Harry Blackmun

“ 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.” ”

“ The requirement that a putatively infringing use of a copyrighted work, to be “fair,” must not impair a “potential” market for the work has two implications. First, an infringer cannot prevail merely by demonstrating that the copyright holder suffered no net harm from the infringer’s action. Indeed, even a showing that the infringement has resulted in a net benefit to the copyright holder will not suffice. ”

“ 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.” ”

“ 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. ”

“ The inquiry is necessarily a flexible one, and the endless variety of situations that may arise precludes the formulation of exact rules. But when a user reproduces an entire work and uses it for its original purpose, with no added benefit to the public, the doctrine of fair use usually does not apply. There is then no need whatsoever to provide the ordinary user with a fair use subsidy at the author’s expense. ”

“ 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. ”

“ 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.” ”

“ 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 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 ”

“ 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. [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. ”

“ 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. ”

“ 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. ”

“ 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. [16]
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. ”

“ 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. ”

“ 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 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. ”

“ 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.” ”

“ This study found no reported case supporting the existence of an exemption for private use, although it noted that “the purpose and nature of a private use, and in some cases the small amount taken, might lead a court to apply the general principles of fair use in such a way as to deny liability.” Id., at 12. After reviewing a number of foreign copyright laws that contained explicit statutory exemptions for private or personal use, id., at 25, Professor Latman outlined several approaches that a revision bill could take to the general issue of exemptions and fair use. ”

“ 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. ”

“ Sony’s own surveys indicate that entertainment shows account for more than 80% of the programs recorded by Betamax owners. [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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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.
↑ 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. ”

“ 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. ”

“ Miller Brewing Co., 202 USPQ 809 (ND Cal. 1979) (use of home VTR for market research studies) .↑ 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. ”

“ This concept is carried forward into the 1976 Act, which distinguishes between “copies” and “phonorecords.” See n.7, supra.↑ 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”) ”

“ We must “take the Copyright Act...as we find it,” Fortnightly Corp. v. United Artists Television, Inc., 392 U.S., at 401–402, and “do as little damage as possible to traditional copyright principles...until the Congress legislates.” Id., at 404 (dissenting opinion) .
Footnotes ↑ 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 VTR’s without built-in tuners ”