Reconstructing the Fair Use Doctrine

William W. Fisher III

Harvard Law Review, Volume 101 (June 1988), pp. 1661-1795

Copyright 1988 The Harvard Law Review Association.

 

Part I: The Cases

The conduct that gave rise to the first of the two disputes was the manufacture and sale by Sony Corporation of videocassette recorders (VCRs), one function of which is to record television programs broadcast over the public airwaves. 13 In 1976, Walt Disney Productions and Universal City Studios, owners of the copyrights on several such programs, brought an action against Sony, 14 alleging that the use of VCRs to tape copyrighted programs violated section 106 of the Copyright Act, and that the manufacture and sale of the machines themselves constituted contributory copyright infringement. The studios requested damages, injunctive relief, and an equitable accounting of Sony's profits. After a full trial, the district court denied relief, primarily on the grounds that copying copyrighted programs for home viewing was a fair use and that, in any event, Sony's connection with home taping was too attenuated to sustain an action for contributory  [*1665]  infringement. 15 Disagreeing with both of the district court's conclusions, the Ninth Circuit reversed. 16

The Supreme Court granted certiorari and heard argument but was unable to reach a decision during the 1982 Term. 17 After reargument, the Court, by a vote of five to four, reversed the court of appeals. 18 Justice Stevens, writing for the majority, 19 based the Court's ruling primarily on three nested propositions: (a) recording without permission a copyrighted television program for the purpose of "time-shifting" -- i.e., watching the program once and only once at a later time -- is a fair use of the copyrighted work; 20 (b) evidence adduced at trial established that VCRs are often used for time-shifting; 21 (c) because Sony's products thus are manifestly "capable of commercially significant noninfringing uses," the manufacture of those products does not constitute contributory copyright infringement, 22 regardless of whether Sony is aware that the machines are regularly used in ways that violate the copyright law. 23 Justice Blackmun's dissent 24 argued for a less forgiving test for contributory copyright infringement 25 and disputed the majority's conclusion that time-shifting constitutes a fair use. 26

 [*1666]  While Sony was being decided, the second of the two controversies was brewing. 27 In 1977, former President Gerald Ford entered into a contract giving Harper & Row and The Reader's Digest 28 the exclusive right to publish his as yet unwritten memoirs and to license prepublication serialization of those memoirs. In 1979, Time Magazine purchased from Harper & Row the right to publish immediately before the release of the book excerpts of Ford's account of his decision to pardon President Nixon. A few weeks before the Time article was to appear, someone, without authorization from Ford, Harper & Row, or Time, provided a copy of the manuscript to Victor Navasky, editor of The Nation. Navasky quickly drafted an article describing the book. A significant portion of the article was made up of paraphrases of passages in the memoirs, and approximately 300 words of the article consisted of direct quotations from Ford's manuscript. When Time, upon seeing the article, abandoned its plans to publish excerpts from the book and refused to pay the balance of the purchase price of the serialization rights, Harper & Row brought a copyright infringement action against The Nation. 29

The district court held that although Ford could have copyrighted neither the facts he described nor memoranda prepared by others upon which he relied, "the totality of these facts and memoranda collected together with Ford's reflections" were "protected by the copyright laws," and The Nation's article had infringed that copyright. 30 By a  [*1667]  vote of two to one, the Second Circuit repudiated the district court's view of the case, holding that Ford could acquire a copyright only in his original expression and that, especially in view of the public importance of the memoirs, the reproduction of short passages from the book should be deemed a fair use. 31

By a vote of six to three, the Supreme Court reversed. 32 Justice O'Connor, writing for the Court, 33 avoided the issue of what portions of the memoirs were protected by the statute, assuming arguendo that only the 300 words directly quoted from the manuscript constituted copyrighted material. 34 Navasky's unauthorized copying of those words, she held, could not qualify as a fair use. 35 Justice Brennan's dissent did reach the issue of how much of the book was copyrightable, agreeing with the court of appeals that only Ford's original expression was protected. 36 Turning to the issue of fair use, Justice Brennan argued that the proper question was whether The Nation's unauthorized use of the "literary form" of the quoted passages was legitimate. 37 Taking into account the importance of protecting the "robust public debate essential to an enlightened citizenry," 38 Justice Brennan contended that it was.

Part II: The Doctrine and Its Defects



FOOTNOTES:

Click here to return to the footnote reference.n13 See 464 U.S. at 419-20. Only the essential features of the case will be described here. Various additional details will be provided in the course of the critical analysis contained in Part II. Readers interested in more thorough or consolidated discussion of the background of the controversy should consult: Lardner, Annals of the Law: The Betamax Case, THE NEW YORKER, Apr. 6, 1987, at 45; id., Apr. 13, 1987, at 60; Note, Sony v. Universal City Studios: Can the Marketplace Relationship Between Creator and Consumer Be Preserved?, 62 DENV. U.L. REV. 873 (1985); The Supreme Court, 1983 Term -- Leading Cases, 98 HARV. L. REV. 87, 284-95 (1984); Note, The Parody Defense to Copyright Infringement: Productive Fair Use After Betamax, 97 HARV. L. REV. 1395 (1984) [hereinafter Note, The Parody Defense]; Comment, Betamax Meets the Supreme Court: A Judicial Disappointment, 20 NEW ENG. L. REV. 285 (1984); Note, The Betamax Case: Accommodating Public Access and Economic Incentive in Copyright Law, 31 STAN. L. REV. 243 (1979) [hereinafter Note, The Betamax Case].

Click here to return to the footnote reference.n14 Also named as defendants were four retailers of Sony VCRs, the advertising agency responsible for marketing the machines, and an individual VCR owner. See 464 U.S. at 422 n.2. The principal target of the suit, however, was Sony.

Click here to return to the footnote reference.n15 See Universal City Studios v. Sony Corp., 480 F. Supp. 429 (C.D. Cal. 1979).

Click here to return to the footnote reference.n16 See Universal City Studios v. Sony Corp., 659 F.2d 963 (9th Cir. 1981).

Click here to return to the footnote reference.n17 See 457 U.S. 1116 (1982) (granting certiorari); 463 U.S. 1226 (1983) (scheduling the case for reargument).

Click here to return to the footnote reference.n18 See 464 U.S. 417, 421 (1984).

Click here to return to the footnote reference.n19 Chief Justice Burger and Justices Brennan, White, and O'Connor joined Justice Stevens' opinion.

Click here to return to the footnote reference.n20 See 464 U.S. at 447-55. The majority appeared to accept the argument (developed at length by the dissent, see id. at 463-75) that using a VCR to make a single copy of a copyrighted program presumptively violates 106 of the statute and would give rise to liability if it did not qualify as a fair use under 107.

Click here to return to the footnote reference.n21 See id. at 423, 447-56; 480 F. Supp. at 443-47. Justice Stevens also placed some weight on the district court's finding that VCRs are often used to record copyrighted programs with the consent of their owners. See 464 U.S. at 443. However, the linchpin of Justice Stevens' argument was that time-shifting is permissible even when copyright owners object to the recording.

Click here to return to the footnote reference.n22 See 464 U.S. at 442. The test for contributory copyright infringement was stated in various ways in the Court's opinion. At one point, Justice Stevens asserted that, for a manufacturer to escape liability, "[the machine] need merely be capable of substantial noninfringing uses." Id.

Click here to return to the footnote reference.n23 Evidence at trial indicated that VCRs are sometimes used for "librarying" -- making permanent or semi-permanent copies of recorded programs that can be viewed several times. See 480 F. Supp. at 436-37. All parties and all members of the Court assumed, at least for the sake of argument, that librarying is not a fair use and that therefore a substantial number of VCR owners often violate the copyright law.

Click here to return to the footnote reference.n24 Justice Blackmun was joined by the unusual combination of Justices Marshall, Powell, and Rehnquist.

Click here to return to the footnote reference.n25 See 464 U.S. at 490-91 (Blackmun, J., dissenting).

Click here to return to the footnote reference.n26 See id. at 493-98.

Click here to return to the footnote reference.n27 Again, only the essential features of the case will be described here. For thorough treatments of the factual or procedural background, see Francione, Facing The Nation: The Standards for Copyright, Infringement, and Fair Use of Factual Works, 134 U. PA. L. REV. 519 (1986); Hamel, Harper & Row v. The Nation: A First Amendment Privilege for News Reporting of Copyrightable Material?, 19 COLUM. J.L. & SOC. PROBS. 253 (1985); Note, When "Fair is Foul": A Narrow Reading of the Fair Use Doctrine in Harper & Row Publishers, Inc. v. Nation Enterprises, 72 CORNELL L. REV. 218 (1986); Note, Two Approaches to the Fair Use Doctrine: A Look at the Harper & Row Publishers, Inc. v. Nation Enterprises Decisions, 2 ENT. & SPORTS L.J. 89 (1984); The Supreme Court, 1984 Term -- Leading Cases, 99 HARV. L. REV. 120, 292-302 (1985); Note, Harper & Row Publishers, Inc. v. Nation Enterprises: Pirating Unpublished Copyrighted Works: Does the Fair Use Doctrine Vindicate First Amendment Rights?, 19 J. MARSHALL L. REV. 501 (1986); Note, Copyright and the First Amendment: Nurturing the Seeds for Harvest, 65 NEB. L. REV. 631 (1986); Note, Fair Use of Copyrighted Work Under Harper & Row Publishers, Inc. v. Nation Enterprises, 61 TUL. L. REV. 415 (1986); Note, Copyright: The Public Figure Expansion of the Fair Use Doctrine Rejected, 25 WASHBURN L. REV. 385 (1986).

Click here to return to the footnote reference.n28 For convenience, this Article will refer to the two publishers collectively as "Harper & Row."

Click here to return to the footnote reference.n29 See Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 543 (1985). The complaint also asserted pendent claims based upon the New York law of conversion and tortious interference with contract, but those claims were dismissed by the district court, the dismissal was affirmed by the court of appeals, see Harper & Row, Publishers v. Nation Enters., 723 F.2d 195, 199-201 (2d Cir. 1983), and the Supreme Court did not reconsider them.

Click here to return to the footnote reference.n30 See Harper & Row, Publishers v. Nation Enters., 557 F. Supp. 1067, 1072 (S.D.N.Y. 1983).

Click here to return to the footnote reference.n31 See 723 F.2d at 205-09.

Click here to return to the footnote reference.n32 See 471 U.S. 539, 542 (1985).

Click here to return to the footnote reference.n33 The other members of the majority were Chief Justice Burger and Justices Blackmun, Powell, Rehnquist, and Stevens.

Click here to return to the footnote reference.n34 See 471 U.S. at 548-49.

Click here to return to the footnote reference.n35 See id. at 555.

Click here to return to the footnote reference.n36 See id. at 579-87 (Brennan, J., dissenting). Justice Brennan was joined by Justices White and Marshall.

Click here to return to the footnote reference.n37 See id. at 587.

Click here to return to the footnote reference.n38 Id. at 579.