Sony Corp. v. Universal City Studios
464 U.S. 417, 104 S. Ct. 774, 78 L. Ed. 2d 574 (1984)
Argued on January 18, 1983; Reargued October 3, 1983
Decided on January 17, 1984
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. 457.
JUSTICE STEVENS delivered the opinion of the Court.
Petitioners manufacture and sell home video tape recorders. Respondents
own the copyrights on some of the television [p.420] programs that are
broadcast on the public airwaves. Some members of the general ublic use
video tape recorders sold by petitioners to record some of these broadcasts,
as well as a large number of other broadcasts. The question presented is
whether the sale of petitioners' copying equipment to the general public
violates any of the rights conferred upon respondents by the Copyright
Respondents commenced this copyright infringement action against petitioners
in the United States
District Court for the Central District of California in 1976. Respondents alleged that some individuals had
used Betamax video tape recorders (VTR's) to record some of respondents' copyrighted works which had
been exhibited on commercially sponsored television and contended that these individuals had thereby
infringed respondents' copyrights. Respondents further maintained that petitioners were liable for the
copyright infringement allegedly committed by Betamax consumers because of petitioners' marketing of
the Betamax VTR's. n1 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 (1981). [p.421]
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.
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: [p.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 video tape recorders
and markets these devices
through numerous retail establishments, some of which are also petitioners in this action. n2 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 [p.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. n3 Sony's survey indicated [p.424] that over 80% of the interviewees watched at least as much regular television as they had before owning a Betamax. n4 Respondents offered no evidence of decreased television viewing by Betamax owners. n5
"He owns approximately 100 tapes. When Griffiths bought his Betamax,
he intended not only to time-shift
(record, play- back and then erase) but also to build a library of cassettes. Maintaining a library,
however, proved too expensive, and he is now erasing some earlier tapes and reusing them.
"Griffiths copied about 20 minutes of a Universal motion picture called
'Never Give An Inch,' and two
episodes from Universal television series entitled 'Baa Baa Black Sheep' and 'Holmes and Yo Yo.' He
would have erased each of these but for the request of plaintiffs' counsel that it be kept. Griffiths also
testified that he had copied but already erased Universal films called 'Alpha Caper' (erased before anyone
saw it) and 'Amelia Earhart.' At the time of his deposition Griffiths did not intend to keep any Universal
film in his library.
"Griffiths has also recorded documentaries, news broadcasts, sporting
events and political programs such
as a rerun of the Nixon/Kennedy debate." 480 F.Supp. 429, 436-437 (1979).
Four other witnesses testified to having engaged in similar activity.
n4 The District Court summarized some of the findings in these surveys as follows:
"According to plaintiffs' survey, 75.4% of the VTR owners use their
machines to record for 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.
n5 "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.
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. n6
[p.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. n7 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, 102." Id., at 454. n8 Even when an entire copyrighted work
was recorded, [p.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.
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 [p.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." n9 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.
n9 "Without a 'productive use,' i. e. when copyrighted material is reproduced for its intrinsic use, the
mass copying of the sort involved in this case precludes an application of fair use." 659 F.2d, at 971-972.
[p.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 "[virtually] all" such programming is copyrighted material. Ibid. The Court of Appeals concluded,
therefore, that VTR's were not suitable for any substantial noninfringing use even if some copyright
owners elect not to enforce their rights.
The Court of Appeals also rejected the District Court's reliance on
Sony's lack of knowledge that home
use constituted infringement. Assuming that the statutory provisions defining the remedies for
infringement applied also to the 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.
Article I, Section 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."
[p.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, 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, 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. n10
"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).
[p.430] From its beginning, the law of copyright has developed in response
to significant changes in
technology. n11 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. n12 Repeatedly, as new developments have
[p.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, 661-662 (1834). The remedies for infringement "are only those prescribed by Congress." Thompson
v. Hubbard, 131 U.S. 123, 151 (1889).
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 video tape
recording equipment. In view of our disposition of the contributory infringement issue, we express no
opinion on that question.
n12 "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).
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 [p.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, 127. See Kendall
v. Winsor, 21 How. 322, 327-328; Grant v. Raymond, 6 Pet. 218, 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, 156 (1975) (footnotes omitted).
Copyright protection "subsists . . . in original works of authorship
fixed in any tangible medium of
expression." 17 U. S. C. Section 102(a) (1982 ed.). This protection has never accorded the copyright
owner complete control over all possible uses of his work. n13 Rather, the Copyright Act grants the
[p.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. Section 106. n14 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 wor for a "fair use"; the copyright owner does not
possess the exclusive right to such a use. Compare Section 106 with Section 107.
n14 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."
"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." Section 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 [p.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. Sections 502-505. n15
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.
n16 As was made clear by their own evidence, the copying of the respondents' programs represents a
small portion of the total use of VTR's. It is, however, the taping of respondents' own copyrighted
programs that provides them with standing to charge Sony with contributory infringement. To prevail,
they have the burden of proving that users of the Betamax have infringed their copyrights and that Sony
should be held responsible for that infringement.
The Copyright Act does not expressly render anyone liable for infringement
committed by another. In
contrast, the [p.435] Patent Act expressly brands anyone who "actively induces infringement of a patent"
as an infringer, 35 U. S. C. Section 271(b), and further imposes liability on certain individuals labeled
"contributory" infringers, Section 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. n17 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
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.
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 [p.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 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 [p.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. n18 This case,
however, plainly does not fall [p.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]
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. . . . [On] the particular facts before us, . . . Green's relationship to its
infringing licensee, as well as its strong concern for the financial success of the phonograph record
concession, renders it liable for the unauthorized sales of the 'bootleg' records.
. . . .
". . . [The] 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.
[p.439] If vicarious liability is to be imposed on Sony in this case,
it must rest on the fact that tit 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.
n19 E. g., United States v. Paramount Pictures, Inc., 334 U.S., at 158; Fox Film Corp. v. Doyal, 286 U.S.,
at 131; Wheaton v. Peters, 8 Pet. 591, 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, 217-218 (1954);
Bobbs-Merrill Co. v. Straus, 210 U.S., at 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, 91-92 (1879); see also United Drug Co. v. Theodore
Rectanus Co., 248 U.S. 90, 97 (1918) (trademark right "has little or no analogy" to copyright or patent);
McLean v. Fleming, 96 U.S. 245, 254 (1878); Canal Co. v. Clark, 13 Wall. 311, 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, 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 [induce]" its
customers to make infringing uses of respondents' copyrights, nor does it supply its products to identified
individuals known by it to be engaging in continuing infringement of respondents' copyrights, see id., at
[p.440] In the Patent Act both the concept of infringement and the concept
of contributory infringement
are expressly defined by statute. n20 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. Section 271(c).
"(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
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 [p.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. n21
For that reason, in contributory infringement cases arising under the
patent laws the Court has always
recognized the critical importance of not allowing the patentee to extend his monopoly beyond the limits
of his specific grant. These cases deny the patentee any right to control the distribution of unpatented
articles unless they are "unsuited for any commercial noninfringing use." Dawson Chemical Co. v. Rohm
& Hass Co., 448 U.S. 176, 198 (1980). Unless a commodity "has no use except through practice of the
patented method," id., at 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
Section 17.02 (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, 48 (1912), overruled on other
grounds, [p.442] Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 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.
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.
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%. n22 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. n23
n23 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. Section 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.
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.
[p.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.,
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, n24
two items in the record deserve specific mention.
[p.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. n25 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. n26
n26 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).
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. n27
[p.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. n28 The seller of the equipment that expands those producers'
audiences cannot be a contributory [p.447] infringer if, as is true in this case, it has had no direct
involvement with any infringing activity.
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
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 154-155. Moreover, the
definition of exclusive rights in Section 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 Section 107, the legislative endorsement of the doctrine of "fair use." n29
[p.448] That section identifies various factors n30 that enable a court
to apply an "equitable rule of
reason" analysis to particular claims of infringement. n31 Although not conclusive, the first [p.449] factor
requires that "the commercial or nonprofit character of an activity" be weighed in any fair use decision.
n32 If the Betamax were used to make copies for a commercial or profit-making purpose, such use would
presumptively be unfair. The contrary presumption is appropriate here, however, because the District
Court's findings plainly establish that time-shifting for private home use must be characterized as a
noncommercial, nonprofit activity. Moreover, when one considers the nature of a televised copyrighted
audiovisual work, see 17 U. S. C. Section 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
[p.450] that the entire work is reproduced, see Section 107(3), does not have its ordinary effect of
militating against a finding of fair use. n33
"(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.
Section 107 (1982 ed.).
n31 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 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
n32 "The Committee has amended the first of the criteria to be considered
--'the purpose and character
of the use' -- to state explicitly that this factor includes a consideration of 'whether such use is of a
commercial nature or is for non-profit educational purposes.' This amendment is not intended to be
interpreted as any sort of not-for-profit limitation on educational uses of copyrighted works. It is an
express recognition that, as under the present law, the commercial or non-profit character of an activity,
while not conclusive with respect to fair use, can and should be weighed along with other factors in fair
use decisions." H. R. Rep. No. 94-1476, supra, at 66.
n33 It has been suggested that "consumptive uses of copyrights by home
VTR users are commercial even
if the consumer does not sell the homemade tape because the consumer will not buy tapes separately
sold by the copyrightholder." Home Recording of Copyrighted Works: Hearing before 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, "[the]
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.
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." Section 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 [p.451] merely inhibit access to ideas without any countervailing benefit. n34
"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 minimus non curat
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
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.
[p.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. n35
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.
n36 It rejected respondents' prediction "that live television [p.453] or movie audiences will decrease as
more people watch Betamax tapes as an alternative," with the observation that "[there] is no factual
basis for [the underlying] assumption." Ibid. n37 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. n38 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. n39
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.
n37 "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.
n38 "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.
n39 "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.
[p.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
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, 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 [p.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. n40
Congress has plainly instructed us that fair use analysis calls for
a sensitive balancing of interests. The
distinction between "productive" and "unproductive" uses may be helpful in calibrating the balance, but it
cannot be wholly determinative. Although copying to promote a scholarly endeavor certainly has a
stronger claim to fair use than copying to avoid interrupting a poker game, the question is not simply two-
dimensional. For one thing, it is not true that all copyrights are fungible. Some copyrights govern material
with broad potential secondary markets. Such material may well have a broader claim to protection
because of the greater potential for commercial harm. Copying a news broadcast may have a stronger
claim to fair use than copying a motion picture. And, of course, not all uses are fungible. Copying for
commercial gain has a much weaker claim to fair use than copying for personal enrichment. But the
notion of social "productivity" cannot be a complete answer to this analysis. A teacher who copies to
prepare lecture notes is clearly productive. But so is a teacher who copies for the sake of broadening his
personal understanding of his specialty. Or a legislator who copies for the sake of broadening her
understanding of what her constituents are watching; or a constituent who copies a news program to
help make a decision on how to vote.
Making a copy of a copyrighted work for the convenience of a blind person
is expressly identified by the
House Committee Report as an example of fair use, with no suggestion that anything more than a
purpose to entertain or to inform need motivate the copying. In a hospital setting, using a VTR to enable
a patient to see programs he would otherwise miss has no productive purpose other than contributing to
the psychological well-being of the patient. Virtually any time-shifting that increases viewer access to
television programming may result in a comparable benefit. The statutory language does not identify any
dichotomy between productive and nonproductive time-shifting, but does require consideration of the
economic consequences of copying.
[p.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.
"The direction of Art. I is that Congress shall have the power to promote
the progress of science and the
useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go
can come only from Congress." Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 530 (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.