81-1687-DISSENT SONY CORP. v. UNIVERSAL CITY STUDIOS, INC. 41 The next two statutory factors are all but ignored by the Court-though certainly not because they have no applicability. The second factor-"the nature of the copyrighted work"-strongly supports the view that time-shifting is an infringing use. The rationale guiding application of this factor is that certain types of works, typically those involving "more of diligence than of originality or inventiveness," New York Times Co. v. Roxbury Data Interface, Inc., 434 F. Supp. 217, 221 (NJ 1977), require less copyright protection than other original works. Thus, for example, informational works, such as news reports, that readily lend themselves to productive use by others, are less protected than creative works of entertainment. Sony's own surveys indicate that entertainment shows account for more than 80 percent of the programs recorded by Betamax owners." The third statutory factor-"the amount and substantiality of the portion used"-is even more devastating to the Court's interpretation. It is undisputed that virtually all VTR owners record entire works, see 480 F. Supp., at 454, thereby creating an exact substitute for the copyrighted original. Fair use is intended to allow individuals engaged in productive uses to copy small portions of original works that will facilitate their own productive endeavors. Time-shifting bears no resemblance to such activity, and the complete duplication that it involves might alone be sufficient to preclude a finding of fair use. It is little wonder that the Court has chosen to ignore this statutory factor." *See A Survey of Betamax Owners, R. 2353, Def. Exh. OT, Table 20, cited in Brief for Respondents 52. "The Court's one oblique acknowledgement of this third factor, ante, at 29, seems to suggest that the fact that time-shifting involves copying complete works is not very significant because the viewers already have been asked to watch the initial broadcast free. This suggestion misses the point. As has been noted, a book borrowed from a public library may not be copied any more freely than one that has been purchased. An invitation to view a showing is completely different from an invitation to copy a copyrighted work. 42 81-1687-DISSENT SONY CORP. v. UNIVERSAL CITY STUDIOS, INC. The fourth factor requires an evaluation of "the effect of the use upon the potential market for or value of the copyrighted work." This is the factor upon which the Court focuses, but once again, the Court has misread the statute. As mentioned above, the statute requires a court to consider the effect of the use on the potential market for the copyrighted work. The Court has struggled mightily to show that VTR use has not reduced the value of the Studios' copyrighted works in their present markets. Even if true, that showing only begins the proper inquiry. The development of the VTR has created a new market for the works produced by the Studios. That market consists of those persons who desire to view television programs at times other than when they are broadcast, and who therefore purchase VTR recorders to enable them to time-shift.50 Because time-shifting of the Studios' copyrighted works involves the copying of them, however, the Studios are entitled to share in the benefits of that new market. Those benefits currently go to Sony through Betamax sales. Respondents therefore can show harm from VTR use simply by showing that the value of their copyrights would increase if they were compensated for the copies that are used in the new market. The existence of this effect is self-evident. Because of the Court's conclusion concerning the legality of time-shifting, it never addresses the amount of noninfringing use that a manufacturer must show to absolve itself from liability as a contributory infringer. Thus, it is difficult to discuss how the Court's test for contributory infringement would operate in practice under a proper analysis of timeshifting. One aspect of the test as it is formulated by the 30 "The Court implicitly has recognized that this market is very significant. The central concern underlying the Court's entire opinion is that there is a large audience who would like very much to be able to view programs at times other than when they are broadcast. Ante, at 26. The Court simply misses the implication of its own concerns. 81-1687-DISSENT SONY CORP. v. UNIVERSAL CITY STUDIOS, INC. 43 Court, however, particularly deserves comment. The Court explains that a manufacturer of a product is not liable for contributory infringement as long as the product is "capable of substantial noninfringing uses." Ante, at 22 (emphasis supplied). Such a definition essentially eviscerates the concept of contributory infringement. Only the most unimaginative manufacturer would be unable to demonstrate that a imageduplicating product is "capable" of substantial noninfringing uses. Surely Congress desired to prevent the sale of products that are used almost exclusively to infringe copyrights; the fact that noninfringing uses exist presumably would have little bearing on that desire. More importantly, the rationale for the Court's narrow standard of contributory infringment reveals that, once again, the Court has confused the issue of liability with that of remedy. The Court finds that a narrow definition of contributory infringement is necessary in order to protect "the rights of others freely to engage in substantially unrelated areas of commerce." Ante, at 22. But application of the contributory infringement doctrine implicates such rights only if the remedy attendant upon a finding of liability were an injunction against the manufacture of the product in question. The issue of an appropriate remedy is not before the Court at this time, but it seems likely that a broad injunction is not the remedy that would be ordered. It is unfortunate that the Court has allowed its concern over a remedy to infect its analysis of liability. VII The Court of Appeals, having found Sony liable, remanded for the District Court to consider the propriety of injunctive or other relief. Because of my conclusion as to the issue of liability, I, too, would not decide here what remedy would be appropriate if liability were found. I concur, however, in the Court of Appeals' suggestion that an award of damages, or continuing royalties, or even some form of limited injunction, may well be an appropriate means of balancing the equi 44 81-1687-DISSENT SONY CORP. v. UNIVERSAL CITY STUDIOS, INC. ties in this case." Although I express no view on the merits of any particular proposal, I am certain that, if Sony were found liable in this case, the District Court would be able to fashion appropriate relief. The District Court might conclude, of course, that a continuing royalty or other equitable relief is not feasible. The Studios then would be relegated to statutory damages for proved instances of infringement. But the difficulty of fashioning relief, and the possibility that complete relief may be unavailable, should not affect our interpretation of the statute. Like so many other problems created by the interaction of copyright law with a new technology, "[t]here can be no really satisfactory solution to the problem presented here, until Congress acts." Twentieth Century Music Corp. v. Aiken, 422 U. S., at 167 (dissenting opinion). But in the absence of a congressional solution, courts cannot avoid difficult problems by refusing to apply the law. We must "take the Copyright Act ... as we find it," Fortnightly Corp. v. United Artists, 392 U. S. 390, 401-402 (1968), and “do as little damage as possible to traditional copyright principles. . . until the Congress legislates." Id., at 404 (dissenting opinion). 51 Other Nations have imposed royalties on the manufacturers of products used to infringe copyright. See, e. g., Copyright Laws and Treaties of the World (UNESCO/BNA 1982) (English translation), reprinting Federal Act On Copyright in Works of Literature and Art and on Related Rights (Austria), § 42(5)–(7), and An Act dealing with Copyright and Related Rights (Federal Republic of Germany), Art. 53(5). A study produced for the Commission of European Communities has recommended that these requirements "serve as a pattern" for the European community. A. Dietz, Copyright Law in the European Community 135 (1978). While these royalty systems ordinarily depend on the existence of authors' collecting societies, see id., at 119, 136, such collecting societies are a familiar part of our copyright law. See generally Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U. S. 1, 4-5 (1979). Fashioning relief of this sort, of course, might require bringing other copyright owners into court through certification of a class or otherwise. Addison-Wesley Pub. Co. v. New York University, 82 CIV. Harper & Row v. American Cyanamid Co., 81 CIV. 7813 (S.D.N.Y.). Suit against corporation for photocopying of journal Harper & Row v. Squibb Corporation, 82 CIV. 2363 (S.D.N.Y.). Same as 2. Basic Books v. The Gnomon Corporation, CIV. No. 80-36 (D. Suit against commercial copy center for photocopying. Harper & Row v. Tyco Copy Service, No. N80-217 (D. Conn. Same as 4. Consent injunction entered; CCH Copr. L. Rep. Aircraft Technical Pub. v. Cessna Aircraft Corp., No. 79-4391 COMPUTER PROGRAMS 1. Apple Computer, Inc. v. Franklin Computer Corporation, 714 F. Copyright © 1983, 1984 by Jon A. Baumgarten, William F. Patry. |