Sony Corp. of America v. Universal City Studios, Inc.

U.S. Supreme Court Sony Corp. v. Universal City Studios, 464
U.S. 417 (1984) Sony Corporation of America v.
Universal City Studios, Inc. No. 81-1687 Argued January 18,
1983 Reargued October 3,
1983 Decided January 17,
1984 464
U.S. 417 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH
CIRCUIT Syllabus Petitioner Sony Corp. manufactures home videotape recorders
(VTR's), and markets them through retail establishments, some of
which are also petitioners. Respondents own the copyrights on some
of the television programs that are broadcast on the public
airwaves. Respondents brought an action against petitioners in
Federal District Court, alleging that VTR consumers had been
recording some of respondents' copyrighted works that had been
exhibited on commercially sponsored television, and thereby
infringed respondents' copyrights, and further that petitioners
were liable for such copyright infringement because of their
marketing of the VTR's. Respondents sought money damages, an
equitable accounting of profits, and an injunction against the
manufacture and marketing of the VTR's. The District Court denied
respondents all relief, holding that noncommercial home use
recording of material broadcast over the public airwaves was a fair
use of copyrighted works, and did not constitute copyright
infringement, and that petitioners could not be held liable as
contributory infringers even if the home use of a VTR was
considered an infringing use. The Court of Appeals reversed,
holding petitioners liable for contributory infringement and
ordering the District Court to fashion appropriate relief Held: The sale of the VTR's to the general public does
not constitute contributory infringement of respondents'
copyrights. Pp. 464 U. S.
428 -456.

															(a) The protection given to copyrights is wholly statutory, and,
in a case like this, in which Congress has not plainly marked the
course to be followed by the judiciary, this Court must be
circumspect in construing the scope of rights created by a statute
that never contemplated such a calculus of interests. Any
individual may reproduce a copyrighted work for a "fair use"; the
copyright owner does not possess the exclusive right to such a use.
Pp. 464 U. S.
428 -434.

															(b) Kalem Co. v. Harper Brothers, 222 U. S.
55 , does not support respondents' novel theory that
supplying the "means" to accomplish an infringing activity and
encouraging that activity through advertisement are sufficient to
establish liability for copyright infringement. This case does not
fall in the category of those in which it is manifestly just to Page 464 U. S. 418 impose vicarious liability because the "contributory" infringer
was in a position to control the use of copyrighted works by others
and had authorized the use without permission from the copyright
owner. Here, the only contact between petitioners and the users of
the VTR's occurred at the moment of sale. And there is no precedent
for imposing vicarious liability on the theory that petitioners
sold the VTR's with constructive knowledge that their customers
might use the equipment to make unauthorized copies of copyrighted
material. The sale of copying equipment, like the sale of other
articles of commerce, does not constitute contributory infringement
if the product is widely used for legitimate, unobjectionable
purposes, or, indeed, is merely capable of substantial
noninfringing uses. Pp. 464 U. S.
434 -442.

															(c) The record and the District Court's findings show (1) that
there is a significant likelihood that substantial numbers of
copyright holders who license their works for broadcast on free
television would not object to having their broadcast time-shifted
by private viewers ( i.e., recorded at a time when the VTR
owner cannot view the broadcast so that it can be watched at a
later time); and (2) that there is no likelihood that time-shifting
would cause nonminimal harm to the potential market for, or the
value of, respondents' copyrighted works. The VTR's are therefore
capable of substantial noninfringing uses. Private, noncommercial
time-shifting in the home satisfies this standard of noninfringing
uses both because respondents have no right to prevent other
copyright holders from authorizing such time-shifting for their
programs and because the District Court's findings reveal that even
the unauthorized home time-shifting of respondents' programs is
legitimate fair use. Pp. 442-456.

															659 F.2d 963, reversed.

															STEVENS, J., delivered the opinion of the Court in which BURGER,
C.J., and BRENNAN, WHITE, and O'CONNOR, JJ., joined. BLACKMUN, J.,
filed a dissenting opinion in which MARSHALL, POWELL, and
REHNQUIST, JJ., joined, post, p. 464 U. S.
457 . Page 464 U. S. 419 JUSTICE STEVENS delivered the opinion of the Court.

															Petitioners manufacture and sell home videotape recorders.
Respondents own the copyrights on some of the television Page 464 U. S. 420 programs that are broadcast on the public airwaves. Some members
of the general public use videotape recorders sold by petitioners
to record some of these broadcasts, as well as a large number of
other broadcasts. The question presented is whether the sale of
petitioners' copying equipment to the general public violates any
of the rights conferred upon respondents by the Copyright Act.

															Respondents commenced this copyright infringement action against
petitioners in the United States District Court for the Central
District of California in 1976. Respondents alleged that some
individuals had used Betamax videotape recorders (VTR's) to record
some of respondents' copyrighted works which had been exhibited on
commercially sponsored television, and contended that these
individuals had thereby infringed respondents' copyrights.
Respondents further maintained that petitioners were liable for the
copyright infringement allegedly committed by Betamax consumers
because of petitioners' marketing of the Betamax VTR's. [ Footnote 1 ] Respondents sought no
relief against any Betamax consumer. Instead, they sought money
damages and an equitable accounting of profits from petitioners, as
well as an injunction against the manufacture and marketing of
Betamax VTR's.

															After a lengthy trial, the District Court denied respondents all
the relief they sought and entered judgment for petitioners. 480 F.
Supp. 429 (1979). The United States Court of Appeals for the
Ninth Circuit reversed the District Court's judgment on
respondents' copyright claim, holding petitioners liable for
contributory infringement and ordering the District Court to
fashion appropriate relief. 659 F.2d 963 Page 464 U. S. 421 (1981). We granted certiorari, 457 U.S. 1116 (1982); since we
had not completed our study of the case last Term, we ordered
reargument, 463 U. S. 1226 (1983). We now reverse.

															An explanation of our rejection of respondents' unprecedented
attempt to impose copyright liability upon the distributors of
copying equipment requires a quite detailed recitation of the
findings of the District Court. In summary, those findings reveal
that the average member of the public uses a VTR principally to
record a program he cannot view as it is being televised, and then
to watch it once at a later time. This practice, known as
"time-shifting," enlarges the television viewing audience. For that
reason, a significant amount of television programming may be used
in this manner without objection from the owners of the copyrights
on the programs. For the same reason, even the two respondents in
this case, who do assert objections to time-shifting in this
litigation, were unable to prove that the practice has impaired the
commercial value of their copyrights or has created any likelihood
of future harm. Given these findings, there is no basis in the
Copyright Act upon which respondents can hold petitioners liable
for distributing VTR's to the general public. The Court of Appeals'
holding that respondents are entitled to enjoin the distribution of
VTR's, to collect royalties on the sale of such equipment, or to
obtain other relief, if affirmed, would enlarge the scope of
respondents' statutory monopolies to encompass control over an
article of commerce that is not the subject of copyright
protection. Such an expansion of the copyright privilege is beyond
the limits of the grants authorized by Congress. I The two respondents in this action, Universal City Studios,
Inc., and Walt Disney Productions, produce and hold the copyrights
on a substantial number of motion pictures and other audiovisual
works. In the current marketplace, they can exploit their rights in
these works in a number of ways: Page 464 U. S. 422 by authorizing theatrical exhibitions, by licensing limited
showings on cable and network television, by selling syndication
rights for repeated airings on local television stations, and by
marketing programs on prerecorded videotapes or videodiscs. Some
works are suitable for exploitation through all of these avenues,
while the market for other works is more limited.

															Petitioner Sony manufactures millions of Betamax videotape
recorders and markets these devices through numerous retail
establishments, some of which are also petitioners in this action.
[ Footnote 2 ] Sony's Betamax VTR
is a mechanism consisting of three basic components: (1) a tuner,
which receives electromagnetic signals transmitted over the
television band of the public airwaves and separates them into
audio and visual signals; (2) a recorder, which records such
signals on a magnetic tape; and (3) an adapter, which converts the
audio and visual signals on the tape into a composite signal that
can be received by a television set.

															Several capabilities of the machine are noteworthy. The separate
tuner in the Betamax enables it to record a broadcast off one
station while the television set is tuned to another channel,
permitting the viewer, for example, to watch two simultaneous news
broadcasts by watching one "live" and recording the other for later
viewing. Tapes may be reused, and programs that have been recorded
may be erased either before or after viewing. A timer in the
Betamax can be used to activate and deactivate the equipment at
predetermined Page 464 U. S. 423 times, enabling an intended viewer to record programs that are
transmitted when he or she is not at home. Thus a person may watch
a program at home in the evening even though it was broadcast while
the viewer was at work during the afternoon. The Betamax is also
equipped with a pause button and a fast-forward control. The pause
button, when depressed, deactivates the recorder until it is
released, thus enabling a viewer to omit a commercial advertisement
from the recording, provided, of course, that the viewer is present
when the program is recorded. The fast-forward control enables the
viewer of a previously recorded program to run the tape rapidly
when a segment he or she does not desire to see is being played
back on the television screen.

															The respondents and Sony both conducted surveys of the way the
Betamax machine was used by several hundred owners during a sample
period in 1978. Although there were some differences in the
surveys, they both showed that the primary use of the machine for
most owners was "time-shifting" -- the practice of recording a
program to view it once at a later time, and thereafter erasing it.
Time-shifting enables viewers to see programs they otherwise would
miss because they are not at home, are occupied with other tasks,
or are viewing a program on another station at the time of a
broadcast that they desire to watch. Both surveys also showed,
however, that a substantial number of interviewees had accumulated
libraries of tapes. [ Footnote
3 ] Sony's survey indicated Page 464 U. S. 424 that over 80% of the interviewees watched at least as much
regular television as they had before owning a Betamax. [ Footnote 4 ] Respondents offered no
evidence of decreased television viewing by Betamax owners.
[ Footnote 5 ]

															Sony introduced considerable evidence describing television
programs that could be copied without objection from any copyright
holder, with special emphasis on sports, religious, and educational
programming. For example, their survey indicated that 7.3% of all
Betamax use is to record sports events, and representatives of
professional baseball, football, basketball, and hockey testified
that they had no objection to the recording of their televised
events for home use. [ Footnote
6 ] Page 464 U. S. 425 Respondents offered opinion evidence concerning the future
impact of the unrestricted sale of VTR's on the commercial value of
their copyrights. The District Court found, however, that they had
failed to prove any likelihood of future harm from the use of VTR's
for time-shifting. 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 VTR's for recording programs broadcast on
the public airwaves without charge to the viewer. [ Footnote 7 ] No issue concerning the transfer
of tapes to other persons, the use of home-recorded tapes for
public performances, or the copying of programs transmitted on pay
or cable television systems was raised. See id. at
432-433, 442.

															The District Court concluded that noncommercial home use
recording of material broadcast over the public airwaves was a fair
use of copyrighted works, and did not constitute copyright
infringement. It emphasized the fact that the material was
broadcast free to the public at large, the noncommercial character
of the use, and the private character of the activity conducted
entirely within the home. Moreover, the court found that the
purpose of this use served the public interest in increasing access
to television programming, an interest that

															"is consistent with the First Amendment policy of providing the
fullest possible access to information through the public airwaves. Columbia Broadcasting System, Inc. v. Democratic National
Committee, 412 U. S. 94 , 412 U. S.
102 ." Id. at 454. [ Footnote
8 ] Even when an entire copyrighted work was recorded, Page 464 U. S. 426 the District Court regarded the copying as fair use "because
there is no accompanying reduction in the market for plaintiff's original work.'" Ibid. . As an independent ground of decision, the District Court also
concluded that Sony could not be held liable as a contributory
infringer even if the home use of a VTR was considered an
infringing use. The District Court noted that Sony had no direct
involvement with any Betamax purchasers who recorded copyrighted
works off the air. Sony's advertising was silent on the subject of
possible copyright infringement, but its instruction booklet
contained the following statement:

															"Television programs, films, videotapes and other materials may
be copyrighted. Unauthorized recording of such material may be
contrary to the provisions of the United States copyright
laws." Id. at 436.

															The District Court assumed that Sony had constructive knowledge
of the probability that the Betamax machine would be used to record
copyrighted programs, but found that Sony merely sold a "product
capable of a variety of uses, some of them allegedly infringing." Id. at 461. It reasoned:

															"Selling a staple article of commerce -- e.g., a
typewriter, a recorder, a camera, a photocopying machine --
technically contributes to any infringing use subsequently made
thereof, but this kind of 'contribution,' if deemed sufficient as a
basis for liability, would expand the theory beyond precedent, and
arguably beyond judicial management."

															". . . Commerce would indeed be hampered if manufacturers of
staple items were held liable as contributory infringers whenever
they 'constructively' knew that some purchasers on some occasions
would use their product Page 464 U. S. 427 for a purpose which a court later deemed, as a matter of first
impression, to be an infringement." Ibid. Finally, the District Court discussed the respondents' prayer
for injunctive relief, noting that they had asked for an injunction
either preventing the future sale of Betamax machines or requiring
that the machines be rendered incapable of recording copyrighted
works off the air. The court stated that it had

															"found no case in which the manufacturers, distributors,
retailers and advertisers of the instrument enabling the
infringement were sued by the copyright holders,"

															and that the request for relief in this case "is unique." Id. at 465.

															It concluded that an injunction was wholly inappropriate because
any possible harm to respondents was outweighed by the fact
that

															"the Betamax could still legally be used to record
noncopyrighted material or material whose owners consented to the
copying. An injunction would deprive the public of the ability to
use the Betamax for this noninfringing off-the-air recording." Id. at 468. The Court of Appeals' Decision The Court of Appeals reversed the District Court's judgment on
respondents' copyright claim. It did not set aside any of the
District Court's findings of fact. Rather, it concluded as a matter
of law that the home use of a VTR was not a fair use, because it
was not a "productive use." [ Footnote 9 ] It therefore held that it was unnecessary for
plaintiffs to prove any harm to the potential market for the
copyrighted works, but then observed that it seemed clear that the
cumulative effect of mass reproduction made possible by VTR's would
tend to diminish the potential market for respondents' works. 659
F.2d at 974. Page 464 U. S. 428 On the issue of contributory infringement, the Court of Appeals
first rejected the analogy to staple articles of commerce such as
tape recorders or photocopying machines. It noted that such
machines "may have substantial benefit for some purposes" and do
not "even remotely raise copyright problems." Id. at 975.
VTR's, however, are sold "for the primary purpose of reproducing
television programming," and "[v]irtually all" such programming is
copyrighted material. Ibid. The Court of Appeals
concluded, therefore, that VTR's were not suitable for any
substantial noninfringing use even if some copyright owners elect
not to enforce their rights.

															The Court of Appeals also rejected the District Court's reliance
on Sony's lack of knowledge that home use constituted infringement.
Assuming that the statutory provisions defining the remedies for
infringement applied also to the nonstatutory tort of contributory
infringement, the court stated that a defendant's good faith would
merely reduce his damages liability, but would not excuse the
infringing conduct. It held that Sony was chargeable with knowledge
of the homeowner's infringing activity because the reproduction of
copyrighted materials was either "the most conspicuous use" or "the
major use" of the Betamax product. Ibid. On the matter of relief, the Court of Appeals concluded that
"statutory damages may be appropriate" and that the District Court
should reconsider its determination that an injunction would not be
an appropriate remedy; and, referring to "the analogous
photocopying area," suggested that a continuing royalty pursuant to
a judicially created compulsory license may very well be an
acceptable resolution of the relief issue. Id. at 976. II Article I, § 8, of the Constitution provides:

															"The Congress shall have Power . . . To Promote the Progress of
Science and useful Arts, by securing for limited Times to Authors
and Inventors the exclusive Right to their respective Writings and
Discoveries. " Page 464 U. S. 429 The monopoly privileges that Congress may authorize are neither
unlimited nor primarily designed to provide a special private
benefit. Rather, the limited grant is a means by which an important
public purpose may be achieved. It is intended to motivate the
creative activity of authors and inventors by the provision of a
special reward, and to allow the public access to the products of
their genius after the limited period of exclusive control has
expired.

															"The copyright law, like the patent statutes, makes reward to
the owner a secondary consideration. In Fox Film Corp. v.
Doyal, 286 U. S. 123 , 286 U. S.
127 , Chief Justice Hughes spoke as follows respecting
the copyright monopoly granted by Congress,"

															"The sole interest of the United States and the primary object
in conferring the monopoly lie in the general benefits derived by
the public from the labors of authors."

															"It is said that reward to the author or artist serves to induce
release to the public of the products of his creative genius." United States v. Paramount Pictures, Inc., 334 U.
S. 131 , 334 U. S. 158 (1948).

															As the text of the Constitution makes plain, it is Congress that
has been assigned the task of defining the scope of the limited
monopoly that should be granted to authors or to inventors in order
to give the public appropriate access to their work product.
Because this task involves a difficult balance between the
interests of authors and inventors in the control and exploitation
of their writings and discoveries on the one hand, and society's
competing interest in the free flow of ideas, information, and
commerce on the other hand, our patent and copyright statutes have
been amended repeatedly. [ Footnote 10 ] Page 464 U. S. 430 From its beginning, the law of copyright has developed in
response to significant changes in technology. [ Footnote 11 ] Indeed, it was the invention
of a new form of copying equipment -- the printing press -- that
gave rise to the original need for copyright protection. [ Footnote 12 ] Repeatedly, as new
developments have Page 464 U. S. 431 occurred in this country, it has been the Congress that has
fashioned the new rules that new technology made necessary. Thus,
long before the enactment of the Copyright Act of 1909, 35 Stat.
1075, it was settled that the protection given to copyrights is
wholly statutory. Wheaton v.
Peters , 8 Pet. 591, 33 U. S.
661 -662 (1834). The remedies for infringement "are only
those prescribed by Congress." Thompson v. Hubbard, 131 U. S. 123 , 131 U. S. 151 (1889).

															The judiciary's reluctance to expand the protections afforded by
the copyright without explicit legislative guidance is a recurring
theme. See, e.g., Teleprompter Corp. v. Columbia Broadcasting
System, Inc., 415 U. S. 394 (1974); Fortnightly Corp. v. United Artists Television,
Inc., 392 U. S. 390 (1968); White-Smith Music Publishing Co. v. Apollo Co., 209 U. S. 1 (1908); Williams & Wilkins Co. v. United States, 203 Ct.Cl.
74, 487 F.2d 1345 (1973), aff'd by an equally divided
Court, 420 U. S. 376 (1975). Sound policy, as well as history, supports our consistent
deference to Congress when major technological innovations alter
the market for copyrighted materials. Congress has the
constitutional authority and the institutional ability to
accommodate fully the varied permutations of competing interests
that are inevitably implicated by such new technology.

															In a case like this, in which Congress has not plainly marked
our course, we must be circumspect in construing the scope of
rights created by a legislative enactment which never contemplated
such a calculus of interests. In doing so, we are guided by Justice
Stewart's exposition of the correct approach to ambiguities in the
law of copyright:

															"The limited scope of the copyright holder's statutory monopoly,
like the limited copyright duration required by the Constitution,
reflects a balance of competing claims upon the public interest:
creative work is to be Page 464 U. S. 432 encouraged and rewarded, but private motivation must ultimately
serve the cause of promoting broad public availability of
literature, music, and the other arts. The immediate effect of our
copyright law is to secure a fair return for an 'author's' creative
labor. But the ultimate aim is, by this incentive, to stimulate
artistic creativity for the general public good. 'The sole interest
of the United States and the primary object in conferring the
monopoly,' this Court has said, 'lie in the general benefits
derived by the public from the labors of authors.' Fox Film
Corp. v. Doyal, 286 U. S. 123 , 286 U. S.
127 . See Kendall v. Winsor , 21 How.
322, 62 U. S. 327 -328; Grant v.
Raymond , 6 Pet. 218, 31 U. S.
241 -242. When technological change has rendered its
literal terms ambiguous, the Copyright Act must be construed in
light of this basic purpose." Twentieth Century Music Corp. v. Aiken, 422 U.
S. 151 , 422 U. S. 156 (1975) (footnotes omitted).

															Copyright protection "subsists . . . in original works of
authorship fixed in any tangible medium of expression." 17 U.S.C. §
102(a) (1982 ed.). This protection has never accorded the copyright
owner complete control over all possible uses of his work.
[ Footnote 13 ] Rather, the
Copyright Act grants the Page 464 U. S. 433 copyright holder "exclusive" rights to use and to authorize the
use of his work in five qualified ways, including reproduction of
the copyrighted work in copies. § 106. [ Footnote 14 ] All reproductions of the work, however,
are not within the exclusive domain of the copyright owner; some
are in the public domain. Any individual may reproduce a
copyrighted work for a "fair use"; the copyright owner does not
possess the exclusive right to such a use. Compare § 106 with § 107.

															"Anyone who violates any of the exclusive rights of the
copyright owner," that is, anyone who trespasses into his exclusive
domain by using or authorizing the use of the copyrighted work in
one of the five ways set forth in the statute, "is an infringer of
the copyright." § 501(a). Conversely, anyone who is authorized by
the copyright owner to use the copyrighted work in a way specified
in the statute or who makes a fair use of the work is not an
infringer of the copyright with respect to such use.

															The Copyright Act provides the owner of a copyright with a
potent arsenal of remedies against an infringer of his work,
including an injunction to restrain the infringer from
violating Page 464 U. S. 434 his rights, the impoundment and destruction of all reproductions
of his work made in violation of his rights, a recovery of his
actual damages and any additional profits realized by the infringer
or a recovery of statutory damages, and attorney's fees. §§
502-505. [ Footnote 15 ]

															The two respondents in this case do not seek relief against the
Betamax users who have allegedly infringed their copyrights.
Moreover, this is not a class action on behalf of all copyright
owners who license their works for television broadcast, and
respondents have no right to invoke whatever rights other copyright
holders may have to bring infringement actions based on Betamax
copying of their works. [ Footnote 16 ] As was made clear by their own evidence, the
copying of the respondents' programs represents a small portion of
the total use of VTR's. It is, however, the taping of respondents'
own copyrighted programs that provides them with standing to charge
Sony with contributory infringement. To prevail, they have the
burden of proving that users of the Betamax have infringed their
copyrights, and that Sony should be held responsible for that
infringement. III The Copyright Act does not expressly render anyone liable for
infringement committed by another. In contrast, the Page 464 U. S. 435 Patent Act expressly brands anyone who "actively induces
infringement of a patent" as an infringer, 35 U.S.C. § 271(b), and
further imposes liability on certain individuals labeled
"contributory" infringers, § 271(c). The absence of such express
language in the copyright statute does not preclude the imposition
of liability for copyright infringements on certain parties who
have not themselves engaged in the infringing activity. [ Footnote 17 ] For vicarious liability
is imposed in virtually all areas of the law, and the concept of
contributory infringement is merely a species of the broader
problem of identifying the circumstances in which it is just to
hold one individual accountable for the actions of another.

															Such circumstances were plainly present in Kalem Co. v.
Harper Brothers, 222 U. S. 55 (1911), the copyright decision of this Court on which respondents
place their principal reliance. In Kalem, the Court held
that the producer of an unauthorized film dramatization of the
copyrighted book Ben Hur was liable for his sale of the motion
picture to jobbers, who in turn arranged for the commercial
exhibition of the film. Justice Holmes, writing for the Court,
explained:

															"The defendant not only expected but invoked by advertisement
the use of its films for dramatic reproduction Page 464 U. S. 436 of the story. That was the most conspicuous purpose for which
they could be used, and the one for which especially they were
made. If the defendant did not contribute to the infringement it is
impossible to do so except by taking part in the final act. It is
liable on principles recognized in every part of the law." Id. at 222 U. S.
62 -63.

															The use for which the item sold in Kalem had been
"especially" made was, of course, to display the performance that
had already been recorded upon it. The producer had personally
appropriated the copyright owner's protected work and, as the owner
of the tangible medium of expression upon which the protected work
was recorded, authorized that use by his sale of the film to
jobbers. But that use of the film was not his to authorize: the
copyright owner possessed the exclusive right to authorize public
performances of his work. Further, the producer personally
advertised the unauthorized public performances, dispelling any
possible doubt as to the use of the film which he had
authorized.

															Respondents argue that Kalem stands for the proposition
that supplying the "means" to accomplish an infringing activity and
encouraging that activity through advertisement are sufficient to
establish liability for copyright infringement. This argument rests
on a gross generalization that cannot withstand scrutiny. The
producer in Kalem did not merely provide the "means" to
accomplish an infringing activity; the producer supplied the work
itself, albeit in a new medium of expression. Sony in the instant
case does not supply Betamax consumers with respondents' works;
respondents do. Sony supplies a piece of equipment that is
generally capable of copying the entire range of programs that may
be televised: those that are uncopyrighted, those that are
copyrighted but may be copied without objection from the copyright
holder, and those that the copyright holder would prefer not to
have copied. The Betamax can be used to Page 464 U. S. 437 make authorized or unauthorized uses of copyrighted works, but
the range of its potential use is much broader than the particular
infringing use of the film Ben Hur involved in Kalem. Kalem does not support respondents' novel theory of
liability.

															Justice Holmes stated that the producer had "contributed" to the
infringement of the copyright, and the label "contributory
infringement" has been applied in a number of lower court copyright
cases involving an ongoing relationship between the direct
infringer and the contributory infringer at the time the infringing
conduct occurred. In such cases, as in other situations in which
the imposition of vicarious liability is manifestly just, the
"contributory" infringer was in a position to control the use of
copyrighted works by others, and had authorized the use without
permission from the copyright owner. [ Footnote 18 ] This case, however, plainly does not
fall Page 464 U. S. 438 in that category. The only contact between Sony and the users of
the Betamax that is disclosed by this record occurred at the moment
of sale. The District Court expressly found that

															"no employee of Sony, Sonam or DDBI had either direct
involvement with the allegedly infringing activity or direct
contact with purchasers of Betamax who recorded copyrighted works
off the air."

															480 F. Supp. at 460. And it further found that

															"there was no evidence that any of the copies made by Griffiths
or the other individual witnesses in this suit were influenced or
encouraged by [Sony's] advertisements." Ibid. Page 464 U. S. 439 If vicarious liability is to be imposed on Sony in this case, it
must rest on the fact that it has sold equipment with constructive
knowledge of the fact that its customers may use that equipment to
make unauthorized copies of copyrighted material. There is no
precedent in the law of copyright for the imposition of vicarious
liability on such a theory. The closest analogy is provided by the
patent law cases to which it is appropriate to refer because of the
historic kinship between patent law and copyright law. [ Footnote 19 ] Page 464 U. S. 440 In the Patent Act, both the concept of infringement and the
concept of contributory infringement are expressly defined by
statute. [ Footnote 20 ] The
prohibition against contributory infringement is confined to the
knowing sale of a component especially made for use in connection
with a particular patent. There is no suggestion in the statute
that one patentee may object to the sale of a product that might be
used in connection with other patents. Moreover, the Act expressly
provides that the sale of a "staple article or commodity of
commerce suitable for substantial noninfringing use" is not
contributory infringement. 35 U.S.C. § 271(c).

															When a charge of contributory infringement is predicated
entirely on the sale of an article of commerce that is used by the
purchaser to infringe a patent, the public interest in access to
that article of commerce is necessarily implicated. A Page 464 U. S. 441 finding of contributory infringement does not, of course, remove
the article from the market altogether; it does, however, give the
patentee effective control over the sale of that item. Indeed, a
finding of contributory infringement is normally the functional
equivalent of holding that the disputed article is within the
monopoly granted to the patentee. [ Footnote 21 ]

															For that reason, in contributory infringement cases arising
under the patent laws, the Court has always recognized the critical
importance of not allowing the patentee to extend his monopoly
beyond the limits of his specific grant. These cases deny the
patentee any right to control the distribution of unpatented
articles unless they are "unsuited for any commercial noninfringing
use." Dawson Chemical Co. v. Rohm & Hass Co., 448 U. S. 176 , 448 U. S. 198 (1980). Unless a commodity "has no use except through practice of
the patented method," id. at 448 U. S. 199 ,
the patentee has no right to claim that its distribution
constitutes contributory infringement. "To form the basis for
contributory infringement, the item must almost be uniquely suited
as a component of the patented invention." P. Rosenberg, Patent Law
Fundamentals § 17.02[2] (2d ed.1982).

															"[A] sale of an article which though adapted to an infringing
use is also adapted to other and lawful uses, is not enough to make
the seller a contributory infringer. Such a rule would block the
wheels of commerce." Henry v. A. B. Dick Co., 224 U. S.
1 , 224 U. S. 48 (1912), overruled on other grounds, Page 464 U. S. 442 Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502 , 243 U. S. 517 (1917).

															We recognize there are substantial differences between the
patent and copyright laws. But in both areas, the contributory
infringement doctrine is grounded on the recognition that adequate
protection of a monopoly may require the courts to look beyond
actual duplication of a device or publication to the products or
activities that make such duplication possible. The staple article
of commerce doctrine must strike a balance between a copyright
holder's legitimate demand for effective -- not merely symbolic --
protection of the statutory monopoly, and the rights of others
freely to engage in substantially unrelated areas of commerce.
Accordingly, the sale of copying equipment, like the sale of other
articles of commerce, does not constitute contributory infringement
if the product is widely used for legitimate, unobjectionable
purposes. Indeed, it need merely be capable of substantial
noninfringing uses. IV The question is thus whether the Betamax is capable of
commercially significant noninfringing uses. In order to resolve
that question, we need not explore all the different
potential uses of the machine and determine whether or not they
would constitute infringement. Rather, we need only consider
whether, on the basis of the facts as found by the District Court,
a significant number of them would be noninfringing. Moreover, in
order to resolve this case, we need not give precise content to the
question of how much use is commercially significant. For one
potential use of the Betamax plainly satisfies this standard,
however it is understood: private, noncommercial time-shifting in
the home. It does so both (A) because respondents have no right to
prevent other copyright holders from authorizing it for their
programs, and (B) because the District Court's factual findings
reveal that even the unauthorized home time-shifting of
respondents' programs is legitimate fair use. Page 464 U. S. 443 A. Authorized Time-Shifting Each of the respondents owns a large inventory of valuable
copyrights, but, in the total spectrum of television programming,
their combined market share is small. The exact percentage is not
specified, but it is well below 10%. [ Footnote 22 ] If they were to prevail, the outcome of this
litigation would have a significant impact on both the producers
and the viewers of the remaining 90% of the programming in the
Nation. No doubt, many other producers share respondents' concern
about the possible consequences of unrestricted copying.
Nevertheless the findings of the District Court make it clear that
time-shifting may enlarge the total viewing audience, and that many
producers are willing to allow private time-shifting to continue,
at least for an experimental time period. [ Footnote 23 ]

															The District Court found:

															"Even if it were deemed that home-use recording of copyrighted
material constituted infringement, the Betamax could still legally
be used to record noncopyrighted material or material whose owners
consented to the copying. An injunction would deprive the public of
the ability to use the Betamax for this noninfringing off-the-air
recording. " Page 464 U. S. 444 "Defendants introduced considerable testimony at trial about the
potential for such copying of sports, religious, educational and
other programming. This included testimony from representatives of
the Offices of the Commissioners of the National Football,
Basketball, Baseball and Hockey Leagues and Associations, the
Executive Director of National Religious Broadcasters, and various
educational communications agencies. Plaintiffs attack the weight
of the testimony offered, and also contend that an injunction is
warranted because infringing uses outweigh noninfringing uses."

															"Whatever the future percentage of legal versus illegal home-use
recording might be, an injunction which seeks to deprive the public
of the very tool or article of commerce capable of some
noninfringing use would be an extremely harsh remedy, as well as
one unprecedented in copyright law."

															480 F. Supp. at 468.

															Although the District Court made these statements in the context
of considering the propriety of injunctive relief, the statements
constitute a finding that the evidence concerning "sports,
religious, educational and other programming" was sufficient to
establish a significant quantity of broadcasting whose copying is
now authorized, and a significant potential for future authorized
copying. That finding is amply supported by the record. In addition
to the religious and sports officials identified explicitly by the
District Court, [ Footnote
24 ] two items in the record deserve specific mention. Page 464 U. S. 445 First is the testimony of John Kenaston, the station manager of
Channel 58, an educational station in Los Angeles affiliated with
the Public Broadcasting Service. He explained and authenticated the
station's published guide to its programs. [ Footnote 25 ] For each program, the guide tells
whether unlimited home taping is authorized, home taping is
authorized subject to certain restrictions (such as erasure within
seven days), or home taping is not authorized at all. The Spring,
1978, edition of the guide described 107 programs. Sixty-two of
those programs or 58% authorize some home taping. Twenty-one of
them, or almost 20%, authorize unrestricted home taping. [ Footnote 26 ]

															Second is the testimony of Fred Rogers, president of the
corporation that produces and owns the copyright on Mister Rogers'
Neighborhood. The program is carried by more public television
stations than any other program. Its audience numbers over
3,000,000 families a day. He testified that he had absolutely no
objection to home taping for noncommercial use, and expressed the
opinion that it is a real service to families to be able to record
children's programs and to show them at appropriate times.
[ Footnote 27 ] Page 464 U. S. 446 If there are millions of owners of VTR's who make copies of
televised sports events, religious broadcasts, and educational
programs such as Mister Rogers' Neighborhood, and if the
proprietors of those programs welcome the practice, the business of
supplying the equipment that makes such copying feasible should not
be stifled simply because the equipment is used by some individuals
to make unauthorized reproductions of respondents' works. The
respondents do not represent a class composed of all copyright
holders. Yet a finding of contributory infringement would
inevitably frustrate the interests of broadcasters in reaching the
portion of their audience that is available only through
time-shifting.

															Of course, the fact that other copyright holders may welcome the
practice of time-shifting does not mean that respondents should be
deemed to have granted a license to copy their programs.
Third-party conduct would be wholly irrelevant in an action for
direct infringement of respondents' copyrights. But in an action
for contributory infringement against the seller of
copying equipment, the copyright holder may not prevail unless the
relief that he seeks affects only his programs, or unless he speaks
for virtually all copyright holders with an interest in the
outcome. In this case, the record makes it perfectly clear that
there are many important producers of national and local television
programs who find nothing objectionable about the enlargement in
the size of the television audience that results from the practice
of time-shifting for private home use. [ Footnote 28 ] The seller of the equipment that expands
those producers' audiences cannot be a contributory Page 464 U. S. 447 infringer if, as is true in this case, it has had no direct
involvement with any infringing activity.

															B. Unauthorized Time-Shifting Even unauthorized uses of a copyrighted work are not necessarily
infringing. An unlicensed use of the copyright is not an
infringement unless it conflicts with one of the specific exclusive
rights conferred by the copyright statute. Twentieth Century
Music Corp. v. Aiken, 422 U.S. at 422 U. S.
154 -155. Moreover, the definition of exclusive rights in
§ 106 of the present Act is prefaced by the words "subject to
sections 107 through 118." Those sections describe a variety of
uses of copyrighted material that "are not infringements of
copyright" "notwithstanding the provisions of section 106." The
most pertinent in this case is § 107, the legislative endorsement
of the doctrine of "fair use." [ Footnote 29 ] Page 464 U. S. 448 That section identifies various factors [ Footnote 30 ] that enable a court to apply an
"equitable rule of reason" analysis to particular claims of
infringement. [ Footnote 31 ]
Although not conclusive, the first Page 464 U. S. 449 factor requires that "the commercial or nonprofit character of
an activity" be weighed in any fair use decision. [ Footnote 32 ] If the Betamax were used to
make copies for a commercial or profitmaking purpose, such use
would presumptively be unfair. The contrary presumption is
appropriate here, however, because the District Court's findings
plainly establish that time-shifting for private home use must be
characterized as a noncommercial, nonprofit activity. Moreover,
when one considers the nature of a televised copyrighted
audiovisual work, see 17 U.S.C. § 107(2) (1982 ed.), and
that time-shifting merely enables a viewer to see such a work which
he had been invited to witness in its entirety free of charge, the
fact that Page 464 U. S. 450 the entire work is reproduced, see § 107(3), does not
have its ordinary effect of militating against a finding of fair
use. [ Footnote 33 ]

															This is not, however, the end of the inquiry, because Congress
has also directed us to consider "the effect of the use upon the
potential market for or value of the copyrighted work." § 107(4).
The purpose of copyright is to create incentives for creative
effort. Even copying for noncommercial purposes may impair the
copyright holder's ability to obtain the rewards that Congress
intended him to have. But a use that has no demonstrable effect
upon the potential market for, or the value of, the copyrighted
work need not be prohibited in order to protect the author's
incentive to create. The prohibition of such noncommercial uses
would Page 464 U. S. 451 merely inhibit access to ideas without any countervailing
benefit. [ Footnote 34 ]

															Thus, although every commercial use of copyrighted material is
presumptively an unfair exploitation of the monopoly privilege that
belongs to the owner of the copyright, noncommercial uses are a
different matter. A challenge to a noncommercial use of a
copyrighted work requires proof either that the particular use is
harmful or that, if it should become widespread, it would adversely
affect the potential market for the copyrighted work. Actual
present harm need not be shown; such a requirement would leave the
copyright holder with no defense against predictable damage. Nor is
it necessary to show with certainty that future harm will result.
What is necessary is a showing by a preponderance of the evidence
that some meaningful likelihood of future harm exists. If the
intended use is for commercial gain, that likelihood may be
presumed. But if it is for a noncommercial purpose, the likelihood
must be demonstrated.

															In this case, respondents failed to carry their burden with
regard to home time-shifting. The District Court described
respondents' evidence as follows:

															"Plaintiffs' experts admitted at several points in the trial
that the time-shifting without librarying would result in 'not a
great deal of harm.' Plaintiffs' greatest concern about
time-shifting is with 'a point of important philosophy that
transcends even commercial judgment.' They fear that, with any
Betamax usage, 'invisible boundaries' are passed: 'the copyright
owner has lost control over his program.'"

															480 F. Supp. at 467. Page 464 U. S. 452 Later in its opinion, the District Court observed:

															"Most of plaintiffs' predictions of harm hinge on speculation
about audience viewing patterns and ratings, a measurement system
which Sidney Sheinberg, MCA's president, calls a 'black art'
because of the significant level of imprecision involved in the
calculations." Id. at 469. [ Footnote 35 ]

															There was no need for the District Court to say much about past
harm. "Plaintiffs have admitted that no actual harm to their
copyrights has occurred to date." Id. at 451.

															On the question of potential future harm from time-shifting, the
District Court offered a more detailed analysis of the evidence. It
rejected respondents'

															"fear that persons 'watching' the original telecast of a program
will not be measured in the live audience, and the ratings and
revenues will decrease"

															by observing that current measurement technology allows the
Betamax audience to be reflected. Id. at 466. [ Footnote 36 ] It rejected
respondents' prediction "that live television Page 464 U. S. 453 or movie audiences will decrease as more people watch Betamax
tapes as an alternative," with the observation that "[t]here is no
factual basis for [the underlying] assumption." Ibid. [ Footnote 37 ] It rejected
respondents' "fear that time-shifting will reduce audiences for
telecast reruns," and concluded instead that "given current market
practices, this should aid plaintiffs, rather than harm them." Ibid. [ Footnote 38 ]
And it declared that respondents' suggestion that "theater or film
rental exhibition of a program will suffer because of time-shift
recording of that program" "lacks merit." Id. at 467.
[ Footnote 39 ] Page 464 U. S. 454 After completing that review, the District Court restated its
overall conclusion several times, in several different ways. "Harm
from time-shifting is speculative and, at best, minimal." Ibid. "The audience benefits from the time-shifting capability have
already been discussed. It is not implausible that benefits could
also accrue to plaintiffs, broadcasters, and advertisers, as the
Betamax makes it possible for more persons to view their
broadcasts." Ibid. "No likelihood of harm was shown at trial, and
plaintiffs admitted that there had been no actual harm to date." Id. at 468-469.

															"Testimony at trial suggested that Betamax may require
adjustments in marketing strategy, but it did not establish even a
likelihood of harm." Id. at 469.

															"Television production by plaintiffs today is more profitable
than it has ever been, and, in five weeks of trial, there was no
concrete evidence to suggest that the Betamax will change the
studios' financial picture." Ibid. The District Court's conclusions are buttressed by the fact that
to the extent time-shifting expands public access to freely
broadcast television programs, it yields societal benefits. In Community Television of Southern California v. Gottfried, 459 U. S. 498 , 459 U. S. 508 ,
n. 12 (1983), we acknowledged the public interest in making
television broadcasting more available. Concededly, that interest
is not unlimited. But it supports an interpretation of the concept
of "fair use" that requires the copyright holder to demonstrate
some likelihood of harm before he may condemn a private act of
time-shifting as a violation of federal law.

															When these factors are all weighed in the "equitable rule of
reason" balance, we must conclude that this record amply Page 464 U. S. 455 supports the District Court's conclusion that home time-shifting
is fair use. In light of the findings of the District Court
regarding the state of the empirical data, it is clear that the
Court of Appeals erred in holding that the statute as presently
written bars such conduct. [ Footnote 40 ] Page 464 U. S. 456 In summary, the record and findings of the District Court lead
us to two conclusions. First, Sony demonstrated a significant
likelihood that substantial numbers of copyright holders who
license their works for broadcast on free television would not
object to having their broadcasts time-shifted by private viewers.
And second, respondents failed to demonstrate that time-shifting
would cause any likelihood of nonminimal harm to the potential
market for, or the value of, their copyrighted works. The Betamax
is, therefore, capable of substantial noninfringing uses. Sony's
sale of such equipment to the general public does not constitute
contributory infringement of respondents' copyrights. V "The direction of Art. I is that Congress shall have the power
to promote the progress of science and the useful arts. When, as
here, the Constitution is permissive, the sign of how far Congress
has chosen to go can come only from Congress." Deepsouth Packing Co. v. Laitram Corp., 406 U.
S. 518 , 406 U. S. 530 (1972).

															One may search the Copyright Act in vain for any sign that the
elected representatives of the millions of people who watch
television every day have made it unlawful to copy a program for
later viewing at home, or have enacted a flat prohibition against
the sale of machines that make such copying possible.

															It may well be that Congress will take a fresh look at this new
technology, just as it so often has examined other innovations in
the past. But it is not our job to apply laws that have not yet
been written. Applying the copyright statute, as it now reads, to
the facts as they have been developed in this case, the judgment of
the Court of Appeals must be reversed. It is so ordered. Page 464 U. S. 457 [ Footnote 1 ]

															The respondents also asserted causes of action under state law
and § 43(a) of the Trademark Act of 1946, 60 Stat. 441, 15 U.S.C. §
1125(a). These claims are not before this Court.

															[ Footnote 2 ]

															The four retailers are Carter Hawley Hales Stores, Inc.,
Associated Dry Goods Corp., Federated Department Stores, Inc., and
Henry's Camera Corp. The principal defendants are Sony Corporation,
the manufacturer of the equipment, and its wholly owned subsidiary,
Sony Corporation of America. The advertising agency of Doyle Dane
Bernback, Inc., also involved in marketing the Betamax, is also a
petitioner. An individual VTR user, William Griffiths, was named as
a defendant in the District Court, but respondents sought no relief
against him. Griffiths is not a petitioner. For convenience, we
shall refer to petitioners collectively as Sony.

															[ Footnote 3 ]

															As evidence of how a VTR may be used, respondents offered the
testimony of William Griffiths. Griffiths, although named as an
individual defendant, was a client of plaintiffs' law firm. The
District Court summarized his testimony as follows:

															"He owns approximately 100 tapes. When Griffiths bought his
Betamax, he intended not only to time-shift (record, play-back and
then erase) but also to build a library of cassettes. Maintaining a
library, however, proved too expensive, and he is now erasing some
earlier tapes and reusing them."

															"Griffiths copied about 20 minutes of a Universal motion picture
called 'Never Give An Inch,' and two episodes from Universal
television series entitled 'Baa Baa Black Sheep' and 'Holmes and Yo
Yo.' He would have erased each of these but for the request of
plaintiffs' counsel that it be kept. Griffiths also testified that
he had copied, but already erased, Universal films called 'Alpha
Caper' (erased before anyone saw it) and 'Amelia Earhart.' At the
time of his deposition, Griffiths did not intend to keep any
Universal film in his library."

															"Grifflths has also recorded documentaries, news broadcasts,
sporting events and political programs such as a rerun of the
Nixon/Kennedy debate." 480 F.
Supp. 429 , 436-437 (1979). Four other witnesses testified to
having engaged in similar activity.

															[ Footnote 4 ]

															The District Court summarized some of the findings in these
surveys as follows:

															"According to plaintiffs' survey, 75.4% of the VTR owners use
their machines to record for time-shifting purposes half or most of
the time. Defendants' survey showed that 96% of the Betamax owners
had used the machine to record programs they otherwise would have
missed."

															"When plaintiffs asked interviewees how many cassettes were in
their library, 55.8% said there were 10 or fewer. In defendants'
survey, of the total programs viewed by interviewees in the past
month, 70.4% had been viewed only that one time, and for 57.9%,
there were no plans for further viewing." Id. at 438.

															[ Footnote 5 ]

															"81.9% of the defendants' interviewees watched the same amount
or more of regular television as they did before owning a Betamax.
83.2% reported their frequency of movie going was unaffected by
Betamax." Id. at 439.

															[ Footnote 6 ] See Defendants' Exh. OT, Table 20; Tr. 2447-2450, 2480,
2486-2487, 2515-2516, 2530-2534.

															[ Footnote 7 ]

															The trial also briefly touched upon demonstrations of the
Betamax by the retailer petitioners which were alleged to be
infringements by respondents. The District Court held against
respondents on this claim, 480 F. Supp. at 456-457, the Court of
Appeals affirmed this holding, 659 F.2d 963, 976 (1981), and
respondents did not cross-petition on this issue.

															[ Footnote 8 ]

															The court also found that this

															"access is not just a matter of convenience, as plaintiffs have
suggested. Access has been limited not simply by inconvenience, but
by the basic need to work. Access to the better program has also
been limited by the competitive practice of
counterprogramming."

															480 F. Supp. at 454.

															[ Footnote 9 ]

															"Without a 'productive use,' e.g., when copyrighted
material is reproduced for its intrinsic use, the mass copying of
the sort involved in this case precludes an application of fair
use."

															659 F.2d at 971-972.

															[ Footnote 10 ]

															In its Report accompanying the comprehensive revision of the
Copyright Act in 1909, the Judiciary Committee of the House of
Representatives explained this balance:

															"The enactment of copyright legislation by Congress under the
terms of the Constitution is not based upon any natural right that
the author has in his writings, . . . but upon the ground that the
welfare of the public will be served and progress of science and
useful arts will be promoted by securing to authors for limited
periods the exclusive rights to their writings. . . ."

															"In enacting a copyright law, Congress must consider . . . two
questions: first, how much will the legislation stimulate the
producer and so benefit the public; and, second, how much will the
monopoly granted be detrimental to the public? The granting of such
exclusive rights, under the proper terms and conditions, confers a
benefit upon the public that outweighs the evils of the temporary
monopoly."

															H.R.Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909).

															[ Footnote 11 ]

															Thus, for example, the development and marketing of player
pianos and perforated rolls of music, see White-Smith Music
Publishing Co. v. Apollo Co., 209 U. S.
1 (1908), preceded the enactment of the Copyright Act of
1909; innovations in copying techniques gave rise to the statutory
exemption for library copying embodied in § 108 of the 1976
revision of the copyright law; the development of the technology
that made it possible to retransmit television programs by cable or
by microwave systems, see Fortnightly Corp. v. United Artists
Television, Inc., 392 U. S. 390 (1968), and Teleprompter Corp. v. Columbia Broadcasting System,
Inc., 415 U. S. 394 (1974), prompted the enactment of the complex provisions set forth
in 17 U.S.C. § 111(d)(2)(B) and § 111(d)(5) (1982 ed.) after years
of detailed congressional study, see Eastern Microwave, Inc. v.
Doubleday Sports, Inc., 691 F.2d 125, 129 (CA2 1982).

															By enacting the Sound Recording Amendment of 1971, 85 Stat. 391,
Congress also provided the solution to the "record piracy" problems
that had been created by the development of the audio tape
recorder. Sony argues that the legislative history of that Act, see especially H.R.Rep. No. 92-487, p. 7 (1971), indicates
that Congress did not intend to prohibit the private home use of
either audio or videotape recording equipment. In view of our
disposition of the contributory infringement issue, we express no
opinion on that question.

															[ Footnote 12 ]

															"Copyright protection became necessary with the invention of the
printing press, and had its early beginnings in the British
censorship laws. The fortunes of the law of copyright have always
been closely connected with freedom of expression, on the one hand,
and with technological improvements in means of dissemination, on
the other. Successive ages have drawn different balances among the
interest of the writer in the control and exploitation of his
intellectual property, the related interest of the publisher, and
the competing interest of society in the untrammeled dissemination
of ideas."

															Foreword to B. Kaplan, An Unhurried View of Copyright vii-viii
(1967).

															[ Footnote 13 ] See, e.g., White-Smith Music Publishing Co. v. Apollo
Co., 209 U.S. at 209 U. S. 19 ; cf. Deep South Packing Co. v. Laitram Corp., 406 U.
S. 518 , 406 U. S.
530 -531 (1972). While the law has never recognized an
author's right to absolute control of his work, the natural
tendency of legal rights to express themselves in absolute terms to
the exclusion of all else is particularly pronounced in the history
of the constitutionally sanctioned monopolies of the copyright and
the patent. See, e.g., United States v. Paramount Pictures,
Inc., 334 U. S. 131 , 334 U. S.
156 -158 (1948) (copyright owners claiming right to tie
license of one film to license of another under copyright law); Fox Film Corp. v. Doyal, 286 U. S. 123 (1932) (copyright owner claiming copyright renders it immune from
state taxation of copyright royalties); Bobbs-Merrill Co. v.
Straus, 210 U. S. 339 , 210 U. S.
349 -351 (1908) (copyright owner claiming that a right to
fix resale price of his works within the scope of his copyright); International Business Machines Corp. v. United States, 298 U. S. 131 (1936) (patentees claiming right to tie sale of unpatented article
to lease of patented device).

															[ Footnote 14 ]

															Section 106 of the Act provides:

															"Subject to sections 107 through 118, the owner of copyright
under this title has the exclusive rights to do and to authorize
any of the following:"

															"(1) to reproduce the copyrighted work in copies or
phonorecords;"

															"(2) to prepare derivative works based upon the copyrighted
work;"

															"(3) to distribute copies or phonorecords of the copyrighted
work to the public by sale or other transfer of ownership, or by
rental, lease, or lending;"

															"(4) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion pictures and other
audiovisual works, to perform the copyrighted work publicly;
and"

															"(5) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and pictorial, graphic, or
sculptural works, including the individual images of a motion
picture or other audiovisual work, to display the copyrighted work
publicly."

															[ Footnote 15 ]

															Moreover, anyone who willfully infringes the copyright to
reproduce a motion picture for purposes of commercial advantage or
private financial gain is subject to substantial criminal
penalties, 17 U.S.C. § 506(a) (1982 ed.), and the fruits and
instrumentalities of the crime are forfeited upon conviction, §
506(b).

															[ Footnote 16 ]

															In this regard, we reject respondents' attempt to cast this
action as comparable to a class action because of the positions
taken by amici with copyright interests and their attempt
to treat the statements made by amici as evidence in this
case. See Brief for Respondents 1, and n. 1, 6, 52, 53,
and n. 116. The stated desires of amici concerning the
outcome of this or any litigation are no substitute for a class
action, are not evidence in the case, and do not influence our
decision; we examine an amicus curiae brief solely for
whatever aid it provides in analyzing the legal questions before
us.

															[ Footnote 17 ]

															As the District Court correctly observed, however, "the lines
between direct infringement, contributory infringement and
vicarious liability are not clearly drawn. . . ." 480 F. Supp. at
457-458. The lack of clarity in this area may, in part, be
attributable to the fact that an infringer is not merely one who
uses a work without authorization by the copyright owner, but also
one who authorizes the use of a copyrighted work without actual
authority from the copyright owner.

															We note the parties' statements that the questions of Sony's
liability under the "doctrines" of "direct infringement" and
"vicarious liability" are not nominally before this Court. Compare Brief for Respondents 9, n. 22, 41, n. 90, with Reply Brief for Petitioners 1, n. 2. We also observe,
however, that reasoned analysis of respondents' unprecedented
contributory infringement claim necessarily entails consideration
of arguments and case law which may also be forwarded under the
other labels, and indeed the parties to a large extent rely upon
such arguments and authority in support of their respective
positions on the issue of contributory infringement.

															[ Footnote 18 ]

															The so-called "dance hall cases," Famous Music Corp. v. Bay
State Harness Horse Racing & Breeding Assn., Inc., 554
F.2d 1213 (CA1 1977) (racetrack retained infringer to supply music
to paying customers); KECA Music, Inc. v. Dingus McGee's
Co., 432 F. Supp.
72 (WD Mo.1977) (cocktail lounge hired musicians to supply
music to paying customers); Dreamland Ball Room, Inc. v.
Shapiro, Bernstein & Co., 36 F.2d 354 (CA7 1929) (dance
hall hired orchestra to supply music to paying customers), are
often contrasted with the so-called landlord-tenant cases, in which
landlords who leased premises to a direct infringer for a fixed
rental and did not participate directly in any infringing activity
were found not to be liable for contributory infringement. E.g., Deutsch v. Arnold, 98 F.2d 686 (CA2 1938).

															In Shapiro, Bernstein & Co. v. H. L. Green Co., 316
F.2d 304 (CA2 1963), the owner of 23 chainstores retained the
direct infringer to run its record departments. The relationship
was structured as a licensing arrangement, so that the defendant
bore none of the business risk of running the department. Instead,
it received 10% or 12% of the direct infringer's gross receipts.
The Court of Appeals concluded:

															"[The dance-hall cases] and this one lie closer on the spectrum
to the employer-employee model, than to the landlord-tenant model.
. . . [O]n the particular facts before us, . . . Green's
relationship to its infringing licensee, as well as its strong
concern for the financial success of the phonograph record
concession, renders it liable for the unauthorized sales of the
'bootleg' records."

															" * * * *" ". . . [T]he imposition of vicarious liability in the
case before us cannot be deemed unduly harsh or unfair. Green has
the power to police carefully the conduct of its concessionaire . .
. ; our judgment will simply encourage it to do so, thus placing
responsibility where it can and should be effectively
exercised." Id. at 308 (emphasis in original).

															In Gershwin Publishing Corp. v. Columbia Artists Management,
Inc., 443 F.2d 1159 (CA2 1971), the direct infringers retained
the contributory infringer to manage their performances. The
contributory infringer would contact each direct infringer, obtain
the titles of the musical compositions to be performed, print the
programs, and then sell the programs to its own local organizations
for distribution at the time of the direct infringement. Id. at 1161. The Court of Appeals emphasized that the
contributory infringer had actual knowledge that the artists it was
managing were performing copyrighted works, was in a position to
police the infringing conduct of the artists, and derived
substantial benefit from the actions of the primary infringers. Id. at 1163.

															In Screen Gems-Columbia Music, Inc. v. Mark-Fi Records,
Inc., 256 F.
Supp. 399 (SDNY 1966), the direct infringer manufactured and
sold bootleg records. In denying a motion for summary judgment, the
District Court held that the infringer's advertising agency, the
radio stations that advertised the infringer's works, and the
service agency that boxed and mailed the infringing goods could all
be held liable if at trial it could be demonstrated that they knew
or should have known that they were dealing in illegal goods.

															[ Footnote 19 ] E.g., United States v. Paramount Pictures, Inc., 334
U.S. at 334 U. S. 158 ; Fox Film Corp. v. Doyal, 286 U.S. at 286 U. S. 131 ; Wheaton v.
Peters , 8 Pet. 591, 33 U. S.
657 -658 (1834). The two areas of the law, naturally, are
not identical twins, and we exercise the caution which we have
expressed in the past in applying doctrine formulated in one area
to the other. See generally Mazer v. Stein, 347 U.
S. 201 , 347 U. S.
217 -218 (1954); Bobbs-Merrill Co. v. Straus, 210 U.S. at 210 U. S.
345 .

															We have consistently rejected the proposition that a similar
kinship exists between copyright law and trademark law, and in the
process of doing so have recognized the basic similarities between
copyrights and patents. The Trade-Mark Cases, 100 U. S.
82 , 100 U. S. 91 -92
(1879); see also United Drug Co. v. Theodore Rectanus Co., 248 U. S. 90 , 248 U. S. 97 (1918) (trademark right "has little or no analogy" to copyright or
patent); McLean v. Fleming, 96 U. S.
245 , 96 U. S. 254 (1878); Canal Co. v.
Clark , 13 Wall. 311, 80 U. S. 322 (1872). Given the fundamental differences between copyright law and
trademark law, in this copyright case, we do not look to the
standard for contributory infringement set forth in Inwood
Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.
S. 844 , 456 U. S.
854 -855 (1982), which was crafted for application in
trademark cases. There we observed that a manufacturer or
distributor could be held liable to the owner of a trademark if it
intentionally induced a merchant down the chain of distribution to
pass off its product as that of the trademark owner's or if it
continued to supply a product which could readily be passed off to
a particular merchant whom it knew was mislabeling the product with
the trademark owner's mark. If Inwood's narrow standard
for contributory trademark infringement governed here, respondents'
claim of contributory infringement would merit little discussion.
Sony certainly does not "intentionally induc[e]" its customers to
make infringing uses of respondents' copyrights, nor does it supply
its products to identified individuals known by it to be engaging
in continuing infringement of respondents' copyrights, see
id. at 456 U. S.
855 .

															[ Footnote 20 ]

															Title 35 U.S.C. § 271 provides:

															"(a) Except as otherwise provided in this title, whoever without
authority makes, uses or sells any patented invention, within the
United States during the term of the patent therefor, infringes the
patent."

															"(b) Whoever actively induces infringement of a patent shall be
liable as an infringer."

															"(c) Whoever sells a component of a patented machine,
manufacture, combination or composition, or a material or apparatus
for use in practicing a patented process, constituting a material
part of the invention, knowing the same to be especially made or
especially adapted for use in an infringement of such patent, and
not a staple article or commodity of commerce suitable for
substantial noninfringing use, shall be liable as a contributory
infringer."

															"(d) No patent owner otherwise entitled to relief for
infringement or contributory infringement of a patent shall be
denied relief or deemed guilty of misuse or illegal extension of
the patent right by reason of his having done one or more of the
following: (1) derived revenue from acts which if performed by
another without his consent would constitute contributory
infringement of the patent; (2) licensed or authorized another to
perform acts which if performed without his consent would
constitute contributory infringement of the patent; (3) sought to
enforce his patent rights against infringement or contributory
infringement."

															[ Footnote 21 ]

															It seems extraordinary to suggest that the Copyright Act confers
upon all copyright owners collectively, much less the two
respondents in this case, the exclusive right to distribute VTR's
simply because they may be used to infringe copyrights. That,
however, is the logical implication of their claim. The request for
an injunction below indicates that respondents seek, in effect, to
declare VTR's contraband. Their suggestion in this Court that a
continuing royalty pursuant to a judicially created compulsory
license would be an acceptable remedy merely indicates that
respondents, for their part, would be willing to license their
claimed monopoly interest in VTR's to Sony in return for a
royalty.

															[ Footnote 22 ]

															The record suggests that Disney's programs at the time of trial
consisted of approximately one hour a week of network television
and one syndicated series. Universal's percentage in the Los
Angeles market on commercial television stations was under 5%. See Tr. 532-533, 549-550.

															[ Footnote 23 ]

															The District Court did not make any explicit findings with
regard to how much broadcasting is wholly uncopyrighted. The record
does include testimony that at least one movie -- My Man Godfrey --
falls within that category, id. at 2300-2301, and certain
broadcasts produced by the Federal Government are also
uncopyrighted. See 17 U.S.C. § 105 (1982 ed.). Cf.
Schnapper v. Foley, 215 U.S.App.D.C. 59, 667 F.2d 102 (1981)
(explaining distinction between work produced by the Government and
work commissioned by the Government). To the extent such
broadcasting is now significant, it further bolsters our
conclusion. Moreover, since copyright protection is not perpetual,
the number of audiovisual works in the public domain necessarily
increases each year.

															[ Footnote 24 ] See Tr. 2447-2450 (Alexander Hadden, Major League
Baseball); id. at 2480, 2486-2487 (Jay Moyer, National
Football League); id. at 2515-2516 (David Stern, National
Basketball Association); id. at 2530-2534 (Gilbert Stein,
National Hockey League); id. at 2543-2552 (Thomas Hansen,
National Collegiate Athletic Association); id. at
2565-2572 (Benjamin Armstrong, National Religious Broadcasters).
Those officials were authorized to be the official spokespersons
for their respective institutions in this litigation. Id. at 2432, 2479, 2509-2510, 2530, 2538, 2563. See Fed.Rule
Civ.Proc. 30(b)(6).

															[ Footnote 25 ]

															Tr. 2863-2902; Defendants' Exh. PI.

															[ Footnote 26 ] See also Tr. 2833-2844 (similar testimony by executive
director of New Jersey Public Broadcasting Authority). Cf.
id. at 2592-2605 (testimony by chief of New York Education
Department's Bureau of Mass Communications approving home taping
for educational purposes).

															[ Footnote 27 ]

															"Some public stations, as well as commercial stations, program
the 'Neighborhood' at hours when some children cannot use it. I
think that it's a real service to families to be able to record
such programs and show them at appropriate times. I have always
felt that, with the advent of all of this new technology that
allows people to tape the 'Neighborhood' off the air, and I'm
speaking for the 'Neighborhood' because that's what I produce, that
they then become much more active in the programming of their
family's television life. Very frankly, I am opposed to people
being programmed by others. My whole approach in broadcasting has
always been 'You are an important person just the way you are. You
can make healthy decisions.' Maybe I'm going on too long, but I
just feel that anything that allows a person to be more active in
the control of his or her life, in a healthy way, is
important." Id. at 2920-2921. See also Defendants' Exh.
PI, p. 85.

															[ Footnote 28 ]

															It may be rare for large numbers of copyright owners to
authorize duplication of their works without demanding a fee from
the copier. In the context of public broadcasting, however, the
user of the copyrighted work is not required to pay a fee for
access to the underlying work. The traditional method by which
copyright owners capitalize upon the television medium --
commercially sponsored free public broadcast over the public
airwaves -- is predicated upon the assumption that compensation for
the value of displaying the works will be received in the form of
advertising revenues.

															In the context of television programming, some producers
evidently believe that permitting home viewers to make copies of
their works off the air actually enhances the value of their
copyrights. Irrespective of their reasons for authorizing the
practice, they do so, and in significant enough numbers to create a
substantial market for a noninfringing use of the Sony VTR's. No
one could dispute the legitimacy of that market if the producers
had authorized home taping of their programs in exchange for a
license fee paid directly by the home user. The legitimacy of that
market is not compromised simply because these producers have
authorized home taping of their programs without demanding a fee
from the home user. The copyright law does not require a copyright
owner to charge a fee for the use of his works, and, as this record
clearly demonstrates, the owner of a copyright may well have
economic or noneconomic reasons for permitting certain kinds of
copying to occur without receiving direct compensation from the
copier. It is not the role of the courts to tell copyright holders
the best way for them to exploit their copyrights: even if
respondents' competitors were ill-advised in authorizing home
videotaping, that would not change the fact that they have created
a substantial market for a paradigmatic noninfringing use of Sony's
product.

															[ Footnote 29 ]

															The Copyright Act of 1909, 35 Stat. 1075, did not have a "fair
use" provision. Although that Act's compendium of exclusive rights
"to print, reprint, publish, copy, and vend the copyrighted work"
was broad enough to encompass virtually all potential interactions
with a copyrighted work, the statute was never so construed. The
courts simply refused to read the statute literally in every
situation. When Congress amended the statute in 1976, it indicated
that it "intended to restate the present judicial doctrine of fair
use, not to change, narrow, or enlarge it in any way." H.R.Rep. No.
94-1476, p. 66 (1976).

															[ Footnote 30 ]

															Section 107 provides:

															"Notwithstanding the provisions of section 106, the fair use of
a copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright. In determining
whether the use made of a work in any particular case is a fair use
the factors to be considered shall include -- "

															"(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit educational
purposes;"

															"(2) the nature of the copyrighted work;"

															"(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and"

															"(4) the effect of the use upon the potential market for or
value of the copyrighted work."

															17 U.S.C. § 107 (1982 ed.).

															[ Footnote 31 ]

															The House Report expressly stated that the fair use doctrine is
an "equitable rule of reason" in its explanation of the fair use
section:

															"Although the courts have considered and ruled upon the fair use
doctrine over and over again, no real definition of the concept has
ever emerged. Indeed, since the doctrine is an equitable rule of
reason, no generally applicable definition is possible, and each
case raising the question must be decided on its own facts. . .
."

															" * * * *" " General intention behind the provision "

															"The statement of the fair use doctrine in section 107 offers
some guidance to users in determining when the principles of the
doctrine apply. However, the endless variety of situations and
combinations of circumstances that can rise in particular cases
precludes the formulation of exact rules in the statute. The bill
endorses the purpose and general scope of the judicial doctrine of
fair use, but there is no disposition to freeze the doctrine in the
statute, especially during a period of rapid technological change.
Beyond a very broad statutory explanation of what fair use is and
some of the criteria applicable to it, the courts must be free to
adapt the doctrine to particular situations on a case-by-case
basis."

															H.R.Rep. No. 94-1476, supra, at 65-66.

															The Senate Committee similarly eschewed a rigid, bright-line
approach to fair use. The Senate Report endorsed the view "that
off-the-air recording for convenience" could be considered "fair
use" under some circumstances, although it then made it clear that
it did not intend to suggest that off-the-air recording for
convenience should be deemed fair use under any circumstances
imaginable. S.Rep. No. 94-473, pp. 65-66 (1975). The latter
qualifying statement is quoted by the dissent, post at 464 U. S. 481 ,
and if read in isolation, would indicate that the Committee
intended to condemn all off-the-air recording for convenience. Read
in context, however, it is quite clear that that was the farthest
thing from the Committee's intention.

															[ Footnote 32 ]

															"The Committee has amended the first of the criteria to be
considered -- 'the purpose and character of the use' -- to state
explicitly that this factor includes a consideration of 'whether
such use is of a commercial nature or is for non-profit educational
purposes.' This amendment is not intended to be interpreted as any
sort of not-for-profit limitation on educational uses of
copyrighted works. It is an express recognition that, as under the
present law, the commercial or nonprofit character of an activity,
while not conclusive with respect to fair use, can and should be
weighed along with other factors in fair use decisions."

															H.R.Rep. No. 94-1476, supra, at 66.

															[ Footnote 33 ]

															It has been suggested that

															"consumptive uses of copyrights by home VTR users are commercial
even if the consumer does not sell the home-made tape, because the
consumer will not buy tapes separately sold by the
copyrightholder."

															Home Recording of Copyrighted Works: Hearing before the
Subcommittee on Courts, Civil Liberties and the Administration of
Justice of the House Committee on the Judiciary, 97th Cong., 2d
Sess., pt. 2, p. 1250 (1982) (memorandum of Prof. Laurence H.
Tribe). Furthermore, "[t]he error in excusing such theft as
noncommercial," we are told,

															"can be seen by simple analogy: jewel theft is not converted
into a noncommercial veniality if stolen jewels are simply worn,
rather than sold." Ibid. The premise and the analogy are indeed simple,
but they add nothing to the argument. The use to which stolen
jewelry is put is quite irrelevant in determining whether depriving
its true owner of his present possessory interest in it is venial;
because of the nature of the item and the true owner's interests in
physical possession of it, the law finds the taking objectionable
even if the thief does not use the item at all. Theft of a
particular item of personal property of course may have commercial
significance, for the thief deprives the owner of his right to sell
that particular item to any individual. Time-shifting does not even
remotely entail comparable consequences to the copyright owner.
Moreover, the time-shifter no more steals the program by watching
it once than does the live viewer, and the live viewer is no more
likely to buy prerecorded videotapes than is the time-shifter.
Indeed, no live viewer would buy a prerecorded videotape if he did
not have access to a VTR.

															[ Footnote 34 ] Cf. A. Latman, Fair Use of Copyrighted Works (1958),
reprinted in Study No. 14 for the Senate Committee on the
Judiciary, Copyright Law Revision, Studies Prepared for the
Subcommittee on Patents, Trademarks, and Copyrights, 86th Cong., 2d
Sess., 30 (1960):

															"In certain situations, the copyright owner suffers no
substantial harm from the use of his work. . . . Here again is the
partial marriage between the doctrine of fair use and the legal
maxim de minimis non curat lex. "

															[ Footnote 35 ] See also 480 F.Supp. at 451:

															"It should be noted, however, that plaintiffs' argument is more
complicated and speculative than was the plaintiff's in Williams & Wilkins. . . . Here, plaintiffs ask the
court to find harm based on many more assumptions. . . . As is
discussed more fully in Part IV infra, some of these
assumptions are based on neither fact nor experience, and
plaintiffs admit that they are to some extent inconsistent and
illogical."

															[ Footnote 36 ]

															"There was testimony at trial, however, that Nielsen Ratings has
already developed the ability to measure when a Betamax in a sample
home is recording the program. Thus, the Betamax owner will be
measured as a part of the live audience. The later diary can
augment that measurement with information about subsequent
viewing." Id. at 466.

															In a separate section, the District Court rejected plaintiffs'
suggestion that the commercial attractiveness of television
broadcasts would be diminished because Betamax owners would use the
pause button or fast-forward control to avoid viewing
advertisements:

															"It must be remembered, however, that to omit commercials,
Betamax owners must view the program, including the commercials,
while recording. To avoid commercials during playback, the viewer
must fast-forward and, for the most part, guess as to when the
commercial has passed. For most recordings, either practice may be
too tedious. As defendants' survey showed, 92% of the programs were
recorded with commercials and only 25% of the owners fast-forward
through them. Advertisers will have to make the same kinds of
judgments they do now about whether persons viewing televised
programs actually watch the advertisements which interrupt
them." Id. at 468.

															[ Footnote 37 ]

															"Here plaintiffs assume that people will view copies when they
would otherwise be watching television or going to the movie
theater. There is no factual basis for this assumption. It seems
equally likely that Betamax owners will play their tapes when there
is nothing on television they wish to see and no movie they want to
attend. Defendants' survey does not show any negative effect of
Betamax ownership on television viewing or theater attendance." Id. at 466.

															[ Footnote 38 ]

															"The underlying assumptions here are particularly difficult to
accept. Plaintiffs explain that the Betamax increases access to the
original televised material, and that the more people there are in
this original audience, the fewer people the rerun will attract.
Yet current marketing practices, including the success of
syndication, show just the opposite. Today, the larger the audience
for the original telecast, the higher the price plaintiffs can
demand from broadcasters from rerun rights. There is no survey
within the knowledge of this court to show that the rerun audience
is comprised of persons who have not seen the program. In any
event, if ratings can reflect Betamax recording, original audiences
may increase and, given market practices, this should aid
plaintiffs, rather than harm them." Ibid. [ Footnote 39 ]

															"This suggestion lacks merit. By definition, time-shift
recording entails viewing and erasing, so the program will no
longer be on tape when the later theater run begins. Of course,
plaintiffs may fear that the Betamax owners will keep the tapes
long enough to satisfy all their interest in the program and will,
therefore, not patronize later theater exhibitions. To the extent
that this practice involves librarying, it is addressed in section
V. C., infra. It should also be noted that there is no
evidence to suggest that the public interest in later theatrical
exhibitions of motion pictures will be reduced any more by Betamax
recording than it already is by the television broadcast of the
film." Id. at 467.

															[ Footnote 40 ]

															The Court of Appeals chose not to engage in any "equitable rule
of reason" analysis in this case. Instead, it assumed that the
category of "fair use" is rigidly circumscribed by a requirement
that every such use must be "productive." It therefore concluded
that copying a television program merely to enable the viewer to
receive information or entertainment that he would otherwise miss
because of a personal scheduling conflict could never be fair use.
That understanding of "fair use" was erroneous.

															Congress has plainly instructed us that fair use analysis calls
for a sensitive balancing of interests. The distinction between
"productive" and "unproductive" uses may be helpful in calibrating
the balance, but it cannot be wholly determinative. Although
copying to promote a scholarly endeavor certainly has a stronger
claim to fair use than copying to avoid interrupting a poker game,
the question is not simply two-dimensional. For one thing, it is
not true that all copyrights are fungible. Some copyrights govern
material with broad potential secondary markets. Such material may
well have a broader claim to protection because of the greater
potential for commercial harm. Copying a news broadcast may have a
stronger claim to fair use than copying a motion picture. And, of
course, not all uses are fungible. Copying for commercial gain has
a much weaker claim to fair use than copying for personal
enrichment. But the notion of social "productivity" cannot be a
complete answer to this analysis. A teacher who copies to prepare
lecture notes is clearly productive. But so is a teacher who copies
for the sake of broadening his personal understanding of his
specialty. Or a legislator who copies for the sake of broadening
her understanding of what her constituents are watching; or a
constituent who copies a news program to help make a decision on
how to vote.

															Making a copy of a copyrighted work for the convenience of a
blind person is expressly identified by the House Committee Report
as an example of fair use, with no suggestion that anything more
than a purpose to entertain or to inform need motivate the copying.
In a hospital setting, using a VTR to enable a patient to see
programs he would otherwise miss has no productive purpose other
than contributing to the psychological wellbeing of the patient.
Virtually any time-shifting that increases viewer access to
television programming may result in a comparable benefit. The
statutory language does not identify any dichotomy between
productive and nonproductive time-shifting, but does require
consideration of the economic consequences of copying.

															JUSTICE BLACKMUN, with whom JUSTICE MARSHALL, JUSTICE POWELL,
and JUSTICE REHNQUIST join, dissenting.

															A restatement of the facts and judicial history of this case is
necessary, in my view, for a proper focus upon the issues.
Respondents' position is hardly so "unprecedented," ante at 464 U. S. 421 ,
in the copyright law, nor does it really embody a "gross
generalization," ante at 464 U. S. 436 ,
or a "novel theory of liability," ante at 464 U. S. 437 ,
and the like, as the Court, in belittling their claims, describes
the efforts of respondents. I The introduction of the home videotape recorder (VTR) upon the
market has enabled millions of Americans to make recordings of
television programs in their homes, for future and repeated viewing
at their own convenience. While this practice has proved highly
popular with owners of television sets and VTR's, it understandably
has been a matter of concern for the holders of copyrights in the
recorded programs. A result is the present litigation, raising the
issues whether the home recording of a copyrighted television
program is an infringement of the copyright, and, if so, whether
the manufacturers and distributors of VTR's are liable as
contributory infringers. I would hope that these questions
ultimately will be considered seriously and in depth by the
Congress and be resolved there, despite the fact that the Court's
decision today provides little incentive for congressional action.
Our task in the meantime, however, is to resolve these issues as
best we can in the light of ill-fitting existing copyright law.

															It is no answer, of course, to refer to and stress, as the Court
does, this Court's "consistent deference to Congress" whenever
"major technological innovations" appear. Ante at 464 U. S. 431 .
Perhaps a better and more accurate description is that the Court
has tended to evade the hard issues when they arise in the area of
copyright law. I see no reason for the Court to be particularly
pleased with this tradition or to continue it. Indeed, it is fairly
clear from the legislative history of the 1976 Act that Congress
meant to change the old pattern and Page 464 U. S. 458 enact a statute that would cover new technologies, as well as
old. II In 1976, respondents Universal City Studios, Inc., and Walt
Disney Productions (Studios) brought this copyright infringement
action in the United States District Court for the Central District
of California against, among others, petitioners Sony Corporation,
a Japanese corporation, and Sony Corporation of America, a New York
corporation, the manufacturer and distributor, respectively, of the
Betamax VTR. The Studios sought damages, profits, and a
wide-ranging injunction against further sales or use of the Betamax
or Betamax tapes.

															The Betamax, like other VTR's, presently is capable of recording
television broadcasts off the air on videotape cassettes, and
playing them back at a later time. [ Footnote 2/1 ] Two kinds of Betamax usage are at issue
here. [ Footnote 2/2 ] The first is
"time-shifting," whereby the user records a program in order to
watch it at a later time, and then records over it, and thereby
erases the program, after a single viewing. The second is
"library Page 464 U. S. 459 building," in which the user records a program in order to keep
it for repeated viewing over a longer term. Sony's advertisements,
at various times, have suggested that Betamax users "record
favorite shows" or "build a library." Sony's Betamax advertising
has never contained warnings about copyright infringement, although
a warning does appear in the Betamax operating instructions.

															The Studios produce copyrighted "movies" and other works that
they release to theaters and license for television broadcast. They
also rent and sell their works on film and on prerecorded
videotapes and videodiscs. License fees for television broadcasts
are set according to audience ratings, compiled by rating services
that do not measure any playbacks of videotapes. The Studios make
the serious claim that VTR recording may result in a decrease in
their revenue from licensing their works to television and from
marketing them in other ways.

															After a 5-week trial, the District Court, with a detailed
opinion, ruled that home VTR recording did not infringe the
Studios' copyrights under either the Act of Mar. 4, 1909 (1909
Act), 35 Stat. 1075, as amended (formerly codified as 17 U.S.C. § 1 et seq. ), or the Copyright Revision Act of 1976 (1976
Act), 90 Stat. 2541, 17 U.S.C. § 101 et seq. (1982 ed.).
[ Footnote 2/3 ] The District Court
also held that, even if home VTR recording were an infringement,
Sony could not be held liable under theories of direct
infringement, contributory infringement, or vicarious liability.
Finally, the court concluded that an injunction against sales of
the Betamax would be inappropriate even if Sony were liable under
one or more of those theories. 480 F.
Supp. 429 (1979). Page 464 U. S. 460 The United States Court of Appeals for the Ninth Circuit
reversed in virtually every respect. 659 F.2d 963 (1981). It held
that the 1909 Act and the 1976 Act contained no implied exemption
for "home use" recording, that such recording was not "fair use,"
and that the use of the Betamax to record the Studios' copyrighted
works infringed their copyrights. The Court of Appeals also held
Sony liable for contributory infringement, reasoning that Sony knew
and anticipated that the Betamax would be used to record
copyrighted material off the air, and that Sony, indeed, had
induced, caused, or materially contributed to the infringing
conduct. The Court of Appeals remanded the case to the District
Court for appropriate relief; it suggested that the District Court
could consider the award of damages or a continuing royalty in lieu
of an injunction. Id. at 976. III The Copyright Clause of the Constitution, Art. I, § 8, cl. 8,
empowers Congress

															"To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries."

															This Nation's initial copyright statute was passed by the First
Congress. Entitled "An Act for the encouragement of learning," it
gave an author "the sole right and liberty of printing, reprinting,
publishing and vending" his "map, chart, book or books" for a
period of 14 years. Act of May 31, 1790, § 1, 1 Stat. 124. Since
then, as the technology available to authors for creating and
preserving their writings has changed, the governing statute has
changed with it. By many amendments, and by complete revisions in
1831, 1870, 1909, and 1976, [ Footnote
2/4 ] authors' rights have been Page 464 U. S. 461 expanded to provide protection to any "original works of
authorship fixed in any tangible medium of expression," including
"motion pictures and other audiovisual works." 17 U.S.C. § 102(a)
(1982 ed.). [ Footnote 2/5 ]

															Section 106 of the 1976 Act grants the owner of a copyright a
variety of exclusive rights in the copyrighted work, [ Footnote 2/6 ] including Page 464 U. S. 462 the right "to reproduce the copyrighted work in copies or
phonorecords." [ Footnote 2/7 ] This
grant expressly is made subject to §§ 107-118, which create a
number of exemptions and limitations on the copyright owner's
rights. The most important of these sections, for present purposes,
is § 107; that section states that "the fair use of a copyrighted
work . . . is not an infringement of copyright." [ Footnote 2/8 ]

															The 1976 Act, like its predecessors, [ Footnote 2/9 ] does not give the copyright owner full and
complete control over all possible Page 464 U. S. 463 uses of his work. If the work is put to some use not enumerated
in § 106, the use is not an infringement. See Fortnightly Corp.
v. United Artists Television, Inc., 392 U.
S. 390 , 392 U. S.
393 -395 (1968). Thus, before considering whether home
videotaping comes within the scope of the fair use exemption, one
first must inquire whether the practice appears to violate the
exclusive right, granted in the first instance by § 106(1), "to
reproduce the copyrighted work in copies or phonorecords." A Although the word "copies" is in the plural in § 106(1), there
can be no question that, under the Act, the making of even a single
unauthorized copy is prohibited. The Senate and House Reports
explain:

															"The references to 'copies or phonorecords,' although in the
plural, are intended here and throughout the bill to include the
singular (1 U.S.C. § 1). [ Footnote
2/10 ] Page 464 U. S. 464 S.Rep. No. 94-473, p. 58 (1975) (1975 Senate Report); H.R.Rep.
No. 94-1476, p. 61 (1976) (1976 House Report). The Reports then
describe the reproduction right established by § 106(1):"

															"[T]he right 'to reproduce the copyrighted work in copies or
phonorecords' means the right to produce a material object in which
the work is duplicated, transcribed, imitated, or simulated in a
fixed form from which it can be 'perceived, reproduced, or
otherwise communicated, either directly or with the aid of a
machine or device.' As under the present law, a copyrighted work
would be infringed by reproducing it in whole or in any substantial
part, and by duplicating it exactly or by imitation or
simulation."

															1975 Senate Report 58; 1976 House Report 61. The making of even
a single videotape recording at home falls within this definition;
the VTR user produces a material object from which the copyrighted
work later can be perceived. Unless Congress intended a special
exemption for the making of a single copy for personal use, I must
conclude that VTR recording is contrary to the exclusive rights
granted by § 106(1).

															The 1976 Act and its accompanying Reports specify in some detail
the situations in which a single copy of a copyrighted work may be
made without infringement concerns. Section 108(a), for example,
permits a library or archives "to reproduce no more than one copy
or phonorecord of a work" for a patron, but only under very limited
conditions; an entire work, moreover, can be copied only if it
cannot be obtained elsewhere at a fair price. [ Footnote 2/11 ] § 108(e); see also §
112(a) (broadcaster Page 464 U. S. 465 may "make no more than one copy or phonorecord of a particular
transmission program," and only under certain conditions). In other
respects, the making of single copies is permissible only within
the limited confines of the fair use doctrine. The Senate Report,
in a section headed "Single and multiple copying," notes that the
fair use doctrine would permit a teacher to make a single copy of a
work for use in the classroom, but only if the work was not a
"sizable" one such as a novel or treatise. 1975 Senate Report
63-64; accord, 1976 House Report 68-69, 71. Other
situations in which the making of a single copy would be fair use
are described in the House and Senate Reports. [ Footnote 2/12 ] But neither the statute nor its
legislative history suggests any intent to create a general
exemption for a single copy made for personal or private use.

															Indeed, it appears that Congress considered and rejected the
very possibility of a special private use exemption. The issue was
raised early in the revision process, in one of the studies
prepared for Congress under the supervision of the Copyright
Office. A. Latman, Fair Use of Copyrighted Works (1958), reprinted
in Study No. 14 for the Senate Committee on the Judiciary,
Copyright Law Revision, Studies Prepared for the Subcommittee on
Patents, Trademarks, and Copyrights, 86th Cong., 2d Sess., 1 (1960)
(Latman Fair Use Study). This study found no reported case
supporting the existence of an exemption for private use, although
it noted that "the purpose and nature of a private use, and in
some Page 464 U. S. 466 cases the small amount taken, might lead a court to apply the
general principles of fair use in such a way as to deny liability." Id. at 12. After reviewing a number of foreign copyright
laws that contained explicit statutory exemptions for private or
personal use, id. at 25, Professor Latman outlined several
approaches that a revision bill could take to the general issue of
exemptions and fair use. One of these was the adoption of
particularized rules to cover specific situations, including "the
field of personal use." Id. at 33. [ Footnote 2/13 ]

															Rejecting the latter alternative, the Register of Copyrights
recommended that the revised copyright statute simply mention the
doctrine of fair use and indicate its general scope. The Register
opposed the adoption of rules and exemptions to cover specific
situations, [ Footnote 2/14 ]
preferring, instead, to rely on the judge-made fair use doctrine to
resolve new problems as they arose. See Register's 1961
Report 25; Register's Supplementary Report 27-28.

															The Register's approach was reflected in the first copyright
revision bills, drafted by the Copyright Office in 1964. Page 464 U. S. 467 These bills, like the 1976 Act, granted the copyright owner the
exclusive right to reproduce the copyrighted work, subject only to
the exceptions set out in later sections. H.R. 11947/S. 3008, 88th
Cong., 2d Sess., § 5(a) (1964). The primary exception was fair use,
§ 6, containing language virtually identical to § 107 of the 1976
Act. Although the copyright revision bills underwent change in many
respects from their first introduction in 1964 to their final
passage in 1976, these portions of the bills did not change.
[ Footnote 2/15 ] I can conclude
only that Congress, like the Register, intended to rely on the fair
use doctrine, and not on a per se exemption for private
use, to separate permissible copying from the impermissible.
[ Footnote 2/16 ] Page 464 U. S. 468 When Congress intended special and protective treatment for
private use, moreover, it said so explicitly. One such explicit
statement appears in § 106 itself. The copyright owner's exclusive
right to perform a copyrighted work, in contrast to his right to
reproduce the work in copies, is limited. Section 106(4) grants a
copyright owner the exclusive right to perform the work "publicly,"
but does not afford the owner protection with respect to private
performances by others. A motion picture is "performed" whenever
its images are shown or its sounds are made audible. § 101. Like
"sing[ing] Page 464 U. S. 469 a copyrighted lyric in the shower," Twentieth Century Music
Corp. v. Aiken, 422 U. S. 151 , 422 U. S. 155 (1975), watching television at home with one's family and friends
is now considered a performance. 1975 Senate Report 59-60; 1976
House Report 63. [ Footnote 2/17 ]
Home television viewing nevertheless does not infringe any
copyright -- but only because § 106(4) contains the word
"publicly." [ Footnote 2/18 ] See generally 1975 Senate Report 60-61; 1976 House Report
63-64; Register's 1961 Report 29-30. No such distinction between
public and private uses appears in § 106(1)'s prohibition on the
making of copies. [ Footnote
2/19 ]

															Similarly, an explicit reference to private use appears in §
108. Under that section, a library can make a copy for a patron
only for specific types of private use: "private study,
scholarship, or research." [ Footnote
2/20 ] §§ 108(d)(1) and (e)(1); see 37 Page 464 U. S. 470 CFR § 201.14(b) (1983). Limits also are imposed on the extent of
the copying and the type of institution that may make copies, and
the exemption expressly is made inapplicable to motion pictures and
certain other types of works. § 108(h). These limitations would be
wholly superfluous if an entire copy of any work could be made by
any person for private use. [ Footnote
2/21 ] B The District Court in this case nevertheless concluded that the
1976 Act contained an implied exemption for "home-use recording."
480 F. Supp. at 444-446. The court relied primarily on the
legislative history of a 1971 amendment to the 1909 Act, a reliance
that this Court today does not duplicate. Ante at 464 U. S. 430 ,
n. 11. That amendment, however, was addressed to the specific
problem of commercial piracy of sound recordings. Act of Oct. 15,
1971, 85 Stat. 391 (1971 Amendment). The House Report on the 1971
Amendment, in a section entitled "Home Recording," contains the
following statement: .

															"In approving the creation of a limited copyright in sound
recordings, it is the intention of the Committee that this limited
copyright not grant any broader rights than are accorded to other
copyright proprietors under the existing title 17. Specifically, it
is not the intention of the Committee to restrain the home
recording, from broadcasts or from tapes or records, of recorded
performances, Page 464 U. S. 471 where the home recording is for private use and with no purpose
of reproducing or otherwise capitalizing commercially on it. This
practice is common and unrestrained today, and the record producers
and performers would be in no different position from that of the
owners of copyright in recorded musical compositions over the past
20 years."

															H.R.Rep. No. 92-487, p. 7 (1971) (1971 House Report). Similar
statements were made during House hearings on the bill [ Footnote 2/22 ] and on the House floor,
[ Footnote 2/23 ] although not in
the Senate Page 464 U. S. 472 proceedings. In concluding that these statements created a
general exemption for home recording, the District Court, in my
view, paid too little heed to the context in which the statements
were made, and failed to consider the limited purpose of the 1971
Amendment and the structure of the 1909 Act.

															Unlike television broadcasts and other types of motion pictures,
sound recordings were not protected by copyright prior to the
passage of the 1971 Amendment. Although the underlying musical work
could be copyrighted, the 1909 Act provided no protection for a
particular performer's rendition of the work. Moreover, copyrighted
musical works that had been recorded for public distribution were
subject to a "compulsory license:" any person was free to record
such a work upon payment of a 2-cent royalty to the copyright
owner. § 1(e), 35 Stat. 1075-1076. While reproduction without
payment of the royalty was an infringement under the 1909 Act,
damages were limited to three times the amount of the unpaid
royalty. § 25(e), 35 Stat. 1081-1082; Shapiro, Bernstein &
Co. v. Goody, 248 F.2d 260, 262-263, 265 (CA2 1957), cert.
denied, 355 U.S. 952 (1958). It was observed that the
practical effect of these provisions was to legalize record piracy. See S.Rep. No. 92-72, p. 4 (1971); 1971 House Report
2.

															In order to suppress this piracy, the 1971 Amendment extended
copyright protection beyond the underlying work and to the sound
recordings themselves. Congress chose, however, to provide only
limited protection: owners of copyright in sound recordings were
given the exclusive right "[t]o reproduce [their works] and
distribute [them] to the public." Page 464 U. S. 473 1971 Amendment, § 1(a), 85 Stat. 391 (formerly codified as 17
U.S.C. § 1(f)). [ Footnote 2/24 ]
This right was merely the right of commercial distribution. See 117 Cong.Rec. 34748-34749 (1971) (colloquy of Reps.
Kazen and Kastenmeier) ("the bill protects copyrighted material
that is duplicated for commercial purposes only").

															Against this background, the statements regarding home recording
under the 1971 Amendment appear in a very different light. If home
recording was "common and unrestrained" under the 1909 Act, see 1971 House Report 7, it was because sound recordings
had no copyright protection and the owner of a copyright in the
underlying musical work could collect no more than a 2-cent royalty
plus 6 cents in damages for each unauthorized use. With so little
at stake, it is not at all surprising that the Assistant Register
"d[id] not see anybody going into anyone's home and preventing this
sort of thing." 1971 House Hearings 23.

															But the references to home sound recording in the 1971
Amendment's legislative history demonstrate no congressional intent
to create a generalized home-use exemption from copyright
protection. Congress, having recognized that the 1909 Act had been
unsuccessful in controlling home sound recording, addressed only
the specific problem of commercial record piracy. To quote
Assistant Register Ringer again, home use was "not what this
legislation [was] addressed to." Id. at 22 [ Footnote 2/25 ] Page 464 U. S. 474 While the 1971 Amendment narrowed the sound recordings loophole
in then existing copyright law, motion pictures and other
audiovisual works have been accorded full copyright protection
since at least 1912, see Act of Aug. 24, 1912, 37 Stat.
488, and perhaps before, see Edison v. Lubin, 122 F. 240
(CA3 1903), appeal dism'd, 195 U.S. 625 (1904). Congress
continued this protection in the 1976 Act. Unlike the sound
recording rights created by the 1971 Amendment, the reproduction
rights associated with motion pictures under § 106(1) are not
limited to reproduction for public distribution; the
copyright owner's right to reproduce the work exists independently,
and the "mere duplication of a copy may constitute an infringement
even if it is never distributed." Register's Supplementary Report
16; see 1975 Senate Report 57 and 1976 House Report 61.
Moreover, the 1976 Act was intended as a comprehensive treatment of
all aspects of copyright law. The Reports accompanying the 1976
Act, unlike the 1971 House Report, contain no suggestion that
home-use recording is somehow outside the scope of this
all-inclusive statute. It was clearly the intent of Congress that
no additional exemptions were to be implied. [ Footnote 2/26 ] Page 464 U. S. 475 I therefore find in the 1976 Act no implied exemption to cover
the home taping of television programs, whether it be for a single
copy, for private use, or for home use. Taping a copyrighted
television program is infringement unless it is permitted by the
fair use exemption contained in § 107 of the 1976 Act. I now turn
to that issue. IV Fair Use The doctrine of fair use has been called, with some
justification, "the most troublesome in the whole law of
copyright." Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661,
662 (CA2 1939); see Triangle Publications, Inc. v.
Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1174 (CA5
1980); Meeropol v. Nizer, 560 F.2d 1061, 1068 (CA2 1977), cert. denied, 434 U.S. 1013 (1978). Although courts have
constructed lists of factors to be considered in determining
whether a particular use is fair, [ Footnote 2/27 ] no fixed criteria have emerged by which
that Page 464 U. S. 476 determination can be made. This Court thus far has provided no
guidance; although fair use issues have come here twice, on each
occasion, the Court was equally divided, and no opinion was
forthcoming. Williams & Wilkins Co. v. United States, 203 Ct.Cl. 74, 487 F.2d 1345 (1973), aff'd, 420 U.
S. 376 (1975); Benny v. Loew's Inc., 239 F.2d
532 (CA9 1956), aff'd sub nom. Columbia Broadcasting System,
Inc. v. Loew's Inc., 356 U. S. 43 (1958).

															Nor did Congress provide definitive rules when it codified the
fair use doctrine in the 1976 Act; it simply incorporated a list of
factors "to be considered:" the "purpose and character of the use,"
the "nature of the copyrighted work," the "amount and
substantiality of the portion used," and, perhaps the most
important, the "effect of the use upon the potential market for or value of the copyrighted work" (emphasis supplied). §
107. No particular weight, however, was assigned to any of these,
and the list was not intended to be exclusive. The House and Senate
Reports explain that § 107 does no more than give "statutory
recognition" to the fair use doctrine; it was intended "to restate
the present judicial doctrine of fair use, not to change, narrow,
or enlarge it in any way." 1976 House Report 66. See 1975
Senate Report 62; S.Rep. No. 93-983, p. 116 (1974); H.R.Rep. No.
83, 90th Cong., 1st Sess., 32 (1967); H.R.Rep. No. 2237, 89th
Cong., 2d Sess., 61 (1966). Page 464 U. S. 477 A Despite this absence of clear standards, the fair use doctrine
plays a crucial role in the law of copyright. The purpose of
copyright protection, in the words of the Constitution, is to
"promote the Progress of Science and useful Arts." Copyright is
based on the belief that, by granting authors the exclusive rights
to reproduce their works, they are given an incentive to create,
and that

															"encouragement of individual effort by personal gain is the best
way to advance public welfare through the talents of authors and
inventors in 'science and the useful Arts.'" Mazer v. Stein, 347 U. S. 201 , 347 U. S. 219 (1954). The monopoly created by copyright thus rewards the
individual author in order to benefit the public. Twentieth
Century Music Corp. v. Aiken, 422 U.S. at 422 U. S. 156 ; Fox Film Corp. v. Doyal, 286 U. S. 123 , 286 U. S.
127 -128 (1932); see H.R.Rep. No. 2222, 60th
Cong., 2d Sess., 7 (1909).

															There are situations, nevertheless, in which strict enforcement
of this monopoly would inhibit the very "Progress of Science and
useful Arts" that copyright is intended to promote. An obvious
example is the researcher or scholar whose own work depends on the
ability to refer to and to quote the work of prior scholars.
Obviously, no author could create a new work if he were first
required to repeat the research of every author who had gone before
him. [ Footnote 2/28 ] The scholar,
like the ordinary user, of course could be left to bargain with
each copyright owner for permission to quote from or refer to prior
works. But there is a crucial difference between the scholar and
the ordinary user. When the ordinary user decides that the owner's
price is too high, and forgoes use of the work, only the individual
is the loser. When the scholar forgoes the use of a prior work, not
only does his own Page 464 U. S. 478 work suffer, but the public is deprived of his contribution to
knowledge. The scholar's work, in other words, produces external
benefits from which everyone profits. In such a case, the fair use
doctrine acts as a form of subsidy -- albeit at the first author's
expense -- to permit the second author to make limited use of the
first author's work for the public good. See Latman Fair
Use Study 31; Gordon, Fair Use as Market Failure: A Structural
Analysis of the Betamax Case and its Predecessors, 82 Colum.L.Rev.
1600, 1630 (1982). A similar subsidy may be appropriate in a range
of areas other than pure scholarship. The situations in which fair
use is most commonly recognized are listed in § 107 itself; fair
use may be found when a work is used "for purposes such as
criticism, comment, news reporting, teaching, . . . scholarship, or
research." The House and Senate Reports expand on this list
somewhat, [ Footnote 2/29 ] and
other examples may be found in the case law. [ Footnote 2/30 ] Each of these uses, however,
reflects a common theme: each is a productive use, resulting in
some added benefit to the public beyond that produced by the first
author's work. [ Footnote 2/31 ]
The fair use doctrine, in other words, permits works Page 464 U. S. 479 to be used for "socially laudable purposes." See Copyright Office, Briefing Papers on Current Issues, reprinted in
1975 House Hearings 2051, 2055. I am aware of no case in which the
reproduction of a copyrighted work for the sole benefit of the user
has been held to be fair use. [ Footnote 2/32 ]

															I do not suggest, of course, that every productive use is a fair
use. A finding of fair use still must depend on the facts of the
individual case, and on whether, under the circumstances, it is
reasonable to expect the user to bargain with the copyright owner
for use of the work. The fair use doctrine must strike a balance
between the dual risks created by the copyright system: on the one
hand, that depriving authors of their monopoly will reduce their
incentive to create, and, on the other, that granting authors a
complete monopoly will reduce the creative ability of others.
[ Footnote 2/33 ] The inquiry
is Page 464 U. S. 480 necessarily a flexible one, and the endless variety of
situations that may arise precludes the formulation of exact rules.
But when a user reproduces an entire work and uses it for its
original purpose, with no added benefit to the public, the doctrine
of fair use usually does not apply. There is then no need
whatsoever to provide the ordinary user with a fair use subsidy at
the author's expense.

															The making of a videotape recording for home viewing is an
ordinary, rather than a productive, use of the Studios' copyrighted
works. The District Court found that "Betamax owners use the copy
for the same purpose as the original. They add nothing of their
own." 480 F. Supp. at 453. Although applying the fair use doctrine
to home VTR recording, as Sony argues, may increase public access
to material broadcast free over the public airwaves, I think Sony's
argument misconceives the nature of copyright. Copyright gives the
author a right to limit or even to cut off access to his work. Fox Film Corp. v. Doyal, 286 U.S. at 286 U. S. 127 .
A VTR recording creates no public benefit sufficient to justify
limiting this right. Nor is this right extinguished by the
copyright owner's choice to make the work available over the
airwaves. Section 106 of the 1976 Act grants the copyright owner
the exclusive right to control the performance and the reproduction
of his work, and the fact that he has licensed a single television
performance is really irrelevant to the existence of his right to
control its reproduction. Although a television broadcast may be
free to the viewer, this fact is equally irrelevant; a book
borrowed from the public library may not be copied any more freely
than a book that is purchased.

															It may be tempting, as, in my view, the Court today is tempted,
to stretch the doctrine of fair use so as to permit unfettered use
of this new technology in order to increase access Page 464 U. S. 481 to television programming. But such an extension risks eroding
the very basis of copyright law, by depriving authors of control
over their works and consequently of their incentive to create.
[ Footnote 2/34 ] Even in the
context of highly productive educational uses, Congress has avoided
this temptation; in passing the 1976 Act, Congress made it clear
that off-the-air videotaping was to be permitted only in very
limited situations. See 1976 House Report 71; 1975 Senate
Report 64. And, the Senate Report adds,

															"[t]he committee does not intend to suggest . . . that
off-the-air recording for convenience would under any
circumstances, be considered 'fair use.'" Id. at 66. I cannot disregard these admonitions. B I recognize, nevertheless, that there are situations where
permitting even an unproductive use would have no effect on the
author's incentive to create, that is, where the use would not
affect the value of, or the market for, the author's work.
Photocopying an old newspaper clipping to send to a friend Page 464 U. S. 482 may be an example; pinning a quotation on one's bulletin board
may be another. In each of these cases, the effect on the author is
truly de minimis. Thus, even though these uses provide no
benefit to the public at large, no purpose is served by preserving
the author's monopoly, and the use may be regarded as fair.

															Courts should move with caution, however, in depriving authors
of protection from unproductive "ordinary" uses. As has been noted
above, even in the case of a productive use, § 107(4) requires
consideration of "the effect of the use upon the potential market for or value of the copyrighted work" (emphasis added).

															"[A] particular use which may seem to have little or no economic
impact on the author's rights today can assume tremendous
importance in times to come."

															Register's Supplementary Report 14. Although such a use may seem
harmless when viewed in isolation,

															"[i]solated instances of minor infringements, when multiplied
many times, become in the aggregate a major inroad on copyright
that must be prevented."

															1975 Senate Report 65.

															I therefore conclude that, at least when the proposed use is an
unproductive one, a copyright owner need prove only a potential for harm to the market for or the value of the
copyrighted work. See 3 M. Nimmer, Copyright §
13.05[E][4][c], p. 13-84 (1983). Proof of actual harm, or even
probable harm, may be impossible in an area where the effect of a
new technology is speculative, and requiring such proof would
present the

															"real danger . . . of confining the scope of an author's rights
on the basis of the present technology so that, as the years go by,
his copyright loses much of its value because of unforeseen
technical advances."

															Register's Supplementary Report 14. Infringement thus would be
found if the copyright owner demonstrates a reasonable possibility
that harm will result from the proposed use. When the use is one
that creates no benefit to the public at large, copyright
protection should not be denied on the basis that a new technology
that may result in harm has not yet done so. Page 464 U. S. 483 The Studios have identified a number of ways in which VTR
recording could damage their copyrights. VTR recording could reduce
their ability to market their works in movie theaters and through
the rental or sale of prerecorded videotapes or videodiscs; it also
could reduce their rerun audience, and consequently the license
fees available to them for repeated showings. Moreover, advertisers
may be willing to pay for only "live" viewing audiences, if they
believe VTR viewers will delete commercials or if rating services
are unable to measure VTR use; if this is the case, VTR recording
could reduce the license fees the Studios are able to charge even
for first-run showings. Library-building may raise the potential
for each of the types of harm identified by the Studios, and
time-shifting may raise the potential for substantial harm as well.
[ Footnote 2/35 ]

															Although the District Court found no likelihood of harm from VTR
use, 480 F. Supp. at 468, I conclude that it applied an incorrect
substantive standard and misallocated the Page 464 U. S. 484 burden of proof. The District Court reasoned that the Studios
had failed to prove that library-building would occur "to any
significant extent," id. at 467; that the Studios'
prerecorded videodiscs could compete with VTR recordings and were
"arguably . . . more desirable," ibid.; that it was "not
clear that movie audiences will decrease," id. at 468; and
that the practice of deleting commercials "may be too tedious" for
many viewers, ibid. To the extent any decrease in
advertising revenues would occur, the court concluded that the
Studios had "marketing alternatives at hand to recoup some of that
predicted loss." Id. at 452. Because the Studios'
prediction of harm was "based on so many assumptions and on a
system of marketing which is rapidly changing," the court was
"hesitant to identify probable effects' of home-use copying." Ibid. The District Court's reluctance to engage in prediction in this
area is understandable, but, in my view, the court was mistaken in
concluding that the Studios should bear the risk created by this
uncertainty. The Studios have demonstrated a potential for harm,
which has not been, and could not be, refuted at this early stage
of technological development.

															The District Court's analysis of harm, moreover, failed to
consider the effect of VTR recording on "the potential market for
or the value of the copyrighted work," as required by § 107(4).
[ Footnote 2/36 ] The requirement
that a putatively infringing use Page 464 U. S. 485 of a copyrighted work, to be "fair," must not impair a
"potential" market for the work has two implications. First, an
infringer cannot prevail merely by demonstrating that the copyright
holder suffered no net harm from the infringer's action. Indeed,
even a showing that the infringement has resulted in a net benefit
to the copyright holder will not suffice. Rather, the infringer
must demonstrate that he had not impaired the copyright holder's
ability to demand compensation from (or to deny access to) any
group who would otherwise be willing to pay to see or hear the
copyrighted work. Second, the fact that a given market for a
copyrighted work would not be available to the copyright holder
were it not for the infringer's activities does not permit the
infringer to exploit that market without compensating the copyright
holder. See Iowa State University Research Foundation, Inc. v.
American Broadcasting Cos., 621 F.2d 57 (CA2 1980).

															In this case, the Studios and their amici demonstrate
that the advent of the VTR technology created a potential market
for their copyrighted programs. That market consists of those
persons who find it impossible or inconvenient to watch the
programs at the time they are broadcast, and who wish to watch them
at other times. These persons are willing to pay for the privilege
of watching copyrighted work at their convenience, as is evidenced
by the fact that they are willing to pay for VTR's and tapes;
undoubtedly, most also would be willing to pay some kind of royalty
to copyright holders. The Studios correctly argue that they have
been deprived of the ability to exploit this sizable market.

															It is thus apparent from the record and from the findings of the
District Court that time-shifting does have a substantial Page 464 U. S. 486 adverse effect upon the "potential market for" the Studios'
copyrighted works. Accordingly, even under the formulation of the
fair use doctrine advanced by Sony, time-shifting cannot be deemed
a fair use. V Contributory Infringement From the Studios' perspective, the consequences of home VTR
recording are the same as if a business had taped the Studios'
works off the air, duplicated the tapes, and sold or rented them to
members of the public for home viewing. The distinction is that
home VTR users do not record for commercial advantage; the
commercial benefit accrues to the manufacturer and distributors of
the Betamax. I thus must proceed to discuss whether the
manufacturer and distributors can be held contributorily liable if
the product they sell is used to infringe.

															It is well established that liability for copyright infringement
can be imposed on persons other than those who actually carry out
the infringing activity. Kalem Co. v. Harper Brothers, 222 U. S. 55 , 222 U. S. 62 -63
(1911); 3 M. Nimmer, Copyright § 12.04[A] (1983); see Twentieth
Century Music Corp. v. Aiken, 422 U.S. at 422 U. S. 160 ,
n. 11; Buck v. Jewell-LaSalle Realty Co., 283 U.
S. 191 , 283 U. S. 198 (1931). Although the liability provision of the 1976 Act provides
simply that "[a]nyone who violates any of the exclusive rights of
the copyright owner . . . is an infringer of the copyright," 17
U.S.C. § 501(a) (1982 ed.), the House and Senate Reports
demonstrate that Congress intended to retain judicial doctrines of
contributory infringement. 1975 Senate Report 57; 1976 House Report
61. [ Footnote 2/37 ] Page 464 U. S. 487 The doctrine of contributory copyright infringement, however, is
not well defined. One of the few attempts at definition appears in Gershwin Publishing Corp. v. Columbia Artists Management,
Inc., 443 F.2d 1159 (CA2 1971). In that case, the Second
Circuit stated that

															"one who, with knowledge of the infringing activity, induces,
causes or materially contributes to the infringing conduct of
another, may be held liable as a 'contributory' infringer." Id. at 1162 (footnote omitted). While I have no quarrel
with this general statement, it does not easily resolve the present
case; the District Court and the Court of Appeals, both purporting
to apply it, reached diametrically opposite results. A In absolving Sony from liability, the District Court reasoned
that Sony had no direct involvement with individual Betamax users,
did not participate in any off-the-air copying, and did not know
that such copying was an infringement of the Studios' copyright.
480 F. Supp. at 460. I agree with the Gershwin court that
contributory liability may be imposed even when the defendant has
no formal control over the infringer. The defendant in Gershwin was a concert promoter operating through local
concert associations that it sponsored; it had no formal control
over the infringing performers themselves. 443 F.2d at 1162-1163. See also Twentieth Century Music Corp. v. Aiken, 422 U.S.
at 422 U. S. 160 ,
n. 11. Moreover, a finding of contributory infringement has never
depended on actual knowledge of particular instances of
infringement; it is sufficient that the defendant have reason to
know that infringement is taking place. 443 F.2d Page 464 U. S. 488 at 1162; see Screen Gems-Columbia Music, Inc. v. Mark-Fi
Records, Inc., 256 F.
Supp. 399 (SDNY 1966). [ Footnote
2/38 ] In the so-called "dance hall" cases, in which questions
of contributory infringement arise with some frequency, proprietors
of entertainment establishments routinely are held liable for
unauthorized performances on their premises, even when they have no
knowledge that copyrighted works are being performed. In effect,
the proprietors in those cases are charged with constructive
knowledge of the performances. [ Footnote 2/39 ] Page 464 U. S. 489 Nor is it necessary that the defendant be aware that the
infringing activity violates the copyright laws. Section 504(c)(2)
of the 1976 Act provides for a reduction in statutory damages when
an infringer proves he "was not aware and had no reason to believe
that his or her acts constituted an infringement of copyright," but
the statute establishes no general exemption for those who believe
their infringing activities are legal. Moreover, such an exemption
would be meaningless in a case such as this, in which prospective
relief is sought; once a court has established that the copying at
issue is infringement, the defendants are necessarily aware of that
fact for the future. It is undisputed in this case that Sony had
reason to know the Betamax would be used by some owners to tape
copyrighted works off the air. See 480 F. Supp. at
459-460.

															The District Court also concluded that Sony had not caused,
induced, or contributed materially to any infringing activities of
Betamax owners. Id. at 460. In a case of this kind,
however, causation can be shown indirectly; it does not depend on
evidence that particular Betamax owners relied on particular
advertisements. In an analogous case decided just two Terms ago,
this Court approved a lower court's conclusion that liability for
contributory trademark infringement could be imposed on a
manufacturer who "suggested, even by implication" that a retailer
use the manufacturer's goods to infringe the trademark of another. Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844 , 456 U. S. 851 (1982); see id. at 456 U. S. 860 (opinion concurring 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-air recording of "favorite shows," "novels for
television," and "classic movies," 480 F. Supp. at 436, with no
visible warning that such recording Page 464 U. S. 490 could constitute copyright infringement. It is only with the aid
of the Betamax or some other VTR, that it is possible today for
home television viewers to infringe copyright by recording
off-the-air. Off-the-air recording is not only a foreseeable use
for the Betamax, but indeed is its intended use. Under the
circumstances, I agree with the Court of Appeals that, if
off-the-air recording is an infringement of copyright, Sony has
induced and materially contributed to the infringing conduct of
Betamax owners. [ Footnote
2/40 ] B Sony argues that the manufacturer or seller of a product used to
infringe is absolved from liability whenever the product can be put
to any substantial noninfringing use. Brief for Petitioners 41-42.
The District Court so held, borrowing the "staple article of
commerce" doctrine governing liability for contributory
infringement of patents. See 35 U.S.C. § 271. [ Footnote 2/41 ] This Court today is much
less positive. See ante Page 464 U. S. 491 at 464 U. S.
440 -442. I do not agree that this technical judge-made
doctrine of patent law, based in part on considerations irrelevant
to the field of copyright, see generally Dawson Chemical Co. v.
Rohm & Haas Co., 448 U. S. 176 , 448 U. S.
187 -199 (1980), should be imported wholesale into
copyright law. Despite their common constitutional source, see U.S.Const., Art. I, § 8, Cl. 8, patent and copyright
protections have not developed in a parallel fashion, and this
Court in copyright cases in the past has borrowed patent concepts
only sparingly. See Bobbs-Merrill Co. v. Straus, 210 U. S. 339 , 210 U. S.
345 -346 (1908).

															I recognize, however, that many of the concerns underlying the
"staple article of commerce" doctrine are present in copyright law
as well. As the District Court noted, if liability for contributory
infringement were imposed on the manufacturer or seller of every
product used to infringe -- a typewriter, a camera, a photocopying
machine -- the "wheels of commerce" would be blocked. 480 F. Supp.
at 461; see also Kalem Co. v. Harper Brothers, 222 U.S. at 222 U. S.
62 .

															I therefore conclude that, if a significant portion of
the product's use is noninfringing, the manufacturers and
sellers cannot be held contributorily liable for the product's
infringing uses. See ante at 464 U. S.
440 -441. If virtually all of the product's use, however,
is to infringe, contributory liability may be imposed; if no one
would buy the product for noninfringing purposes alone, it is clear
that the manufacturer is purposely profiting from the infringement,
and that liability is appropriately imposed. In such a case, the
copyright owner's monopoly would not be extended beyond its proper
bounds; the manufacturer of such a product contributes to the
infringing activities of others and profits directly thereby,
while Page 464 U. S. 492 providing no benefit to the public sufficient to justify the
infringement.

															The Court of Appeals concluded that Sony should be held liable
for contributory infringement, reasoning that "[v]ideotape
recorders are manufactured, advertised, and sold for the primary
purpose of reproducing television programming," and "[v]irtually
all television programming is copyrighted material." 659 F.2d at
975. While I agree with the first of these propositions, [ Footnote 2/42 ] the second, for me, is
problematic. The key question is not the amount of television
programming that is copyrighted, but rather the amount of VTR usage
that is infringing. [ Footnote
2/43 ] Moreover, the parties and their amici have
argued vigorously about both the amount of television programming
that is covered by copyright and the amount for which permission to
copy has been given. The proportion of VTR recording that is
infringing is ultimately a question of fact, [ Footnote 2/44 ] and the District Court specifically
declined to make Page 464 U. S. 493 findings on the "percentage of legal versus illegal home-use
recording." 480 F. Supp. at 468. In light of my view of the law,
resolution of this factual question is essential. I therefore would
remand the case for further consideration of this by the District
Court. VI The Court has adopted an approach very different from the one I
have outlined. It is my view that the Court's approach alters
dramatically the doctrines of fair use and contributory
infringement as they have been developed by Congress and the
courts. Should Congress choose to respond to the Court's decision,
the old doctrines can be resurrected. As it stands, however, the
decision today erodes much of the coherence that these doctrines
have struggled to achieve.

															The Court's disposition of the case turns on its conclusion that
time-shifting is a fair use. Because both parties agree that
time-shifting is the primary use of VTR's, that conclusion, if
correct, would settle the issue of Sony's liability under almost
any definition of contributory infringement. The Court concludes
that time-shifting is fair use for two reasons. Each is seriously
flawed.

															The Court's first reason for concluding that time-shifting is
fair use is its claim that many copyright holders have no objection
to time-shifting, and that "respondents have no right to prevent
other copyright holders from authorizing it for their programs." Ante at 464 U. S. 442 .
The Court explains that a finding of contributory infringement
would

															"inevitably frustrate the interests of broadcasters in reaching
the portion of their audience that is available only through
time-shifting. Page 464 U. S. 494 " Ante at 464 U. S. 446 .
Such reasoning, however, simply confuses the question of liability
with the difficulty of fashioning an appropriate remedy. It may be
that an injunction prohibiting the sale of VTR's would harm the
interests of copyright holders who have no objection to others
making copies of their programs. But such concerns should and would
be taken into account in fashioning an appropriate remedy once
liability has been found. Remedies may well be available that would
not interfere with authorized time-shifting at all. The Court of
Appeals mentioned the possibility of a royalty payment that would
allow VTR sales and time-shifting to continue unabated, and the
parties may be able to devise other narrowly tailored remedies.
Sony may be able, for example, to build a VTR that enables
broadcasters to scramble the signal of individual programs and
"jam" the unauthorized recording of them. Even were an appropriate
remedy not available at this time, the Court should not misconstrue
copyright holders' rights in a manner that prevents enforcement of
them when, through development of better techniques, an appropriate
remedy becomes available. [ Footnote
2/45 ] Page 464 U. S. 495 The Court's second stated reason for finding that Sony is not
liable for contributory infringement is its conclusion that even
unauthorized time-shifting is fair use. Ante at 464 U. S. 447 et seq. This conclusion is even more troubling. The Court
begins by suggesting that the fair use doctrine operates as a
general "equitable rule of reason." That interpretation
mischaracterizes the doctrine, and simply ignores the language of
the statute. Section 107 establishes the fair use doctrine "for
purposes such as criticism, comment, news reporting, teaching, . .
. scholarship, or research." These are all productive uses. It is
true that the legislative history states repeatedly that the
doctrine must be applied flexibly on a case-by-case basis, but
those references were only in the context of productive uses. Such
a limitation on fair use comports with its purpose, which is to
facilitate the creation of new works. There is no indication that
the fair use doctrine has any application for purely personal
consumption on the scale involved in this case, [ Footnote 2/46 ] and the Court's application of it
here deprives fair use of the major cohesive force that has guided
evolution of the doctrine in the past. Page 464 U. S. 496 Having bypassed the initial hurdle for establishing that a use
is fair, the Court then purports to apply to time-shifting the four
factors explicitly stated in the statute. The first is "the purpose
and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes." §
107(1). The Court confidently describes time-shifting as a
noncommercial, nonprofit activity. It is clear, however, that
personal use of programs that have been copied without permission
is not what § 107(1) protects. The intent of the section is to
encourage users to engage in activities the primary benefit of
which accrues to others. Time-shifting involves no such
humanitarian impulse. It is likewise something of a
mischaracterization of time-shifting to describe it as
noncommercial in the sense that that term is used in the statute.
As one commentator has observed, time-shifting is noncommercial in
the same sense that stealing jewelry and wearing it -- instead of
reselling it -- is noncommercial. [ Footnote 2/47 ] Purely consumptive uses are certainly
not what the fair use doctrine was designed to protect, and the
awkwardness of applying the statutory language to time-shifting
only makes clearer that fair use was designed to protect only uses
that are productive.

															The next two statutory factors are all but ignored by the Court
-- though certainly not because they have no applicability. The
second factor -- "the nature of the copyrighted work" -- strongly
supports the view that time-shifting is an infringing use. The
rationale guiding application of this factor is that certain types
of works, typically those involving "more of diligence than of
originality or inventiveness," New York Times Co. v. Roxbury
Data Interface, Inc., 434 F.
Supp. 217 , 221 (NJ 1977), require less copyright protection
than other original works. Thus, for example, informational Page 464 U. S. 497 works, such as news reports, that readily lend themselves to
productive use by others, are less protected than creative works of
entertainment. Sony's own surveys indicate that entertainment shows
account for more than 80% of the programs recorded by Betamax
owners. [ Footnote 2/48 ]

															The third statutory factor -- "the amount and substantiality of
the portion used" -- is even more devastating to the Court's
interpretation. It is undisputed that virtually all VTR owners
record entire works, see 480 F. Supp. at 454, thereby
creating an exact substitute for the copyrighted original. Fair use
is intended to allow individuals engaged in productive uses to copy
small portions of original works that will facilitate their own
productive endeavors. Time-shifting bears no resemblance to such
activity, and the complete duplication that it involves might alone
be sufficient to preclude a finding of fair use. It is little
wonder that the Court has chosen to ignore this statutory factor.
[ Footnote 2/49 ]

															The fourth factor requires an evaluation of "the effect of the
use upon the potential market for or value of the copyrighted
work." This is the factor upon which the Court focuses, but once
again, the Court has misread the statute. As mentioned above, the
statute requires a court to consider the effect of the use on the potential market for the copyrighted work. The Court has
struggled mightily to show that VTR use has not reduced the value of the Studios' copyrighted works in their present markets. Even if true, that showing only begins
the proper inquiry. The development Page 464 U. S. 498 of the VTR has created a new market for the works produced by
the Studios. That market consists of those persons who desire to
view television programs at times other than when they are
broadcast, and who therefore purchase VTR recorders to enable them
to time-shift. [ Footnote 2/50 ]
Because time-shifting of the Studios' copyrighted works involves
the copying of them, however, the Studios are entitled to share in
the benefits of that new market. Those benefits currently go to
Sony through Betamax sales. Respondents therefore can show harm
from VTR use simply by showing that the value of their copyrights
would increase if they were compensated for the copies that are
used in the new market. The existence of this effect is
self-evident.

															Because of the Court's conclusion concerning the legality of
time-shifting, it never addresses the amount of noninfringing use
that a manufacturer must show to absolve itself from liability as a
contributory infringer. Thus, it is difficult to discuss how the
Court's test for contributory infringement would operate in
practice under a proper analysis of time-shifting. One aspect of
the test as it is formulated by the Court, however, particularly
deserves comment. The Court explains that a manufacturer of a
product is not liable for contributory infringement as long as the
product is " capable of substantial noninfringing uses." Ante at 464 U. S. 442 (emphasis supplied). Such a definition essentially eviscerates the
concept of contributory infringement. Only the most unimaginative
manufacturer would be unable to demonstrate that a
image-duplicating product is "capable" of substantial noninfringing
uses. Surely Congress desired to prevent the sale of products that
are used almost exclusively to infringe copyrights; Page 464 U. S. 499 the fact that noninfringing uses exist presumably would have
little bearing on that desire.

															More importantly, the rationale for the Court's narrow standard
of contributory infringement reveals that, once again, the Court
has confused the issue of liability with that of remedy. The Court
finds that a narrow definition of contributory infringement is
necessary in order to protect "the rights of others freely to
engage in substantially unrelated areas of commerce." Ante at 464 U. S. 442 .
But application of the contributory infringement doctrine
implicates such rights only if the remedy attendant upon a finding
of liability were an injunction against the manufacture of the
product in question. The issue of an appropriate remedy is not
before the Court at this time, but it seems likely that a broad
injunction is not the remedy that would be ordered. It is
unfortunate that the Court has allowed its concern over a remedy to
infect its analysis of liability. VII The Court of Appeals, having found Sony liable, remanded for the
District Court to consider the propriety of injunctive or other
relief. Because of my conclusion as to the issue of liability, I,
too, would not decide here what remedy would be appropriate if
liability were found. I concur, however, in the Court of Appeals'
suggestion that an award of damages, or continuing royalties, or
even some form of limited injunction, may well be an appropriate
means of balancing the equities in this case. [ Footnote 2/51 ] Although I express no view on the
merits Page 464 U. S. 500 of any particular proposal, I am certain that, if Sony were
found liable in this case, the District Court would be able to
fashion appropriate relief. The District Court might conclude, of
course, that a continuing royalty or other equitable relief is not
feasible. The Studios then would be relegated to statutory damages
for proven instances of infringement. But the difficulty of
fashioning relief, and the possibility that complete relief may be
unavailable, should not affect our interpretation of the
statute.

															Like so many other problems created by the interaction of
copyright law with a new technology, "[t]here can be no really
satisfactory solution to the problem presented here, until Congress
acts." Twentieth Century Music Corp. v. Aiken, 422 U.S. at 422 U. S. 167 (dissenting opinion). But in the absence of a congressional
solution, courts cannot avoid difficult problems by refusing to
apply the law. We must "take the Copyright Act . . . as we find
it," Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. at 392 U. S.
401 -402, and "do as little damage as possible to
traditional copyright principles . . . until the Congress
legislates." Id. at 392 U. S. 404 (dissenting opinion).

															[ Footnote 2/1 ]

															The Betamax has three primary components: a tuner that receives
television (RF) signals broadcast over the airwaves; an adapter
that converts the RF signals into audio-video signals; and a
recorder that places the audio-video signals on magnetic tape. Sony
also manufactures VTRS without built-in tuners; these are capable
of playing back prerecorded tapes and recording home movies on
videotape, but cannot record off the air. Since the Betamax has its
own tuner, it can be used to record off one channel while another
channel is being watched.

															The Betamax is available with auxiliary features, including a
timer, a pause control, and a fast-forward control; these allow
Betamax owners to record programs without being present, to avoid
(if they are present) recording commercial messages, and to skip
over commercials while playing back the recording. Videotape is
reusable; the user erases its record by recording over it.

															[ Footnote 2/2 ]

															This case involves only the home recording for home use of
television programs broadcast free over the airwaves. No issue is
raised concerning cable or pay television, or the sharing or
trading of tapes.

															[ Footnote 2/3 ]

															At the trial, the Studios proved 32 individual instances where
their copyrighted works were recorded on Betamax VTR's. Two of
these instances occurred after January 1, 1978, the primary
effective date of the 1976 Act; all the others occurred while the
1909 Act was still effective. My analysis focuses primarily on the
1976 Act, but the principles governing copyright protection for
these works are the same under either Act.

															[ Footnote 2/4 ]

															Act of Feb. 3, 1831 , ch. 16, 4 Stat. 436; Act of July 8, 1870,
§§ 85-111 , 16 Stat. 212-217; Act of Mar. 4, 1909, 35 Stat. 1075
(formerly codified as 17 U.S.C. § 1 et seq. ); Copyright
Revision Act of 1976, 90 Stat. 2541 (codified as 17 U.S.C. § 101 et seq. (1982 ed.)).

															[ Footnote 2/5 ]

															Section 102(a) provides:

															"Copyright protection subsists, in accordance with this title,
in original works of authorship fixed in any tangible medium of
expression, now known or later developed, from which they can be
perceived, reproduced, or otherwise communicated, either directly
or with the aid of a machine or device. Works of authorship include
the following categories:"

															"(1) literary works;"

															"(2) musical works, including any accompanying words;"

															"(3) dramatic works, including any accompanying music;"

															"(4) pantomimes and choreographic works;"

															"(5) pictorial, graphic, and sculptural works;"

															"(6) motion pictures and other audiovisual works; and"

															"(7) sound recordings."

															Definitions of terms used in § 102(a)(6) are provided by § 101:
"Audiovisual works" are

															"works that consist of a series of related images which are
intrinsically intended to be shown by the use of machines, or
devices such as projectors, viewers, or electronic equipment,
together with accompanying sounds, if any, regardless of the nature
of the material objects, such as films or tapes, in which the works
are embodied."

															And "motion pictures" are

															"audiovisual works consisting of a series of related images
which, when shown in succession, impart an impression of motion,
together with accompanying sounds, if any."

															Most commercial television programs, if fixed on film or tape at
the time of broadcast or before, qualify as "audiovisual works."
Since the categories set forth in § 102(a) are not mutually
exclusive, a particular television program may also qualify for
protection as a dramatic, musical, or other type of work.

															[ Footnote 2/6 ]

															Section 106 provides:

															"Subject to sections 107 through 118, the owner of copyright
under this title has the exclusive rights to do and to authorize
any of the following:"

															"(1) to reproduce the copyrighted work in copies or
phonorecords;"

															"(2) to prepare derivative works based upon the copyrighted
work;"

															"(3) to distribute copies or phonorecords of the copyrighted
work to the public by sale or other transfer of ownership, or by
rental, lease, or lending;"

															"(4) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion pictures and other
audiovisual works, to perform the copyrighted work publicly;
and"

															"(5) in the case of literary, musical, dramatic, and
choreographic works pantomimes, and pictorial, graphic, or
sculptural works, including the individual images of a motion
picture or other audiovisual work, to display the copyrighted work
publicly."

															[ Footnote 2/7 ]

															A "phonorecord" is defined by § 101 as a reproduction of sounds
other than sounds accompanying an audiovisual work, while a "copy"
is a reproduction of a work in any form other than a
phonorecord.

															[ Footnote 2/8 ]

															Section 107 provides:

															"Notwithstanding the provisions of section 106, the fair use of
a copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright. In determining
whether the use made of a work in any particular case is a fair use
the factors to be considered shall include -- "

															"(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit educational
purposes;"

															"(2) the nature of the copyrighted work;"

															"(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and"

															"(4) the effect of the use upon the potential market for or
value of the copyrighted work."

															Section 101 makes it clear that the four factors listed in this
section are "illustrative and not limitative."

															[ Footnote 2/9 ]

															The 1976 Act was the product of a revision effort lasting more
than 20 years. Spurred by the recognition that "significant
developments in technology and communications" had rendered the
1909 Act inadequate, S.Rep. No. 94-473, p. 47 (1975); see H.R.Rep. No. 94-1476, p. 47 (1976), Congress in 1955 authorized the
Copyright Office to prepare a series of studies on all aspects of
the existing copyright law. Thirty-four studies were prepared and
presented to Congress. The Register of Copyrights drafted a
comprehensive report with recommendations, House Committee on the
Judiciary, Copyright Law Revision, Report of the Register of
Copyrights on the General Revision of the U.S. Copyright Law, 87th
Cong., 1st Sess. (Comm. Print 1961) (Register's 1961 Report), and
general revision bills were introduced near the end of the 88th
Congress in 1964. H.R. 11947/S. 3008, 88th Cong., 2d Sess. (1964).
The Register issued a second report in 1965, with revised
recommendations. House Committee on the Judiciary, Copyright Law
Revision, pt. 6, Supplementary Report of the Register of Copyrights
on the General Revision of the U.S. Copyright Law: 1965 Revision
Bill, 89th Cong., 1st Sess. (Comm. Print 1965) (Register's
Supplementary Report). Action on copyright revision was delayed
from 1967 to 1974 by a dispute on cable television, see
generally Second Supplementary Report of the Register of
Copyrights on the General Revision of the U.S. Copyright Law: 1975
Revision Bill, ch. V, pp. 2-26 (Draft Oct.-Dec.1975) (Register's
Second Supplementary Report), but a compromise led to passage of
the present Act in 1976.

															[ Footnote 2/10 ]

															Title 1 U.S.C. § 1 provides in relevant part:

															"In determining the meaning of any Act of Congress, unless the
context indicates otherwise . . . words importing the plural
include the singular. . . ."

															[ Footnote 2/11 ]

															The library photocopying provisions of § 108 do not excuse any
person who requests "a copy" from a library if the requester's use
exceeds fair use. § 108(f)(2). Moreover, a library is absolved from
liability for the unsupervised use of its copying equipment
provided that the equipment bears a notice informing users that
"the making of a copy" may violate the copyright law. §
108(f)(1).

															[ Footnote 2/12 ]

															For example, "the making of a single copy or phonorecord by an
individual as a free service for a blind person" would be a fair
use, as would "a single copy reproduction of an excerpt from a
copyrighted work by a calligrapher for a single client" or "a
single reproduction of excerpts from a copyrighted work by a
student calligrapher or teacher in a learning situation." 1975
Senate Report 66-67; see 1976 House Report 73-74.
Application of the fair use doctrine in these situations, of
course, would be unnecessary if the 1976 Act created a general
exemption for the making of a single copy.

															[ Footnote 2/13 ]

															Professor Latman made special mention of the "personal use"
issue because the area was one that

															"has become disturbed by recent developments. . . .
Photoduplication devices may make authors' and publishers' groups
apprehensive. The Copyright Charter recently approved by [the
International Confederation of Societies of Authors and Composers]
emphasizes the concern of authors over 'private' uses which,
because of technological developments, are said to be competing
seriously with the author's economic interests."

															Latman Fair Use Study 33-34.

															[ Footnote 2/14 ]

															The one exemption proposed by the Register, permitting a library
to make a single photocopy of an out-of-print work and of excerpts
that a requester certified were needed for research met with
opposition, and was not included in the bills initially introduced
in Congress. See Register's 1961 Report 26; H.R. 11947/S.
3008, 88th Cong., 2d Sess. (1964); Register's Supplementary Report
26. A library copying provision was restored to the bill in 1969,
after pressure from library associations. Register's Second
Supplementary Report, ch. III, pp. 10-11; see S. 543, 91st
Cong., 1st Sess., § 108 (Comm. Print, Dec. 10, 1969); 1975 Senate
Report 48.

															[ Footnote 2/15 ]

															The 1964 bills provided that the fair use of copyrighted
material for purposes "such as criticism, comment, news reporting,
teaching, scholarship, or research" was not an infringement of
copyright, and listed four "factors to be considered" in
determining whether any other particular use was fair. H.R.
11947/S. 3008, 88th Cong., 2d Sess., § 6 (1964). Revised bills,
drafted by the Copyright Office in 1965, contained a fair use
provision merely mentioning the doctrine ,but not indicating its
scope: "Notwithstanding the provisions of section 106, the fair use
of a copyrighted work is not an infringement of copyright." H.R.
4347/S. 1006, 89th Cong., 1st Sess., § 107 (1965). The House
Judiciary Committee restored the provision to its earlier wording,
H.R.Rep. No. 2237, 89th Cong., 2d Sess., 5, 58 (1966), and the
language adopted by the Committee remained in the bill in later
Congresses. See H.R. 2512/S. 597, 90th Cong., 1st Sess., §
107 (1967); S. 543, 91st Cong., 1st Sess., § 107 (1969); S. 644,
92d Cong., 1st Sess., § 107 (1971); S. 1361, 93d Cong., 1st Sess.,
§ 107 (1973); H.R. 2223/S. 22, 94th Cong., 1st Sess., § 107 (1975).
With a few additions by the House Judiciary Committee in 1976, see 1976 House Report 5; H.R.Conf.Rep. No. 94-1733, p. 70
(1976), the same language appears in § 107 of the 1976 Act.

															[ Footnote 2/16 ]

															In Williams & Wilkins Co. v. United States, 203
Ct.Cl. 74, 487 F.2d 1345 (1973), aff'd by an equally divided
Court, 420 U. S. 376 (1975), decided during the process of the revision of the copyright
statutes, the Court of Claims suggested that copying for personal
use might be outside the scope of copyright protection under the
1909 Act. The court reasoned that, because "hand copying" for
personal use has always been regarded as permissible, and because
the practice of making personal copies continued after typewriters
and photostat machines were developed, the making of personal
copies by means other than hand copying should be permissible as
well. 203 Ct.Cl. at 84-88, 487 F.2d at 1350-1352.

															There appear to me to be several flaws in this reasoning. First,
it is by no means clear that the making of a "hand copy" of an
entire work is permissible; the most that can be said is that there
is no reported case on the subject, possibly because no copyright
owner ever thought it worthwhile to sue. See Latman Fair
Use Study 11-12; 3 M. Nimmer, Copyright § 13.05[E][4][a] (1983). At
least one early treatise asserted that infringement would
result

															"if an individual made copies for his personal use, even in his
own handwriting, as there is no rule of law excepting manuscript
copies from the law of infringement."

															A. Weil, American Copyright Law § 1066 (1917). Second, hand
copying or even copying by typewriter is self-limiting. The
drudgery involved in making hand copies ordinarily ensures that
only necessary and fairly small portions of a work are taken; it is
unlikely that any user would make a hand copy as a substitute for
one that could be purchased. The harm to the copyright owner from
hand copying thus is minimal. The recent advent of inexpensive and
readily available copying machines, however, has changed the
dimensions of the problem. See Register's Second
Supplementary Report, ch. III, p. 3; Hearings on H.R. 2223 before
the Subcommittee on Courts, Civil Liberties, and the Administration
of Justice of the House Committee on the Judiciary, 94th Cong., 1st
Sess., 194 (1975) (1975 House Hearings) (remarks of Rep.
Danielson); id. at 234 (statement of Robert W. Cairns); id. at 250 (remarks of Rep. Danielson); id. at
354 (testimony of Irwin Karp); id. at 467 (testimony of
Rondo Cameron); id. at 1795 (testimony of Barbara Ringer,
Register of Copyrights). Thus,

															"[t]he supposition that there is no tort involved in a scholar
copying a copyrighted text by hand does not much advance the
question of machine copying."

															B. Kaplan, An Unhurried View of Copyright 101-102 (1967).

															[ Footnote 2/17 ]

															In a trio of cases, Fortnightly Corp. v. United Artists
Television, Inc., 392 U. S. 390 , 392 U. S. 398 (1968); Teleprompter Corp. v. Columbia Broadcasting System,
Inc., 415 U. S. 394 , 415 U. S.
403 -405 (1974); and Twentieth Century Music Corp. v.
Aiken, 422 U. S. 151 (1975), this Court had held that the reception of a radio or
television broadcast was not a "performance" under the 1909 Act.
The Court's "narrow construction" of the word "perform" was
"completely overturned by the [1976 Act] and its broad definition
of perform' in section 101." 1976 House Report 87. [ Footnote 2/18 ]

															A work is performed "publicly" if it takes place

															"at a place open to the public or at any place where a
substantial number of persons outside of a normal circle of a
family and its social acquaintances is gathered."

															§ 101.

															[ Footnote 2/19 ]

															One purpose of the exemption for private performances was to
permit the home viewing of lawfully made videotapes. The Register
noted in 1961 that

															"[n]ew technical devices will probably make it practical in the
future to reproduce televised motion pictures in the home. We do
not believe the private use of such a reproduction can or
should be precluded by copyright."

															Register's 1961 Report 30 (emphasis added). The Register did not
suggest that the private making of a reproduction of a
televised motion picture would be permitted by the copyright law.
The Register later reminded Congress that, "[i]n general, the
concept of performance' must be distinguished sharply from the
reproduction of copies." Register's Supplementary Report
22. [ Footnote 2/20 ]

															During hearings on this provision, Representative Danielson
inquired whether it would apply to works of fiction such as "Gone
With the Wind," or whether it was limited to "strictly technical
types of information." The uncontradicted response was that it
would apply only in "general terms of science . . . [and] the
useful arts." 1975 House Hearings 251 (testimony of Robert W.
Cairns); cf. id. at 300 (statement of Harry Rosenfield)
("We are not asking . . . for the right to copy Gone With the
Wind'"). [ Footnote 2/21 ]

															The mention in the Senate and House Reports of situations in
which copies for private use would be permissible under the fair
use doctrine -- for example, the making of a free copy for a blind
person, 1975 Senate Report 66; 1976 House Report 73, or the
"recordings of performances by music students for purposes of
analysis and criticism," 1975 Senate Report 63 -- would be
superfluous as well. See 464
U.S. 417 fn2/12|>n. 12, supra. [ Footnote 2/22 ]

															The following exchange took place during the testimony of
Barbara Ringer, then Assistant Register of Copyrights:

															"[Rep.] BIESTER. . . . I can tell you I must have a small pirate
in my own home. My son has a cassette tape recorder, and as a
particular record becomes a hit, he will retrieve it onto his
little set. . . . [T]his legislation, of course, would not point to
his activities, would it?"

															"Miss RINGER. I think the answer is clearly, 'No, it would not.'
I have spoken at a couple of seminars on video cassettes lately,
and this question is usually asked: 'What about the home
recorders?' The answer I have given and will give again is that
this is something you cannot control. You simply cannot control it.
My own opinion, whether this is philosophical dogma or not, is that
sooner or later there is going to be a crunch here. But that is not
what this legislation is addressed to, and I do not see the crunch
coming in the immediate future. . . . I do not see anybody going
into anyone's home and preventing this sort of thing, or forcing
legislation that would engineer a piece of equipment not to allow
home taping."

															Hearings on S. 646 and H.R. 6927 before Subcommittee No. 3 of
the House Committee on the Judiciary, 92d Cong., 1st Sess., 22-23
(1971) (1971 House Hearings).

															[ Footnote 2/23 ]

															Shortly before passage of the bill, a colloquy took place
between Representative Kastenmeier, Chairman of the House
Subcommittee that produced the bill, and Representative Kazen, who
was not on the Subcommittee:

															"Mr. KAZEN. Am I correct in assuming that the bill protects
copyrighted material that is duplicated for commercial purposes
only?"

															"Mr. KASTENMEIER. Yes."

															"Mr. KAZEN. In other words, if your child were to record off of
a program which comes through the air on the radio or television,
and then used it for her own personal pleasure, for listening
pleasure, this use would not be included under the-penalties of
this bill?"

															"Mr. KASTENMEIER This is not included in the bill. I am glad the
gentleman raises the point."

															"On page 7 of the report, under 'Home Recordings,' Members will
note that under the bill the same practice which prevails today is
called for; namely, this is considered both presently and under the
proposed law to be fair use. The child does not do this for
commercial purposes. This is made clear in the report."

															117 Cong.Rec. 34748-34749 (1971).

															[ Footnote 2/24 ]

															The 1909 Act's grant of an exclusive right to "copy," § 1(a),
was of no assistance to the owner of a copyright in a sound
recording, because a reproduction of a sound recording was
technically considered not to be a "copy." See 1971 House
Hearings 18 (testimony of Barbara Ringer, Assistant Register of
Copyrights); 1971 Amendment, § 1(e), 85 Stat. 391 (formerly
codified as 17 U.S.C. § 26) ("For the purposes of [specified
sections, not including § 1(a)], but not for any other purpose, a
reproduction of a [sound recording] shall be considered to be a
copy thereof "). This concept is carried forward into the 1976 Act,
which distinguishes between "copies" and "phonorecords." See 464
U.S. 417 fn2/7|>n. 7, supra. [ Footnote 2/25 ]

															During consideration of the 1976 Act, Congress, of course, was
well aware of the limited nature of the protection granted to sound
recordings under the 1971 Amendment. See 1975 House
Hearings 113 (testimony of Barbara Ringer, Register of Copyrights)
(1971 Amendment "created a copyright in a sound recording . . . but
limited it to the particular situation of so-called piracy"); id. at 1380 (letter from John Lorenz, Acting Librarian of
Congress) (under 1971 Amendment "only the unauthorized reproduction
and distribution to the public of copies of the sound recording is
prohibited. Thus, the duplication of sound recordings for private,
personal use and the performance of sound recordings through
broadcasting or other means are outside the scope of the
amendment").

															[ Footnote 2/26 ]

															Representative Kastenmeier, the principal House sponsor of the
1976 revision bill and Chairman of the House Subcommittee that
produced it, made this explicit on the opening day of the House
hearings:

															"[F]rom time to time, certain areas have not been covered in the
bill. But is it not the case, this being a unified code, that the
operation of the bill does apply whether or not we specifically
deal with a subject or not? . . ."

															"Therefore, we can really not fail to deal with an issue. It
will be dealt with one way or the other. The code, title 17, will
cover it. So we have made a conscientious decision even by
omission. . . ."

															" * * * *" ". . . By virtue of passing this bill, we will deal with every
issue. Whether we deal with it completely or not for the purpose of
resolving the issues involved is the only question, not whether it
has dealt with the four corners of the bill, because the four
corners of the bill will presume to deal with everything in
copyright." Id. at 115.

															[ Footnote 2/27 ]

															The precise phrase "fair use" apparently did not enter the case
law until 1869, see Lawrence v. Dana, 15 F. Cas. 26, 60
(No. 8, 136) (CC Mass.), but the doctrine itself found early
expression in Folsom v. Marsh, 9 F. Cas. 342 (No. 4,901)
(CC Mass. 1841). Justice Story was faced there with the "intricate
and embarrassing questio[n]" whether a biography containing
copyrighted letters was "a justifiable use of the original
materials, such as the law recognizes as no infringement of the
copyright of the plaintiffs." Id. at 344, 348. In
determining whether the use was permitted, it was necessary, said
Justice Story, to consider

															"the nature and objects of the selections made, the quantity and
value of the materials used, and the degree in which the use may
prejudice the sale, or diminish the profits, or supersede the
objects, of the original work. . . . Much must, in such cases,
depend upon the nature of the new work, the value and extent of the
copies, and the degree in which the original authors may be injured
thereby." Id. at 348-349.

															Similar lists were compiled by later courts. See, e.g.,
Tennessee Fabricating Co. v. Moultrie Mfg. Co., 421 F.2d 279,
283 (CA5), cert. denied, 398 U.S. 928 (1970); Mathews
Conveyer Co. v. Palmer-Bee Co., 135 F.2d 73, 85 (CA6 1943); Columbia Pictures Corp. v. National Broadcasting
Co., 137 F.
Supp. 348 (SD Cal.1955); Shapiro, Bernstein & Co. v. P.
F. Collier & Son Co., 26 USPQ 40, 43 (SDNY 1934); Hill
v. Whalen & Martell, Inc., 220 F. 359, 360 (SDNY
1914).

															[ Footnote 2/28 ]

															"The world goes ahead because each of us builds on the work of
our predecessors. 'A dwarf standing on the shoulders of a giant can
see farther than the giant himself.'"

															Chafee, Reflections on the Law of Copyright: I, 45 Colum.L.Rev.
503, 511 (1945).

															[ Footnote 2/29 ]

															Quoting from the Register's 1961 Report, the Senate and House
Reports give examples of possible fair uses:

															"'quotation of excerpts in a review or criticism for purposes of
illustration or comment; quotation of short passages in a scholarly
or technical work, for illustration or clarification of the
author's observations; use in a parody of some of the content of
the work parodied; summary of an address or article, with brief
quotations, in a news report; reproduction by a library of a
portion of a work to replace part of a damaged copy; reproduction
by a teacher or student of a small part of a work to illustrate a
lesson; reproduction of a work in legislative or judicial
proceedings or reports; incidental and fortuitous reproduction, in
a newsreel or broadcast, of a work located in the scene of an event
being reported.'"

															1975 Senate Report 61-62; 1976 House Report 65.

															[ Footnote 2/30 ] See, e.g., Triangle Publications, Inc. v. Knight-Ridder
Newspapers, Inc., 626 F.2d 1171 (CA5 1980) (comparative
advertising).

															[ Footnote 2/31 ]

															Professor Seltzer has characterized these lists of uses as

															"reflect[ing] what in fact the subject matter of fair use has in
the history of its adjudication consisted in: it has always had to
do with the use by a second author of a first author's work."

															L. Seltzer, Exemptions and Fair Use in Copyright 24 (1978)
(emphasis removed). He distinguishes "the mere reproduction of a
work in order to use it for its intrinsic purpose -- to make what
might be called the "ordinary" use of it." When copies are made for
"ordinary" use of the work, "ordinary infringement has
customarily been triggered, not notions of fair use" (emphasis in
original). Ibid. See also 3 M. Nimmer, Copyright
§ 13.05[A][1] (1983) ("Use of a work in each of the foregoing
contexts either necessarily or usually involves its use in a
derivative work").

															[ Footnote 2/32 ] Williams & Wilkins Co. v. United States, 203 Ct.Cl.
74, 487 F.2d 1345 (1973), aff'd by an equally divided
Court, 420 U. S. 376 (1975), involved the photocopying of scientific journal articles;
the Court of Claims stressed that the libraries performing the
copying were "devoted solely to the advancement and dissemination
of medical knowledge," 203 Ct.Cl. at 91, 487 F.2d at 1354, and that
"medical science would be seriously hurt if such library
photocopying were stopped." Id. at 95, 487 F.2d at
1356.

															The issue of library copying is now covered by § 108 of the 1976
Act. That section, which Congress regarded as "authoriz[ing]
certain photocopying practices which may not qualify as a fair
use," 1975 Senate Report 67; 1976 House Report 74, permits the
making of copies only for "private study, scholarship, or
research." §§ 108(d)(1) and (e)(1).

															[ Footnote 2/33 ]

															In the words of Lord Mansfield:

															"[W]e must take care to guard against two extremes equally
prejudicial; the one, that men of ability, who have employed their
time for the service of the community, may not be deprived of their
just merits, and the reward of their ingenuity and labour; the
other, that the world may not be deprived of improvements, nor the
progress of the arts be retarded." Sayre v. Moore, as set forth in Cary v.
Longman, 1 East 358, 361, n. (b), 102 Eng.Rep. 138, 140, n.
(b) (K.B. 1785). See Register's Supplementary Report
13.

															[ Footnote 2/34 ]

															This point was brought home repeatedly by the Register of
Copyrights. Mentioning the "multitude of technological
developments" since passage of the 1909 Act, including "remarkable
developments in the use of videotape," Register's Supplementary
Report xiv-xv, the Register cautioned:

															"I realize, more clearly now than I did in 1961, that the
revolution in communications has brought with it a serious
challenge to the author's copyright. This challenge comes not only
from the ever-growing commercial interests who wish to use the
author's works for private gain. An equally serious attack has come
from people with a sincere interest in the public welfare who fully
recognize . . . 'that the real heart of civilization . . . owes its
existence to the author;' ironically, in seeking to make the
author's works widely available by freeing them from copyright
restrictions, they fail to realize that they are whittling away the
very thing that nurtures authorship in the first place. An
accommodation among conflicting demands must be worked out, true
enough, but not by denying the fundamental constitutional
directive: to encourage cultural progress by securing the author's
exclusive rights to him for a limited time." Id. at xv; see 1975 House Hearings 117
(testimony of Barbara Ringer, Register of Copyrights).

															[ Footnote 2/35 ]

															A VTR owner who has taped a favorite movie for repeated viewing
will be less likely to rent or buy a tape containing the same
movie, watch a televised rerun, or pay to see the movie at a
theater. Although time-shifting may not replace theater or rerun
viewing or the purchase of prerecorded tapes or discs, it may well
replace rental usage; a VTR user who has recorded a first-run movie
for later viewing will have no need to rent a copy when he wants to
see it. Both library-builders and time-shifters may avoid
commercials; the library-builder may use the pause control to
record without them, and all users may fast-forward through
commercials on playback.

															The Studios introduced expert testimony that both time-shifting
and librarying would tend to decrease their revenue from
copyrighted works. See 480 F. Supp. at 440. The District
Court's findings also show substantial library-building and
avoidance of commercials. Both sides submitted surveys showing that
the average Betamax user owns between 25 and 32 tapes. The Studios'
survey showed that at least 40% of users had more than 10 tapes in
a "library"; Sony's survey showed that more than 40% of users
planned to view their tapes more than once; and both sides' surveys
showed that commercials were avoided at least 25% of the time. Id. at 438-439.

															[ Footnote 2/36 ]

															Concern over the impact of a use upon "potential" markets is to
be found in cases decided both before and after § 107 lent
Congress' imprimatur to the judicially created doctrine of fair
use. See, e.g., Iowa State University Research Foundation, Inc.
v. American Broadcasting Cos., 621 F.2d 57, 60 (CA2 1980)
("the effect of the use on the copyright holder's potential market
for the work"); Meeropol v. Nizer, 560 F.2d 1061, 1070
(CA2 1977) ("A key issue in fair use cases is whether the
defendant's work tends to diminish or prejudice the potential sale
of plaintiff's work"), cert. denied, 434 U.S. 1013 (1978); Williams & Wilkins Co. v. United States, 203 Ct.Cl. at
88, 487 F.2d at 1352 ("the effect of the use on a copyright owner's
potential market for and value of his work"); Encyclopaedia
Britannica Educational Corp. v. Crooks, 542 F.
Supp. 1156 , 1173 (WDNY 1982) ("[T]he concern here must be
focused on a copyrighted work's potential market. It is
perfectly possible that plaintiffs' profits would have been
greater, but for the kind of videotaping in question") (emphasis in
original).

															[ Footnote 2/37 ]

															This intent is manifested further by provisions of the 1976 Act
that exempt from liability persons who, while not participating
directly in any infringing activity, could otherwise be charged
with contributory infringement. See § 108(f)(1) (library
not liable "for the unsupervised use of reproducing equipment
located on its premises," provided that certain warnings are
posted); § 110(6) ("governmental body" or "nonprofit agricultural
or horticultural organization" not liable for infringing
performance by concessionaire "in the course of an annual
agricultural or horticultural fair or exhibition").

															[ Footnote 2/38 ]

															In Screen Gems, on which the Gershwin court relied, the
court held that liability could be imposed on a shipper of
unauthorized "bootleg" records and a radio station that broadcast
advertisements of the records, provided they knew or should have
known that the records were infringing. The court concluded that
the records' low price and the manner in which the records were
marketed could support a finding of "constructive knowledge" even
if actual knowledge were not shown.

															[ Footnote 2/39 ] See, e.g., Famous Music Corp. v. Bay State Harness Horse
Racing & Breeding Assn., Inc., 554 F.2d 1213 (CA1 1977); Dreamland Ball Room, Inc. v. Shapiro, Bernstein & Co., 36 F.2d 354 (CA7 1929); M. Witmark & Sons v. Tremont Social
& Athletic Club, 188 F.
Supp. 787 , 790 (Mass.1960); see also Twentieth Century
Music Corp. v. Aiken, 422 U. S. 151 , 422 U. S. 157 (1975); Buck v. Jewell-LaSalle Realty Co., 283 U.
S. 191 , 283 U. S.
198 -199 (1931); 3 M. Nimmer, Copyright § 12.04[A], p.
12-35 (1983).

															Courts have premised liability in these cases on the notion that
the defendant had the ability to supervise or control the
infringing activities, see, e.g., Shapiro, Bernstein & Co.
v. H. L. Green Co., 316 F.2d 304, 307 (CA2 1963); KECA
Music, Inc. v. Dingus McGee's Co., 432 F. Supp.
72 , 74 (WD Mo.1977). This notion, however, is to some extent
fictional; the defendant cannot escape liability by instructing the
performers not to play copyrighted music, or even by inserting a
provision to that effect into the performers' contract. Famous
Music Corp. v. Bay State Harness Horse Racing & Breeding Assn.,
Inc., 554 F.2d at 1214-1215; KECA Music, Inc. v. Dingus
McGee's Co., 432 F. Supp. at 75; Shapiro, Bernstein &
Co. v. Veltin, 47 F. Supp.
648 , 649 (WD La.1942). Congress expressly rejected a proposal
to exempt proprietors from this type of liability under the 1976
Act. See 1975 Senate Report 141-142; 1976 House Report
159-160; 1975 House Hearings 1812-1813 (testimony of Barbara
Ringer, Register of Copyrights); id. at 1813 (colloquy
between Rep. Pattison and Barbara Ringer).

															The Court's attempt to distinguish these cases on the ground of
"control," ante at 464 U. S. 437 ,
is obviously unpersuasive. The direct infringer ordinarily is not
employed by the person held liable; instead, he is an independent
contractor. Neither is he always an agent of the person held
liable; Screen Gems makes this apparent.

															[ Footnote 2/40 ]

															My conclusion respecting contributory infringement does not
include the retailer defendants. The District Court found that one
of the retailer defendants had assisted in the advertising campaign
for the Betamax, but made no other findings respecting their
knowledge of the Betamax's intended uses. I do not agree with the
Court of Appeals, at least on this record, that the retailers "are
sufficiently engaged in the enterprise to be held accountable," 659
F.2d 963, 976 (1981). In contrast, the advertising agency employed
to promote the Betamax was far more actively engaged in the
advertising campaign, and petitioners have not argued that the
agency's liability differs in any way from that of Sony Corporation
and Sony Corporation of America.

															[ Footnote 2/41 ]

															The "staple article of commerce" doctrine protects those who
manufacture products incorporated into or used with patented
inventions -- for example, the paper and ink used with patented
printing machines, Henry v. A. B. Dick Co., 224 U. S.
1 (1912), or the dry ice used with patented
refrigeration systems, Carbice Corp. v. American Patents
Corp., 283 U. S. 27 (1931). Because a patent holder has the right to control the use of
the patented item as well as its manufacture, see Motion
Picture Patents Co. v. Universal Film Mfg. Co., 243 U.
S. 502 , 243 U. S.
509 -510 (1917); 35 U.S.C. § 271(a), such protection for
the manufacturer of the incorporated product is necessary to
prevent patent holders from extending their monopolies by
suppressing competition in unpatented components and supplies
suitable for use with the patented item. See Dawson Chemical
Co. v. Rohm & Haas Co., 448 U. S. 176 , 448 U. S.
197 -198 (1980). The doctrine of contributory patent
infringement has been the subject of attention by the courts and by
Congress, see id. at 448 U. S.
202 -212, and has been codified since 1952, 66 Stat. 792,
but was never mentioned during the copyright law revision process
as having any relevance to contributory copyright infringement.

															[ Footnote 2/42 ]

															Although VTR's also may be used to watch prerecorded video
cassettes and to make home motion pictures, these uses do not
require a tuner such as the Betamax contains. See 464
U.S. 417 fn2/1|>n. 1, supra. The Studios do not
object to Sony's sale of VTR's without tuners. Brief for
Respondents 5, n. 9. In considering the noninfringing uses of the
Betamax, therefore, those uses that would remain possible without
the Betamax's built-in tuner should not be taken into account.

															[ Footnote 2/43 ]

															Noninfringing uses would include, for example, recording works
that are not protected by copyright, recording works that have
entered the public domain, recording with permission of the
copyright owner, and, of course, any recording that qualifies as
fair use. See, e.g., Bruzzone v. Miller Brewing Co., 202
USPQ 809 (ND Cal.1979) (use of home VTR for market research
studies).

															[ Footnote 2/44 ]

															Sony asserts that much or most television broadcasting is
available for home recording because (1) no copyright owner other
than the Studios has brought an infringement action, and (2) much
televised material is ineligible for copyright protection because
videotapes of the broadcasts are not kept. The first of these
assertions is irrelevant; Sony's liability does not turn on the
fact that only two copyright owners thus far have brought suit. The
amount of infringing use must be determined through consideration
of the television market as a whole. Sony's second assertion is
based on a faulty premise; the Copyright Office permits audiovisual
works transmitted by television to be registered by deposit of
sample frames plus a description of the work. See 37 CFR
§§ 202.20(c)(2)(ii) and 202.21(g) (1983). Moreover, although an
infringement action cannot be brought unless the work is
registered, 17 U.S.C. § 411(a) (1982 ed.), registration is not a
condition of copyright protection. § 408(a). Copying an
unregistered work still may be infringement. Cf. § 506(a)
(liability for criminal copyright infringement; not conditioned on
prior registration).

															[ Footnote 2/45 ]

															Even if concern with remedy were appropriate at the liability
stage, the Court's use of the District Court's findings is somewhat
cavalier. The Court relies heavily on testimony by representatives
of professional sports leagues to the effect that they have no
objection to VTR recording. The Court never states, however,
whether the sports leagues are copyright holders, and if so,
whether they have exclusive copyrights to sports broadcasts. It is
therefore unclear whether the sports leagues have authority to
consent to copying the broadcasts of their events.

															Assuming that the various sports leagues do have exclusive
copyrights in some of their broadcasts, the amount of authorized
time-shifting still would not be overwhelming. Sony's own survey
indicated that only 7.3% of all Betamax use is to record sports
events of all kinds. Tr. 2353, Defendants' Exh. OT, Table 20.
Because Sony's witnesses did not represent all forms of sports
events, moreover, this figure provides only a tenuous basis for
this Court to engage in factfinding of its own.

															The only witness at trial who was clearly an exclusive copyright
owner and who expressed no objection to unauthorized time-shifting
was the owner of the copyright in Mister Rogers' Neighborhood. But
the Court cites no evidence in the record to the effect that anyone
makes VTR copies of that program. The simple fact is that the
District Court made no findings on the amount of authorized
time-shifting that takes place. The Court seems to recognize this
gap in its reasoning, and phrases its argument as a hypothetical.
The Court states:

															" If there are millions of owners of VTR's who make
copies of televised sports events, religious broadcasts, and
educational programs such as Mister Rogers' Neighborhood, and if the proprietors of those programs welcome the
practice,"

															the sale of VTR's "should not be stifled" in order to protect
respondents' copyrights. Ante at 464 U. S. 446 (emphasis supplied). Given that the Court seems to recognize that
its argument depends on findings that have not been made, it seems
that a remand is inescapable.

															[ Footnote 2/46 ]

															As has been explained, some uses of time-shifting, such as
copying an old newspaper clipping for a friend, are fair use
because of their de minimis effect on the copyright
holder. The scale of copying involved in this case, of course, is
of an entirely different magnitude, precluding application of such
an exception.

															[ Footnote 2/47 ]

															Home Recording of Copyrighted Works: Hearing before the
Subcommittee on Courts, Civil Liberties, and the Administration of
Justice of the House Committee on the Judiciary, 97th Cong., 2d
Sess., pt. 2, p. 1250 (1982) (memorandum of Prof. Laurence H.
Tribe).

															[ Footnote 2/48 ] See A Survey of Betamax Owners, Tr. 2353, Defendants'
Exh. OT, Table 20, cited in Brief for Respondents 52.

															[ Footnote 2/49 ]

															The Court's one oblique acknowledgment of this third factor, ante at 464 U. S. 447 ,
and n. 30, seems to suggest that the fact that time-shifting
involves copying complete works is not very significant, because
the viewers already have been asked to watch the initial broadcast
free. This suggestion misses the point. As has been noted, a book
borrowed from a public library may not be copied any more freely
than one that has been purchased. An invitation to view a showing
is completely different from an invitation to copy a copyrighted
work.

															[ Footnote 2/50 ]

															The Court implicitly has recognized that this market is very
significant. The central concern underlying the Court's entire
opinion is that there is a large audience who would like very much
to be able to view programs at times other than when they are
broadcast. Ante at 464 U. S. 446 .
The Court simply misses the implication of its own concerns.

															[ Footnote 2/51 ]

															Other nations have imposed royalties on the manufacturers of
products used to infringe copyright. See, e.g., Copyright
Laws and Treaties of the World (UNESCO/BNA 1982) (English
translation), reprinting Federal Act on Copyright in Works of
Literature and Art and on Related Rights (Austria), §§ 42(5)(7),
and An Act dealing with Copyright and Related Rights (Federal
Republic of Germany), Art. 53(5). A study produced for the
Commission of European Communities has recommended that these
requirements "serve as a pattern" for the European community. A.
Dietz, Copyright Law in the European Community 135 (1978). While
these royalty systems ordinarily depend on the existence of
authors' collecting societies, see id. at 119, 136, such
collecting societies are a familiar part of our copyright law. See generally Broadcast Music, Inc. v. Columbia Broadcasting
System, Inc., 441 U. S. 1 , 441 U. S. 4 -5
(1979). Fashioning relief of this sort, of course, might require
bringing other copyright owners into court through certification of
a class or otherwise.

Summary:
Here is a summary of the case:

The Supreme Court ruled in favor of Sony, finding that the sale of videotape recorders (VTRs) to the general public does not constitute contributory infringement of copyrights held by Universal and other respondents. The Court considered the copyright law's fair use doctrine, which allows individuals to reproduce copyrighted works for limited personal use. The Court also distinguished this case from previous cases of vicarious liability for copyright infringement, noting that Sony was not in a position to control how consumers used their VTRs after the point of sale.

The Court expressed concern about the potential impact of a ruling against Sony on innovation and technological progress. It suggested that Congress, rather than the courts, should address the complex issues surrounding new technologies and copyright law.

The case has important implications for the balance between copyright protection and fair use, as well as for the liability of manufacturers and distributors of technologies that can be used for copyright infringement.