Reviving fair use: Why sony's expansion of fair use sparked the file-sharing craze

Journal of Intellectual Property

Volumn 7, Issue 2, 2008, Pages

  Hower, Christopher Alan ^a  

^a NONE

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EID: 48549090226     PISSN: 15599493     EISSN: None     Source Type: Journal    
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References (255)

1. Universal City Studios, Inc. v. Sony Corp. of Am., 464 U.S. 417 (1984) (hereinafter "Sony III").
2. Jessica Litman, The Sony Paradox, 55 CASE W. RES. L. REV. 917, 944 (Summer 2005)
3. (citing Sony III, 464 U.S. at 457-93 (Blackmun, J., dissenting)).
4. Sony III, 464 U.S. 417.
5. Litman, supra note 2, at 932
6. (citing 1st draft, Memorandum of Justice Stevens, Sony III (No. 81-1687) (circulated June 13, 1983) at 22).
7. Id. at 944
8. (citing Sony III, 464 U.S. at 457-93 (Blackmun, J., dissenting)).
9. Maribel Rose Hilo, Tivo and the Incentive/Dissemination Conflict: The Economics of Extending Betamax to Personal Video Recorders, 81 WASH. U. L. Q. 1043, 1056 (Winter 2003)
10. (citing Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 COLUM. L. REV. 1600, 1630-31 (1982)).
11. Litman, supra note 2, at 944
12. (citing Sony III at 457-93 (Blackmun, J., dissenting)).
13. Id.
14. Universal City Studios, Inc. v. Sony Corp. of Am., 480 F. Supp. 429 (C.D. Cal. 1979) (hereinafter "Sony I"), aff'd in part, rev'd in part, 659 F.2d 963 (9th Cir. 1981), rev'd, 464 U.S. 417 (1984) (Sony III).
15. Sony I, 480 F. Supp. at 433.
16. Id. at 459-461 (describing how the contribution made by a staple article of commerce towards infringement is insufficient to establish contributory liability without impermissibly expanding infringement beyond precedent and judicial management).
17. Id. at 435 (describing how consumers could record off-the-air broadcasts manually, or set timers to record for remote recording).
18. Id. noting that tapes are not universally compatible with videotape recorders, and that at the time of litigation the highest-capacity tapes cost twenty one dollars each and record three hours of video).
19. Id. at 435-36 (clarifying that pause allows a user to omit commercials if the user is present throughout the recording, and that a user can skip commercial segments by fast forwarding during playback).
20. Id. at 436 (stipulating that Sony reimbursed merchandise to an individual franchise dealer for creating advertisements using "record your favorite show" and "build a library" language).
21. Id. at 465 (defining time-shifting as "[r]ecording off-the-air while not viewing the program, watching the copy within a short period of time and erasing it thereafter"; recording a program while watching it is considered infringing activity).
22. Id. at 436-38 (confirming that users created copies of copyrighted television programs and movies owned by Universal and Disney).
23. Id. at 438-39 (finding that both plaintiff's and defendant's surveys revealed that the average consumer owned 31.73 videotape cassettes, 29.6% of viewers watched recorded programs more than once, 41.7% of owners regularly eliminated commercials from the recordings, and between 26.4% and 43.9% of interviewees used fast forward to skip commercials often).
24. Id. at 439-40 (predicting that the Betamax would diminish the public's interest in watching reruns, decrease the size of live television audiences, and result in fewer film rentals).
25. See 17 U.S.C. § 106 (2000) (focusing on the exclusive rights to reproduce the copyrighted work in copies or phonorecords and to prepare derivative works based upon the copyrighted work).
26. Sony I, 480 F. Supp. at 446 (analyzing the difficulty of managing privacy interests in monitoring home-use recording, which the infringement rendered uncontrollable and therefore outside the scope of copyright legislation).
27. Id. at 338 (noting that the statute codifies the factors presented in Williams & Wilkins v. United Statts, 487 F.2d 1345, 1352 (1973)); 17 U.S.C. § 107.
28. Sony I, 480 F. Supp. at 456 (rationalizing that the potential for future harm, the fact that studios broadcast the works for free, recording occurs in private homes, and that consumers copy the work in its entirety for a private use equates to a fair use).
29. Id. at 459 (citing deposition testimony by Sony executives).
30. Id. at 461.
31. Id. (believing that a jamming system is outside the scope of Sony's ability to enforce, and that Sony profits from the sale of tapes regardless of their subsequent use).
32. Universal City Studios, Inc. v. Sony Corp. of Am., 659 F.2d 963, 969 (9th Cir. 1981) (hereinafter "Sony II") (interpreting 17 U.S.C. § 106 of the 1976 Copyright Act to deny a fair use defense for off-the-air copying).
33. Id at 971-72 (disallowing the fair use defense for unproductive uses, such as reproducing copyrighted material "for its intrinsic use").
34. Id. at 967 (acknowledging that language permitting libraries to make off-the-air videotape recordings of newscasts for research purposes "is intended to preclude performance, copying, or sale, whether or not for profit, by the recipient of a copy of a television broadcast taped off-the-air pursuant to this clause").
35. Id. at 970
36. (citing Universal City Studios, Inc. v. Sony Corp.: 'Fair Use' Looks Different on Videotape, 66 VA. L. REV. 1005, 1011-12 (1980) (establishing that the traditional applications of fair use deal with productive uses)).
37. Id.
38. (quoting Leon Seltzer, Exemptions and Fair Use in Copyright at 24 (1978) (confirming that copying for an ordinary use results in ordinary infringement)).
39. Id. at 972-74 (quoting 3 Nimmer on Copyright, § 13.05[E][4][c] at 13-84 (1981)).
40. Id. at 975-76 (finding that Sony knew infringement existed because the Betamax functions mainly to create a copy of copyrighted material, and that Sony materially contributed to the infringing conduct through sufficient commercial engagement).
41. Id. at 975 (concluding that videotape recorders are not suitable for substantial noninfringing uses, regardless of whether some copyright owners choose not to protect their rights).
42. Id. at 976 (favoring a reasonable royalty, and reprimanding Sony for "[expecting] a return on investment from activities which violate the copyright laws").
43. Sony III, 464 U.S. 417, 421 (1984) (focusing on the benefit of an expanded audience for time-shifted programs and the lack of present economic harm in justifying the reversal).
44. Id. at 432
45. (qouting Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975)).
46. Id. at 439 n.19 (ignoring the findings of the district court, which evidence that Betamax advertisements encouraged library building, which is an infringing use regardless of the interpretation of time-shifting).
47. Id. at 443 (lowering the bar for equipment manufacturers, who must only demonstrate that their device be capable of operation without infringing-a standard that is almost impossible to for a manufacturer to fail).
48. Id.
49. Id. (disregarding the district court's factual findings demonstrating a significant number of infringing uses).
50. Id. at 456 (proffering that because some copyright holders do not object to time-shifting and because Universal and Disney did not show a likelihood of harm to the potential market for their works, Sony is not a contributory infringer).
51. Id. at 443 (emphasizing that Universal and Disney own fewer than ten percent of the market share for television programming).
52. Id. at 447 n.28 ("they have created a substantial market for a paradigmatic noninfringing use of Sony's product").
53. But see, Id. at 485 (Blackmun, J., dissenting) ("the fact that a given market for a copyrighted work would not be available to the copyright holder were it not for the infringer's activities does not permit the infringer to exploit that market without compensating the copyright holder"
54. (citing Iowa State University Research Foundation, Inc. v. American Broadcasting Cos., 621 F.2d 57 (CA2 1980)).
55. Id. at 447 (applying the fair use doctrine to unauthorized time-shifting).
56. Id. at 449-50 (presuming fair use when the copyist does not profit).
57. Id. at 451 (shifting the burden of proof to the copyright owner to show "by a preponderance of the evidence" that future harm is likely when the use of a copyrighted work is noncommercial).
58. Id. at 457-500 (Blackmun, J., dissenting).
59. Id. at 458 (identifying with the Ninth Circuit that finding fair use merely sidesteps the difficulty in fashioning a remedy).
60. Id. at 464-70 (rejecting that neither the statute nor its legislative history suggest "any intent to create a general exemption for a single copy made for a personal or private use").
61. Id. at 474 (quoting Register's Supplementary Report 16).
62. Id. at 479 (citing Williams & Wilkins Co. v. United States, 487 F.2d 1345, 1354 (1973), aff'd, 420 U.S. 376 (1975)).
63. Id. at 480 (reiterating a copyright owners' exclusive right to control reproduction of a work).
64. Id. at 482 (calculating that while little harm may currently result from an isolated use, on aggregate, these uses may multiply to a great harm in the future).
65. Id. at 485 (advancing that the Betamax deprives copyright owners from charging a price for convenient access to their works).
66. Id. at 489-90 (explaining that contributory liability in copyright depends neither on formal control over the infringer nor actual knowledge of particular instances of infringement).
67. Id. at 489 (outlining a reduction in damages for unintentional infringement in 17 U.S.C. § 504(c)(2), but no general exemption from liability); see also Sony II, 659 F.2d 963, 975 (9th Cir. 1981).
68. Sony III, 464 U.S. at 489-90 (Blackmun, J., dissenting) (citing Sony I, 480 F. Supp. 429, 436 (C.D. Cal. 1979) (finding that Sony advertised the Betamax by encouraging consumers fo record "favorite shows," and "classic movies")).
69. Id. at 490-91 (noting that patent law and copyright law evolved separately and distinctly from one another).
70. Id. at 491 (suggesting that where one would not buy a product for a use other than infringing activity, the manufacturer cannot escape liability).
71. Id. at 492 n.44 (criticizing the majority for excusing Sony from liability because Universal and Disney do not own a large amount of the television programming market).
72. Id. at 492 (stating that the amount of television programming that is copyrighted is irrelevant, and observing that the district court declined to inquire what proportion of Betamax usage is illegal).
73. Id. at 493-94 (lambasting the majority's justification that finding infringement would frustrate those copyright owners who permit time-shifting).
74. Id. at 496 (analogizing this interpretation to a jewelry thief who wears the stolen goods rather than selling them).
75. Id. at 496-97 (indicating that fair use extends more to informational works, and permits copying only the amount necessary to further an author's own creative endeavor).
76. Id. at 498 (Blackmun, J., dissenting) (embracing the cost of convenience as the price time-shifting denies copyright owners).
77. A & M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896 (N.D. Cal. 2000) (hereinafter "Napster I"), aff'd in part, rev'd in part, 239 F.3d 1004 (9th Cir. 2001) (hereinafter "Napster II").
78. In Re Aimster Copyright Litig., 334 F.3d 643 (7th Cir. 2003) (hereinafter "Aimster"), cert denied, Deep v. Recording Indus. Ass'n of Am., Inc., 540 U.S. 1107 (2004).
79. See, generally, Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 919 (2005) (hereinafter "Grokster").
80. Napster I, 114 F.Supp.2d at 1004.
81. Id. at 900-01.
82. Id. at 905 (acknowledging that the software permits users to share their own music files).
83. Id. at 905-06 (indicating that Napster maintains an ongoing interaction with its users, updating lists of each user's shared files when they log in and sign off).
84. Id. at 906 (qualifying that Napster does not store music files on its own server, but facilitates-establishing connections between users logged in to the system).
85. Id. at 908 (detailing entry into the online marketplace by BMG Music, EMI Recorded Music, North America, Sony Music Entertainment Universal Records, Warner Music Group and others).
86. Id. at 909 (emphasizing the need for restrictions to prevent copyright infringement).
87. Id. at 909-11 (reviewing survey evidence that indicated a decrease in sales near the most "wired" colleges).
88. Id. at 910-11 (indicating that consumers may feel entitled to a level of control over copyrights that has no lawful precedent or other justification).
89. Id. at 912 (enunciating that the defendant must prove an affirmative defense such as fair use or the staple article of commerce doctrine after having established that direct infringement exists).
90. Id. at 912 (announcing that at a minimum, sharing files cannot be considered a private use).
91. Id. at 913 (restating that even if the first factor finds a private use, the third factor may weigh against fair use if the copying is likely to harm the potential market for the copyrighted works).
92. Id. at 913-14 (rejecting Napster's comparisons of its file transfers to promotional downloads because Napster downloads are permanent and unrestricted).
93. Id. at 914 (citing Ringgold v. Black Entertainment Television, 126 F.3d 70, 81 n.16 (2d Cir. 1997) (clarifying that subsequent benefit to the copyright holder does not deny entitlement to licensing fees)).
94. Id. at 915-16 (defining space-shifting as downloading music files of songs when the user already owns the accompanying album).
95. Id. at 916-17 (distinguishing Sony III, where Sony could not control the Betamax device after a sale).
96. Id. at 918-19 (articulating that the law does not require knowledge of specific acts of infringement).
97. Id. at 920 (analogizing Napster to the swap meet vendors in Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1976) (finding contributory liability for swap meet operators who permitted vendors to sell counterfeit music recordings)).
98. Id. at 920-21 (citing Gershwin Publ'g Corp. v. Columbia Artists Management, Inc., 443 F.3d 1159 (2d Cir. 1971) (reiterating that a defendant need only be capable of supervising, and that a defendant need not actually supervise)).
99. Napster II, 239 F.3d 1004 (9th Cir. 2001).
100. Id. at 1015 (indicating that "direct economic benefit is not required to demonstrate a commercial use").
101. Id. at 1016 (distinguishing Sony III as having circumstances for allowing fair use copying of a creative work in its entirety not present here).
102. Id. at 1017 (reasoning that consumers would not pay for what they may obtain for free).
103. Id. at 1018 (defining sampling as downloading a track on an evaluation basis before purchasing an album).
104. Id. (recognizing that internet sites obtained licenses to offer song samples).
105. Id. (reconciling the space-shifting use in Recording Indus. Ass'n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072 (9th Cir. 1999), because in that case space-shifting occurred on a private device).
106. Id. at 1020 (asserting that a computer system operator who knows of infringing activity and fails to remove it "knows of and contributes to direct infringement").
107. Id. (reasoning that without Napster's service, there would not be any infringement, so Napster must necessarily contribute to the infringement).
108. Id. at 1024 (tweaking the district court's ruling because Napster could not police the content of files, but it could monitor file names, which must retain accuracy to search effectively).
109. Id. at 1029 (refusing to allow Napster to avoid future injunctions, statutory damages, and criminal penalties for future violations).
110. Id.
111. F.3d 643 (7th Cir. 2003).
112. Id. at 646 (articulating that a user may share with other users on his "buddy list," or if no buddies are specified, all other Aimster users).
113. Id. (acknowledging that Aimster cannot monitor what files users transfer because it encrypts all transmissions).
114. Id. at 653 (fixating on a tutorial example that displayed only infringing material).
115. Id. at 650 (citing Casella v. Morris, 820 F.2d 362, 365 (11th Cir. 1987)).
116. Id. at 653 (continuing that Aimster did not show how hiding the data users transfer from itself helped or saved costs).
117. Id. at 649 (distinguishing the Justices' reasoning in Sony III because in that case, Universal could not establish harm and benefited from a new market).
118. Id. at 655 (contrasting Sony III, where the Court treated vicarious and contributory liability the same, and declined to recognize that Sony could have reduced the likelihood of infringement).
119. U.S. 913, 919 (2005).
120. Id. at 922 (conceding that Grokster has no knowledge of what or when users copied files because each user's computer communicates directly with other users' computers).
121. Id. at 923 (comparing this result to the 87% of infringing material found in Napster II, 239 F.3d 1004 (9th Cir. 2001)).
122. Id. at 924-26 (elaborating how Grokster: Intended to "leverage Napster's 50 million user base;" planned to place an ad encouraging users to "get around" a re-launched, legal, fee-based Napster; sought to provoke an infringement lawsuit for publicity; strove to provide a large number of copyrighted songs; and sent newsletters extolling its ability to provide copyrighted works).
123. Id. at 928-29 (considering that it may be impossible for plaintiffs to seek relief realistically, except against software distributors).
124. Id. at 934 (rejecting the lower court's ruling that Grokster is not liable because the software has substantial noninfringing uses).
125. Id. at 936 (quoting Oak Industries, Inc. v. Zenith Electronics Corp., 697 F. Supp. 988, 992 (N.D. Ill. 1988)).
126. Id. at 939-40 (establishing induced infringement from these indicia for intent with the evidence of direct infringement).
127. Id. at 952 (Breyer, J., concurring) (inferring approximately the same amount of lawful use as found in Sony III).
128. Id. at 954-55 (Breyer, J., concurring) (asking whether the Sony III rule succeeded in protecting new technology while preserving copyright protection).
129. Id. at 965 (Breyer, J., concurring) (discussing other solutions to the technology/copyright tension such as suing direct infringers, developing anti-copying measures, and facilitating lawful downloading).
130. See Blake Evan Reese, Fixing Through Legislative Fixation: A Call for the Codification and Modernization of the Staple Article of Commerce Doctrine as It Applies to Copyright Law, 11 MARQ. INTELL. PROP. L. REV. 443 (Summer 2007)
131. (citing Kathleen M. Sullivan, The Justices of Rules and Standards, 106 HARV. L. REV. 22, 62-66 (1992)).
132. Id. (suggesting that clear boundaries afford greater freedom and fairness to decision-makers, immunizing them from arbitrary judgments).
133. STAFF OF H. COMM. ON THE JUDICIARY, 87TH CONG., COPYRIGHT LAW REVISION: REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW 3-6 (1961) (considering the legislative intent for copyright as an economic incentive to encourage creation in order to ultimately serve the public).
134. Alan L. Durham, Consumer Modification of Copyrighted Works, 81 IND. L.J. 851 (Summer 2006)
135. (quoting Folsom v. Marsh, 9 F. Cas. 342, 344 (C.C. Mass. 1841) (No. 4,901)).
136. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 576 (1994)
137. (quoting Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C. Mass. 1841) (No. 4,901)).
138. Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 404 (1968) (Fortas, J., dissenting).
139. Sony III, 464 U.S. 417, 431 (1984) ("Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyright 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."; "defining the contours of copyright law is a job for Congress").
140. Id. at 500 (Blackmun, J., dissenting)
141. (quoting Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 167 (Burger, C.J., dissenting)).
142. Sony I, 480 F. Supp. 429, 442 (C.D. Cal. 1979) (recognizing the magnitude of the implications for this new technology and deferring to "government commission or legislative body" to evaluate the repercussions).
143. Id.
144. Napster I, 114 F. Supp. 2d 896, 910-11 (N.D. Cal. 2000).
145. Sony III, 464 U.S. 417, 479 (1984) (Blackmun, J., dissenting) (distinguishing copying for the advancement of scientific research, private study or scholarship with purely personal use).
146. Id. at 465-66 (Blackmun, J., dissenting)
147. (citing A. Latman, Fair Use of Copyrighted Works (1958), reprinted in STUDY No. 14 FOR THE SENATE COMMITTEE ON THE JUDICIARY, COPYRIGHT LAW REVISION, STUDIES PREPARED FOR THE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS, 86TH CONG., 2D SESS., 1 (1960)).
148. Id. at 480 (Blackmun, J., dissenting) (concluding that home recording is an ordinary use).
149. Id. at 479 (Blackmun, J., dissenting) (comparing the benefits of criticism, education and research with a purely consumptive use for entertainment value).
150. Litman, supra note 2, at 950
151. (citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)).
152. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 550 (1985)
153. (citing Folsom v. Marsh, 9 F. Cas. 342, 344-45 (C.C. Mass. 1841) (No. 4,901) (allowing a hypothetical review to cite excerpts from a work, but not allowing a review to quote the most important parts of a work in order to substitute the review for the original)).
154. Litman, supra note 2, at 950
155. (citing 1st Draft, Opinion in Sony (No. 81-1687 (circulated by Justice Blackmun, June 13, 1983) at 62).
156. Sony III, 464 U.S. 417, 497-99 (1984) (Blackmun, J., dissenting) (explaining the difficulty in finding potential market harm when new technology creates a new market for old copyrighted works).
157. Litman, supra note 2, at 944
158. (citing Sony III, 464 U.S. at 457-93 (Blackmun, J., dissenting) (contending that videotape recording denies copyright owners the ability to exploit the price a viewer will pay for convenience)).
159. Id. at 923
160. (citing James Lardner, Fast Forward 60-81 at 97-106 (2002) (announcing that stores across America sold out of blank videotapes when studios broadcast Gone with the Wind, and Disney feared copying and declined to broadcast movies);
161. see also Sony I, 480 F. Supp. 429, 436-40 (C.D. Cal. 1979).
162. Sony III, 464 U.S. at 446 n.28 (explaining that copyright owners capitalize upon television by subsidizing broadcasts with advertising).
163. Id.
164. Id. at 922
165. (citing Macy's Sony Betamax display ad, N.Y. TIMES, March 30, 1976, at 13 (encouraging users to build "a priceless videotape library in no time")).
166. Id. at 927
167. (citing HOME RECORDING OF COPYRIGHTED WORKS: HEARINGS ON H.R. 4783, H.R. 4794, H.R. 4808, H.R. 5250, H.R. 5488, AND H.R. 5705 BEFORE THE SUBCOM. ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE OF TBE HOUSE COMM. ON THE JUDICIARY, 97TH CONG. 1-3 at 4-16, 67-115 (1982) (testimony of Jack Valenti, President, Motion Picture Association of America, Inc. and memorandum of Prof. Laurence H. Tribe) ("any law that exempted home videotaping from liability for copyright infringement would be an unconstitutional taking of private property in violation of the Fifth Amendment.")).
168. U.S. at 451 (presuming likely future harm when copying is for a commercial purpose);
169. cf., Litman, supra note 2, at 949 (clarifying that noncommercial uses require proof of present or potential harm but commercial uses do not).
170. U.S. 569, 584-91 (1994) (refuting that Sony III established a presumption of harm for commercial uses);
171. Litman, supra note 2, at 949;
172. Durham, supra note 123, at 868.
173. Durham, supra note 123, at 868 (maintaining the presumption of likely future harm for "outright duplication for commercial uses, as opposed to more complex situations like parody").
174. U.S.C. § 102(a) (2007).
175. Durham, supra note 123, at 883 (likening copying for personal benefit to stealing).
176. U.S. CONST. art. I, § 8, cl. 8 (encouraging the promotion of science).
177. Sony III, 464 U.S. 417, 478 (1984) (Blackmun, J., dissenting) ("the fair use doctrine acts as a form of subsidy - albeit at the first author's expense - to permit the second author to make limited use of the first author's work for the public good." (citations omitted)).
178. Viktor Mayer-Schonberger, In Search of the Story: Narratives of Intellectual Property, 10 VA. J.L. & TECH. 11, 15 (2005) (contrasting the economic motivation that guided the drafters of the Constitution with the inalienable personal right to a work embraced by Europe).
179. Sony III, 464 U.S. at 478.
180. Id. at 477 (Blackmun, J., dissenting)
181. (citing Chafee, Reflections on the Law of Copyright: I, 45 COLUM. L. REV. 503, 511 (1945) ("The world goes ahead because each of us builds on the work of our predecessors. 'A dwarf standing on the shoulders of a giant can see farther than the giant himself."')).
182. Mayer-Schonberger, supra note 152.
183. U.S.C. § 102(a) (2000) ("Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression").
184. Durham, supra note 123, at 880 (classifying home taping as copying).
185. Litman, supra note 2, at 928 (explaining that the Betamax creates a more convenient copy for personal use with no compensation for the work's owner).
186. A. Samuel Oddi, Contributory Copyright Infringement: The Tort and Technological Tensions, 64 NOTRE DAME L. REV. 47, 78 (1989) (speculating that the majority would have been different if more evidence showed more "librarying" Betamax usage).
187. Sony I, 480 F. Supp. 429, 435 (C.D. Cal. 1979) (describing how the Betamax granted additional control over programming to consumers).
188. Reese, supra note 120, at 467 (noting that at least 25 percent of Betamax users fast-forwarded through commercials).
189. Litman, supra note 2, at 953 (detailing that most consumers build music libraries rather than time-shift).
190. Oddi, supra note 159, at 62 (denigrating the majority view that offering a work at some point for free affects how much may be copied).
191. Sony III, 464 U.S. 417, 496-97 (1984) (Blackmun, J., dissenting) (permitting copying small excerpts to facilitate further authorship).
192. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 568 (1985)
193. (citing 3 Nimmer § 13.05[B], at 13-77 - 13-78 (prohibiting fair use when any rights in a copyrighted work are adversely affected)).
194. Id. at 566 (recognizing the fourth factor as the most important in the fair use analysis);
195. New Era Publication v. Carol Pub. Group, 904 F.2d 152, 159 (2d Cir. 1990).
196. Nation Enterprises, 471 U.S. at 568
197. (citing Sony III, 464 U.S. at 451 (maintaining that widespread use resulting in harm negates fair use)).
198. Oddi, supra note 159, at 63
199. (citing Sony III, 464 U.S. at 485);
200. Litman, supra note 2, at 949-50
201. (citing Campbell v. Acuff-Rose Music, 510 U.S. 569, 576 (1994) (placing the burden of proof on defendant)).
202. But see, Nation Enterprises, 471 U.S. at 567 (requiring the copyright owner to establish a loss in revenue to shift the burden to the infringer);
203. Litman, supra note 2, at 944 (shifting the burden of proof to plaintiffs for noncommercial uses).
204. Durham, supra note 123, at 884 (observing that the studios in Sony III could not initially demonstrate harm from time-shifting).
205. Hilo, supra note 6, at 1056
206. (citing Sony III, 464 U.S. at 497-98 (Blackmun, J., dissenting) (criticizing the majority for not considering the future market, and myopically focusing on the current effect of time-shifting)).
207. Seth A. Miller, Peer-to-Peer File Distribution: An Analysis of Design, Liability, Litigation, and Potential Solutions, 25 REV. LITIG. 181, 186-87 (Winter 2006)
208. (citing Benny Evangelista, RIAA Smells Victory, S.F. CHRON., Nov. 22, 2003, at B1;
209. Anna E. Engelman & Dale A. Scott, Arrgh! Hollywood Targets Internet Piracy, 11 RICH. J.L. & TECH. 3 (2004))(attributing a decline of $2.4 billion in revenue to the music industry and $3 billion to the film industry from illegal downloading).
210. Litman, supra note 2, at 941 (providing that time-shifting competes with the market for pre-recorded cassettes);
211. Hilo, supra note 6, at 1064
212. (citing Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 COLUM. L. REV. 1600, 1630-31 (1982) (implying that authors will have less incentive to create when viewers command greater control over access to works)).
213. Oddi, supra note 159, at 64 (professing that denying fair use to time-shifting allows for exploitation by "royalties, fees, or other means").
214. But see Oddi, supra note 159, at 99-100
215. (citing The Sound of Money, NEWSWEEK, Oct. 5, 1987, at 73 (asserting that authors profit more from home video sales than first performances)).
216. Hilo, supra note 6, at 1056
217. (citing Sony III, 464 U.S. at 498 (observing that Sony benefits from the sale of Betamax devices and tapes, not the studios)).
218. Id. at 1064 (declaring that eliminating commercials is both possible and easy).
219. Id. at 1066 (inferring that advertisers would not pay as high rates if the number of viewers watching the advertisements decreases).
220. Reese, supra note 120, at 478 (favoring bright-line rules for business decisions).
221. Litman, supra note 2, at 927
222. (citing HOME RECORDING OF COPYRIGHTED WORKS: HEARINGS ON H.R. 4783, H.R. 4794, H.R. 4808, H.R. 5250, H.R. 5488, AND H.R. 5705 BEFORE THE SUBCOM. ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE OF THE HOUSE COMM. ON THE JUDICIARY, 97TH CONG. 1-3 at 4-16, 67-115 (1982) (testimony of Jack Valenti, President, Motion Picture Association of America, Inc.) which announced that the motion picture industry declined to pursue actions against individual infringers "now or in the future").
223. But see, e.g., Id. (proffering that the industry filed suit against consumers).
224. Durham, supra note 123, at 881
225. (quoting Sony III, 464 U.S. at 442 (providing effective protection for copyrighted works through indirect copyright liability)).
226. Miller, supra note 171, at 213
227. (citing Grokster, 545 U.S. at 926 (extrapolating that evidence of encouraging infringement overcomes evidence of a product's merely infringing capabilities)).
228. Oddi, supra note 159, at 64 (announcing that no one induced infringement of television programming prior to the release of home videotape recorders).
229. Litman, supra note 2, at 932
230. (citing 1st Draft, Opinion in Sony (No. 81-1687 (circulated by Justice Blackmun, June 13, 1983), at 32-33 (reasoning that Sony induced infringement by advertising the Betamax for recording "favorite shows" and "classic movies")).
231. Oddi, supra note 159, at 63 (interpreting Sony III to establish that the standard for contributory infringement is the amount of direct infringement).
232. But see, id. at 56
233. (citing Sony III, 464 U.S. at 456 (Blackmun, J., dissenting) (applying the standard for contributory infringement from trademark law to inquire whether the defendant "suggested, even by implication" that its customers infringe)).
234. Id. at 90 (calculating that manufacturers can escape liability by taking their product off the market, implementing anti-copying measures, or seeking a license from copyright owners);
235. cf., Reese, supra note 120, at 468
236. (citing In re Aimster Copyright Litig., 334 F.3d 643, 653 (7th Cir. 2003), which allowed service providers to escape liability when anti-copying technology proves disproportionately costly to implement).
237. Miller, supra note 171, at 186-87 (discussing Cal. Penal Code 653aa (West 2005), which criminalizes file-sharing applications that do not include anti-copying measures).
238. But see, Oddi, supra note 159, at 89-90 (imposing a general duty on VCR sellers to not permit customers to infringe).
239. U.S.C. § 504(c) (2000) (providing for statutory damages in the range of $750 to $30,000 at the court's discretion, and as low as $200 or high as $150,000 if the infringer unintentionally or willfully infringed, respectively).
240. Hilo, supra note 6, at 1056 (discussing royalty schemes for infringement in Austria and Germany).
241. Oddi, supra note 159, at 91-97 (advocating "playback only" systems, degrading copy quality, or engineering devices incapable of copying copyrighted content directly from a source).
242. Id. at 99 (discussing how studios did not object to the sale of Betamax recorders with no tuners).
243. Id. at 91 (analyzing how the VCR eliminated the market for the playback-only videodisc format).
244. Hilo, supra note 6, at 1053 (reiterating that Sony III, 464 U.S. 417 (1984), did not overturn the 9th Circuit's continuing royalties remedy in Sony II, 659 F.2d 963);
245. see also, Litman, supra note 2, at 927-28 (indicating support from the motion picture industry for compulsory licenses on video recorders and blank cassette tapes).
246. Hilo, supra note 6, at 1065
247. (quoting Robert Stephen Lee, An Economic Analysis of Compulsory Licensing in Copyright Law, 5 W. NEW ENG. L. REV. 203, 209 (1982)).
248. Id. at 1056 (noting that Sony III, 464 U.S. at 499 n.51, considered royalty schemes for infringement in Austria and Germany).
249. Sony I, 480 F. Supp. 429, 43 5 (C.D. Cal. 1979) (explaining how consumers could decide when to view content).
250. See generally, Napster II, 239 F.3d 1004 (9th Cir. 2001);
251. Grokster, 545 U.S. 913, 919 (2005);
252. Aimster, 334 F.3d 643 (7th Cir. 2003).
253. See, e.g., Id. at 1057-66 (observing that personal video recording devices skip commercials with ease);
254. Amy Harmon, Skip-the-Ads Has Madison Ave. Upset, N.Y. Times, May 23, 2002, at A1 (discussing devices that enable consumers to record programs without commercials);
255. Christine Caulfield, XM Invokes Home Recording Law in Copyright Suit, IP LAW 360, July 5, 2007, http://ip.law360.com/Secure/ printview.aspx?id=28709 (detailing potential infringement for satellite radio tuners capable of recording music in a digital format).