15 an infringement, but VTR sales were not held to be contributory infringement, respondents would not be "preclude [d]" from "protecting" their rights by suing the infringing parties. It would be absurd, however, to bar the sale of VTRS because a minority of producers objected to VTR use while the majority favored, or did not object to, VTR use, because of the benefits that VTRs bring such broadcasters and copyright holders. The Court of Appeals is allowing a tiny minority of producers to "preclude" all consumers, copyright holders and broadcasters from using VTRS for all purposes-even purposes which are admitted to be noninfringing and beneficial to other copyright holders. If respondents prevail on their general infringement theory, let them, if they wish, enforce their rights against such infringement, but do not allow them to impose their will on others under a contributory infringement rationale.26 The Court of Appeals again assumed facts contrary to the trial record and the trial court's finding of facts in discussing whether VTR manufacturers met the definition of contributory infringement. We adopt the district court's definition: "[0]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a 'contributory' infringer "There can be no doubt that the corporate appellees meet this definition (Pet. App. at 27). 26 Respondents might find enforcement against the direct infringers impractical. This is doubtless true of copyright holders. experiencing infringements through the use of photocopiers, cameras and tape recorders. It has never been suggested, however, that enforcement difficulties warrant a finding of contributory infringement. Respondents' enforcement problems result from their own decision to broadcast their programs over the public airwaves into the privacy of tens of millions of American homes in conjunction with a vast number of other producers who do not object to VTR use. 16 The trial court, however, found that the respondents had presented "no evidence" that petitioners' activities had induced or caused any of the acts of alleged infringement introduced at trial (Pet. App. at 96-97). It would expand the doctrine of contributory infringement to an enormous size capable of devouring the photocopier, camera and audio tape recorder industries as well—to hold that a new technology was unlawful on the theory that without the technology the infringement would not occur. VII THE REMEDIES SUGGESTED BY THE COURT OF The Court of Appeals, after concluding that petitioners were liable as contributory infringers, directed the district court to consider an array of remedies including an injunction, statutory damages or a continuing royalty (Pet. App. at 28-29). It also instructed the district court that the "prospective harm" and "continued profitability of [petitioners'] businesses is of secondary concern" as there is "no right to expect a return on investment from activities which violate the copyright laws" (Pet. App. at 29). An injunction on the sale of VTRS would eliminate the VTR industry in this country. An injunction against VTR sales would deprive the public of a device which provides numerous benefits, most of which are not even arguably infringing and many of which accrue to copyright holders.27 Statutory damages would also destroy the VTR industry in this country. The minimum amount of statutory damages per infringement is two hundred fifty dollars 27 See, supra at 2-4, 11-14. 17 ($250), which under respondents' theory of contributory infringement would cause an astronomical damage award. The Court of Appeals' suggestion that a continuing royalty be imposed by the district court demonstrates the extraordinary judicial activism engaged in by the Court of Appeals. Not only is this suggestion an unprecedented expansion of judicial authority, but it is an outright usurpation of congressional authority. Moreover, the proposal is completely unworkable. Unfortunately, it will stand as precedent until and unless this Court acts. VIII CONCLUSION As the representative of nearly all VTR and blank video tape manufacturers and sellers of these products at the manufacturer's level, EIA/CEG urges the grant of the Petition for Writ of Certiorari filed by Sony Corporation of America in this case. The issues involve the viability, and perhaps the survival, of a major, rapidly growing, new industry. Respectfully submitted, J. EDWARD DAY (Counsel of Record) WILLIAM K. BLACK GARY J. SHAPIRO SQUIRE, SANDERS & DEMPSEY 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20004 (202) 626-6600 Attorneys for Amicus Curiae Consumer Electronics Group of the Electronic Industries Association i Questions Presented. 1. Is reception at home by videotape recorder (followed only by private viewing at home) of free off-the air television programming an infringement of statutory copyright on such programming? 2. If the answer to Question No. 1 is "Yes", does the manufacture, sale and/or advertisement of a home videotape recorder per se constitute contributory infringement whenever that videotape recorder is used for such reception at home? 3. Is "fair use" of a copyrighted work (17 U.S.C. § 107) limited to a "productive use", and precluded from being an "intrinsic use"? 4. Can a federal court impose a compulsory license on a copyright owner, and impose continuing royalties on an infringer, as a remedy for statutory copyright infringement? 5. By totally ignoring the findings of fact of the district court, and by holding retailers liable for contributory infringement when they never were alleged to have such liability, did the Court of Appeals so far depart from the accepted and usual course of judicial proceedings as to call for an exercise of this Court's power of supervision? The parties to the proceedings below are UNIVERSAL CITY STUDIOS, INC., a corporation, and WALT DISNEY PRODUCTIONS. a corporation, Respondents herein. Plaintiffs-Appellants below. v. SONY CORPORATION OF AMERICA, a corporation. SONY CORPORATION, a corporation, CARTER HAWLEY HALE STORES, INC., a corporation, ASSOCIATED DRY GOODS CORPORATION, a corporation, FEDERATED DEPARTMENT STORES, INC., a corporation, HENRY'S CAMERA CORPORATION. a corporation. DOYLE DANE BERNBACH, INC., a corporation, and WILLIAM GRIFFITHS, an individual, Petitioners herein (except Griffiths, who has no interest in the outcome of this petition or this case), DefendantsAppellees below. The following petitioner-corporations have the following parent companies, partially-owned subsidiaries and/or affiliates. |