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Sony Corp. of America v. Universal City Studios, Inc. 464 U.S. 417 (1984)
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Supreme Court of the United States Argued Jan. 18, 1983 Reargued Oct. 3, 1983 Decided Jan. 17, 1984 Rehearing Denied Mar. 19, 1984 Appeal from 9th Cir. Reversed |
Dean C. Dunlavey reargued the cause for petitioners. With him on the briefs were Donald E. Sloan and Marshall
Rutter.
Stephen A. Kroft reargued the cause for respondents.
With him on the brief was Sondra E. Berchin.
Briefs of amici curiae urging reversal were filed for the Virginia
Citizens' Consumer Council, Inc., et al. by William A. Dobrovir;
for the American Library Association by Newton N. Minow;
for the Consumer Electronics Group by J. Edward Day;
for the Educators Ad Hoc Committee on Copyright Law by Michael H.
Cardozo, August W. Steinhilber, and Gwendolyn H. Gregory;
for General Electric Co. et al. by Alfred B. Engelberg, Morton
Amster, Jesse Rothstein, and Joel E. Lutzker;
for Hitachi, Ltd., et al. by John W. Armagost and Craig B.
Jorgensen; for
McCann-Erickson, Inc., et al. by John A. Donovan, A. Howard Matz, and
David Fleischer; for
Minnesota Mining and Manufacturing Co. et. al. by Sidney A. Diamond and
Grier Curran Raclin; for the
National Retail Merchants Association by Peter R. Stern, Theodore S.
Steingut, and Robert A. Weiner; for
Sanyo Electric, Inc., by Anthony Liebig;
for Sears, Roebuck and Co. by Max L. Gillam and Mary E. Woytek;
for TDK Electronics Co., Ltd., by Ko- Yung Tung and Adam
Yarmolinsky; for Toshiba
Corp. et al. by Donald J. Zoeller and Herve Gouraige;
for Pfizer Inc. by Steven C. Kany;
and for Viare Publishing by Peter F. Marvin.
Briefs of amici curiae urging affirmance were filed for the
Association of American Publishers, Inc., et al. by Charles H. Lieb and
Jon A. Baumgarten; for the Authors League of America, Inc., by Irwin Karp; for CBS Inc. by Lloyd N. Cutler, Louis R. Cohen, and George
Vradenburg III; for Creators
and Distributors of Programs by Stuart Robinowitz and Andrew J. Peck; for the International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the United States and Canada,
AFL-CIO, by Leo Geffner; for
the Motion Picture Association of America, Inc., by Richard M. Cooper,
Ellen S. Huvelle, and William Nix; for
the National Music Publishers' Association, Inc., by Jon A. Baumgarten; for the Recording Industry Association of America, Inc., by
James F. Fitzpatrick, Cary H. Sherman, and Ernest S. Meyers;
for Volunteer Lawyers for the Arts, Inc., by I. Fred Koenigsberg;
and for the Writers Guild of America, West, Inc., et al. by Paul P.
Selvin, Jerome B. Lurie, and Paul S. Berger.
Briefs of amici curiae were filed for the State of Missouri et al.
by John Ashcroft, Attorney General of Missouri, and by the Attorneys
General for their respective States as follows:
Charles A. Graddick of Alabama, John Steven Clark of Arkansas,
Michael J. Bowers of Georgia, Tany S. Hong of Hawaii, Tyrone C. Fahner of
Illinois, Thomas J. Miller of Iowa, William J. Guste, Jr., of Louisiana,
William A. Allain of Mississippi, Michael T. Greely of Montana, Rufus L.
Edmisten of North Carolina, William J. Brown of Ohio, Jan Eric Cartwright
of Oklahoma, Dennis J. Roberts II of Rhode Island, John J. Easton of
Vermont, Gerald L. Baliles of Virginia, and Bronson C. La Follette of
Wisconsin; and for the
Committee on Copyright and Literary Property of the Association of the Bar
of the City of New York by Michael S. Oberman and David H. Marks.
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 programs that are broadcast on the public airwaves. Some members of the general public 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 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 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. [FN1]
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. FN1.
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.
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 respondent's
copyright claim, holding petitioners liable for contributory infringement
and ordering the District Court to fashion appropriate relief.
F.2d 963 (1981).
We granted certiorari, 457 U.S. 1116, 102 S.Ct. 2926, 73 L.Ed.2d
1328 (1982); since we had not
completed our study of the case last Term, we ordered reargument, 463 U.S.
1226, 103 S.Ct. 3568, 77 L.Ed.2d 1409 (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 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 theirrights in these
works in a number of ways: 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. [FN2]
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.
FN2.
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, Burnbock, Inc., also
involved in marketing the Betamax, is also a petitioner.
An individual VTR user, Willis Griffiths, was named as a defendant
in the District Court, but respondent sought no relief against him.
Griffiths is not a petitioner.
For convenience, we shall refer to petitioners collectively as
Sony.
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 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. [FN3]
Sony's survey indicated that over 80% of the interviewees watched
at least as much regular television as they had before owning a Betamax.
[FN4] Respondents offered no evidence of decreased television
viewing by Betamax owners. [FN5] FN3.
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.
"Griffiths has also recorded documentaries, news broadcasts,
sporting events and political programs such as a rerun of the
Nixon/Kennedy debate." 480
F.Supp., at 436-437.
Four other witnesses testified to having engaged in similar
activity. FN4.
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."
480 F.Supp., at 438. FN5.
"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." 480 F.Supp.,
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. [FN6] FN6.
See Def.Exh. OT, Table 20; Tr.
2447-2450, 2480, 2486-2487, 2515-2516, 2530-2534.
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. Id., 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. [FN7]
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 480 F.Supp. 429, 432-433, 442 (1979). FN7.
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, at 976, and
respondents did not cross-petition on this issue.
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 [93 S.Ct. 2080, 2086, 36 L.Ed.2d 772]."
480 F.Supp., at 454. [FN8] Even
when an entire copyrighted work was recorded, the District Court regarded
the copying as fair use "because there is no accompanying reduction
in the market for 'plaintiff's original work.' "
Ibid. FN8.
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.
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 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 advertisors of the instrument
enabling the infringement were sued by the copyright holders," and
that the request for relief in this case "is unique." 480 F.Supp.,
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." 480 F.Supp.,
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." [FN9] 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. FN9.
"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.
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 non-statutory 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," 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.
659 F.2d, at 976. II
Article I, Sec. 8 of the Constitution provides that:
"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."
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 statute, makes reward to
the owner a secondary consideration.
In Fox Film Corp. v. Doyal, 286 U.S. 123, 127 [52 S.Ct. 546, 547,
76 L.Ed. 1010], 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, 334 U.S. 131, 158, 68 S.Ct.
915, 929, 92 L.Ed. 1260.
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.
[FN10] FN10. 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).
From its beginning, the law of copyright has developed in response
to significant changes in technology. [FN11]
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. [FN12] Repeatedly, as new developments have 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, 33 U.S. (8 Peters) 591, 661-662, 8
L.Ed. 1055 (1834). The
remedies for infringement "are only those prescribed by
Congress." Thompson v. Hubbard, 131 U.S. 123, 151, 9 S.Ct. 710, 720, 33
L.Ed. 76 (1889). FN11.
Thus, for example, the development and marketing of player pianos and
perforated roles of music, see White-Smith Music Publishing Co. v. Apollo
Co., 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655 (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, 392 U.S. 390, 88 S.Ct. 2084, 20
L.Ed.2d 1176 (1968), and Teleprompter Corp. v. CBS, 415 U.S. 394, 94 S.Ct.
1129, 39 L.Ed.2d 415 (1974), prompted the enactment of the complex
provisions set forth in 17 U.S.C. § 111(d)(2)(B) and § 111(d)(5) 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.Rep. No. 487, 92nd Cong., 1st Sess., p. 7, 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. FN12.
"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. CBS, 415 U.S. 394, 94 S.Ct. 1129,
39 L.Ed.2d 415 (1974); Fortnightly Corp. v. United Artists, 392 U.S. 390, 88 S.Ct.
2084, 20 L.Ed.2d 1176 (1968); White-Smith
Music Publishing Co. v. Apollo Co., 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655
(1908); Williams and Wilkins
v. United States, 487 F.2d 1345, 203 Ct.Cl. 74 (1973), affirmed by an
equally divided court, 420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d 264 (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 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 [52 S.Ct. 546, 547, 76
L.Ed. 1010]. See Kendall v.
Winsor, 21 How. 322, 327-328 [16 L.Ed. 165];
Grant v. Raymond, 6 Pet. 218, 241-242 [8 L.Ed. 376].
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, 95 S.Ct.
2040, 2043, 45 L.Ed.2d 84 (footnotes omitted).
Copyright protection "subsists ... in original works of
authorship fixed in any tangible medium of expression."
17 U.S.C. § 102(a). This
protection has never accorded the copyright owner complete control over
all possible uses of his work. [FN13]
Rather, the Copyright Act grants the 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. Id., § 106. [FN14]
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 id., § 106 with id., § 107. FN13.
See, e.g., White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 19,
28 S.Ct. 319, 323, 52 L.Ed. 655 (1908);
cf. Deep South Packing Co. v. Lathram Corp., 406 U.S. 518, 530-531,
92 S.Ct. 1700, 1707- 1708, 32 L.Ed.2d 273 (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, 334 U.S. 131,
156-158, 68 S.Ct. 915, 928-929, 92 L.Ed. 1260 (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, 52 S.Ct. 546, 76 L.Ed. 1010 (1932) (copyright
owner claiming copyright renders it immune from state taxation of
copyright royalties); Bobbs-Merrill
Co. v. Straus, 210 U.S. 339, 349-351, 28 S.Ct. 722, 725-726, 52 L.Ed. 1086
(1908) (copyright owner claiming that a right to fix resale price of his
works within the scope of his copyright);
International Business Machines v. United States, 298 U.S. 131, 56
S.Ct. 701, 80 L.Ed. 1085 (1936) (patentees claiming right to tie sale of
unpatented article to lease of patented device). FN14.
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." Id., §
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 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 attorneys fees. Id., §§ 502-505. [FN15] FN15.
Moreover, anyone who willfully infringes the copyright to reproduce a
motion picture for purposes of commercial advantage or private financial
gain is subject to criminal penalties of one year imprisonment and a
$25,000 fine for the first offense and two years imprisonment and a
$50,000 fine for each subsequent offense, 17 U.S.C. § 506(a), and the
fruits and instrumentalities of the crime are forfeited upon conviction,
id., § 506(b).
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.
[FN16] 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. FN16.
In this regard, we reject respondent's 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 Respondent, at 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. III
The Copyright Act does not expressly render anyone liable for
infringement committed by another.
In contrast, the 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, id., § 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. [FN17] 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. FN17.
As the District Court correctly observed, however, "the lines between
direct infringement, contributory infringement, and vicarious liability
are not clearly drawn...." 480
F.Supp. 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 petitioners'
liability under the "doctrines" of "direct
infringement" and "vicarious liability" are not nominally
before this Court. Compare
Respondents' Brief, at 9, n. 22, 41, n. 90 with Petitioners' Reply Brief,
at 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, 32 S.Ct. 20, 56 L.Ed. 92 (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 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."
222 U.S., at 63, 32 S.Ct., at 22.
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. Petitioners
in the instant case do not supply Betamax consumers with respondents'
works; respondents do.
Petitioners supply 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 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. [FN18]
This case, however, plainly does not fall 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. FN18.
The so-called "dance hall cases," Famous Music Corp. v. Bay
State Harness Horse Racing and Breeding Ass'n, 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 (W.D.Mo.1977) (cocktail
lounge hired musicians to supply music to paying customers); Dreamland Ball Room 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 twenty-three chain stores 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.
"[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.
If vicarious liability is to be imposed on petitioners in this
case, it must rest on the fact that they have sold equipment with
constructive knowledge of the fact that their 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. [FN19] FN19.
E.g., United States v. Paramount Pictures, 334 U.S. 131, 158, 68 S.Ct.
915, 929, 92 L.Ed. 1260 (1948); Fox
Film Corp. v. Doyal, 286 U.S. 123, 131, 52 S.Ct. 546, 548, 76 L.Ed. 1010
(1932); Wheaton and Donaldson
v. Peters and Grigg, 33 U.S. (8 Pet.) 591, 657-658, 8 L.Ed. 1055 (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, 74 S.Ct. 460,
470, 98 L.Ed. 630 (1954); Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 345,
28 S.Ct. 722, 724, 52 L.Ed. 1086 (1908). 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, 25 L.Ed. 550 (1879);
see also, United Drug Co. v. Rectanus Co., 248 U.S. 90, 97, 39 S.Ct.
48, 50, 63 L.Ed. 141 (1918) (trademark right "has little or no
analogy" to copyright or patent);
McLean v. Fleming, 96 U.S. 245, 254 (1877); Canal Co. v. Clark, 13
Wall. 311, 322, 20 L.Ed. 581 (1871).
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 v. Ives
Laboratories, 456 U.S. 844, 854-855, 102 S.Ct. 2182, 2188, 72 L.Ed.2d 606
(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 855, 102
S.Ct., at 2188.
In the Patent Code both the concept of infringement and the concept
of contributory infringement are expressly defined by statute. [FN20]
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. FN20.
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."
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 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. [FN21] FN21.
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 petitioners in return for a royalty.
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, 100 S.Ct. 2601,
2614, 65 L.Ed.2d 696 (1980). Unless
a commodity "has no use except through practice of the patented
method," ibid, 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] (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, 32 S.Ct. 364, 379, 56 L.Ed.
645 (1912), overruled on other grounds, Motion Picture Patents Co. v.
Universal Film Mfg. Co., 243 U.S. 502, 517, 37 S.Ct. 416, 421, 61 L.Ed.
871 (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
non-infringing. 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%.
[FN22] 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.
[FN23] FN22.
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. FN23.
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, Tr. 2300-2301, and certain
broadcasts produced by the federal government are also uncopyrighted.
See 17 U.S.C. § 105. Cf.
Schnapper v. Foley, 667 F.2d 102 (CADC 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.
"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. |
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