Document ID: A:\SONY.TXT SONY CORPORATION OF AMERICA ET AL. v. UNIVERSAL CITY STUDIOS, INC., ET AL. No. 81-1687 SUPREME COURT OF THE UNITED STATES 464 U.S. 417; 104 S. Ct. 774; 1984 U.S. LEXIS 19; 78 L. Ed. 2d 574; 52 U.S.L.W. 4090; 220 U.S.P.Q. (BNA) 665; 224 U.S.P.Q. (BNA) 736 January 18, 1983, Argued January 17, 1984, Decided SUBSEQUENT HISTORY: [***1] Reargued October 3, 1983. Petition for Rehearing Denied March 19, 1984. PRIOR HISTORY: CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. DISPOSITION: 659 F.2d 963, reversed. SYLLABUS: Petitioner Sony Corp. manufactures home video tape recorders (VTR's), and marke he public airwaves. Respondents brought an action against petitioners in Federal District y infringed respondents' copyrights, and further that petitioners were liable for such cop ufacture and marketing of the VTR's. The District Court denied respondents all relief, ho ngement, [***2] and that petitioners could not be held liable as contributory infringe ing the District Court to fashion appropriate relief. Held: The sale of the VTR's to the general public does not constitute contributory infr (a) The protection given to copyrights is wholly statutory, and, in a case like this, i tute that never contemplated such a calculus of interests. Any individual may reproduce a (b) Kalem Co. v. Harper Brothers, 222 U.S. 55, does not support respondents' novel theo right infringement. This [***3] case does not fall in the category of those in which authorized the use without permission from the copyright owner. Here, the only contact be rs sold the VTR's with constructive knowledge that their customers might use the equipment nfringement if the product is widely used for legitimate, unobjectionable purposes, or, in (c) The record and the District Court's findings show (1) that there is a significant l ted by private viewers (i. e., recorded at a time when [***4] the VTR owner cannot view for, or the value of, respondents' copyrighted works. The VTR's are therefore capable of t to prevent other copyright holders from authorizing such time-shifting for their program COUNSEL: Dean C. Dunlavey reargued the cause for petitioners. With him on the briefs were Stephen A. Kroft reargued the cause for respondents. With him on the brief was Sondra * Briefs of amici curiae urging reversal were filed for the Virginia Citizens' Consumer Educators Ad Hoc Committee on Copyright Law by Michael H. Cardozo, August W. Steinhilber, ohn W. Armagost and Craig B. Jorgensen; for McCann-Erickson, Inc., et al. by John A. Donov hants Association by Peter R. Stern, Theodore S. Steingut, and Robert A. Weiner; for Sanyo ky; for Toshiba Corp. et al. by Donald J. Zoeller and Herve Gouraige; for Pfizer Inc. by S Briefs of amici curiae urging affirmance were filed for the Association of American Pub en, and George Vradenburg III; for Creators and Distributors of Programs by Stuart Robinow y Leo Geffner; for the Motion Picture Association of America, Inc., by Richard M. Cooper, ., by James F. Fitzpatrick, Cary H. Sherman, and Ernest S. Meyers; for Volunteer Lawyers f Briefs of amici curiae were filed for the State of Missouri et al. by John Ashcroft, At el J. Bowers of Georgia, Tany S. Hong of Hawaii, Tyrone C. Fahner of Illinois, Thomas J. M rown of Ohio, Jan Eric Cartwright of Oklahoma, Dennis J. Roberts II of Rhode Island, John tion of the Bar of the City of New York by Michael S. Oberman and David H. Marks. [***5] JUDGES: STEVENS, J., delivered the opinion of the Court in which BURGER, C. J., and BRENNA OPINIONBY: STEVENS OPINION: [*419] [**777] JUSTICE STEVENS delivered the opinion of theCourt. Petitioners manufacture and sell home video tape recorders. Respondents own the copyri titioners to record some of these broadcasts, as well as a large number of other broadcast opyright Act. Respondents commenced this copyright infringement action against petitioners in the Uni record some of respondents' copyrighted works which had been exhibited on commercially sp re liable for the copyright infringement allegedly committed by Betamax consumers because ounting of profits from petitioners, as well as an injunction against the manufacture and - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 The respondents also asserted causes of action under state law and @ 43(a) of the Tr - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - After a lengthy trial, the District Court denied respondents all the relief they sought spondents' copyright claim, holding [**778] petitioners [***7] liable for contributor d not completed our study of the case last Term, we ordered reargument, 463 U.S. 1226 (198 An explanation of our rejection of respondents' unprecedented attempt to impose copyrig l that the average member of the public uses a VTR principally to record a program he cann that reason, a significant amount of television programming may be used in this manner wit ing in this litigation, were unable to prove that the practice has impaired the commercial can hold petitioners liable for distributing VTR's to the general public. The Court of A affirmed, would enlarge the scope of respondents' statutory monopolies to encompass contro rized by Congress. I The two respondents in this action, Universal City Studios, Inc., and Walt Disney Produ ights in these works in a number of ways: [*422] by authorizing theatrical exhibitions ograms [***9] on prerecorded videotapes or videodiscs. Some works are suitable for ex Petitioner Sony manufactures millions of Betamax video tape recorders and markets these mponents: (1) a tuner, which receives electromagnetic signals transmitted over the televis which converts the audio and visual signals on the tape into a composite signal that can b - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 The four retailers are Carter Hawley Hales Stores, Inc., Associated Dry Goods Corp., subsidiary, Sony Corporation of America. The advertising agency of Doyle Dane Bernback, I spondents sought no relief against him. Griffiths is not a petitioner. For convenience, w - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***10] Several capabilities of the machine are noteworthy. The separate tuner in the Betamax news broadcasts by watching one "live" and recording the other for later viewing. Tapes m vate the equipment at predetermined [*423] times, enabling an intended viewer to record was at work during the afternoon. The Betamax is also equipped with a pause button and a m the recording, provided, of course, that the viewer is present when the program is recor is being played back on the television screen. The respondents and Sony both conducted surveys of the way the Betamax machine was used for most owners was "time-shifting" -- the practice of recording a program to view it once other tasks, or are viewing a program on another station at the time of a broadcast that [*424] that over 80% of the interviewees watched at least as much regular television as - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 As evidence of how a VTR may be used, respondents offered the testimony of William G "He owns approximately 100 tapes. When Griffiths bought his Betamax, he intended not only ing some earlier tapes and reusing them. "Griffiths copied about 20 minutes of a Universal motion picture called 'Never Give An t of plaintiffs' counsel that it be kept. Griffiths also testified that he had copied but ep any Universal film in his library. "Griffiths has also recorded documentaries, news broadcasts, sporting events and politi Four other witnesses testified to having engaged in similar activity. [***12] n4 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 uld have missed. "When plaintiffs asked interviewees how many cassettes were in their library, 55.8% said t , there were no plans for further viewing." Id., at 438. n5 "81.9% of the defendants' interviewees watched the same amount or more of regular te - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Sony introduced considerable evidence describing television programs that could be copi ated that 7.3% of all Betamax use is to record sports events, and representatives of profe - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 See Defendants' Exh. OT, Table 20; Tr. 2447-2450, 2480, 2486-2487, 2515-2516, 2530-2 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*425] Respondents offered opinion evidence concerning the future impact of the unres om the use of VTR's for time-shifting. 480 F.Supp., at 469. The District Court's Decision The lengthy trial of the case in the District Court concerned the private, home use of f [***14] home-recorded tapes for public performances, or the copying of programs trans - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 The trial also briefly touched upon demonstrations of the Betamax by the retailer pe peals affirmed this holding, 659 F.2d 963, 976 (1981), and respondents did not cross-petit - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The District Court concluded that noncommercial home use recording of material broadcas free to the public at large, the noncommercial character of the use, and the private char access to television programming, an interest that "is consistent with the First Amendment 2 U.S. 94, 102." Id., at 454. n8 Even when an entire copyrighted work was recorded, [*42 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 The court also found that this "access is not just a matter of convenience, as plain competitive practice of counterprogramming." 480 F.Supp., at 454. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - As an independent ground of decision, the District Court also concluded that Sony could direct involvement with any Betamax purchasers who recorded copyrighted works off the air "Television programs, films, videotapes and other materials may be copyrighted. Unauthoriz The District Court assumed that Sony had constructive knowledge of the probability that fringing." Id., at 461. It reasoned: "Selling a staple article of commerce -- e. g., a typewriter, a recorder, a camera, a p liability, would expand the theory [**781] beyond precedent [***17] and arguably bey . . . . ". . . Commerce would indeed be hampered if manufacturers of staple items were held lia urt later deemed, as a matter of first impression, to be an infringement." Ibid. Finally, the District Court discussed the respondents' prayer for injunctive relief, no opyrighted works off the air. The court stated that it had "found no case in which the ma in this case "is unique." Id., at 465. It concluded that an injunction was wholly inappropriate because any possible harm to r o the copying. An injunction would deprive the public of the ability to use the Betamax f The Court of Appeals' Decision The Court of Appeals reversed the District Court's judgment on respondents' copyright c use it was not a "productive use." n9 It therefore held that it was unnecessary for plaint possible by VTR's would tend to diminish the potential market for respondents' works. 65 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n9 "Without a 'productive use,' i. e. when copyrighted material is reproduced for its i - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***19] [*428] On the issue of contributory infringement, the Court of Appeals first rejected oses" and do not "even remotely raise copyright problems." Id., at 975. VTR's, however, ar oncluded, therefore, that VTR's were not suitable for any substantial noninfringing use ev The Court of Appeals also rejected the District Court's reliance on Sony's lack of know contributory infringement, the court stated that a defendant's good faith would merely re se the [***20] reproduction of copyrighted materials was either "the most conspicuous u On the matter of relief, the Court of Appeals concluded that "statutory damages may be photocopying area," suggested that a continuing royalty pursuant to a judicially created II Article I, @ 8, of the Constitution provides: "The Congress shall have Power . . . To Promote the Progress of Science and useful Arts, b gress may authorize are neither unlimited nor primarily designed to provide a special priv and inventors by the provision [***21] of a special reward, and to allow the public ac "The copyright law, like the patent statutes, makes reward to the owner a secondary consid est of the United States and the primary object in conferring the monopoly lie in the gene of his creative genius." United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (19 As the text of the Constitution makes plain, it is Congress that has been assigned the duct. Because this task involves a difficult balance between the interests of authors and information, and commerce on the other hand, our patent and copyright statutes have been a - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 In its Report accompanying the comprehensive revision of the Copyright Act in 1909, "The enactment of copyright legislation by Congress under the terms of the Constitution ence and useful arts will be promoted by securing to authors for limited periods the exclu "In enacting a copyright law Congress must consider . . . two questions: First, how muc f such exclusive rights, under the proper terms and conditions, confers a benefit upon the - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***23] [*430] From its beginning, the law of copyright has developed in response to signifi eed for copyright protection. n12 Repeatedly, as new developments have [*431] occurred of 1909, 35 Stat. 1075, it was settled that the protection given to copyrights is wholly 151 (1889). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n11 Thus, for example, the development and marketing of player pianos and perforated ro niques gave rise to the statutory exemption for library copying embodied in @ 108 of the 1 rtnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968), and Teleprompter d)(5) (1982 ed.) after years of detailed congressional study, see Eastern Microwave, Inc. By enacting the Sound Recording Amendment of 1971, 85 Stat. 391, Congress also provided Act, see especially H. R. Rep. No. 92-487, p. 7 (1971), indicates that Congress did not in ss no opinion on that question. [***24] n12 "Copyright protection became necessary with the invention of the printing press and one hand, and with technological improvements in means of dissemination, on the other. S he publisher, and the competing interest of society in the untrammeled dissemination of id - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The judiciary's reluctance to expand the protections afforded by the copyright without United Artists Television, Inc., 392 U.S. 390 (1968); White-Smith Music Publishing Co. v. 76 (1975). Sound policy, as well as history, supports our consistent deference to Congress date fully the varied permutations of competing interests that are inevitably implicated b In a case like this, in which Congress has not plainly marked our course, we must be c Justice Stewart's exposition of the correct approach to ambiguities in the law of copyrig "The limited scope of the copyright holder's statutory monopoly, like the limited copyr but private motivation must ultimately serve [***26] the cause of promoting broad public the ultimate aim is, by this incentive, to stimulate artistic creativity for the general p the public from the labors of authors.' Fox Film Corp. v. Doyal, 286 U.S. 123, 127. See K must be construed in light of this basic purpose." Twentieth Century Music Corp. v. Aiken, [**784] Copyright protection "subsists . . . in original works of authorship fixed in [***27] of his work. n13 Rather, the Copyright Act grants the [*433] copyright hol reproductions of the work, however, are not within the exclusive domain of the copyright uch a use. Compare @ 106 with @ 107. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13 See, e. g., White-Smith Music Publishing Co. v. Apollo Co., 209 U.S., at 19; cf. De l tendency of legal rights to express themselves in absolute terms to the exclusion of all Pictures, Inc., 334 U.S. 131, 156-158 (1948) (copyright owners claiming right to tie lice tate taxation of copyright royalties); Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 349-351 ates, 298 U.S. 131 (1936) (patentees claiming right to tie sale of unpatented article to l n14 Section 106 of the Act provides: "Subject to sections 107 through 118, the owner of copyright under this title has the e "(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 "(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, a "(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, a - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - "Anyone who violates any of the exclusive rights of the copyright owner," that is, anyo an infringer of the copyright." @ 501(a). Conversely, anyone who is authorized by the cop uch use. The Copyright Act provides the owner of a copyright with a potent arsenal of remedies a ductions of his work made in violation of his rights, a recovery of his actual damages and - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n15 Moreover, anyone who willfully infringes the copyright to reproduce a motion pictur strumentalities of the crime are forfeited upon conviction, @ 506(b). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***30] The two respondents in this case do not seek relief against the Betamax users who have espondents have no right to invoke whatever rights other copyright holders may [**785] presents a small portion of the total use of VTR's. It is, however, the taping of respond of the Betamax have infringed their copyrights and that Sony should be held responsible - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n16 In this regard, we reject respondents' attempt to cast this action as comparable to ee Brief for Respondents 1, and n. 1, 6, 52, 53, and n. 116. The stated desires of amici amicus curiae brief solely for whatever aid it provides in analyzing the legal questions - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***31] III The Copyright Act does not expressly render anyone liable for infringement committed by further imposes liability on certain individuals labeled "contributory" infringers, @ 271( ave not themselves engaged in the infringing activity. n17 For vicarious liability is impo ich it is just to hold one individual accountable for the actions of another. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n17 As the District Court correctly observed, however, "the lines between direct infrin ttributable to the fact that an infringer is not merely one who uses a work without author We note the parties' statements that the questions of Sony's liability under the "doctr r Petitioners 1, n. 2. We also observe, however, that reasoned analysis of respondents' u ed the parties to a large extent rely upon such arguments and authority in support of thei - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***32] Such circumstances were plainly present in Kalem Co. v. Harper Brothers, 222 U.S. 55 (1 ramatization of the copyrighted book Ben Hur was liable for his sale of the motion picture "The defendant not only expected but invoked by advertisement the use of its films for dra the defendant did not contribute to the infringement it is impossible to do so except by The use for which the item sold in Kalem had been "especially" made was, of course, to wner of the tangible medium of expression upon which the protected work was recorded, [* to authorize public performances of his work. Further, the producer personally advertis Respondents argue that Kalem stands for the proposition that supplying the "means" to a rests on a gross generalization that cannot withstand scrutiny. The producer in Kalem di ant case does not supply Betamax consumers with respondents' works; respondents do. Sony that are copyrighted but may be copied without objection from the copyright holder, and th the range of its potential use is much broader than the particular infringing use of the f Justice Holmes stated that the producer had "contributed" to the infringement of the co nfringer and the contributory infringer at the time the infringing conduct occurred. In s e of copyrighted works by others and had authorized the use without permission from the co amax that is disclosed by this record occurred at the moment of sale. The District Court tamax who recorded copyrighted works off-the-air." 480 F.Supp., at 460. And it further fou rtisements." Ibid. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n18 The so-called "dance hall cases," Famous Music Corp. v. Bay State Harness Horse Rac F.Supp. 72 (WD Mo. 1977) (cocktail lounge hired musicians to supply music to paying custom asted with the so-called landlord-tenant cases, in which landlords who leased premises to 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 2 ne of the business risk of running the department. Instead, it received 10% or 12% of the "[The dance-hall cases] and this one lie closer on the spectrum to the employer-employee m cern for the financial success of the phonograph record concession, renders it liable for . . . . ". . . [The] imposition of vicarious liability in the case before us cannot be deemed u responsibility where it can and should be effectively exercised." Id., at 308 (emphasis i In Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159 (CA2 1 the titles of the musical compositions to be performed, print the programs, and then sell utory infringer had actual knowledge that the artists it was managing were performing copy t 1163. In Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc., 256 F.Supp. 399 (SDNY 196 gency, the radio stations that advertised the infringer's works, and the service agency th illegal goods. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***36] [*439] If vicarious liability is to be imposed on Sony in this case, it must rest on erial. There is no precedent in the law of copyright for the imposition of vicarious liab aw and copyright law. n19 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n19 E. g., United States v. Paramount Pictures, Inc., 334 U.S., at 158; Fox Film Corp. which we have expressed in the past in applying doctrine formulated in one area to the oth We have consistently rejected the proposition that a similar kinship exists between cop 2, 91-92 (1879); see also United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97 (1918) the fundamental differences between copyright law and trademark law, in this copyright ca h was crafted for application in trademark cases. There we observed that a manufacturer o of the trademark owner's or if it continued to supply a product which could readily be pas fringement governed here, respondents' claim of contributory infringement would merit litt identified individuals known by it to be engaging in continuing infringement of responden - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***37] [*440] In the Patent Act both the concept of infringement and the concept of contrib especially made for use in connection with a particular patent. There is no suggestion i he sale of a "staple article or commodity of commerce suitable for substantial noninfringi - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n20 Title 35 U. S. C. @ 271 provides: "(a) Except as otherwise provided in this title, whoever without authority makes, uses "(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 compo especially adapted for use in an infringement of such patent, and not a staple article or "(d) No patent owner otherwise entitled to relief for infringement or contributory infr wing: (1) derived revenue from acts which if performed by another without his consent woul ributory infringement of the patent; (3) sought to enforce his patent rights against infri - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***38] When a charge of contributory infringement is predicated entirely on the sale of an art finding of contributory infringement does not, of course, remove the article from the m unctional equivalent of holding that the disputed article is within the monopoly granted t - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n21 It seems extraordinary to suggest that the Copyright Act confers upon all copyright at, however, is the logical implication of their claim. The request for an injunction bel d compulsory license would be an acceptable remedy merely indicates that respondents, for - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***39] For that reason, in contributory infringement cases arising under the patent laws the C e patentee any right to control the distribution of unpatented articles unless they are "u ce of the patented method," id., at 199, the patentee has no right to claim that its distr ed invention." P. Rosenberg, Patent Law Fundamentals @ 17.02[2] (2d ed. 1982). "[A] sale rule would block the wheels of commerce." Henry v. A. B. Dick Co., 224 U.S. 1, 48 (1912), We recognize there are substantial differences between the patent and copyright laws. actual duplication of a device or publication to the products or activities that make such olic -- protection of the statutory monopoly, and the rights of others freely to [**789] contributory infringement if the product is widely used for legitimate, unobjectionable p IV The question is thus whether the Betamax is capable of commercially significant noninfr d constitute infringement. Rather, we need only consider whether on the basis of the fact e question of how much use is commercially significant. For one potential use of the Beta ht to prevent other copyright holders from authorizing it for their programs, and (B) beca [*443] A. Authorized Time-Shifting Each of the respondents owns a large inventory of valuable copyrights, but in the total ail, the outcome of this litigation would [***42] have a significant impact on both the quences of unrestricted copying. Nevertheless the findings of the District Court make it c mental time period. n23 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n22 The record suggests that Disney's programs at the time of trial consisted of approx r 5%. See Tr. 532-533, 549-550. n23 The District Court did not make any explicit findings with regard to how much broad ertain broadcasts produced by the Federal Government are also uncopyrighted. See 17 U. S. commissioned by the Government). To the extent such broadcasting is now significant, it f h year. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***43] The District Court found: "Even if it were deemed that home-use recording of copyrighted material constituted infrin public of the ability to use the Betamax for this noninfringing off-the-air recording. [*444] "Defendants introduced considerable testimony at trial about the potential for nal Football, Basketball, Baseball and Hockey Leagues and Associations, the Executive Dire an injunction is warranted because infringing [**790] uses outweigh noninfringing use "Whatever the future percentage of legal versus illegal home-use recording might be, an 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 pro o establish a significant quantity of broadcasting whose copying is now authorized, and a xplicitly by the District Court, n24 two items in the record deserve specific mention. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n24 See Tr. 2447-2450 (Alexander Hadden, Major League Baseball); id., at 2480, 2486-248 id., at 2543-2552 (Thomas Hansen, National Collegiate Athletic Association); id., at 2565 his litigation. Id., at 2432, 2479, 2509-2510, 2530, 2538, 2563. See Fed. Rule Civ. Proc - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***45] [*445] First is the testimony of John Kenaston, the station manager of Channel 58, an 25 For each program, the guide tells whether unlimited home taping is authorized, home tap described 107 programs. Sixty-two of those programs or 58% authorize some home taping. T - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n25 Tr. 2863-2902; Defendants' Exh. PI. n26 See also Tr. 2833-2844 (similar testimony by executive director of New Jersey Publi ational purposes). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Second is the testimony of Fred Rogers, [***46] president of the corporation that p s over 3,000,000 families a day. He testified that he had absolutely no objection to home e times. n27 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n27 "Some public stations, as well as commercial stations, program the 'Neighborhood' a e always felt that with the advent of all of this new technology that allows people to tap their family's television life. Very frankly, I am opposed to people being programmed by o long, but I just feel that anything that allows a person to be more active in the contro - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***47] [*446] If there are millions of owners of VTR's who make copies of televised sports e s of supplying the equipment that makes such copying feasible should not be stifled simply mposed of all copyright holders. Yet a finding of contributory infringement would inevit Of course, the fact that other copyright holders may welcome the practice of time-shift r direct infringement of respondents' copyrights. But in an action for contributory infri he speaks for virtually all copyright holders with an interest in the outcome. In this ca largement in the size of the television audience that results from the practice of time-sh this case, it has had no direct involvement with any infringing activity. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n28 It may be rare for large numbers of copyright owners to authorize duplication of th access to the underlying work. The traditional method by which copyright owners capitali 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 permitt ce, they do so, and in significant enough numbers to create a substantial market for a non license fee paid directly by the home user. The legitimacy of that market is not comprom opyright owner to charge a fee for the use of his works, and as this record clearly demons from the copier. It is not the role of the courts to tell copyright holders the best way ve created a substantial market for a paradigmatic noninfringing use of Sony's product. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***49] B. Unauthorized Time-Shifting Even unauthorized uses of a copyrighted work are not necessarily infringing. An unlicen usic Corp. v. Aiken, 422 U.S., at 154-155. Moreover, the definition of exclusive rights in not infringements of copyright" "notwithstanding the provisions of section 106." The most - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n29 The Copyright Act of 1909, 35 Stat. 1075, did not have a "fair use" provision. Alt al interactions with a copyrighted work, the statute was never so construed. The courts s icial doctrine of fair use, not to change, narrow, or enlarge it in any way." H. R. Rep. N - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***50] [*448] [**792] That section identifies various factors n30 that enable a court to rcial or nonprofit character of an activity" be weighed in any fair use decision. n32 If t , however, because the District Court's findings plainly establish that time-shifting for see 17 U. S. C. @ 107(2) (1982 ed.), and that time-shifting merely enables a viewer to see ts ordinary effect of militating against a finding of fair use. n33 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n30 Section 107 provides: "Notwithstanding the provisions of section 106, the fair use of a copyrighted work, inc eaching (including multiple copies for classroom use), scholarship, or research, is not an "(1) the purpose and character of the use, including whether such use is of a commercia "(2) the nature of the copyrighted work; "(3) the amount and substantiality of the portion used in relation to the copyrighted w "(4) the effect of the use upon the potential market for or value of the copyrighted wo n31 The House Report expressly stated that the fair use doctrine is an "equitable rule "Although the courts have considered and ruled upon the fair use doctrine over and over , 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 es precludes the formulation of exact rules in the statute. The bill endorses the purpose ological change. Beyond a very broad statutory explanation of what fair use is and some o 5-66. The Senate Committee similarly eschewed a rigid, bright-line approach to fair use. The that it did not intend to suggest that off-the-air recording for convenience should be de if read in isolation, would indicate that the Committee intended to condemn all off-the-a n32 "The Committee has amended the first of the criteria to be considered -- 'the purpo cational purposes.' This amendment is not intended to be interpreted as any sort of not-fo an activity, while not conclusive with respect to fair use, can and should be weighed alo n33 It has been suggested that "consumptive uses of copyrights by home VTR users are co righted Works: Hearing before the Subcommittee on Courts, Civil Liberties and the Administ Laurence H. Tribe). Furthermore, "[the] error in excusing such theft as noncommercial," w e premise and the analogy are indeed simple, but they add nothing to the argument. The us he nature of the item and the true owner's interests in physical possession of it, the law icance, for the thief deprives the owner of his right to sell that particular item to any tching it once than does the live viewer, and the live viewer is no more likely to buy pre - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***53] [**793] This is not, however, the end of the inquiry because Congress has also direct for creative effort. Even copying for noncommercial purposes may impair the copyright ho he copyrighted work need not be prohibited in order to protect the author's incentive to c - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n34 Cf. A. Latman, Fair Use of Copyrighted Works (1958), reprinted in Study No. 14 for (1960): "In certain situations, the copyright owner suffers no substantial harm from the use of hi - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***54] Thus, although every commercial use of copyrighted material is presumptively an unfair a copyrighted work requires proof either that the particular use is harmful, or that if i leave the copyright holder with no defense against predictable damage. Nor is it necessa harm exists. If the intended use is for commercial gain, that likelihood may be presumed. In this case, respondents failed to carry their burden with regard to home time-shiftin "Plaintiffs' experts admitted at several points in the trial that the time-shifting wit transcends even commercial judgment.' They fear that with any Betamax usage, 'invisible b [*452] Later in its opinion, the District Court observed: "Most of plaintiffs' predictions of harm hinge on speculation about audience viewing patte in the calculations." Id., at 469. n35 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n35 See also 480 F.Supp., at 451: "It should be noted, however, that plaintiffs' argument is more complicated and speculativ y in Part IV infra, some of these assumptions are based on neither fact nor experience, an - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***56] There was no need for the District Court to say much about past harm. "Plaintiffs have On the question of potential future harm from time-shifting, the District Court offered e audience and the ratings and revenues will decrease," by observing that current measurem s will decrease as more people watch Betamax tapes as an alternative," with the observatio reruns," and concluded instead that "given current market practices, this should aid plain use of time-shift recording of that program" "lacks merit." Id., at 467. n39 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n36 "There was testimony at trial, however, that Nielsen Ratings has already developed diary can augment that measurement with information about subsequent viewing." Id., at 46 In a separate section, the District Court rejected plaintiffs' suggestion that the comm sements: "It must be remembered, however, that to omit commercials, Betamax owners must view the pr ommercial has passed. For most recordings, either practice may be too tedious. As defend kinds of judgments they do now about whether persons viewing televised programs actually n37 "Here plaintiffs assume that people will view copies when they would otherwise be w when there is nothing on television they wish to see and no movie they want to attend. De n38 "The underlying assumptions here are particularly difficult to accept. Plaintiffs e will attract. Yet current marketing practices, including the success of syndication, show is no survey within the knowledge of this court to show that the rerun audience is compri his should aid plaintiffs rather than harm them." Ibid. [***59] n39 "This suggestion lacks merit. By definition, time-shift recording entails viewing long enough to satisfy all their interest in the program and will, therefore, not patroniz o evidence to suggest that the public interest in later theatrical exhibitions of motion p - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*454] [**795] After completing that review, the District Court restated its over -shifting capability have already been discussed. It is not implausible that benefits cou ihood of harm was shown at trial, and plaintiffs admitted that there had been no actual ha harm." Id., at 469. "Television production by plaintiffs today is more profitable than it The District Court's conclusions are buttressed by the fact that to the extent time-sh U.S. 498, 508, n. 12 (1983), we acknowledged the public interest in making television broa pyright holder to demonstrate some likelihood of harm before he may condemn a private act When these factors are all weighed in the "equitable rule of reason" balance, we must c rt regarding the state of the empirical data, it is clear that the Court of Appeals erred - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n40 The Court of Appeals chose not to engage in any "equitable rule of reason" analysis concluded that copying a television program merely to enable the viewer to receive informa . Congress has plainly instructed us that fair use analysis calls for a sensitive balanci hough copying to promote a scholarly endeavor certainly has a stronger claim to fair use t pyrights govern material with broad potential secondary markets. Such material may well h a motion picture. And, of course, not all uses are fungible. Copying for commercial gain eacher who copies to prepare lecture notes is clearly productive. But so is a teacher who onstituents are watching; or a constituent who copies a news program to help make a decisi Making a copy of a copyrighted work for the convenience of a blind person is expressly copying. In a hospital setting, using a VTR to enable a patient to see programs he would ccess to television programming may result in a comparable benefit. The statutory languag - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***62] [*456] In summary, the record and findings of the District Court lead us to two concl levision would not object to having their broadcasts time-shifted by private viewers. And righted works. The Betamax is, therefore, capable of substantial noninfringing uses. Son V "The direction of Art. I is that Congress shall have the power to promote the progress of acking Co. v. Laitram Corp., 406 U.S. 518, 530 (1972). One may search the Copyright Act in vain for any sign that the elected representatives tion 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 reads, to the facts as they have been developed in this case, the judgment of the Court of It is so ordered. DISSENTBY: BLACKMUN DISSENT: [*457] JUSTICE BLACKMUN, with whom JUSTICE MARSHALL, JUSTICE POWELL, and JUST A restatement of the facts and judicial history of this case is necessary, in my view, alization," ante, at 436, or a "novel theory of liability," ante, at 437, and the like, as I The introduction of the home videotape recorder (VTR) upon the market has enabled [*** has proved highly popular with owners of television sets and VTR's, it understandably has f a copyrighted television program is an infringement of the copyright, and, if so, whethe depth by the Congress and be resolved there, despite the fact that the Court's decision t isting copyright law. It is no answer, of course, to refer to and stress, as the Court does, this Court's "c t the Court has tended to evade the hard issues when they arise in the area of copyright l 1976 Act that Congress meant to change the old pattern and [*458] enact a statute that [**797] II In 1976, respondents Universal City Studios, Inc., and Walt Disney Productions (Studios ration, a Japanese corporation, and Sony Corporation of America, a New York corporation, t f the Betamax or Betamax tapes. The Betamax, like other VTR's, presently is capable of recording television broadcasts [***66] the user records a program in order to watch it at a later time, and then recor p it for repeated viewing over a longer term. Sony's advertisements, at various times, ha lthough a warning does appear in the Betamax operating instructions. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 The Betamax has three primary components: a tuner that receives television ("RF") si ape. Sony also manufactures VTR's without built-in tuners; these are capable of playing b hannel while another channel is being watched. The Betamax is available with auxiliary features, including a timer, a pause control, a skip over commercials while playing back the recording. Videotape is reusable; the user e n2 This case involves only the home recording for home use of television programs broad - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Studios produce copyrighted "movies" and other works that they release to theaters sts are set according to audience ratings, compiled by rating services that do not measure ion and from marketing them in other ways. After a 5-week trial, the District Court, with a detailed opinion, ruled that home VTR t seq.), or the Copyright Revision Act of 1976 (1976 Act), 90 Stat. 2541, 17 U. S. C. @ of direct infringement, contributory infringement, or vicarious liability. Finally, the c (1979). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 At the trial, the Studios proved 32 individual instances where their copyrighted wor the 1909 Act was still effective. My analysis focuses primarily on the 1976 Act, but the - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*460] The United States Court of Appeals for the Ninth Circuit reversed in virtually such recording was not "fair use," and that the use of the Betamax to record the Studios' the Betamax would be used to record copyrighted material off the air, and that Sony, inde t suggested that the District Court could consider the award of damages or a continuing ro III The Copyright Clause of the Constitution, Art. I, @ 8, cl. 8, empowers Congress "To pro ." This Nation's initial copyright statute was passed by the First Congress. Entitled "An ook or books" for a period of 14 years. Act of May 31, 1790, @ 1, 1 Stat. 124. Since the by complete revisions in 1831, 1870, 1909, and 1976, n4 authors' rights have been [*461] works." 17 U. S. C. @ 102(a) (1982 ed.). n5 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 Act of Feb. 3, 1831, ch. 16, 4 Stat. 436; Act of July 8, 1870, @@ 85-111, 16 Stat. 2 01 et seq. (1982 ed.)). n5 Section 102(a) provides: "Copyright protection subsists, in accordance with this title, in original works of aut ectly or with the aid of a machine or device. Works of authorship include the following c "(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 @ 102(a)(6) are provided by @ 101: "Audiovisual works" are "w ronic equipment, together with accompanying sounds, if any, regardless of the nature of th hich, when shown in succession, impart an impression of motion, together with accompanying ies set forth in @ 102(a) are not mutually exclusive, a particular television program may - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***71] Section 106 of the 1976 Act grants the owner of a copyright a variety of exclusive righ e subject to @@ 107-118, which create a number of exemptions and limitations on the copyri an infringement of copyright." n8 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 Section 106 provides: "Subject to sections 107 through 118, the owner of copyright under this title has the e "(1) to reproduce the copyrighted work in copies or phonorecords; "(2) to prepare de "(3) to distribute copies or phonorecords of the copyrighted work to the public by sale "(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, a "(5) in the case literary, musical, dramatic, and choreographic works, pantomimes, and ***72] n7 A "phonorecord" is defined by @ 101 as a reproduction of sounds other than sounds ac n8 Section 107 provides: "Notwithstanding the provisions of section 106, the fair use of a copyrighted work, inc eaching (including multiple copies for classroom use), scholarship, or research, is not an "(1) the purpose and character of the use, including whether such use is of a commercia "(2) the nature of the copyrighted work; "(3) the amount and substantiality of the portion used in relation to the copyrighted w "(4) the effect of the use upon the potential market for or value of the copyrighted wo Section 101 makes it clear that the four factors listed in this section are "illustrative - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***73] The 1976 Act, like its predecessors, n9 does not give the copyright owner full and com Corp. v. United Artists Television, Inc., 392 U.S. 390, 393-395 (1968). Thus, before cons , granted in the first instance by @ 106(1), "to reproduce the copyrighted work in copies - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n9 The 1976 Act was the product of a revision effort lasting more than 20 years. Spurr R. Rep. No. 94-1476, p. 47 (1976), Congress in 1955 authorized the Copyright Office to pr fted a comprehensive report with recommendations, House Committee on the Judiciary, Copyri eport), and general revision bills were introduced near the end of the 88th Congress in 19 Copyright Law Revision, pt. 6, Supplementary Report of the Register of Copyrights on the sion was delayed from 1967 to 1974 by a dispute on cable television, see generally Second ister's Second Supplementary Report), but a compromise led to passage of the present Act i - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***74] A Although the word "copies" is in the plural in @ 106(1), there can be no question that gh in the plural, are intended here and throughout the bill to include the singular (1 U. hen describe the reproduction right established by @ 106(1): "[The] right 'to reproduce the copyrighted work in copies or phonorecords' means the right herwise communicated, either directly or with the aid of a machine or device.' As under th on." 1975 Senate Report 58; 1976 House Report 61. The making of even a single videotape recording at home [***75] falls within this defin f a single copy for personal use, I must conclude that VTR recording is contrary to the ex - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 Title 1 U. S. C. @ 1 provides in relevant part: "In determining the meaning of any Act of Congress, unless the context indicates otherw - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The 1976 Act and its accompanying Reports specify in some detail the situations in whic an one copy or phonorecord of a work" for a patron, but only under very limited conditions no [***76] more than one copy or phonorecord of a particular transmission program," an te Report, in a section headed "Single and multiple copying," notes that the fair use doct Senate Report 63-64; accord, 1976 House Report 68-69, 71. Other situations in which the m o create a general exemption for a single copy made for personal or private use. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n11 The library photocopying provisions of @ 108 do not excuse any person who requests g equipment provided that the equipment bears a notice informing users that "the making of n12 For example, "the making of a single copy or phonorecord by an individual as a free r "a single reproduction of excerpts from a copyrighted work by a student calligrapher or be unnecessary if the 1976 Act created a general exemption for the making of a single copy - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Indeed, it appears that Congress considered and rejected the very possibility of a spec fice. A. Latman, Fair Use of Copyrighted Works (1958), reprinted in Study No. 14 for the 0) (Latman [***78] Fair Use Study). This study found no reported case supporting the ex aken, might lead a court to apply the general principles of fair use in such a way as to , Professor Latman outlined several approaches that a revision bill could take to the gene , at 33. n13 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13 Professor Latman made special mention of the "personal use" issue because the area er recently approved by [the International Confederation of Societies of Authors and Compo ic interests." Latman Fair Use Study 33-34. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***79] Rejecting the latter alternative, the Register of Copyrights recommended that the revis ific situations, n14 preferring, instead, to rely on the judge-made fair use doctrine to r - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n14 The one exemption proposed by the Register, permitting a library to make a single p introduced in Congress. See Register's 1961 Report 26; H. R. 11947/S. 3008, 88th Cong., er's Second Supplementary Report, ch. III, pp. 10-11; see S. 543, 91st Cong., 1st Sess., @ - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***80] The Register's approach was reflected in the first copyright revision bills, drafted by only to the exceptions set out in later sections. H. R. 11947/S. 3008, 88th Cong., 2d Ses underwent change in many respects from their first introduction in 1964 to their final pa not on a per se exemption for private use, to separate permissible copying from the imperm - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n15 The 1964 bills provided that the fair use of copyrighted material for purposes "suc rmining whether any other particular use was fair. H. R. 11947/S. 3008, 88th Cong., 2d Se "Notwithstanding the provisions of section 106, the fair use of a copyrighted work is not , H. R. Rep. No. 2237, 89th Cong., 2d Sess., 5, 58 (1966), and the language adopted by the , 92d Cong., 1st Sess., @ 107 (1971); S. 1361, 93d Cong., 1st Sess., @ 107 (1973); H. R. 2 , p. 70 (1976), the same language appears in @ 107 of the 1976 Act. [***81] n16 In Williams & Wilkins Co. v. United States, 203 Ct. Cl. 74, 487 F.2d 1345 (1973), a ng for personal use might be outside the scope of copyright protection under the 1909 Act. ed after typewriters and photostat machines were developed, the making of personal copies There appear to me to be several flaws in this reasoning. First, it is by no means cle copyright owner ever thought it worthwhile to sue. See Latman Fair Use Study 11-12; 3 M. even in his own handwriting, as there is no rule of law excepting manuscript copies from t in making hand copies ordinarily ensures that only necessary and fairly small portions of ying thus is minimal. The recent advent of inexpensive and readily available copying mach on Courts, Civil Liberties, and the Administration of Justice of the House Committee on th f Rep. Danielson); id., at 354 (testimony of Irwin Karp); id., at 467 (testimony of Rondo hted text by hand does not much advance the question of machine copying." B. Kaplan, An Un - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***82] [*468] [**802] When Congress intended special and protective treatment for privat n contrast to his right to reproduce the work in copies, is limited. Section 106(4) grant otion picture is "performed" whenever its images are shown or its sounds are made audible. with one's family and friends is now considered a performance. 1975 Senate Report 59-60; nerally 1975 Senate Report 60-61; 1976 House Report 63-64; Register's 1961 Report 29-30. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n17 In a trio of cases, Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 75), this Court had held that the reception of a radio or television broadcast was not a " erform' in section 101." 1976 House Report 87. n18 A work is performed "publicly" if it takes place "at a place open to the public or n19 One purpose of the exemption for private performances was to permit the home viewin pictures in the home. We do not believe the private use of such a reproduction can or sho tion picture would be permitted by the copyright law. The Register later reminded Congres - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***84] [**803] Similarly, an explicit reference to private use appears in @ 108. Under that 7 CFR @ 201.14(b) (1983). [*470] Limits also are imposed on the extent of the copying hese limitations would be wholly superfluous if an entire copy of any work could be made b - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n20 During hearings on this provision, Representative Danielson inquired whether it wou at it would apply only in "general terms of science . . . [and] the useful arts." 1975 Hou "). [***85] n21 The mention in the Senate and House Reports of situations in which copies for priva the "recordings of performances by music students for purposes of analysis and criticism, - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - B The District Court in this case nevertheless concluded that the 1976 Act contained an i ance that this Court today does not duplicate. Ante, at 430, n. 11. That amendment, howev 71 Amendment, in a section entitled "Home Recording," contains the following statement: "In approving the creation of a limited copyright in sound recordings [***86] it is t Specifically, it is not the intention of the Committee to restrain the home recording, fr wise capitalizing commercially on it. This practice is common and unrestrained today, and H. R. Rep. No. 92-487, p. 7 (1971) (1971 House Report). Similar statements were made during House hearings on the bill n22 and on the House floor, Court, in my view, paid too little heed to the context in which the statements were made, - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n22 The following exchange took place during the testimony of Barbara Ringer, then Assi "[Rep.] BIESTER. . . . I can tell you I must have a small pirate in my own home. My s oint to his activities, would it? "Miss RINGER. I think the answer is clearly, 'No, it would not.' I have spoken at a co this is something you cannot control. You simply cannot control it. My own opinion, whet not see the crunch coming in the immediate future. . . . I do not see anybody going into R. 6927 before Subcommittee No. 3 of the House Committee on the Judiciary, 92d Cong., 1st n23 Shortly before passage of the bill, a colloquy took place between Representative Ka "Mr. KAZEN. Am I correct in assuming that the bill protects copyrighted material that "Mr. KASTENMEIER. Yes. "Mr. KAZEN. In other words, if your child were to record off of a program which comes s of this bill? "Mr. KASTENMEIER. This is not included in the bill. I am glad the gentleman raises th "On page 7 of the report, under 'Home Recordings,' Members will note that under the bil is for commercial purposes. This is made clear in the report." 117 Cong. Rec. 34748-34749 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Unlike television broadcasts [***88] and other types of motion pictures, sound recor o protection for a particular performer's rendition of the work. Moreover, copyrighted mu royalty to the copyright owner. @ 1(e), 35 Stat. 1075-1076. While reproduction without apiro, Bernstein & Co. v. Goody, 248 F.2d 260, 262-263, 265 (CA2 1957), cert. denied, 355 2. In order to suppress this piracy, the 1971 Amendment extended copyright protection beyo recordings were given the exclusive right "[to] reproduce [their works] and distribute [th ribution. See 117 Cong. Rec. 34748-34749 (1971) (colloquy of Reps. Kazen and Kastenmeier) - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n24 The 1909 Act's grant of an exclusive right to "copy," @ 1(a), was of no assistance 18 (testimony of Barbara Ringer, Assistant Register of Copyrights); 1971 Amendment, @ 1(e) n of a [sound recording] shall be considered to be a copy thereof"). This concept is carr - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***90] Against this background, the statements regarding home recording under the 1971 Amendme d no copyright protection and the owner of a copyright in the underlying musical work coul egister "[did] not see anybody going into anyone's home and preventing this sort of thing. But the references to home sound recording in the 1971 Amendment's legislative history had been unsuccessful in controlling home sound recording, addressed only the specific pro - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n25 During consideration of the 1976 Act, Congress, of course, was well aware of the li s) (1971 Amendment "created a copyright in a sound recording . . . but limited it to the p tion and distribution to the public of copies of the sound recording is prohibited. Thus, he amendment"). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***91] [*474] While the 1971 Amendment narrowed the sound recordings loophole in then exist 88, and perhaps before, see Edison v. Lubin, 122 F. 240 (CA3 1903), appeal dism'd, 195 U.S d with motion pictures under @ 106(1) are not limited to reproduction for public distribut istributed." Register's Supplementary Report 16; see 1975 Senate Report 57 and 1976 House House Report, contain no suggestion that home-use recording is somehow outside the scope o - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n26 Representative Kastenmeier, the principal House sponsor of the 1976 revision bill a "[From] time to time, certain areas have not been covered in the bill. But is it not t "Therefore, we can really not fail to deal with an issue. It will be dealt with one wa . . . . ". . . By virtue of passing this bill, we will deal with every issue. Whether we deal w e four corners of the bill will presume to deal with everything in copyright." Id., at 115 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***93] [*475] I therefore find in the 1976 Act no implied exemption to cover the home taping mitted by the fair use exemption contained in @ 107 of the 1976 Act. I now turn to that i IV Fair Use The doctrine of fair use has been called, with some justification, "the most troublesom 6 F.2d 1171, 1174 (CA5 1980); Meeropol v. Nizer, 560 F.2d 1061, 1068 (CA2 1977), cert. den [**806] have emerged by which that [*476] determination can be made. This Court coming. Williams & Wilkins Co. v. United States, 203 Ct. Cl. 74, 487 F.2d 1345 (1973), af - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n27 The precise phrase "fair use" apparently did not enter the case law until 1869, see 841). Justice Story was faced there with the "intricate and embarrassing [question]" whet e plaintiffs." Id., at 344, 348. In determining whether the use was permitted, it was nece may prejudice the sale, or diminish the profits, or supersede the objects, of the original be injured thereby." Id., at 348-349. Similar lists were compiled by later courts. See, e. g., Tennessee Fabricating Co. v. Corp. v. National Broadcasting Co., 137 F.Supp. 348 (SD Cal. 1955); Shapiro, Bernstein & C - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***95] Nor did Congress provide definitive rules when it codified the fair use doctrine in the substantiality of the portion used," and, perhaps the most important, the "effect of the list was not intended to be exclusive. The House and Senate Reports explain that @ 107 d or enlarge it in any way." 1976 House Report 66. See 1975 Senate Report 62; S. Rep. No. [*477] A Despite this absence of clear standards, the fair use doctrine plays a crucial role in yright is based on the belief that by granting authors the exclusive rights to reproduce t e talents of authors and inventors in 'Science and the useful Arts.'" Mazer v. Stein, 347 22 U.S., at 156; Fox Film Corp. v. Doyal, 286 U.S. 123, 127-128 (1932); see H. R. Rep. No. There are situations, nevertheless, in which strict enforcement of this monopoly would s on the ability to refer to and to quote the work of prior scholars. Obviously, no autho ordinary user, of course could be left to bargain with each copyright owner for permission s price is too high, and forgoes use of the work, only the individual is the loser. When work, in other words, produces external benefits from which everyone profits. In such a c work for the public good. See Latman Fair Use Study 31; Gordon, Fair Use as Market Failu - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n28 "The world goes ahead because each of us builds on the work of our predecessors. ' 45). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***98] A similar subsidy may be appropriate in a range of areas other than pure scholarship. omment, news reporting, teaching, . . . scholarship, or research." The House and Senate Re ve use, resulting in some added benefit to the public beyond that produced by the first au on Current Issues, reprinted in 1975 House Hearings 2051, 2055. I am aware of no case in - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n29 Quoting from the Register's 1961 Report, the Senate and House Reports give examples "'quotation of excerpts in a review or criticism for purposes of illustration or comment; of the work parodied; summary of an address or article, with brief quotations, in a news r te a lesson; reproduction of a work in legislative or judicial proceedings or reports; inc port 65. [***99] n30 See, e. g., Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d n31 Professor Seltzer has characterized these lists of uses as "[reflecting] what in fa rk." L. Seltzer, Exemptions and Fair Use in Copyright 24 (1978) (emphasis removed). He di made for "ordinary" use of the work, "ordinary infringement has customarily been triggered her necessarily or usually involves its use in a derivative work"). n32 Williams & Wilkins Co. v. United States, 203 Ct. Cl. 74, 487 F.2d 1345 (1973), aff' ing the copying were "devoted solely to the advancement and dissemination of medical knowl 1356. The issue of library copying is now covered by @ 108 of the 1976 Act. That section, wh making of copies only for "private study, scholarship, or research." @@ 108(d)(1) and (e) - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***100] [**808] I do not suggest, of course, that every productive use is a fair use. A find he copyright owner for use of the work. The fair use doctrine must strike a balance betwe , that granting authors a complete monopoly will reduce the creative ability of others. n3 reproduces an entire work and uses it for its original purpose, with no added benefit to xpense. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n33 In the words of Lord Mansfield: "[We] must take care to guard against two extremes eward of their ingenuity and labour; the other, that the world may not be deprived of impr 1785). See Register's Supplementary Report 13. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***101] The making of a videotape recording for home viewing is an ordinary rather than a produ eir own." 480 F.Supp., at 453. Although applying the fair use doctrine to home VTR recordi pyright gives the author a right to limit or even to cut off access to his work. Fox Film ght owner's choice to make the work available over the airwaves. Section 106 of the 1976 n performance is really irrelevant to the existence of his right to control its reproducti d 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 ding the very basis of copyright law, by depriving authors of control over their works and the 1976 Act, Congress made it clear that off-the-air videotaping was to be permitted onl off-the-air recording for convenience would under any circumstances, be considered 'fair u - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n34 This point was brought home repeatedly by the Register of Copyrights. Mentioning th ort xiv-xv, the Register cautioned: "I realize, more clearly now than I did in 1961, that the revolution in communications or's works for private gain. An equally serious attack has come from people with a sincer ke the author's works widely available by freeing them from copyright restrictions, they f t, true enough, but not by denying the fundamental constitutional directive: to encourage r of Copyrights). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***103] B I recognize, nevertheless, that there are situations where permitting even an unproduct opying an old newspaper clipping to send to a friend [*482] may be an example; pinning benefit to the public at large, no purpose is served by preserving the author's monopoly, Courts should move with caution, however, in depriving authors of protection from unpro market for or value of the copyrighted work" (emphasis added). "[A] particular use which Although such a use may seem harmless [***104] when viewed in isolation, "[isolated] ins I therefore conclude that, at least when the proposed use is an unproductive one, a cop 3). Proof of actual harm, or even probable harm, may be impossible in an area where the e the present technology so that, as the years go by, his copyright loses much of its value sibility that harm will result from the proposed use. When the use is one that creates no . [*483] The Studios have identified a number of ways in which VTR recording could dama deodiscs; it also could reduce their rerun audience, and consequently the license fees ava als or if rating services are unable to measure VTR use; if this is the case, VTR recordin Library-building may raise the potential for each of the types of harm identified by the S - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n35 A VTR owner who has taped a favorite movie for repeated viewing will be less likely erun viewing or the purchase of prerecorded tapes or discs, it may well replace rental usa may avoid commercials; the library-builder may use the pause control to record without th The Studios introduced expert testimony that both time-shifting and librarying would te commercials. Both sides submitted surveys showing that the average Betamax user owns betw lanned to view their tapes more than once; and both sides' surveys showed that commercials - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***106] [**810] Although the District Court found no likelihood of harm from VTR use, 480 F.S udios had failed to prove that library-building would occur "to any significant extent," i ovie audiences will decrease," id., at 468; and that the practice of deleting commercials ernatives at hand to recoup some of that predicted loss." Id., at 452. Because the Studios ' of home-use copying." Ibid. The District Court's reluctance to engage in prediction [***107] in this area is und a potential for harm, which has not been, and could not be, refuted at this early stage of The District Court's analysis of harm, moreover, failed to consider the effect of VTR r of a copyrighted work, to be "fair," must not impair a "potential" market for the work ha even a showing that the infringement has resulted in a net benefit to the copyright holder any group who would otherwise be willing to pay to see or hear the copyrighted work. Sec not permit the infringer to exploit that market without compensating the copyright holder. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n36 Concern over the impact of a use upon "potential" markets is to be found in cases d Inc. v. American Broadcasting Cos., 621 F.2d 57, 60 (CA2 1980) ("the effect of the use on work tends to diminish or prejudice the potential sale of plaintiff's work"), cert. denied t for and value of his work"); Encyclopaedia Britannica Educational Corp. v. Crooks, 542 F have been greater, but for the kind of videotaping in question") (emphasis in original). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***109] In this case, the Studios and their amici demonstrate that the advent of the VTR techn at the time they are broadcast, and who wish to watch them at other times. These persons undoubtedly, most also would be willing to pay some kind of royalty to copyright holders. It is thus apparent from the record and from the findings of the District Court that ti n 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 i tinction is that home VTR users do not record for commercial advantage; the commercial ben y liable if the product they sell is used to infringe. It is well established that liability for copyright infringement can be imposed on pers 3); see Twentieth Century Music Corp. v. Aiken, 422 U.S., at 160, n. 11; Buck v. Jewell-La of the copyright owner . . . is an infringer of the copyright," 17 U. S. C. @ 501(a) (1982 1976 House Report 61. n37 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n37 This intent is manifested further by provisions of the 1976 Act that exempt from li not liable "for the unsupervised use of reproducing equipment located on its premises," p nce by concessionaire "in the course of an annual agricultural or horticultural fair or ex - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*487] The doctrine of contributory copyright infringement, however, is not well defi ond Circuit stated that "one who, with knowledge of the infringing [***112] activity, While I have no quarrel with this general statement, it does not easily resolve the presen A In absolving Sony from liability, the District Court reasoned that Sony had no direct tudios' copyright. 480 F.Supp., at 460. I agree with the Gershwin court that contributory concert associations that it sponsored; it had no formal control over the infringing perf infringement has never depended on actual knowledge of particular instances of infringemen Mark-Fi Records, Inc., 256 F.Supp. 399 (SDNY 1966). n38 In the so-called "dance hall" case performances on their premises, even when they have no knowledge that copyrighted works ar - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n38 In Screen Gems, on which the Gershwin court relied, the court held that liability c own that the records were infringing. The court concluded that the records' low price and n39 See, e. g., Famous Music Corp. v. Bay State Harness Horse Racing & Breeding Assn., 88 F.Supp. 787, 790 (Mass. 1960); see also Twentieth Century Music Corp. v. Aiken, 422 U.S Courts have premised liability in these cases on the notion that the defendant had the Dingus McGee's Co., 432 F.Supp. 72, 74 (WD Mo. 1977). This notion, however, is to some ex to the performers' contract. Famous Music Corp. v. Bay State Harness Horse Racing & Breed 1942). Congress expressly rejected a proposal to exempt proprietors from this type of liab hts); 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 437 ys an agent of the person held liable; Screen Gems makes this apparent. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***115] [*489] Nor is it necessary that the defendant be aware that the infringing activity eason to believe that his or her acts constituted an infringement of copyright," but the s as this, in which prospective relief is sought; once a court has established that the cop ax would be used by some owners to tape copyrighted works off the air. See 480 F.Supp., a [**813] The District Court also concluded that Sony had not caused, induced, or contr d on evidence that particular Betamax [***116] owners relied on particular advertisements posed on a manufacturer who "suggested, even by implication" that a retailer use the manuf rring in result). 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-a titute copyright infringement. It is only with the aid of the Betamax or some other VTR, tamax, but indeed is its intended use. Under the circumstances, I agree with [***117] t wners. n40 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n40 My conclusion respecting contributory infringement does not include the retailer de ng their knowledge of the Betamax's intended uses. I do not agree with the Court of Appea tising agency employed to promote the Betamax was far more actively engaged in the adverti - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - B Sony argues that the manufacturer or seller of a product used to infringe [***118] is he "staple article of commerce" doctrine governing liability for contributory infringement trine of patent law, based in part on considerations irrelevant to the field of copyright, ional source, see U.S. Const., Art. I, @ 8, cl. 8, [**814] patent and copyright protec Straus, 210 U.S. 339, 345-346 (1908). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n41 The "staple article of commerce" doctrine protects those who manufacture products i or the dry ice used with patented refrigeration systems, Carbice Corp. v. American Patent v. Universal Film Mfg. Co., 243 U.S. 502, 509-510 (1917); 35 U. S. C. @ 271(a), such prot ed components and supplies suitable for use with the patented item. See Dawson Chemical C , see id., at 202-212, and has been codified since 1952, 66 Stat. 792, but was never menti - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***119] I recognize, however, that many of the concerns underlying the "staple article of comme er of every product used to infringe -- a typewriter, a camera, a photocopying machine -- I therefore conclude that if a significant portion of the product's use is noninfringin e, however, is to infringe, contributory liability may be imposed; if no one would buy the d. In such a case, the copyright owner's monopoly would not be extended beyond its proper no benefit to the public sufficient to justify the infringement. The Court of Appeals concluded that Sony should be held liable for contributory infring all television programming is copyrighted material." 659 F.2d, at 975. While I agree with r the amount of VTR usage that is infringing. n43 Moreover, the parties and their amici ha portion of VTR recording that is infringing is ultimately a question of fact, n44 and the ght [***121] of my view of the law, resolution of this factual question is essential. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n42 Although VTR's also may be used to watch prerecorded video cassettes and to make ho rs. Brief for Respondents 5, n. 9. In considering the noninfringing uses of the Betamax, n43 Noninfringing uses would include, for example, recording works that are not protect as fair use. See, e. g., Bruzzone v. Miller Brewing Co., 202 USPQ 809 (ND Cal. 1979) (use n44 Sony asserts that much or most television broadcasting is available for home record because videotapes of the broadcasts are not kept. The first of these assertions is irrel consideration of the television market as a whole. Sony's second assertion is based on a . See 37 CFR @@ 202.20(c)(2)(ii) and 202.21(g) (1983). Moreover, although an infringemen g an unregistered work still may be infringement. Cf. @ 506(a) (liability for criminal co - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***122] VI The Court has adopted an approach very different from the one I have outlined. It is m Should Congress choose to respond to the Court's decision, the old doctrines can be resur The Court's disposition of the case turns on its conclusion that time-shifting is a fa ost any definition of contributory infringement. The Court concludes that time-shifting i The Court's first reason for concluding that time-shifting is fair use is its claim tha grams." Ante, at 442. The Court explains that a finding of contributory [***123] infri Ante, at 446. Such reasoning, however, simply confuses the question of liability with th no objection to others making copies of their programs. But such concerns should and woul me-shifting at all. The Court of Appeals mentioned the possibility of a royalty payment t ple, to build a VTR that enables broadcasters to scramble the signal of individual program ts [***124] in a manner that prevents enforcement of them when, through development of b - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n45 Even if concern with remedy were appropriate at the liability stage, the Court's us they have no objection to VTR recording. The Court never states, however, whether the spo uthority to consent to copying the broadcasts of their events. Assuming that the various sports leagues do have exclusive copyrights in some of their s events of all kinds. Tr. 2353, Defendants' Exh. OT, Table 20. Because Sony's witnesses The only witness at trial who was clearly an exclusive copyright owner and who expresse ect that anyone makes VTR copies of that program. The simple fact is that the District Co a hypothetical. The Court states: "If there are millions of owners of VTR's who make cop the practice," the sale of VTR's "should not be stifled" in order to protect respondents' a remand is inescapable. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***125] [*495] [**816] The Court's second stated reason for finding that Sonyis not liab The Court begins by suggesting that the fair use doctrine operates as a general "equitable or purposes such as criticism, comment, news reporting, teaching, . . . scholarship, or re , but those references were only in the context of productive uses. Such a limitation on ly personal consumption on the scale involved in this case, n46 and the Court's applicatio - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n46 As has been explained, some uses of time-shifting, such as copying an old newspaper irely different magnitude, precluding application of such an exception. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*496] Having bypassed the initial hurdle for establishing that a use is fair, the Co such use is of a commercial nature or is for nonprofit educational purposes." @ 107(1). out permission is not what @ 107(1) protects. The intent of the section is to encourage u ng of a mischaracterization of time-shifting to describe it as noncommercial in the sense tead of reselling it -- is noncommercial. n47 Purely consumptive uses are certainly not wh ed to protect only uses that are productive. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n47 Home Recording of Copyrighted Works: Hearing before the Subcommittee on Courts, Civ Tribe). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The next two statutory factors are all but ignored by the Court -- though certainly not infringing use. The rationale guiding application of this factor is that certain types of (NJ 1977), require less copyright protection than other original works. Thus, for exampl ent. Sony's own [**817] surveys indicate that entertainment shows account for more th - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n48 See A Survey of Betamax Owners, Tr. 2353, Defendants' Exh. OT, Table 20, cited in B - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The third statutory factor -- "the amount and substantiality of the portion used" -- is by creating an exact substitute for the copyrighted original. Fair use is intended to all blance to such activity, and the complete duplication that it involves might alone be suff - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n49 The Court's one oblique acknowledgment of this third factor, ante, at 447, and n. 3 initial broadcast free. This suggestion misses the point. As has been noted, a book bor tation to copy a copyrighted work. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***130] The fourth factor requires an evaluation of "the effect of the use upon the potential m the statute requires a court to consider the effect of the use on the potential market fo Even if true, that showing only begins the proper inquiry. The development [*498] of than when they are broadcast, and who therefore purchase VTR recorders to enable them to hat new market. Those benefits currently go to Sony through Betamax sales. Respondents th used in the new market. The existence of this effect is self-evident. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n50 The Court implicitly has recognized that this market is very significant. The centr are broadcast. Ante, at 446. The Court simply misses the implication of its own concern - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Because of the Court's conclusion concerning the legality of time-shifting, it never ad how the Court's test for contributory infringement would operate in practice under a prop r of a product [***132] is not liable for contributory infringement as long as the prod ment. Only the most unimaginative manufacturer would be unable to demonstrate that a imag ringe copyrights; [*499] the fact that noninfringing uses exist presumably would have [**818] More importantly, the rationale for the Court's narrow standard of contributo y infringement is necessary in order to protect "the rights of others freely to engage in ant upon a finding of liability were an injunction against the manufacture [***133] of would be ordered. It is unfortunate that the Court has allowed its concern over a remedy VII The Court of Appeals, having found Sony liable, remanded for the District Court to cons ate if liability were found. I concur, however, in the Court of Appeals' suggestion that lthough I express no view on the merits [*500] of any particular proposal, I am certa a continuing royalty or other equitable relief is not feasible. The Studios then would be may be unavailable, should not affect our interpretation of the statute. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n51 Other nations have imposed royalties on the manufacturers of products used to infri ure and Art and on Related Rights (Austria), @@ 42(5)-(7), and An Act dealing with Copyrig "serve as a pattern" for the European community. A. Dietz, Copyright Law in the European ies are a familiar part of our copyright law. See generally Broadcast Music, Inc. v. Colu ertification of a class or otherwise. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***135] Like so many other problems created by the interaction of copyright law with a new tech (dissenting opinion). But in the absence of a congressional solution, courts cannot avoi S., at 401-402, and "do as little damage as possible to traditional copyright principles .