person has infringed the copyright and the copyright owner is entitled to a remedy against the infringer. A copyright owner's exclusive rights are, however, limited by certain statutory exemptions, which authorize activities that might otherwise constitute copyright infringement. For example, quoting brief passages of a new book in a book review is not infringement. These limitations generally reflect Congress' decision that the copyright owner's interests should sometimes bow to other concerns, such as the public's interest in increased access to copyrighted works. As noted, anyone who violates any of the rights granted to a copyright owner is an infringer. A court may award the copyright holder two different kinds of relief for the infringement: relief. (1) monetary damages and/or (2) injunctive Monetary damages are designed to compensate copyright holders for the harm they have already suffered as a result of the infringements and to prevent the infringer from benefitting from its illegal act. The amount of a damage award may be calculated in one of two ways, at the copyright owner's option. The copyright owner is entitled to collect from each separate infringer either (1) actual damages (i.e., the reduction in the value of the owner's work resulting from the infringement, such as reduced resale value) plus any profits the infringer made on the use or exhibition of the copyrighted work, or (2) "statutory" damages of from $250 to $10,000, in the court's discretion, for each work infringed. 8 Injunctive relief, the second form of remedy, is not automatic; it is granted only if the court finds that it is necessary to prevent or restrain future copyright infringement. In fashioning an injunction, the court will consider whether an injunction intended to protect the copyright owner would also hurt the public, and whether it can tailor the injunction to the facts of the individual situation. B. The Fair Use Doctrine The "fair use doctrine," one of the exceptions to a copyright holder's exclusive rights to control its creation, helps to explain what kinds of use of copyrighted work are permissable (i.e., do not constitute infringement). Under this doctrine, the public can copy or otherwise use copyrighted materials, without payment to the copyright owner and without liability for infringement, because the specific uses are considered socially valuable. Thus, for instance, the fair use doctrine allows excerpts of books, films, or other copyrighted materials to be used in a critic's review of the work or quoted in a scholarly study, and a teacher may, under certain circumstances, copy a poem for his class from a magazine or anthology without copyright liability. The scope of fair use was a critical issue in the Sony case, with the two courts differing on whether home video taping is the kind of limited use that should be included under the fair use umbrella. The following description of the fair 9 use doctrine should help explain how the district court and the Ninth Circuit, applying the same statutory criteria, could reach such diametrically opposed conclusions as to whether home video taping is fair use. Judges originally developed the fair use doctrine because, as a practical matter, they were reluctant to find that certain kinds of copying amounted to copyright infringement. The four "fair use factors" listed in Section 107 of the Copyright Act reflect Congressional codification of the judicial standards used before the 1976 Act to assess whether a particular use was fair and therefore excused under the law. Section 107 states: Notwithstanding the provisions of (1) the purpose and character of the */ Fair use is often described as a "privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner." Rosemont Enterprises Inc. v. Random House, Inc., 366 F.2d 303, 306 (2d Cir. 1966). Congress explicitly noted, in the legislative history of the 1976 Copyright Act, that the broad statutory criteria for fair use are intended to be flexible enough to deal with new situations and technologies.*/ Courts are to consider these */ Congress did not intend the codification to change the meaning of the fair use doctrine as developed by case law, and in fact wanted to retain its flexibility and applicability to changing circumstances. Thus, the House report states: "The statement of the fair use doctrine Section 107 is intended to restate the H.R. Rep. No. 1476, 94th Cong., 2d Sess. 66 (1976). See also The deter four factors in evaluating uses of copyrighted materials involving new methods of copying or transmission. mination as to whether a use is fair is based on a weighing of the various factors and their relative importance in each situation. That is precisely what the courts have done in the VCR litigation. C. VCR Litigation The Sony Case In 1976 Universal City Studios, Inc., and Walt Disney Productions sued Williams Griffiths, an individual VCR user; Sony Corporation of America, the manufacturer of his VCR; several VCR retailers; and the advertising agency for Sony VCRS. In Universal City Studios, Inc. v. Sony Corporation of America, the district court held that home video recording was not a copyright infringement and that, even if it were, the manufacturers, distributors, and retailers would not be liable for the infringement. The basis for the court's conclusion that home record recording was not an infringement was two-fold. First, it held that the implied copyright exemption for home taping applied equally to sound recordings and audiovisual recordings. ** */ 480 F. Supp. 429 (C.D.Cal. 1979). **/ The home taping exemption is discussed in depth in part |