patent. "(b) Whoever actively
induces infringement of a patent shall be liable as an infringer. "(c)
Whoever sells a component of a patented machine, manufacture, combination
or composition, or a material or apparatus for use in practicing a patented
process, constituting a material part of the invention, knowing the same
to be especially made or especially adapted for use in an infringement of
such patent, and not a staple article or commodity of commerce suitable
for substantial noninfringing use, shall be liable as a contributory infringer.
"(d) No patent owner otherwise entitled to relief for infringement
or contributory infringement of a patent shall be denied relief or deemed
guilty of misuse or illegal extension of the patent right by reason of his
having done one or more of the following: (1) derived revenue from acts
which if performed by another without his consent would constitute contributory
infringement of the patent; (2) licensed or authorized another to perform
acts which if performed without his consent would constitute contributory
infringement of the patent; (3) sought to enforce his patent rights against
infringement or contributory infringement." up
21. It seems extraordinary to suggest that the
Copyright Act confers upon all copyright owners collectively, much less
the two respondents in this case, the exclusive right to distribute VTR's
simply because they may be used to infringe copyrights. That, however, is
the logical implication of their claim. The request for an injunction below
indicates that respondents seek, in effect, to declare VTR's contraband.
Their suggestion in this Court that a continuing royalty pursuant to a judicially
created compulsory license would be an acceptable remedy merely indicates
that respondents, for their part, would be willing to license their claimed
monopoly interest in VTR's to petitioners in return for a royalty. up
22. The record suggests that Disney's programs
at the time of trial consisted of approximately one hour a week of network
television and one syndicated series. Universal's percentage in the Los
Angeles market on commercial television stations was under 5%. See Tr. 532-533,
549-550. up
23. The District Court did not make any explicit
findings with regard to how much broadcasting is wholly uncopyrighted. The
record does include testimony that at least one movie--My Man Godfrey --falls
within that category, Tr. 2300-2301, and certain broadcasts produced by
the federal government are also uncopyrighted. See 17 U.S.C. s 105. Cf.
Schnapper v. Foley, 667 F.2d 102 (CADC 1981) (explaining distinction between
work produced by the government and work commissioned by the government).
To the extent such broadcasting is now significant, it further bolsters
our conclusion. Moreover, since copyright protection is not perpetual, the
number of audiovisual works in the public domain necessarily increases each
year. up
24. See Tr. 2447-2450 (Alexander Hadden, Major
League Baseball); Tr. 2480, 2486-2487 (Jay Moyer, National Football League);
Tr. 2515-2516 (David Stern, National Basketball Association); Tr. 2530-2534
(Gilbert Stein, National Hockey League); Tr. 2543-2552 (Thomas Hansen, National
Collegiate Athletic Association); Tr. 2565-2572 (Benjamin Armstrong, National
Religious Broadcasters). Those officials were authorized to be the official
spokespersons for their respective institutions in this litigation. Tr.
2432, 2479, 2509-2510, 2530, 2538, 2563. See Fed.Rules Civ.Proc. 30(b)(6).
up
25. Tr. 2863-2902; Def. Exh. PI. up
26. See also Tr. 2833-2844 (similar testimony
by executive director of New Jersey Public Broadcasting Authority). Cf.
Tr. 2592-2605 (testimony by chief of New York Education Department's Bureau
of Mass Communications approving home taping for educational purposes).
up
27. "Some public stations, as well as commercial
stations, program the 'Neighborhood' at hours when some children cannot
use it. I think that it's a real service to families to be able to record
such programs and show them at appropriate times. I have always felt that
with the advent of all of this new technology that allows people to tape
the 'Neighborhood' off- the-air, and I'm speaking for the 'Neighborhood'
because that's what I produce, that they then become much more active in
the programming of their family's television life. Very frankly, I am opposed
to people being programmed by others. My whole approach in broadcasting
has always been 'You are an important person just the way you are. You can
make healthy decisions.' Maybe I'm going on too long, but I just feel that
anything that allows a person to be more active in the control of his or
her life, in a healthy way, is important." T.R. 2920-2921. See also
Def. Exh. PI, p. 85. up
28. It may be rare for large numbers of copyright
owners to authorize duplication of their works without demanding a fee from
the copier. In the context of public broadcasting, however, the user of
the copyrighted work is not required to pay a fee for access to the underlying
work. The traditional method by which copyright owners capitalize upon the
television medium--commercially sponsored free public broadcast over the
public airwaves--is predicated upon the assumption that compensation for
the value of displaying the works will be received in the form of advertising
revenues. In the context of television programming, some producers evidently
believe that permitting home viewers to make copies of their works off the
air actually enhances the value of their copyrights. Irrespective of their
reasons for authorizing the practice, they do so, and in significant enough
numbers to create a substantial market for a non-infringing use of the Sony
VTR's. No one could dispute the legitimacy of that market if the producers
had authorized home taping of their programs in exchange for a license fee
paid directly by the home user. The legitimacy of that market is not compromised
simply because these producers have authorized home taping of their programs
without demanding a fee from the home user. The copyright law does not require
a copyright owner to charge a fee for the use of his works, and as this
record clearly demonstrates, the owner of a copyright may well have economic
or noneconomic reasons for permitting certain kinds of copying to occur
without receiving direct compensation from the copier. It is not the role
of the courts to tell copyright holders the best way for them to exploit
their copyrights: even if respondents' competitors were ill-advised in authorizing
home videotaping, that would not change the fact that they have created
a substantial market for a paradigmatic non- infringing use of petitioners'
product.up
29. The Copyright Act of 1909, 35 Stat. 1075,
did not have a "fair use" provision. Although that Act's compendium
of exclusive rights "to print, reprint, publish, copy, and vend the
copyrighted work" was broad enough to encompass virtually all potential
interactions with a copyrighted work, the statute was never so construed.
The courts simply refused to read the statute literally in every situation.
When Congress amended the statute in 1976, it indicated that it "intended
to restate the present judicial doctrine of fair use, not to change, narrow,
or enlarge it in any way." House Report No. 94-1476, 94th Cong., 2d
Sess., p. 66, U.S.Code Code & Admin.News 1976, pp. 5659, 5679. up
30. Section 107 provides: "Notwithstanding
the provisions of section 106, the fair use of a copyrighted work, including
such use by reproduction in copies or phonorecords or by any other means
specified by that section, for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom use), scholarship,
or research, is not an infringement of copyright. In determining whether
the use made of a work in any particular case is a fair use the factors
to be considered shall include-- "(1) the purpose and character of
the use, including whether such use is of a commercial nature or is for
nonprofit educational purposes; "(2) the nature of the copyrighted
work; "(3) the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and "(4) the effect of the use
upon the potential market for or value of the copyrighted work." 17
U.S.C. s 107. up
31. The House Report expressly stated that the
fair use doctrine is an "equitable rule of reason" in its explanation
of the fair use section: "Although the courts have considered and ruled
upon the fair use doctrine over and over again, no real definition of the
concept has ever emerged. Indeed, since the doctrine is an equitable rule
of reason, no generally applicable definition is possible, and each case
raising the question must be decided on its own facts.... General intention
behind the provision "The statement of the fair use doctrine in section
107 offers some guidance to users in determining when the principles of
the doctrine apply. However, the endless variety of situations and combinations
of circumstances that can rise in particular cases precludes the formulation
of exact rules in the statute. The bill endorses the purpose and general
scope of the judicial doctrine of fair use, but there is no disposition
to freeze the doctrine in the statute, especially during a period of rapid
technological change. Beyond a very broad statutory explanation of what
fair use is and some of the criteria applicable to it, the courts must be
free to adapt the doctrine to particular situations on a case-by-case basis."
H.Rep. No. 94-1476, pp. 65-66, U.S.Code Cong. & Admin.News 1976, p.
5680. The Senate Committee similarly eschewed a rigid, bright line approach
to fair use. The Senate Report endorsed the view "that off-the-air
recording for convenience" could be considered "fair use"
under some circumstances, although it then made it clear that it did not
intend to suggest that off- the-air recording for convenience should be
deemed fair use under any circumstances imaginable. Senate Report 94-473,
pp. 65-66. The latter qualifying statement is quoted by the dissent, post,
at 809, and if read in isolation, would indicate that the Committee intended
to condemn all off-the-air recording for convenience. Read in context, however,
it is quite clear that that was the farthest thing from the Committee's
intention. up
32. "The Committee has amended the first
of the criteria to be considered--'the purpose and character of the use'--to
state explicitly that this factor includes a consideration of 'whether such
use is of a commercial nature or is for non-profit educational purposes.'
This amendment is not intended to be interpreted as any sort of not-for-profit
limitation on educational uses of copyrighted works. It is an express recognition
that, as under the present law, the commercial or non-profit character of
an activity, while not conclusive with respect to fair use, can and should
be weighed along with other factors in fair use decisions." H.Rep.
No. 94-1476, p. 66, U.S.Code Cong. & Admin.News 1976, p. 5679. up
33. It has been suggested that "consumptive
uses of copyrights by home VTR users are commercial even if the consumer
does not sell the homemade tape because the consumer will not buy tapes
separately sold by the copyrightholder." Home Recording of Copyrighted
Works: Hearing before Subcommittee on Courts, Civil Liberties and the Administration
of Justice of the House Committee on the Judiciary, 97th Congress, 2d Session,
pt. 2, p. 1250 (1982) (memorandum of Prof. Laurence H. Tribe). Furthermore,
"[t]he error in excusing such theft as noncommercial," we are
told, "can be seen by simple analogy: jewel theft is not converted
into a noncommercial veniality if stolen jewels are simply worn rather than
sold." Ibid. The premise and the analogy are indeed simple, but they
add nothing to the argument. The use to which stolen jewelery is put is
quite irrelevant in determining whether depriving its true owner of his
present possessory interest in it is venial; because of the nature of the
item and the true owner's interests in physical possession of it, the law
finds the taking objectionable even if the thief does not use the item at
all. Theft of a particular item of personal property of course may have
commercial significance, for the thief deprives the owner of his right to
sell that particular item to any individual. Timeshifting does not even
remotely entail comparable consequences to the copyright owner. Moreover,
the timeshifter no more steals the program by watching it once than does
the live viewer, and the live viewer is no more likely to buy pre-recorded
videotapes than is the timeshifter. Indeed, no live viewer would buy a pre-recorded
videotape if he did not have access to a VTR. up
34. Cf. Latman, Fair Use of Copyrighted Works
(1958), reprinted as Study No. 14 in Senate Judiciary Committee, Copyright
Law Revision, Studies Prepared for the Subcommittee on Patents, Trademarks,
and Copyrights, 86th Cong., 2d Sess., p. 30 (1960): "In certain situations,
the copyright owner suffers no substantial harm from the use of the work....
Here again, is the partial marriage between the doctrine of fair use and
the legal maxim de minimis non curat lex." up
35. See also 480 F.Supp., at 451: "It should
be noted, however, that plaintiffs' argument is more complicated and speculative
than was the plaintiff's in Williams & Wilkins.... Here, plaintiffs
ask the court to find harm based on many more assumptions.... As is discussed
more fully in Part IV, infra, some of these assumptions are based on neither
fact nor experience, and plaintiffs admit that they are to some extent inconsistent
and illogical." up
36. "There was testimony at trial, however,
that Nielsen Ratings has already developed the ability to measure when a
Betamax in a sample home is recording the program. Thus, the Betamax will
be measured as a part of the live audience. The later diary can augment
that measurement with information about subsequent viewing." 480 F.Supp.,
at 466. In a separate section, the District Court rejected plaintiffs' suggestion
that the commercial attractiveness of television broadcasts would be diminished
because Betamax owners would use the pause button or fast- forward control
to avoid viewing advertisements: "It must be remembered, however, that
to omit commercials, Betamax owners must view the program, including the
commercials, while recording. To avoid commercials during playback, the
viewer must fast-forward and, for the most part, guess as to when the commercial
has passed. For most recordings, either practice may be too tedious. As
defendants' survey showed, 92% of the programs were recorded with commercials
and only 25% of the owners fast-forward through them. Advertisers will have
to make the same kinds of judgments they do now about whether persons viewing
televised programs actually watch the advertisements which interrupt them."
Id., at 468. up
37. "Here plaintiffs assume that people
will view copies when they would otherwise be watching television or going
to the movie theater. There is no factual basis for this assumption. It
seems equally likely that Betamax owners will play their tapes when there
is nothing on television they wish to see and no movie they want to attend.
Defendants' survey does not show any negative effect of Betamax ownership
on television viewing or theater attendance." Ibid. up
38. "The underlying assumptions here are
particularly difficult to accept. Plaintiffs explain that the Betamax increases
access to the original televised material and that the more people there
are in this original audience, the fewer people the rerun will attract.
Yet current marketing practices, including the success of syndication, show
just the opposite. Today, the larger the audience for the original telecast,
the higher the price plaintiffs can demand from broadcasters from rerun
rights. There is no survey within the knowledge of this court to show that
the rerun audience is comprised of persons who have not seen the program.
In any event, if ratings can reflect Betamax recording, original audiences
may increase and, given market practices, this should aid plaintiffs rather
than harm them." Ibid. up
39. "This suggestion lacks merit. By definition,
time-shift recording entails viewing and erasing, so the program will no
longer be on tape when the later theater run begins. Of course, plaintiffs
may fear that the Betamax will keep the tapes long enough to satisfy all
their interest in the program and will, therefore, not patronize later theater
exhibitions. To the extent this practice involves librarying, it is addressed
in section V.C., infra. It should also be noted that there is no evidence
to suggest that the public interest in later theatrical exhibitions of motion
pictures will be reduced any more by Betamax recording than it already is
by the television broadcast of the film." 480 F.Supp., at 467. up
40. The Court of Appeals chose not to engage
in any "equitable rule of reason" analysis in this case. Instead,
it assumed that the category of "fair use" is rigidly circumscribed
by a requirement that every such use must be "productive." It
therefore concluded that copying a television program merely to enable the
viewer to receive information or entertainment that he would otherwise miss
because of a personal scheduling conflict could never be fair use. That
understanding of "fair use" was erroneous. Congress has plainly
instructed us that fair use analysis calls for a sensitive balancing of
interests. The distinction between "productive" and "unproductive"
uses may be helpful in calibrating the balance, but it cannot be wholly
determinative. Although copying to promote a scholarly endeavor certainly
has a stronger claim to fair use than copying to avoid interrupting a poker
game, the question is not simply two-dimensional. For one thing, it is not
true that all copyrights are fungible. Some copyrights govern material with
broad potential secondary markets. Such material may well have a broader
claim to protection because of the greater potential for commercial harm.
Copying a news broadcast may have a stronger claim to fair use than copying
a motion picture. And, of course, not all uses are fungible. Copying for
commercial gain has a much weaker claim to fair use than copying for personal
enrichment. But the notion of social "productivity" cannot be
a complete answer to this analysis. A teacher who copies to prepare lecture
notes is clearly productive. But so is a teacher who copies for the sake
of broadening his personal understanding of his specialty. Or a legislator
who copies for the sake of broadening her understanding of what her constituents
are watching; or a constituent who copies a news program to help make a
decision on how to vote. Making a copy of a copyrighted work for the convenience
of a blind person is expressly identified by the House Committee Report
as an example of fair use, with no suggestion that anything more than a
purpose to entertain or to inform need motivate the copying. In a hospital
setting, using a VTR to enable a patient to see programs he would otherwise
miss has no productive purpose other than contributing to the psychological
well-being of the patient. Virtually any time-shifting that increases viewer
access to television programming may result in a comparable benefit. The
statutory language does not identify any dichotomy between productive and
nonproductive time-shifting, but does require consideration of the economic
consequences of copying. up
Justice BLACKMUN, with whom Justice MARSHALL, Justice POWELL, and Justice
REHNQUIST join, dissenting.
A restatement of the facts and judicial history of this case is necessary,
in my view, for a proper focus upon the issues. Respondents' position is
hardly so "unprecedented," ante, at 778, in the copyright law,
nor does it really embody a "gross generalization," ante, at 786,
or a "novel theory of liability," ante, at 786, and the like,
as the Court, in belittling their claims, describes the efforts of respondents.
I
The introduction of the home videotape recorder (VTR) upon the market has
enabled millions of Americans to make recordings of television programs
in their homes, for future and repeated viewing at their own convenience.
While this practice has proved highly popular with owners of television
sets and VTRs, it understandably has been a matter of concern for the holders
of copyrights in the recorded programs. A result is the present litigation,
raising the issues whether the home recording of a copyrighted television
program is an infringement of the copyright, and, if so, whether the manufacturers
and distributors of VTRs are liable as contributory infringers. I would
hope that these questions ultimately will be considered seriously and in
depth by the Congress and be resolved there, despite the fact that the Court's
decision today provides little incentive for congressional action. Our task
in the meantime, however, is to resolve these issues as best we can in the
light of ill-fitting existing copyright law.
It is no answer, of course, to say and stress, as the Court does, this Court's
"consistent deference to Congress" whenever "major technological
innovations" appear. Ante, at 783. Perhaps a better and more accurate
description is that the Court has tended to evade the hard issues when they
arise in the area of copyright law. I see no reason for the Court to be
particularly pleased with this tradition or to continue it. Indeed, it is
fairly clear from the legislative history of the 1976 Act that Congress
meant to change the old pattern and enact a statute that would cover new
technologies, as well as old.
II
In 1976, respondents Universal City Studios, Inc., and Walt Disney Productions
(Studios) brought this copyright infringement action in the United States
District Court for the Central District of California against, among others,
petitioners Sony Corporation, a Japanese corporation, and Sony Corporation
of America, a New York corporation, the manufacturer and distributor, respectively,
of the Betamax VTR. The Studios sought damages, profits, and a wide-ranging
injunction against further sales or use of the Betamax or Betamax tapes.
The Betamax, like other VTRs, presently is capable of recording television
broadcasts off the air on videotape cassettes, and playing them back at
a later time. [FN1] Two kinds of Betamax usage are at issue here. [FN2]
The first is "time-shifting," whereby the user records a program
in order to watch it at a later time, and then records over it, and thereby
erases the program, after a single viewing. The second is "library
-building," in which the user records a program in order to keep it
for repeated viewing over a longer term. Sony's advertisements, at various
times, have suggested that Betamax users "record favorite shows"
or "build a library." Sony's Betamax advertising has never contained
warnings about copyright infringement, although a warning does appear in
the Betamax operating instructions.
FN1. The Betamax has three primary components: a tuner that receives television
("RF") signals broadcast over the airwaves; an adapter that converts
the RF signals into audio-video signals; and a recorder that places the
audio-video signals on magnetic tape. Sony also manufactures VTRs without
built-in tuners; these are capable of playing back prerecorded tapes and
recording home movies on videotape, but cannot record off the air. Since
the Betamax has its own tuner, it can be used to record off one channel
while another channel is being watched. The Betamax is available with auxiliary
features, including a timer, a pause control, and a fast-forward control;
these allow Betamax owners to record programs without being present, to
avoid (if they are present) recording commercial messages, and to skip over
commercials while playing back the recording. Videotape is reusable; the
user erases its record by recording over it.
FN2. This case involves only the home recording for home use of television
programs broadcast free over the airwaves. No issue is raised concerning
cable or pay television, or the sharing or trading of tapes.
The Studios produce copyrighted "movies" and other works that
they release to theaters and license for television broadcast. They also
rent and sell their works on film and on prerecorded videotapes and videodiscs.
License fees for television broadcasts are set according to audience ratings,
compiled by rating services that do not measure any playbacks of videotapes.
The Studios make the serious claim that VTR recording may result in a decrease
in their revenue from licensing their works to television and from marketing
them in other ways.
After a 5-week trial, the District Court, with a detailed opinion, ruled
that home VTR recording did not infringe the Studios' copyrights under either
the Act of March 4, 1909 (1909 Act), 35 Stat. 1075, as amended (formerly
codified as 17 U.S.C. s 1 et seq. (1976 ed.)), or the Copyright Revision
Act of 1976 (1976 Act), 90 Stat. 2541, 17 U.S.C. s 101 et seq. (1982 ed.).
[FN3] The District Court also held that even if home VTR recording were
an infringement, Sony could not be held liable under theories of direct
infringement, contributory infringement, or vicarious liability. Finally,
the court concluded that an injunction against sales of the Betamax would
be inappropriate even if Sony were liable under one or more of those theories.
480 F.Supp. 429 (1979).
FN3. At the trial, the Studios proved 32 individual instances where their
copyrighted works were recorded on Betamax VTRs. Two of these instances
occurred after January 1, 1978, the primary effective date of the 1976 Act;
all the others occurred while the 1909 Act was still effective. My analysis
focuses primarily on the 1976 Act, but the principles governing copyright
protection for these works are the same under either Act.
The United States Court of Appeals for the Ninth Circuit reversed in virtually
every respect. 659 F.2d 963 (1981). It held that the 1909 Act and the 1976
Act contained no implied exemption for "home use" recording, that
such recording was not "fair use," and that the use of the Betamax
to record the Studios' copyrighted works infringed their copyrights. The
Court of Appeals also held Sony liable for contributory infringement, reasoning
that Sony knew and anticipated that the Betamax would be used to record
copyrighted material off the air, and that Sony, indeed, had induced, caused,
or materially contributed to the infringing conduct. The Court of Appeals
remanded the case to the District Court for appropriate relief; it suggested
that the District Court could consider the award of damages or a continuing
royalty in lieu of an injunction. Id., at 976.
III
The Copyright Clause of the Constitution, Art. I, s 8, cl. 8, empowers Congress
"To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries." This Nation's initial copyright statute
was passed by the First Congress. Entitled "An Act for the encouragement
of learning," it gave an author "the sole right and liberty of
printing, reprinting, publishing and vending" his "map, chart,
book or books" for a period of 14 years. Act of May 31, 1790, s 1,
1 Stat. 124. Since then, as the technology available to authors for creating
and preserving their writings has changed, the governing statute has changed
with it. By many amendments, and by complete revisions in 1831, 1870, 1909,
and 1976, [FN4] authors' rights have been expanded to provide protection
to any "original works of authorship fixed in any tangible medium of
expression," including "motion pictures and other audiovisual
works." 17 U.S.C. s 102(a). [FN5]
FN4. Act of Feb. 3, 1831, ch. 16, 4 Stat. 436; Act of July 8, 1870, ss 85-111,
16 Stat. 212-217; Act of Mar. 4, 1909, 35 Stat. 1075 (formerly codified
as 17 U.S.C. s 1 et seq. (1976 ed.)); Copyright Revision Act of 1976, 90
Stat. 2541 (codified as 17 U.S.C. s 101 et seq. (1982 ed.)).
FN5. Section 102(a) provides: "Copyright protection subsists, in accordance
with this title, in original works of authorship fixed in any tangible medium
of expression, now known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with the aid of
a machine or device. Works of authorship include the following categories:
"(1) literary works; "(2) musical works, including any accompanying
words; "(3) dramatic works, including any accompanying music; "(4)
pantomimes and choreographic works; "(5) pictorial, graphic, and sculptural
works; "(6) motion pictures and other audiovisual works; and "(7)
sound recordings." Definitions of terms used in s 102(a)(6) are provided
by s 101:P "Audiovisual works" are "works that consist of
a series of related images which are intrinsically intended to be shown
by the use of machines, or devices such as projectors, viewers, or electronic
equipment, together with accompanying sounds, if any, regardless of the
nature of the material objects, such as films or tapes, in which the works
are embodied." And "motion pictures" are "audiovisual
works consisting of a series of related images which, when shown in succession,
impart an impression of motion, together with accompanying sounds, if any."
Most commercial television programs, if fixed on film or tape at the time
of broadcast or before, qualify as "audiovisual works." Since
the categories set forth in s 102(a) are not mutually exclusive, a particular
television program may also qualify for protection as a dramatic, musical,
or other type of work.
Section 106 of the 1976 Act grants the owner of a copyright a variety of
exclusive rights in the copyrighted work, [FN6] including the right "to
reproduce the copyrighted work in copies or phonorecords." [FN7] This
grant expressly is made subject to ss 107-118, which create a number of
exemptions and limitations on the copyright owner's rights. The most important
of these sections, for present purposes, is s 107; that section states that
"the fair use of a copyrighted work ... is not an infringement of copyright."
[FN8]
FN6. Section 106 provides: "Subject to sections 107 through 118, the
owner of copyright under this title has the exclusive rights to do and to
authorize any of the following: "(1) to reproduce the copyrighted work
in copies or phonorecords; "(2) to prepare derivative works based upon
the copyrighted work; "(3) to distribute copies or phonorecords of
the copyrighted work to the public by sale or other transfer of ownership,
or by rental, lease, or lending; "(4) in the case of literary, musical,
dramatic, and choreographic works, pantomimes, and motion pictures and other
audiovisual works, to perform the copyrighted work publicly; and "(5)
in the case of literary, musical, dramatic, and choreographic works, pantomimes,
and pictorial, graphic, or sculptural works, including the individual images
of a motion picture or other audiovisual work, to display the copyrighted
work publicly."
FN7. A "phonorecord" is defined by s 101 as a reproduction of
sounds other than sounds accompanying an audiovisual work, while a "copy"
is a reproduction of a work in any form other than a phonorecord.
FN8. Section 107 provides: "Notwithstanding the provisions of section
106, the fair use of a copyrighted work, including such use by reproduction
in copies or phonorecords or by any other means specified by that section,
for purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright. In determining whether the use made of a work
in any particular case is a fair use the factors to be considered shall
include-- "(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit educational purposes;
"(2) the nature of the copyrighted work; "(3) the amount and substantiality
of the portion used in relation to the copyrighted work as a whole; and
"(4) the effect of the use upon the potential market for or value of
the copyrighted work." Section 101 makes it clear that the four factors
listed in this section are "illustrative and not limitative."
The 1976 Act, like its predecessors, [FN9] does not give the copyright owner
full and complete control over all possible uses of his work. If the work
is put to some use not enumerated in s 106, the use is not an infringement.
See Fortnightly Corp. v. United Artists, 392 U.S. 390, 393- 395, 88 S.Ct.
2084, 2085-2086, 20 L.Ed.2d 1176 (1968). Thus, before considering whether
home videotaping comes within the scope of the fair use exemption, one first
must inquire whether the practice appears to violate the exclusive right,
granted in the first instance by s 106(1), "to reproduce the copyrighted
work in copies or phonorecords."
FN9. The 1976 Act was the product of a revision effort lasting more than
20 years. Spurred by the recognition that "significant developments
in technology and communications" had rendered the 1909 Act inadequate,
S.Rep. No. 94-473, p. 47 (1975); see H.R.Rep. No. 94-1476, p. 47 (1976),
U.S.Code Cong. & Admin.News 1976, p. 5660, Congress in 1955 authorized
the Copyright Office to prepare a series of studies on all aspects of the
existing copyright law. Thirty-four studies were prepared and presented
to Congress. The Register of Copyrights drafted a comprehensive report with
recommendations, House Committee on the Judiciary, Copyright Law Revision,
Report of the Register of Copyrights on the General Revision of the U.S.
Copyright Law, 87th Cong., 1st Sess. (Comm.Print 1961) (Register's 1961
Report), and general revision bills were introduced near the end of the
88th Congress in 1964. H.R.11947/S.3008, 88th Cong., 2d Sess. (1964). The
Register issued a second report in 1965, with revised recommendations. House
Committee on the Judiciary, Copyright Law Revision, Pt. 6, Supplementary
Report of the Register of Copyrights on the General Revision of the U.S.
Copyright Law: 1965 Revision Bill, 89th Cong., 1st Sess. (Comm.Print 1965)
(Register's Supplementary Report). Action on copyright revision was delayed
from 1967 to 1974 by a dispute on cable television, see generally Second
Supplementary Report of the Register of Copyrights on the General Revision
of the U.S. Copyright Law: 1975 Revision Bill, ch. V, pp. 2-26 (Draft Oct.-Dec.
1975) (Register's Second Supplementary Report), but a compromise led to
passage of the present Act in 1976.
A
Although the word "copies" is in the plural in s 106(1), there
can be no question that under the Act the making of even a single unauthorized
copy is prohibited. The Senate and House Reports explain: "The references
to 'copies or phonorecords,' although in the plural, are intended here and
throughout the bill to include the singular (1 U.S.C. s 1)." [FN10]
S.Rep. No. 94-473, p. 58 (1975) (1975 Senate Report); H.R.Rep. No. 94-1476,
p. 61 (1976) (1976 House Report), U.S.Code Cong. & Admin.News 1976,
p. 5675. The Reports then describe the reproduction right established by
s 106(1):
FN10. 1 U.S.C. s 1 provides in relevant part: "In determining the meaning
of any Act of Congress, unless the context indicates otherwise ... words
importing the plural include the singular...."
"[T]he right 'to reproduce the copyrighted work in copies or phonorecords'
means the right to produce a material object in which the work is duplicated,
transcribed, imitated, or simulated in a fixed form from which it can be
'perceived, reproduced, or otherwise communicated, either directly or with
the aid of a machine or device.' As under the present law, a copyrighted
work would be infringed by reproducing it in whole or in any substantial
part, and by duplicating it exactly or by imitation or simulation."
1975 Senate Report 58; 1976 House Report 61, U.S.Code Cong. & Admin.News
1976, p. 5675. The making of even a single videotape recording at home falls
within this definition; the VTR user produces a material object from which
the copyrighted work later can be perceived. Unless Congress intended a
special exemption for the making of a single copy for personal use, I must
conclude that VTR recording is contrary to the exclusive rights granted
by s 106(1).
The 1976 Act and its accompanying reports specify in some detail the situations
in which a single copy of a copyrighted work may be made without infringement
concerns. Section 108(a), for example, permits a library or archives "to
reproduce no more than one copy or phonorecord of a work" for a patron,
but only under very limited conditions; an entire work, moreover, can be
copied only if it cannot be obtained elsewhere at a fair price. [FN11] s
108(e); see also s 112(a) (broadcaster may "make no more than one copy
or phonorecord of a particular transmission program," and only under
certain conditions). In other respects, the making of single copies is permissible
only within the limited confines of the fair use doctrine. The Senate report,
in a section headed "Single and multiple copying," notes that
the fair use doctrine would permit a teacher to make a single copy of a
work for use in the classroom, but only if the work was not a "sizable"
one such as a novel or treatise. 1975 Senate Report 63-64; accord, 1976
House Report 68-69, 71. Other situations in which the making of a single
copy would be fair use are described in the House and Senate reports. [FN12]
But neither the statute nor its legislative history suggests any intent
to create a general exemption for a single copy made for personal or private
use.
FN11. The library photocopying provisions of s 108 do not excuse any person
who requests "a copy" from a library if the requester's use exceeds
fair use. s 108(f)(2). Moreover, a library is absolved from liability for
the unsupervised use of its copying equipment provided that the equipment
bears a notice informing users that "the making of a copy" may
violate the copyright law. s 108(f)(1).
FN12. For example, "the making of a single copy or phonorecord by an
individual as a free service for a blind person" would be a fair use,
as would "a single copy reproduction of an excerpt from a copyrighted
work by a calligrapher for a single client" or "a single reproduction
of excerpts from a copyrighted work by a student calligrapher or teacher
in a learning situation." 1975 Senate Report 66-67; see 1976 House
Report 73-74, U.S.Code Cong. & Admin.News 1976, p. 5687. Application
of the fair use doctrine in these situations, of course, would be unnecessary
if the 1976 Act created a general exemption for the making of a single copy.
Indeed, it appears that Congress considered and rejected the very possibility
of a special private use exemption. The issue was raised early in the revision
process, in one of the studies prepared for Congress under the supervision
of the Copyright Office. Latman, Fair Use of Copyrighted Works (1958), reprinted
in Senate Committee on the Judiciary, Copyright Law Revision, Studies Prepared
for the Subcommittee on Patents, Trademarks, and Copyrights, 86th Cong.,
2d Sess., 1 (1960) (Latman Fair Use Study). This study found no reported
case supporting the existence of an exemption for private use, although
it noted that "the purpose and nature of a private use, and in some
cases the small amount taken, might lead a court to apply the general principles
of fair use in such a way as to deny liability." Id., at 12. After
reviewing a number of foreign copyright laws that contained explicit statutory
exemptions for private or personal use, id., at 25, Professor Latman outlined
several approaches that a revision bill could take to the general issue
of exemptions and fair use. One of these was the adoption of particularized
rules to cover specific situations, including "the field of personal
use." Id., at 33. [FN13]
FN13. Professor Latman made special mention of the "personal use"
issue because the area was one that "has become disturbed by recent
developments .... Photoduplication devices may make authors' and publishers'
groups apprehensive. The Copyright Charter recently approved by [the International
Confederation of Societies of Authors and Composers] emphasizes the concern
of authors over 'private' uses which, because of technological developments,
are said to be competing seriously with the author's economic interests."
Latman Fair Use Study 33- 34.
Rejecting the latter alternative, the Register of Copyrights recommended
that the revised copyright statute simply mention the doctrine of fair use
and indicate its general scope. The Register opposed the adoption of rules
and exemptions to cover specific situations, [FN14] preferring, instead,
to rely on the judge-made fair use doctrine to resolve new problems as they
arose. See Register's 1961 Report 25; Register's Supplementary Report 27-28.
FN14. The one exemption proposed by the Register, permitting a library to
make a single photocopy of an out-of-print work and of excerpts that a requester
certified were needed for research, met with opposition and was not included
in the bills initially introduced in Congress. See Register's 1961 Report
26; H.R. 11947/S. 3008, 88th Cong., 2d Sess. (1964); Register's Supplementary
Report 26. A library copying provision was restored to the bill in 1969,
after pressure from library associations. Register's Second Supplementary
Report, ch. III, pp. 10-11; see S. 543, 91st Cong., 1st Sess., s 108 (Comm.Print
Dec. 10, 1969); 1975 Senate Report 48.
The Register's approach was reflected in the first copyright revision bills,
drafted by the Copyright Office in 1964. These bills, like the 1976 Act,
granted the copyright owner the exclusive right to reproduce the copyrighted
work, subject only to the exceptions set out in later sections. H.R. 11947/S.
3008, 88th Cong., 2d Sess., s 5(a) (1964). The primary exception was fair
use, s 6, containing language virtually identical to s 107 of the 1976 Act.
Although the copyright revision bills underwent change in many respects
from their first introduction in 1964 to their final passage in 1976, these
portions of the bills did not change. [FN15] I can conclude only that Congress,
like the Register, intended to rely on the fair use doctrine, and not on
a per se exemption for private use, to separate permissible copying from
the impermissible. [FN16]
FN15. The 1964 bills provided that the fair use of copyrighted material
for purposes "such as criticism, comment, news reporting, teaching,
scholarship, or research" was not an infringement of copyright, and
listed four "factors to be considered" in determining whether
any other particular use was fair. H.R.11947/S.3008, 88th Cong., 2d Sess.,
s 6 (1964). Revised bills, drafted by the Copyright Office in 1965, contained
a fair use provision merely mentioning the doctrine but not indicating its
scope: "Notwithstanding the provisions of section 106, the fair use
of a copyrighted work is not an infringement of copyright." H.R.4347/S.1006,
89th Cong., 1st Sess., s 107 (1965). The House Judiciary Committee restored
the provision to its earlier wording, H.R.Rep. No. 2237, 89th Cong., 2d
Sess., 5, 58 (1966), and the language adopted by the Committee remained
in the bill in later Congresses. See H.R.2512/S.597, 90th Cong., 1st Sess.,
s 107 (1967); S.543, 91st Cong., 1st Sess., s 107 (1969); S.644, 92d Cong.,
1st Sess., s 107 (1971); S.1361, 93d Cong., 1st Sess., s 107 (1973); H.R.2223/S.22,
94th Cong., 1st Sess., s 107 (1975). With a few additions by the House Judiciary
Committee in 1976, see 1976 House Report 5; H.R.Conf.Rep. No. 94-1733, p.
70 (1976), U.S.Code Cong. & Admin.News 1976, p. 5659, the same language
appears in s 107 of the 1976 Act.
FN16. In Williams & Wilkins Co. v. United States, 203 Ct.Cl. 74, 487
F.2d 1345 (1973), aff'd by an equally divided Court, 420 U.S. 376, 95 S.Ct.
1344, 43 L.Ed.2d 264 (1975), decided during the process of the revision
of the copyright statutes, the Court of Claims suggested that copying for
personal use might be outside the scope of copyright protection under the
1909 Act. The court reasoned that because "hand copying" for personal
use has always been regarded as permissible, and because the practice of
making personal copies continued after typewriters and photostat machines
were developed, the making of personal copies by means other than hand copying
should be permissible as well. Id., at 84-88, 487 F.2d, at 1350-1352. There
appear to me to be several flaws in this reasoning. First, it is by no means
clear that the making of a "hand copy" of an entire work is permissible;
the most that can be said is that there is no reported case on the subject,
possibly because no copyright owner ever thought it worthwhile to sue. See
Latman Fair Use Study 11-12; 3 M. Nimmer, Copyright s 13.05[E][4][a] (1982).
At least one early treatise asserted that infringement would result "if
an individual made copies for his personal use, even in his own handwriting,
as there is no rule of law excepting manuscript copies from the law of infringment."
A. Weil, American Copyright Law s 1066 (1917). Second, hand copying or even
copying by typewriter is self-limiting. The drudgery involved in making
hand copies ordinarily ensures that only necessary and fairly small portions
of a work are taken; it is unlikely that any user would make a hand copy
as a substitute for one that could be purchased. The harm to the copyright
owner from hand copying thus is minimal. The recent advent of inexpensive
and readily available copying machines, however, has changed the dimensions
of the problem. See Register's Second Supplementary Report ch. III, p. 3;
Hearings on H.R. 2223 before the Subcommittee on Courts, Civil Liberties,
and the Administration of Justice of the House Judiciary Committee, 94th
Cong., 1st Sess., 194 (1975) (1975 House Hearings) (remarks of Rep. Danielson);
id., at 234 (statement of Robert W. Cairns); id., at 250 (remarks of Rep.
Danielson); id., at 354 (testimony of Irwin Karp); id., at 467 (testimony
of Rondo Cameron); id., at 1795 (testimony of Barbara Ringer, Register of
Copyrights). Thus, "[t]he supposition that there is no tort involved
in a scholar copying a copyrighted text by hand does not much advance the
question of machine copying." B. Kaplan, An Unhurried View of Copyright
101-102 (1967).
When Congress intended special and protective treatment for private use,
moreover, it said so explicitly. One such explicit statement appears in
s 106 itself. The copyright owner's exclusive right to perform a copyrighted
work, in contrast to his right to reproduce the work in copies, is limited.
Section 106(4) grants a copyright owner the exclusive right to perform the
work "publicly," but does not afford the owner protection with
respect to private performances by others. A motion picture is "performed"
whenever its images are shown or its sounds are made audible. s 101. Like
"sing [ing] a copyrighted lyric in the shower," Twentieth Century
Music Corp. v. Aiken, 422 U.S. 151, 155, 95 S.Ct. 2040, 2043, 45 L.Ed.2d
84 (1975), watching television at home with one's family and friends is
now considered a performance. 1975 Senate Report 59-60; 1976 House Report
63. [FN17] Home television viewing nevertheless does not infringe any copyright--but
only because s 106(4) contains the word "publicly." [FN18] See
generally 1975 Senate Report 60-61; 1976 House Report 63-64; Register's
1961 Report 29-30. No such distinction between public and private uses appears
in s 106(1)'s prohibition on the making of copies. [FN19]
FN17. In a trio of cases, Fortnightly Corp. v. United Artists, 392 U.S.
390, 398, 88 S.Ct. 2084, 2088, 20 L.Ed.2d 1176 (1968); Teleprompter Corp.
v. Columbia Broadcasting System, Inc., 415 U.S. 394, 403-405, 94 S.Ct. 1129,
1135-1136, 39 L.Ed.2d 415 (1974); and Twentieth Century Music Corp. v. Aiken,
422 U.S. 151, 95 S.Ct. 2040, 45 L.Ed.2d 84 (1975), this Court had held that
the reception of a radio or television broadcast was not a "performance"
under the 1909 Act. The Court's "narrow construction" of the word
"perform" was "completely overturned by the [1976 Act] and
its broad definition of 'perform' in section 101." 1976 House Report
87, U.S.Code Cong. & Admin.News 1976, p. 5701.
FN18. A work is performed "publicly" if it takes place "at
a place open to the public or at any place where a substantial number of
persons outside of a normal circle of a family and its social acquaintances
is gathered." s 101.
FN19. One purpose of the exemption for private performances was to permit
the home viewing of lawfully made videotapes. The Register noted in 1961
that "[n]ew technical devices will probably make it practical in the
future to reproduce televised motion pictures in the home. We do not believe
the private use of such a reproduction can or should be precluded by copyright."
Register's 1961 Report 30 (emphasis added). The Register did not suggest
that the private making of a reproduction of a televised motion picture
would be permitted by the copyright law. The Register later reminded Congress
that "[i]n general the concept of 'performance' must be distinguished
sharply from the reproduction of copies." Register's Supplementary
Report 22.
Similarly, an explicit reference to private use appears in s 108. Under
that section, a library can make a copy for a patron only for specific types
of private use: "private study, scholarship, or research." [FN20]
ss 108(d)(1) and (e)(1); see 37 CFR s 201.14(b) (1982). Limits also are
imposed on the extent of the copying and the type of institution that may
make copies, and the exemption expressly is made inapplicable to motion
pictures and certain other types of works. s 108(h). These limitations would
be wholly superfluous if an entire copy of any work could be made by any
person for private use. [FN21]
FN20. During hearings on this provision, Representative Danielson inquired
whether it would apply to works of fiction such as "Gone With the Wind,"
or whether it was limited to "strictly technical types of information."
The uncontradicted response was that it would apply only in "general
terms of science ... [and] the useful arts." 1975 House Hearings 251
(testimony of Robert W. Cairns); cf. id., at 300 (statement of Harry Rosenfield)
("We are not asking ... for the right to copy 'Gone With the Wind'
").
FN21. The mention in the Senate and House Reports of situations in which
copies for private use would be permissible under the fair use doctrine--
for example, the making of a free copy for a blind person, 1975 Senate Report
66; 1975 House Report 73, or the "recordings of performances by music
students for purposes of analysis and criticism," 1975 Senate Report
63--would be superfluous as well. See n. 12, supra.
B
The District Court in this case nevertheless concluded that the 1976 Act
contained an implied exemption for "home-use recording." 480 F.Supp.,
at 444-446. The court relied primarily on the legislative history of a 1971
amendment to the 1909 Act, a reliance that this Court today does not duplicate.
Ante, at 782, n. 11. That amendment, however, was addressed to the specific
problem of commercial piracy of sound recordings. Act of Oct. 15, 1971,
85 Stat. 391 (1971 Amendment). The House Report on the 1971 Amendment, in
a section entitled "Home Recording," contains the following statement:
"In approving the creation of a limited copyright in sound recordings
it is the intention of the Committee that this limited copyright not grant
any broader rights than are accorded to other copyright proprietors under
the existing title 17. Specifically, it is not the intention of the Committee
to restrain the home recording, from broadcasts or from tapes or records,
of recorded performances, where the home recording is for private use and
with no purpose of reproducing or otherwise capitalizing commercially on
it. This practice is common and unrestrained today, and the record producers
and performers would be in no different position from that of the owners
of copyright in recorded musical compositions over the past 20 years."
H.R.Rep. No. 92-487, p. 7 (1971) (1971 House Report). Similar statements
were made during House hearings on the bill [FN22] and on the House floor,
[FN23] although not in the Senate proceedings. In concluding that these
statements created a general exemption for home recording, the District
Court, in my view, paid too little heed to the context in which the statements
were made, and failed to consider the limited purpose of the 1971 Amendment
and the structure of the 1909 Act.
FN22. The following exchange took place during the testimony of Barbara
Ringer, then Assistant Register of Copyrights: "[Rep.] Biester....
I can tell you I must have a small pirate in my own home. My son has a cassette
tape recorder, and as a particular record becomes a hit, he will retrieve
it onto his little set.... [T]his legislation, of course, would not point
to his activities, would it? "Miss Ringer. I think the answer is clearly,
'No, it would not.' I have spoken at a couple of seminars on video cassettes
lately, and this question is usually asked: 'What about the home recorders?'
The answer I have given and will give again is that this is something you
cannot control. You simply cannot control it. My own opinion, whether this
is philosophical dogma or not, is that sooner or later there is going to
be a crunch here. But that is not what this legislation is addressed to,
and I do not see the crunch coming in the immediate future.... I do not
see anybody going into anyone's home and preventing this sort of thing,
or forcing legislation that would engineer a piece of equipment not to allow
home taping." Hearings on S. 646 and H.R. 6927 before Subcommittee
No. 3 of the House Committee on the Judiciary, 92d Cong., 1st Sess., 22-23
(1971) (1971 House Hearings).
FN23. Shortly before passage of the bill, a colloquy took place between
Representative Kastenmeier, chairman of the House subcommittee that produced
the bill, and Representative Kazen, who was not on the committee: "Mr.
Kazen. Am I correct in assuming that the bill protects copyrighted material
that is duplicated for commercial purposes only? "Mr. Kastenmeier.
Yes. "Mr. Kazen. In other words, if your child were to record off of
a program which comes through the air on the radio or television, and then
used it for her own personal pleasure, for listening pleasure, this use
would not be included under the penalties of this bill? "Mr. Kastenmeier.
This is not included in the bill. I am glad the gentleman raises the point.
"On page 7 of the report, under 'Home Recordings,' Members will note
that under the bill the same practice which prevails today is called for;
namely, this is considered both presently and under the proposed law to
be fair use. The child does not do this for commercial purposes. This is
made clear in the report." 117 Cong.Rec. 34748-34749 (1971).
Unlike television broadcasts and other types of motion pictures, sound recordings
were not protected by copyright prior to the passage of the 1971 Amendment.
Although the underlying musical work could be copyrighted, the 1909 Act
provided no protection for a particular performer's rendition of the work.
Moreover, copyrighted musical works that had been recorded for public distribution
were subject to a "compulsory license": any person was free to
record such a work upon payment of a 2-cent royalty to the copyright owner.
s 1(e), 35 Stat. 1075-1076. While reproduction without payment of the royalty
was an infringement under the 1909 Act, damages were limited to three times
the amount of the unpaid royalty. s 25(e), 35 Stat. 1081-1082; Shapiro,
Bernstein & Co. v. Goody, 248 F.2d 260, 262-263, 265 (CA2 1957), cert.
denied, 355 U.S. 952, 78 S.Ct. 536, 2 L.Ed.2d 529 (1958). It was observed
that the practical effect of these provisions was to legalize record piracy.
See S.Rep. No. 92-72, p. 4 (1971); 1971 House Report 2.
In order to suppress this piracy, the 1971 Amendment extended copyright
protection beyond the underlying work and to the sound recordings themselves.
Congress chose, however, to provide only limited protection: owners of copyright
in sound recordings were given the exclusive right "[t]o reproduce
[their works] and distribute [them] to the public." 1971 Amendment,
s 1(a), 85 Stat. 391 (formerly codified as 17 U.S.C. s 1(f) (1976 ed.)).
[FN24] This right was merely the right of commercial distribution. See 117
Cong.Rec. 34748-34749 (1971) (colloquy of Reps. Kazen & Kastenmeier)
("the bill protects copyrighted material that is duplicated for commercial
purposes only").
FN24. The 1909 Act's grant of an exclusive right to "copy," s
1(a), was of no assistance to the owner of a copyright in a sound recording,
because a reproduction of a sound recording was technically considered not
to be a "copy." See 1971 House Hearings 18 (testimony of Barbara
Ringer, Assistant Register of Copyrights); 1971 Amendment, s 1(e), 85 Stat.
391 (formerly codified as 17 U.S.C. s 26 (1976 ed.)) ("For the purposes
of [specified sections, not including s 1(a) ], but not for any other purpose,
a reproduction of a [sound recording] shall be considered to be a copy thereof").
This concept is carried forward into the 1976 Act, which distinguishes between
"copies" and "phonorecords." See n. 7, supra.
Against this background, the statements regarding home recording under the
1971 Amendment appear in a very different light. If home recording was "common
and unrestrained" under the 1909 Act, see 1971 House Report 7, it was
because sound recordings had no copyright protection and the owner of a
copyright in the underlying musical work could collect no more than a 2-cent
royalty plus 6 cents in damages for each unauthorized use. With so little
at stake, it is not at all surprising that the Assistant Register "d[id]
not see anybody going into anyone's home and preventing this sort of thing."
1971 House Hearings 23.
But the references to home sound recording in the 1971 Amendment's legislative
history demonstrate no congressional intent to create a generalized home
use exemption from copyright protection. Congress, having recognized that
the 1909 Act had been unsuccessful in controlling home sound recording,
addressed only the specific problem of commercial record piracy. To quote
Assistant Register Ringer again, home use was "not what this legislation
[was] addressed to." 1971 House Hearings 22. [FN25]
FN25. During consideration of the 1976 Act, Congress, of course, was well
aware of the limited nature of the protection granted to sound recordings
under the 1971 Amendment. See 1975 House Hearings 113 (testimony of Barbara
Ringer, Register of Copyrights) (1971 Amendment "created a copyright
in a sound recording ... but limited it to the particular situation of so-called
piracy"); id., at 1380 (letter from John Lorenz, Acting Librarian of
Congress) (under 1971 Amendment "only the unauthorized reproduction
and distribution to the public of copies of the sound recording is prohibited.
Thus, the duplication of sound recordings for private, personal use and
the performance of sound recordings through broadcasting or other means
are outside the scope of the amendment").
While the 1971 Amendment narrowed the sound recordings loophole in then
existing copyright law, motion pictures and other audiovisual works have
been accorded full copyright protection since at least 1912, see Act of
Aug. 24, 1912, 37 Stat. 488, and perhaps before, see Edison v. Lubin, 122
F. 240 (CA3 1903), app. dism'd, 195 U.S. 625, 25 S.Ct. 790, 49 L.Ed. 349
(1904). Congress continued this protection in the 1976 Act. Unlike the sound
recording rights created by the 1971 Amendment, the reproduction rights
associated with motion pictures under s 106(1) are not limited to reproduction
for public distribution; the copyright owner's right to reproduce the work
exists independently, and the "mere duplication of a copy may constitute
an infringement even if it is never distributed." Register's Supplementary
Report 16; see 1975 Senate Report 57 and 1976 House Report 61. Moreover,
the 1976 Act was intended as a comprehensive treatment of all aspects of
copyright law. The reports accompanying the 1976 Act, unlike the 1971 House
Report, contain no suggestion that home-use recording is somehow outside
the scope of this all-inclusive statute. It was clearly the intent of Congress
that no additional exemptions were to be implied. [FN26]
FN26. Representative Kastenmeier, the principal House sponsor of the 1976
revision bill and chairman of the House subcommittee that produced it, made
this explicit on the opening day of the House hearings: "[F]rom time
to time, certain areas have not been covered in the bill. But is it not
the case, this being a unified code, that the operation of the bill does
apply whether or not we specifically deal with a subject or not? ... "Therefore,
we can really not fail to deal with an issue. It will be dealt with one
way or the other. The code, title 17, will cover it. So we have made a conscious
decision even by omission.... "By virtue of passing this bill, we will
deal with every issue. Whether we deal with it completely or not for the
purpose of resolving the issues involved is the only question, not whether
it has dealt with the four corners of the bill because the four corners
of the bill will presume to deal with everything in copyright." 1975
House Hearings 115.
I therefore find in the 1976 Act no implied exemption to cover the home
taping of television programs, whether it be for a single copy, for private
use, or for home use. Taping a copyrighted television program is infringement
unless it is permitted by the fair use exemption contained in s 107 of the
1976 Act. I now turn to that issue.
IV
Fair Use
The doctrine of fair use has been called, with some justification, "the
most troublesome in the whole law of copyright." Dellar v. Samuel Goldwyn,
Inc., 104 F.2d 661, 662 (CA2 1939); see Triangle Publications, Inc. v. Knight-
Ridder Newspapers, Inc., 626 F.2d 1171, 1174 (CA5 1980); Meeropol v. Nizer,
560 F.2d 1061, 1068 (CA2 1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727,
54 L.Ed.2d 756 (1978). Although courts have constructed lists of factors
to be considered in determining whether a particular use is fair, [FN27]
no fixed criteria have emerged by which that determination can be made.
This Court thus far has provided no guidance; although fair use issues have
come here twice, on each occasion the Court was equally divided and no opinion
was forthcoming. Williams & Wilkins Co. v. United States, 203 Ct.Cl.
74, 487 F.2d 1345 (1973), aff'd, 420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d
264 (1975); Benny v. Loew's, Inc., 239 F.2d 532 (CA9 1956), aff'd sub nom.
CBS, Inc. v. Loew's Inc., 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583 (1958).
FN27. The precise phrase "fair use" apparently did not enter the
case law until 1869, see Lawrence v. Dana, 15 F.Cas. 26, 60 (No. 8,136)
(CC Mass.), but the doctrine itself found early expression in Folsom v.
Marsh, 9 F.Cas. 342 (No. 4,901) (CC Mass.1841). Justice Story was faced
there with the "intricate and embarrassing questio[n]" whether
a biography containing copyrighted letters was "a justifiable use of
the original materials, such as the law recognizes as no infringement of
the copyright of the plaintiffs." Id., at 344, 348. In determining
whether the use was permitted, it was necessary, said Justice Story, to
consider "the nature and objects of the selections made, the quantity
and value of the materials used, and the degree in which the use may prejudice
the sale, or diminish the profits, or supersede the objects, of the original
work.... Much must, in such cases, depend upon the nature of the new work,
the value and extent of the copies, and the degree in which the original
authors may be injured thereby." Id., at 348-349. Similar lists were
compiled by later courts. See, e.g., Tennessee Fabricating Co. v. Moultrie
Mfg. Co., 421 F.2d 279, 283 (CA5), cert. denied, 398 U.S. 928, 90 S.Ct.
1819, 26 L.Ed.2d 91 (1970); Mathews Conveyer Co. v. Palmer-Bee Co., 135
F.2d 73, 85 (CA6 1943); Columbia Pictures Corp. v. National Broadcasting
Co., 137 F.Supp. 348 (SD Cal.1955); Shapiro, Bernstein & Co. v. P.F.
Collier & Son Co., 26 U.S.P.Q. 40, 43 (SDNY 1934); Hill v. Whalen &
Martell, Inc., 220 F. 359, 360 (SDNY 1914).
Nor did Congress provide definitive rules when it codified the fair use
doctrine in the 1976 Act; it simply incorporated a list of factors "to
be considered": the "purpose and character of the use," the
"nature of the copyrighted work," the "amount and substantiality
of the portion used," and, perhaps the most important, the "effect
of the use upon the potential market for or value of the copyrighted work"
(emphasis supplied). s 107. No particular weight, however, was assigned
to any of these, and the list was not intended to be exclusive. The House
and Senate Reports explain that s 107 does no more than give "statutory
recognition" to the fair use doctrine; it was intended "to restate
the present judicial doctrine of fair use, not to change, narrow, or enlarge
it in any way." 1976 House Report 66, U.S.Code Cong. & Admin.News
1976, p. 5680. See 1975 Senate Report 62; S.Rep. No. 93-983, p. 116 (1974);
H.R.Rep. No. 83, 90th Cong., 1st Sess., 32 (1967); H.R.Rep. No. 2237, 89th
Cong., 2d Sess., 61 (1966).
A
Despite this absence of clear standards, the fair use doctrine plays a crucial
role in the law of copyright. The purpose of copyright protection, in the
words of the Constitution, is to "promote the Progress of Science and
useful Arts." Copyright is based on the belief that by granting authors
the exclusive rights to reproduce their works, they are given an incentive
to create, and that "encouragement of individual effort by personal
gain is the best way to advance public welfare through the talents of authors
and inventors in 'Science and the useful Arts.' " Mazer v. Stein, 347
U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 (1954). The monopoly created
by copyright thus rewards the individual author in order to benefit the
public. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct.
2040, 2043, 45 L.Ed.2d 84 (1975); Fox Film Corp. v. Doyal, 286 U.S. 123,
127-128, 52 S.Ct. 546, 547, 76 L.Ed. 1010 (1932); see H.R.Rep. No. 2222,
60th Cong., 2d Sess., 7 (1909).
There are situations, nevertheless, in which strict enforcement of this
monopoly would inhibit the very "Progress of Science and useful Arts"
that copyright is intended to promote. An obvious example is the researcher
or scholar whose own work depends on the ability to refer to and to quote
the work of prior scholars. Obviously, no author could create a new work
if he were first required to repeat the research of every author who had
gone before him. [FN28] The scholar, like the ordinary user, of course could
be left to bargain with each copyright owner for permission to quote from
or refer to prior works. But there is a crucial difference between the scholar
and the ordinary user. When the ordinary user decides that the owner's price
is too high, and forgoes use of the work, only the individual is the loser.
When the scholar forgoes the use of a prior work, not only does his own
work suffer, but the public is deprived of his contribution to knowledge.
The scholar's work, in other words, produces external benefits from which
everyone profits. In such a case, the fair use doctrine acts as a form of
subsidy-- albeit at the first author's expense--to permit the second author
to make limited use of the first author's work for the public good. See
Latman Fair Use Study 31; Gordon, Fair Use as Market Failure: A Structural
Analysis of the Betamax Case and its Predecessors, 82 Colum.L.Rev. 1600,
1630 (1982).
FN28. "The world goes ahead because each of us builds on the work of
our predecessors. 'A dwarf standing on the shoulders of a giant can see
farther than the giant himself.' " Chafee, Reflections on the Law of
Copyright: I, 45 Colum.L.Rev. 503, 511 (1945).
A similar subsidy may be appropriate in a range of areas other than pure
scholarship. The situations in which fair use is most commonly recognized
are listed in s 107 itself; fair use may be found when a work is used "for
purposes such as criticism, comment, news reporting, teaching, ... scholarship,
or research." The House and Senate Reports expand on this list somewhat,
[FN29] and other examples may be found in the case law. [FN30] Each of these
uses, however, reflects a common theme: each is a productive use, resulting
in some added benefit to the public beyond that produced by the first author's
work. [FN31] The fair use doctrine, in other words, permits works to be
used for "socially laudable purposes." See Copyright Office, Briefing
Papers on Current Issues, reprinted in 1975 House Hearings 2051, 2055. I
am aware of no case in which the reproduction of a copyrighted work for
the sole benefit of the user has been held to be fair use. [FN32]
FN29. Quoting from the Register's 1961 Report, the Senate and House Reports
give examples of possible fair uses: " 'quotation of excerpts in a
review or criticism for purposes of illustration or comment; quotation of
short passages in a scholarly or technical work, for illustration or clarification
of the author's observations; use in a parody of some of the content of
the work parodied; summary of an address or article, with brief quotations,
in a news report; reproduction by a library of a portion of a work to replace
part of a damaged copy; reproduction by a teacher or student of a small
part of a work to illustrate a lesson; reproduction of a work in legislative
or judicial proceedings or reports; incidental and fortuitous reproduction,
in a newsreel or broadcast, of a work located in the scene of an event being
recorded.' " 1975 Senate Report 61-62; 1976 House Report 65, U.S.Code
Cong. & Admin.News 1976, p. 5678.
FN30. See, e.g., Triangle Publications, Inc. v. Knight-Ridder Newspapers,
Inc., 626 F.2d 1171 (CA5 1980) (comparative advertising).
FN31. Professor Seltzer has characterized these lists of uses as "reflect
[ing] what in fact the subject matter of fair use has in the history of
its adjudication consisted in: it has always had to do with the use by a
second author of a first author's work." L. Seltzer, Exemptions and
Fair Use in Copyright 24 (1978) (emphasis removed). He distinguishes "the
mere reproduction of a work in order to use it for its intrinsic purpose--to
make what might be called the 'ordinary' use of it." When copies are
made for "ordinary" use of the work, "ordinary infringement
has customarily been triggered, not notions of fair use" (emphasis
in original). Ibid. See also M. Nimmer, Copyright s 13.05[A][1] (1982) ("Use
of a work in each of the foregoing contexts either necessarily or usually
involves its use in a derivative work").
FN32. Williams & Wilkins Co. v. United States, 203 Ct.Cl. 74, 487 F.2d
1345 (1973), aff'd by an equally divided Court, 420 U.S. 376, 95 S.Ct. 1344,
43 L.Ed.2d 264 (1975), involved the photocopying of scientific journal articles;
the Court of Claims stressed that the libraries performing the copying were
"devoted solely to the advancement and dissemination of medical knowledge,"
203 Ct.Cl., at 91, 487 F.2d, at 1354, and that "medical science would
be seriously hurt if such library photocopying were stopped." Id.,
at 95, 487 F.2d, at 1356. The issue of library copying is now covered by
s 108 of the 1976 Act. That section, which Congress regarded as "authoriz[ing]
certain photocopying practices which may not qualify as a fair use,"
1975 Senate Report 67; 1976 House Report 74, U.S.Code Cong. & Admin.News
1976, p. 5688, permits the making of copies only for "private study,
scholarship, or research." ss 108(d)(1) and (e)(1).
I do not suggest, of course, that every productive use is a fair use. A
finding of fair use still must depend on the facts of the individual case,
and on whether, under the circumstances, it is reasonable to expect the
user to bargain with the copyright owner for use of the work. The fair use
doctrine must strike a balance between the dual risks created by the copyright
system: on the one hand, that depriving authors of their monopoly will reduce
their incentive to create, and, on the other, that granting authors a complete
monopoly will reduce the creative ability of others. [FN33] The inquiry
is necessarily a flexible one, and the endless variety of situations that
may arise precludes the formulation of exact rules. But when a user reproduces
an entire work and uses it for its original purpose, with no added benefit
to the public, the doctrine of fair use usually does not apply. There is
then no need whatsoever to provide the ordinary user with a fair use subsidy
at the author's expense.
FN33. In the words of Lord Mansfield: "[W]e must take care to guard
against two extremes equally prejudicial; the one, that men of ability,
who have employed their time for the service of the community, may not be
deprived of their just merits, and the reward of their ingenuity and labour;
the other, that the world may not be deprived of improvements, nor the progress
of the arts be retarded." Sayre v. Moore, 1 East 361 n. (b), 102 Eng.Rep.
139, 140 n. (b) (K.B.1785). See Register's Supplementary Report 13.
The making of a videotape recording for home viewing is an ordinary rather
than a productive use of the Studios' copyrighted works. The District Court
found that "Betamax owners use the copy for the same purpose as the
original. They add nothing of their own." 480 F.Supp., at 453. Although
applying the fair use doctrine to home VTR recording, as Sony argues, may
increase public access to material broadcast free over the public airwaves,
I think Sony's argument misconceives the nature of copyright. Copyright
gives the author a right to limit or even to cut off access to his work.
Fox Film Corp. v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 547, 76 L.Ed.
1010 (1932). A VTR recording creates no public benefit sufficient to justify
limiting this right. Nor is this right extinguished by the copyright owner's
choice to make the work available over the airwaves. Section 106 of the
1976 Act grants the copyright owner the exclusive right to control the performance
and the reproduction of his work, and the fact that he has licensed a single
television performance is really irrelevant to the existence of his right
to control its reproduction. Although a television broadcast may be free
to the viewer, this fact is equally irrelevant; a book borrowed from the
public library may not be copied any more freely than a book that is purchased.
It may be tempting, as, in my view, the Court today is tempted, to stretch
the doctrine of fair use so as to permit unfettered use of this new technology
in order to increase access to television programming. But such an extension
risks eroding the very basis of copyright law, by depriving authors of control
over their works and consequently of their incentive to create. [FN34] Even
in the context of highly productive educational uses, Congress has avoided
this temptation; in passing the 1976 Act, Congress made it clear that off-the-air
videotaping was to be permitted only in very limited situations. See 1976
House Report 71; 1975 Senate Report 64. And, the Senate report adds, "[t]he
committee does not intend to suggest ... that off- the-air recording for
convenience would under any circumstances, be considered 'fair use.' "
Id., at 66. I cannot disregard these admonitions.
FN34. This point was brought home repeatedly by the Register of Copyrights.
Mentioning the "multitude of technological developments" since
passage of the 1909 Act, including "remarkable developments in the
use of video tape," Register's Supplementary Report xiv-xv, the Register
cautioned: "I realize, more clearly now than I did in 1961, that the
revolution in communications has brought with it a serious challenge to
the author's copyright. This challenge comes not only from the ever-growing
commercial interests who wish to use the author's works for private gain.
An equally serious attack has come from people with a sincere interest in
the public welfare who fully recognize ... 'that the real heart of civilization
... owes its existence to the author'; ironically, in seeking to make the
author's works widely available by freeing them from copyright restrictions,
they fail to realize that they are whittling away the very thing that nurtures
authorship in the first place. An accommodation among conflicting demands
must be worked out, true enough, but not by denying the fundamental constitutional
directive: to encourage cultural progress by securing the author's exclusive
rights to him for a limited time." Id., at xv; see 1975 House Hearings
117 (testimony of Barbara Ringer, Register of Copyrights).
B
I recognize, nevertheless, that there are situations where permitting even
an unproductive use would have no effect on the author's incentive to create,
that is, where the use would not affect the value of, or the market for,
the author's work. Photocopying an old newspaper clipping to send to a friend
may be an example; pinning a quotation on one's bulletin board may be another.
In each of these cases, the effect on the author is truly de minimis. Thus,
even though these uses provide no benefit to the public at large, no purpose
is served by preserving the author's monopoly, and the use may be regarded
as fair.
Courts should move with caution, however, in depriving authors of protection
from unproductive "ordinary" uses. As has been noted above, even
in the case of a productive use, s 107(4) requires consideration of "the
effect of the use upon the potential market for or value of the copyrighted
work" (emphasis added). "[A] particular use which may seem to
have little or no economic impact on the author's rights today can assume
tremendous importance in times to come." Register's Supplementary Report
14. Although such a use may seem harmless when viewed in isolation, "[i]solated
instances of minor infringements, when multiplied many times, become in
the aggregate a major inroad on copyright that must be prevented."
1975 Senate Report 65.
I therefore conclude that, at least when the proposed use is an unproductive
one, a copyright owner need prove only a potential for harm to the market
for or the value of the copyrighted work. See 3 M. Nimmer, Copyright s 13.05[E][4]
[c], p. 13-84 (1982). Proof of actual harm, or even probable harm, may be
impossible in an area where the effect of a new technology is speculative,
and requiring such proof would present the "real danger ... of confining
the scope of an author's rights on the basis of the present technology so
that, as the years go by, his copyright loses much of its value because
of unforeseen technical advances." Register's Supplementary Report
14. Infringement thus would be found if the copyright owner demonstrates
a reasonable possibility that harm will result from the proposed use. When
the use is one that creates no benefit to the public at large, copyright
protection should not be denied on the basis that a new technology that
may result in harm has not yet done so.
The Studios have identified a number of ways in which VTR recording could
damage their copyrights. VTR recording could reduce their ability to market
their works in movie theaters and through the rental or sale of pre- recorded
videotapes or videodiscs; it also could reduce their rerun audience, and
consequently the license fees available to them for repeated showings. Moreover,
advertisers may be willing to pay for only "live" viewing audiences,
if they believe VTR viewers will delete commercials or if rating services
are unable to measure VTR use; if this is the case, VTR recording could
reduce the license fees the Studios are able to charge even for first-run
showings. Library-building may raise the potential for each of the types
of harm identified by the Studios, and time-shifting may raise the potential
for substantial harm as well. [FN35]
FN35. A VTR owner who has taped a favorite movie for repeated viewing will
be less likely to rent or buy a tape containing the same movie, watch a
televised rerun, or pay to see the movie at a theater. Although time- shifting
may not replace theater or rerun viewing or the purchase of prerecorded
tapes or discs, it may well replace rental usage; a VTR user who has recorded
a first-run movie for later viewing will have no need to rent a copy when
he wants to see it. Both library-builders and time- shifters may avoid commercials;
the library builder may use the pause control to record without them, and
all users may fast-forward through commercials on playback. The Studios
introduced expert testimony that both time-shifting and librarying would
tend to decrease their revenue from copyrighted works. See 480 F.Supp.,
at 440. The District Court's findings also show substantial library-building
and avoidance of commercials. Both sides submitted surveys showing that
the average Betamax user owns between 25 and 32 tapes. The Studios' survey
showed that at least 40% of users had more than 10 tapes in a "library";
Sony's survey showed that more than 40% of users planned to view their tapes
more than once; and both sides' surveys showed that commercials were avoided
at least 25% of the time. Id., at 438-439.
Although the District Court found no likelihood of harm from VTR use, 480
F.Supp., at 468, I conclude that it applied an incorrect substantive standard
and misallocated the burden of proof. The District Court reasoned that the
Studios had failed to prove that library-building would occur "to any
significant extent," id., at 467; that the Studios' prerecorded videodiscs
could compete with VTR recordings and were "arguably ... more desirable,"
ibid; that it was "not clear that movie audiences will decrease,"
id., at 468; and that the practice of deleting commercials "may be
too tedious" for many viewers, ibid. To the extent any decrease in
advertising revenues would occur, the court concluded that the Studios had
"marketing alternatives at hand to recoup some of that predicted loss."
Id., at 452. Because the Studios' prediction of harm was "based on
so many assumptions and on a system of marketing which is rapidly changing,"
the court was "hesitant to identify 'probable effects' of home-use
copying." Ibid.
The District Court's reluctance to engage in prediction in this area is
understandable, but, in my view, the court was mistaken in concluding that
the Studios should bear the risk created by this uncertainty. The Studios
have demonstrated a potential for harm, which has not been, and could not
be, refuted at this early stage of technological development.
The District Court's analysis of harm, moreover, failed to consider the
effect of VTR recording on "the potential market for or the value of
the copyrighted work," as required by s 107(4). [FN36] The requirement
that a putatively infringing use of a copyrighted work, to be "fair,"
must not impair a "potential" market for the work has two implications.
First, an infringer cannot prevail merely by demonstrating that the copyright
holder suffered no net harm from the infringer's action. Indeed, even a
showing that the infringement has resulted in a net benefit to the copyright
holder will not suffice. Rather, the infringer must demonstrate that he
had not impaired the copyright holder's ability to demand compensation from
(or to deny access to) any group who would otherwise be willing to pay to
see or hear the copyrighted work. Second, the fact that a given market for
a copyrighted work would not be available to the copyright holder were it
not for the infringer's activities does not permit the infringer to exploit
that market without compensating the copyright holder. See Iowa State University
Research Foundation, Inc. v. American Broadcasting Cos., 621 F.2d 57 (CA2
1980).
FN36. Concern over the impact of a use upon "potential" markets
is to be found in cases decided both before and after s 107 lent Congress'
imprimatur to the judicially-created doctrine of fair use. See, e.g., Iowa
State University Research Foundation, Inc. v. American Broadcasting Cos.,
621 F.2d 57, 60 (CA2 1980) ("the effect of the use on the copyright
holder's potential market for the work"); Meeropol v. Nizer, 560 F.2d
1061, 1070 (CA2 1977) ("A key issue in fair use cases is whether the
defendant's work tends to diminish or prejudice the potential sale of plaintiff's
work"), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978);
Williams & Wilkins Co. v. United States, 203 Ct.Cl. 74, 88, 487 F.2d
1345, 1352 (1973) ("the effect of the use on a copyright owner's potential
market for and value of his work"), aff'd by an equally divided Court,
420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d 264 (1975); Encyclopaedia Britannica
Educational Corp. v. Crooks, 542 F.Supp. 1156, 1173 (WDNY 1982) ("[T]he
concern here must be focused on a copyrighted work's potential market. It
is perfectly possible that plaintiffs' profits would have been greater,
but for the kind of videotaping in question") (emphasis in original).
In this case, the Studios and their amici demonstrate that the advent of
the VTR technology created a potential market for their copyrighted programs.
That market consists of those persons who find it impossible or inconvenient
to watch the programs at the time they are broadcast, and who wish to watch
them at other times. These persons are willing to pay for the privilege
of watching copyrighted work at their convenience, as is evidenced by the
fact that they are willing to pay for VTRs and tapes; undoubtedly, most
also would be willing to pay some kind of royalty to copyright holders.
The Studios correctly argue that they have been deprived of the ability
to exploit this sizable market.
It is thus apparent from the record and from the findings of the District
Court that time-shifting does have a substantial adverse effect upon the
"potential market for" the Studios' copyrighted works. Accordingly,
even under the formulation of the fair use doctrine advanced by Sony, time-shifting
cannot be deemed a fair use.
V
Contributory Infringement
From the Studios' perspective, the consequences of home VTR recording are
the same as if a business had taped the Studios' works off the air, duplicated
the tapes, and sold or rented them to members of the public for home viewing.
The distinction is that home VTR users do not record for commercial advantage;
the commercial benefit accrues to the manufacturer and distributors of the
Betamax. I thus must proceed to discuss whether the manufacturer and distributors
can be held contributorily liable if the product they sell is used to infringe.
It is well established that liability for copyright infringement can be
imposed on persons other than those who actually carry out the infringing
activity. Kalem Co. v. Harper Brothers, 222 U.S. 55, 62-63, 32 S.Ct. 20,
21-22, 56 L.Ed. 92 (1911); 3 M. Nimmer, Copyright s 12.04[A] (1982); see
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 160, n. 11, 95 S.Ct.
2040, 2046, n. 11, 45 L.Ed.2d 84 (1975); Buck v. Jewell-LaSalle Realty Co.,
283 U.S. 191, 198, 51 S.Ct. 410, 411, 75 L.Ed. 971 (1931). Although the
liability provision of the 1976 Act provides simply that "[a]nyone
who violates any of the exclusive rights of the copyright owner ... is an
infringer of the copyright," 17 U.S.C. s 501(a), the House and Senate
Reports demonstrate that Congress intended to retain judicial doctrines
of contributory infringement. 1975 Senate Report 57; 1976 House Report 61.
[FN37]
FN37. This intent is manifested further by provisions of the 1976 Act that
exempt from liability persons who, while not participating directly in any
infringing activity, could otherwise be charged with contributory infringement.
See s 108(f)(1) (library not liable "for the unsupervised use of reproducing
equipment located on its premises," provided that certain warnings
are posted); s 110(6) ("governmental body" or "nonprofit
agricultural or horticultural organization" not liable for infringing
performance by concessionaire "in the course of an annual agricultural
or horticultural fair or exhibition").
The doctrine of contributory copyright infringement, however, is not well-defined.
One of the few attempts at definition appears in Gershwin Publishing Corp.
v. Columbia Artists Management, Inc., 443 F.2d 1159 (CA2 1971). In that
case the Second Circuit stated that "one who, with knowledge of the
infringing activity, induces, causes or materially contributes to the infringing
conduct of another, may be held liable as a 'contributory' infringer."
Id., at 1162 (footnote omitted). While I have no quarrel with this general
statement, it does not easily resolve the present case; the District Court
and the Court of Appeals, both purporting to apply it, reached diametrically
opposite results.
A
In absolving Sony from liability, the District Court reasoned that Sony
had no direct involvement with individual Betamax users, did not participate
in any off-the-air copying, and did not know that such copying was an infringement
of the Studios' copyright. 480 F.Supp., at 460. I agree with the Gershwin
court that contributory liability may be imposed even when the defendant
has no formal control over the infringer. The defendant in Gershwin was
a concert promoter operating through local concert associations that it
sponsored; it had no formal control over the infringing performers themselves.
443 F.2d, at 1162-1163. See also Twentieth Century Music Corp. v. Aiken,
422 U.S., at 160, n. 11, 95 S.Ct., at 2046, n. 11. Moreover, a finding of
contributory infringement has never depended on actual knowledge of particular
instances of infringement; it is sufficient that the defendant have reason
to know that infringement is taking place. 443 F.2d, at 1162; see Screen
Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc., 256 F.Supp. 399 (SDNY
1966). [FN38] In the so-called "dance hall" cases, in which questions
of contributory infringement arise with some frequency, proprietors of entertainment
establishments routinely are held liable for unauthorized performances on
their premises, even when they have no knowledge that copyrighted works
are being performed. In effect, the proprietors in those cases are charged
with constructive knowledge of the performances. [FN39]
FN38. In Screen Gems, on which the Gershwin court relied, the court held
that liability could be imposed on a shipper of unauthorized "bootleg"
records and a radio station that broadcast advertisements of the records,
provided they knew or should have known that the records were infringing.
The court concluded that the records' low price and the manner in which
the records were marketed could support a finding of "constructive
knowledge" even if actual knowledge were not shown.
FN39. See, e.g., Famous Music Corp. v. Bay State Harness Horse Racing &
Breeding Assn., Inc., 554 F.2d 1213 (CA1 1977); Dreamland Ball Room, Inc.
v. Shapiro, Bernstein & Co., 36 F.2d 354 (CA7 1929); M. Witmark &
Sons v. Tremont Social & Athletic Club, 188 F.Supp. 787, 790 (Mass.1960);
see also Twentieth Century Music Corp. v. Aiken, 422 U.S., at 157, 95 S.Ct.,
at 2044; Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 198- 199, 51 S.Ct.
410, 411-412, 75 L.Ed. 971 (1931); 3 M. Nimmer, Copyright s 12.04[A], pp.
12-35 (1982). Courts have premised liability in these cases on the notion
that the defendant had the ability to supervise or control the infringing
activities, see, e.g., Shapiro, Bernstein & Co. v. H.L. Green Co., 316
F.2d 304, 307 (CA2 1963); KECA Music, Inc. v. Dingus McGee's Co., 432 F.Supp.
72, 74 (WD Mo.1977). This notion, however, is to some extent fictional;
the defendant cannot escape liability by instructing the performers not
to play copyrighted music, or even by inserting a provision to that effect
into the performers' contract. Famous Music Corp. v. Bay State Harness Horse
Racing & Breeding Assn., Inc., 554 F.2d, at 1214- 1215; KECA Music,
Inc. v. Dingus McGee's Co., 432 F.Supp., at 75; Shapiro, Bernstein &
Co. v. Veltin, 47 F.Supp. 648, 649 (WD La.1942). Congress expressly rejected
a proposal to exempt proprietors from this type of liability under the 1976
Act. See 1975 Senate Report 141-142; 1976 House Report 159-160; 1975 House
Hearings 1812-1813 (testimony of Barbara Ringer, Register of Copyrights);
id., at 1813 (colloquy between Rep. Pattison and Barbara Ringer). The Court's
attempt to distinguish these cases on the ground of "control,"
ante, at 786, is obviously unpersuasive. The direct infringer ordinarily
is not employed by the person held liable; instead, he is an independent
contractor. Neither is he always an agent of the person held liable; Screen
Gems makes this apparent.
Nor is it necessary that the defendant be aware that the infringing activity
violates the copyright laws. Section 504(c)(2) of the 1976 Act provides
for a reduction in statutory damages when an infringer proves he "was
not aware and had no reason to believe that his or her acts constituted
an infringement of copyright," but the statute establishes no general
exemption for those who believe their infringing activities are legal. Moreover,
such an exemption would be meaningless in a case such as this, in which
prospective relief is sought; once a court has established that the copying
at issue is infringement, the defendants are necessarily aware of that fact
for the future. It is undisputed in this case that Sony had reason to know
the Betamax would be used by some owners to tape copyrighted works off the
air. See 480 F.Supp., at 459-460.
The District Court also concluded that Sony had not caused, induced, or
contributed materially to any infringing activities of Betamax owners. 480
F.Supp., at 460. In a case of this kind, however, causation can be shown
indirectly; it does not depend on evidence that particular Betamax owners
relied on particular advertisements. In an analogous case decided just two
Terms ago, this Court approved a lower court's conclusion that liability
for contributory trademark infringement could be imposed on a manufacturer
who "suggested, even by implication" that a retailer use the manufacturer's
goods to infringe the trademark of another. Inwood Laboratories, Inc. v.
Ives Laboratories, Inc., 456 U.S. 844, 851, 102 S.Ct. 2182, 2186, 72 L.Ed.2d
606 (1982); see id., at 860, 102 S.Ct., at 2191 (concurring opinion). I
think this standard is equally appropriate in the copyright context.
The District Court found that Sony has advertised the Betamax as suitable
for off-the-air recording of "favorite shows," "novels for
television," and "classic movies," 480 F.Supp., at 436, with
no visible warning that such recording could constitute copyright infringement.
It is only with the aid of the Betamax or some other VTR, that it is possible
today for home television viewers to infringe copyright by recording off-the-air.
Off-the-air recording is not only a foreseeable use for the Betamax, but
indeed is its intended use. Under the circumstances, I agree with the Court
of Appeals that if off-the-air recording is an infringement of copyright,
Sony has induced and materially contributed to the infringing conduct of
Betamax owners. [FN40]
FN40. My conclusion respecting contributory infringement does not include
the retailer defendants. The District Court found that one of the retailer
defendants had assisted in the advertising campaign for the Betamax, but
made no other findings respecting their knowledge of the Betamax's intended
uses. I do not agree with the Court of Appeals, at least on this record,
that the retailers "are sufficiently engaged in the enterprise to be
held accountable," 659 F.2d, at 976. In contrast, the advertising agency
employed to promote the Betamax was far more actively engaged in the advertising
campaign, and petitioners have not argued that the agency's liability differs
in any way from that of Sony Corporation and Sony Corporation of America.
B
Sony argues that the manufacturer or seller of a product used to infringe
is absolved from liability whenever the product can be put to any substantial
noninfringing use. Brief for Petitioners 41-42. The District Court so held,
borrowing the "staple article of commerce" doctrine governing
liability for contributory infringement of patents. See 35 U.S.C. s 271.
[FN41] This Court today is much less positive. See ante, at 788. I do not
agree that this technical judge-made doctrine of patent law, based in part
on considerations irrelevant to the field of copyright, see generally Dawson
Chemical Co. v. Rohm & Haas Co., 448 U.S. 176, 187-199, 100 S.Ct. 2601,
2608- 2614, 65 L.Ed.2d 696 (1980), should be imported wholesale into copyright
law. Despite their common constitutional source, see U.S. Const., Art. I,
s 8, cl. 8, patent and copyright protections have not developed in a parallel
fashion, and this Court in copyright cases in the past has borrowed patent
concepts only sparingly. See Bobbs-Merrill Co. v. Straus, 210 U.S. 339,
345-346, 28 S.Ct. 722, 724, 52 L.Ed. 1086 (1908).
FN41. The "staple article of commerce" doctrine protects those
who manufacture products incorporated into or used with patented inventions--
for example, the paper and ink used with patented printing machines, Henry
v. A.B. Dick Co., 224 U.S. 1, 32 S.Ct. 364, 56 L.Ed. 645 (1912), or the
dry ice used with patented refrigeration systems, Carbice Corp. v. American
Patents Corp., 283 U.S. 27, 51 S.Ct. 334, 75 L.Ed. 819 (1931). Because a
patent-holder has the right to control the use of the patented item as well
as its manufacture, see Motion Picture Patents Co. v. Universal Film Co.,
243 U.S. 502, 509-510, 37 S.Ct. 416, 417-418, 61 L.Ed. 871 (1917); 35 U.S.C.
271(a), such protection for the manufacturer of the incorporated product
is necessary to prevent patent-holders from extending their monopolies by
suppressing competition in unpatented components and supplies suitable for
use with the patented item. See Dawson Chemical Co. v. Rohm & Haas Co.,
448 U.S. 176, 197-198, 100 S.Ct. 2601, 2613-2614, 65 L.Ed.2d 696 (1980).
The doctrine of contributory patent infringement has been the subject of
attention by the courts and by Congress, see id., at 202-212, 100 S.Ct.,
at 2616-2621, and has been codified since 1952, 66 Stat. 792, but was never
mentioned during the copyright law revision process as having any relevance
to contributory copyright infringement.
I recognize, however, that many of the concerns underlying the "staple
article of commerce" doctrine are present in copyright law as well.
As the District Court noted, if liability for contributory infringement
were imposed on the manufacturer or seller of every product used to infringe--a
typewriter, a camera, a photocopying machine--the "wheels of commerce"
would be blocked. 480 F.Supp., at 461; see also Kalem Co. v. Harper Brothers,
222 U.S., at 62, 32 S.Ct., at 21.
I therefore conclude that if a significant portion of the product's use
is noninfringing, the manufacturers and sellers cannot be held contributorily
liable for the product's infringing uses. See ante, at 788. If virtually
all of the product's use, however, is to infringe, contributory liability
may be imposed; if no one would buy the product for noninfringing purposes
alone, it is clear that the manufacturer is purposely profiting from the
infringement, and that liability is appropriately imposed. In such a case,
the copyright owner's monopoly would not be extended beyond its proper bounds;
the manufacturer of such a product contributes to the infringing activities
of others and profits directly thereby, while providing no benefit to the
public sufficient to justify the infringement.
The Court of Appeals concluded that Sony should be held liable for contributory
infringement, reasoning that "[v]ideotape recorders are manufactured,
advertised, and sold for the primary purpose of reproducing television programming,"
and "[v]irtually all television programming is copyrighted material."
659 F.2d, at 975. While I agree with the first of these propositions, [FN42]
the second, for me, is problematic. The key question is not the amount of
television programming that is copyrighted, but rather the amount of VTR
usage that is infringing. [FN43] Moreover, the parties and their amici have
argued vigorously about both the amount of television programming that is
covered by copyright and the amount for which permission to copy has been
given. The proportion of VTR recording that is infringing is ultimately
a question of fact, [FN44] and the District Court specifically declined
to make findings on the "percentage of legal versus illegal home-use
recording." 480 F.Supp., at 468. In light of my view of the law, resolution
of this factual question is essential. I therefore would remand the case
for further consideration of this by the District Court.
FN42. Although VTRs also may be used to watch prerecorded video cassettes
and to make home motion pictures, these uses do not require a tuner such
as the Betamax contains. See n. 1, supra. The Studios do not object to Sony's
sale of VTRs without tuners. Brief for Respondents 5, n. 9. In considering
the noninfringing uses of the Betamax, therefore, those uses that would
remain possible without the Betamax's built-in tuner should not be taken
into account.
FN43. Noninfringing uses would include, for example, recording works that
are not protected by copyright, recording works that have entered the public
domain, recording with permission of the copyright owner, and, of course,
any recording that qualifies as fair use. See, e.g., Bruzzone v. Miller
Brewing Co., 202 U.S.P.Q. 809 (N.D.Cal.1979) (use of home VTR for market
research studies).
FN44. Sony asserts that much or most television broadcasting is available
for home recording because (1) no copyright owner other than the Studios
has brought an infringement action, and (2) much televised material is ineligible
for copyright protection because videotapes of the broadcasts are not kept.
The first of these assertions is irrelevant; Sony's liability does not turn
on the fact that only two copyright owners thus far have brought suit. The
amount of infringing use must be determined through consideration of the
television market as a whole. Sony's second assertion is based on a faulty
premise; the Copyright Office permits audiovisual works transmitted by television
to be registered by deposit of sample frames plus a description of the work.
See 37 CFR ss 202.20(c)(2)(ii) and 202.21(g) (1982). Moreover, although
an infringement action cannot be brought unless the work is registered,
17 U.S.C. s 411(a), registration is not a condition of copyright protection.
s 408(a). Copying an unregistered work still may be infringement. Cf. s
506(a) (liability for criminal copyright infringement; not conditioned on
prior registration).
VI
The Court has adopted an approach very different from the one I have outlined.
It is my view that the Court's approach alters dramatically the doctrines
of fair use and contributory infringement as they have been developed by
Congress and the courts. Should Congress choose to respond to the Court's
decision, the old doctrines can be resurrected. As it stands, however, the
decision today erodes much of the coherence that these doctrines have struggled
to achieve.
The Court's disposition of the case turns on its conclusion that time-shifting
is a fair use. Because both parties agree that time-shifting is the primary
use of VTRs, that conclusion, if correct, would settle the issue of Sony's
liability under almost any definition of contributory infringement. The
Court concludes that time-shifting is fair use for two reasons. Each is
seriously flawed.
The Court's first reason for concluding that time-shifting is fair use is
its claim that many copyright holders have no objection to time-shifting,
and that "respondents have no right to prevent other copyright holders
from authorizing it for their programs." Ante, at 789. The Court explains
that a finding of contributory infringement would "inevitably frustrate
the interests of broadcasters in reaching the portion of their audience
that is available only through time-shifting." Ante, at 790. Such reasoning,
however, simply confuses the question of liability with the difficulty of
fashioning an appropriate remedy. It may be that an injunction prohibiting
the sale of VTRs would harm the interests of copyright holders who have
no objection to others making copies of their programs. But such concerns
should and would be taken into account in fashioning an appropriate remedy
once liability has been found. Remedies may well be available that would
not interfere with authorized time-shifting at all. The Court of Appeals
mentioned the possibility of a royalty payment that would allow VTR sales
and time-shifting to continue unabated, and the parties may be able to devise
other narrowly tailored remedies. Sony may be able, for example, to build
a VTR that enables broadcasters to scramble the signal of individual programs
and "jam" the unauthorized recording of them. Even were an appropriate
remedy not available at this time, the Court should not misconstrue copyright
holders' rights in a manner that prevents enforcement of them when, through
development of better techniques, an appropriate remedy becomes available.
[FN45]
FN45. Even if concern with remedy were appropriate at the liability stage,
the Court's use of the District Court's findings is somewhat cavalier. The
Court relies heavily on testimony by representatives of professional sports
leagues to the effect that they have no objection to VTR recording. The
Court never states, however, whether the sports leagues are copyright holders,
and if so, whether they have exclusive copyrights to sports broadcasts.
Of course, one who does not hold an exclusive copyright does not have authority
to consent to copying. Assuming that the various sports leagues do have
exclusive copyrights in some of their broadcasts, the amount of authorized
time-shifting still would not be overwhelming. Sony's own survey indicated
that only 7.3 percent of all Betamax use is to record sports events of all
kinds. Def. Exh. OT, Table 20. Because Sony's witnesses did not represent
all forms of sports events, moreover, this figure provides only a tenuous
basis for this Court to engage in fact-finding of its own. The only witness
at trial who was clearly an exclusive copyright owner and who expressed
no objection to unauthorized time-shifting was the owner of the copyright
in Mister Rogers' Neighborhood. But the Court cites no evidence in the record
to the effect that anyone makes VTR copies of that program. The simple fact
is that the District Court made no findings on the amount of authorized
time-shifting that takes place. The Court seems to recognize this gap in
its reasoning, and phrases its argument as a hypothetical. The Court states:
"If there are millions of owners of VTR's who make copies of televised
sports events, religious broadcasts, and educational programs such as Mister
Rogers' Neighborhood, and if the proprietors of those programs welcome the
practice," the sale of VTR's "should not be stifled" in order
to protect respondent's copyrights. Ante, at 790 (emphasis supplied). Given
that the Court seems to recognize that its argument depends on findings
that have not been made, it seems that a remand is inescapable.
The Court's second stated reason for finding that Sony is not liable for
contributory infringement is its conclusion that even unauthorized time-shifting
is fair use. Ante, at 791. This conclusion is even more troubling. The Court
begins by suggesting that the fair use doctrine operates as a general "equitable
rule of reason." That interpretation mischaracterizes the doctrine,
and simply ignores the language of the statute. Section 107 establishes
the fair use doctrine "for purposes such as criticism, comment, news
reporting, teaching, ... scholarship, or research." These are all productive
uses. It is true that the legislative history states repeatedly that the
doctrine must be applied flexibly on a case-by-case basis, but those references
were only in the context of productive uses. Such a limitation on fair use
comports with its purpose, which is to facilitate the creation of new works.
There is no indication that the fair use doctrine has any application for
purely personal consumption on the scale involved in this case, [FN46] and
the Court's application of it here deprives fair use of the major cohesive
force that has guided evolution of the doctrine in the past.
FN46. As has been explained, some uses of time-shifting, such as copying
an old newspaper clipping for a friend, are fair use because of their de
minimis effect on the copyright holder. The scale of copying involved in
this case, of course, is of an entirely different magnitude, precluding
application of such an exception.
Having bypassed the initial hurdle for establishing that a use is fair,
the Court then purports to apply to time-shifting the four factors explicitly
stated in the statute. The first is "the purpose and character of the
use, including whether such use is of a commercial nature or is for nonprofit
educational purposes." s 107(1). The Court confidently describes time-shifting
as a noncommercial, nonprofit activity. It is clear, however, that personal
use of programs that have been copied without permission is not what s 107(1)
protects. The intent of the section is to encourage users to engage in activities
the primary benefit of which accrues to others. Time- shifting involves
no such humanitarian impulse. It is likewise something of a mischaracterization
of time-shifting to describe it as noncommercial in the sense that that
term is used in the statute. As one commentator has observed, time-shifting
is noncommercial in the same sense that stealing jewelry and wearing it--instead
of reselling it--is noncommercial. [FN47] Purely consumptive uses are certainly
not what the fair use doctrine was designed to protect, and the awkwardness
of applying the statutory language to time- shifting only makes clearer
that fair use was designed to protect only uses that are productive.
FN47. Home Recording of Copyrighted Works: Hearing before Subcomm. on Courts,
Civil Liberties and the Administration of Justice of the House Comm. on
the Judiciary, 97th Cong., 2d Sess., pt. 2, p. 1250 (1982) (memorandum of
Prof. Laurence H. Tribe).
The next two statutory factors are all but ignored by the Court--though
certainly not because they have no applicability. The second factor--"the
nature of the copyrighted work"--strongly supports the view that time-shifting
is an infringing use. The rationale guiding application of this factor is
that certain types of works, typically those involving "more of diligence
than of originality or inventiveness," New York Times Co. v. Roxbury
Data Interface, Inc., 434 F.Supp. 217, 221 (NJ 1977), require less copyright
protection than other original works. Thus, for example, informational works,
such as news reports, that readily lend themselves to productive use by
others, are less protected than creative works of entertainment. Sony's
own surveys indicate that entertainment shows account for more than 80 percent
of the programs recorded by Betamax owners. [FN48]
FN48. See A Survey of Betamax Owners, R. 2353, Def. Exh. OT, Table 20, cited
in Brief for Respondents 52.
The third statutory factor--"the amount and substantiality of the portion
used"--is even more devastating to the Court's interpretation. It is
undisputed that virtually all VTR owners record entire works, see 480 F.Supp.,
at 454, thereby creating an exact substitute for the copyrighted original.
Fair use is intended to allow individuals engaged in productive uses to
copy small portions of original works that will facilitate their own productive
endeavors. Time-shifting bears no resemblance to such activity, and the
complete duplication that it involves might alone be sufficient to preclude
a finding of fair use. It is little wonder that the Court has chosen to
ignore this statutory factor. [FN49]
FN49. The Court's one oblique acknowledgement of this third factor, ante,
at 792, seems to suggest that the fact that time-shifting involves copying
complete works is not very significant because the viewers already have
been asked to watch the initial broadcast free. This suggestion misses the
point. As has been noted, a book borrowed from a public library may not
be copied any more freely than one that has been purchased. An invitation
to view a showing is completely different from an invitation to copy a copyrighted
work.
The fourth factor requires an evaluation of "the effect of the use
upon the potential market for or value of the copyrighted work." This
is the factor upon which the Court focuses, but once again, the Court has
misread the statute. As mentioned above, the statute requires a court to
consider the effect of the use on the potential market for the copyrighted
work. The Court has struggled mightily to show that VTR use has not reduced
the value of the Studios' copyrighted works in their present markets. Even
if true, that showing only begins the proper inquiry. The development of
the VTR has created a new market for the works produced by the Studios.
That market consists of those persons who desire to view television programs
at times other than when they are broadcast, and who therefore purchase
VTR recorders to enable them to time-shift. [FN50] Because time-shifting
of the Studios' copyrighted works involves the copying of them, however,
the Studios are entitled to share in the benefits of that new market. Those
benefits currently go to Sony through Betamax sales. Respondents therefore
can show harm from VTR use simply by showing that the value of their copyrights
would increase if they were compensated for the copies that are used in
the new market. The existence of this effect is self-evident.
FN50. The Court implicitly has recognized that this market is very significant.
The central concern underlying the Court's entire opinion is that there
is a large audience who would like very much to be able to view programs
at times other than when they are broadcast. Ante, at 790. The Court simply
misses the implication of its own concerns.
Because of the Court's conclusion concerning the legality of time-shifting,
it never addresses the amount of noninfringing use that a manufacturer must
show to absolve itself from liability as a contributory infringer. Thus,
it is difficult to discuss how the Court's test for contributory infringement
would operate in practice under a proper analysis of time-shifting. One
aspect of the test as it is formulated by the Court, however, particularly
deserves comment. The Court explains that a manufacturer of a product is
not liable for contributory infringement as long as the product is "capable
of substantial noninfringing uses." Ante, at 788 (emphasis supplied).
Such a definition essentially eviscerates the concept of contributory infringement.
Only the most unimaginative manufacturer would be unable to demonstrate
that a image- duplicating product is "capable" of substantial
noninfringing uses. Surely Congress desired to prevent the sale of products
that are used almost exclusively to infringe copyrights; the fact that noninfringing
uses exist presumably would have little bearing on that desire.
More importantly, the rationale for the Court's narrow standard of contributory
infringement reveals that, once again, the Court has confused the issue
of liability with that of remedy. The Court finds that a narrow definition
of contributory infringement is necessary in order to protect "the
rights of others freely to engage in substantially unrelated areas of commerce."
Ante, at 788. But application of the contributory infringement doctrine
implicates such rights only if the remedy attendant upon a finding of liability
were an injunction against the manufacture of the product in question. The
issue of an appropriate remedy is not before the Court at this time, but
it seems likely that a broad injunction is not the remedy that would be
ordered. It is unfortunate that the Court has allowed its concern over a
remedy to infect its analysis of liability.
VII
The Court of Appeals, having found Sony liable, remanded for the District
Court to consider the propriety of injunctive or other relief. Because of
my conclusion as to the issue of liability, I, too, would not decide here
what remedy would be appropriate if liability were found. I concur, however,
in the Court of Appeals' suggestion that an award of damages, or continuing
royalties, or even some form of limited injunction, may well be an appropriate
means of balancing the equities in this case. [FN51] Although I express
no view on the merits of any particular proposal, I am certain that, if
Sony were found liable in this case, the District Court would be able to
fashion appropriate relief. The District Court might conclude, of course,
that a continuing royalty or other equitable relief is not feasible. The
Studios then would be relegated to statutory damages for proved instances
of infringement. But the difficulty of fashioning relief, and the possibility
that complete relief may be unavailable, should not affect our interpretation
of the statute.
FN51. Other Nations have imposed royalties on the manufacturers of products
used to infringe copyright. See, e.g., Copyright Laws and Treaties of the
World (UNESCO/BNA 1982) (English translation), reprinting Federal Act On
Copyright in Works of Literature and Art and on Related Rights (Austria),
s 42(5)-(7), and An Act dealing with Copyright and Related Rights (Federal
Republic of Germany), Art. 53(5). A study produced for the Commission of
European Communities has recommended that these requirements "serve
as a pattern" for the European community. A. Dietz, Copyright Law in
the European Community 135 (1978). While these royalty systems ordinarily
depend on the existence of authors' collecting societies, see id., at 119,
136, such collecting societies are a familiar part of our copyright law.
See generally Broadcast Music, Inc. v. Columbia Broadcasting System, Inc.,
441 U.S. 1, 4-5, 99 S.Ct. 1551, 1554, 60 L.Ed.2d 1 (1979). Fashioning relief
of this sort, of course, might require bringing other copyright owners into
court through certification of a class or otherwise.
Like so many other problems created by the interaction of copyright law
with a new technology, "[t]here can be no really satisfactory solution
to the problem presented here, until Congress acts." Twentieth Century
Music Corp. v. Aiken, 422 U.S., at 167, 95 S.Ct., at 2049 (dissenting opinion).
But in the absence of a congressional solution, courts cannot avoid difficult
problems by refusing to apply the law. We must "take the Copyright
Act ... as we find it," Fortnightly Corp. v. United Artists, 392 U.S.
390, 401-402, 88 S.Ct. 2084, 2090, 20 L.Ed.2d 1176 (1968), and "do
as little damage as possible to traditional copyright principles ... until
the Congress legislates." Id., at 404, 88 S.Ct., at 2091 (dissenting
opinion).