Copyright © 1988 The Harvard Law Review Association.
The conduct that gave rise to the first of the two disputes was the manufacture
and sale by Sony Corporation of videocassette recorders (VCRs), one function
of which is to record television programs broadcast over the public airwaves.
13
In 1976, Walt Disney Productions and Universal City Studios, owners of the
copyrights on several such programs, brought an action against Sony, 14
alleging that the use of VCRs to tape copyrighted programs violated section
106 of the Copyright Act, and that the manufacture and sale of the machines
themselves constituted contributory copyright infringement. The studios requested
damages, injunctive relief, and an equitable accounting of Sony's profits.
After a full trial, the district court denied relief, primarily on the grounds
that copying copyrighted programs for home viewing was a fair use and that,
in any event, Sony's connection with home taping was too attenuated to sustain
an action for contributory [*1665]
infringement. 15
Disagreeing with both of the district court's conclusions, the Ninth Circuit
reversed. 16
The Supreme Court granted certiorari and heard argument but was unable to
reach a decision during the 1982 Term. 17
After reargument, the Court, by a vote of five to four, reversed the court
of appeals. 18
Justice Stevens, writing for the majority, 19
based the Court's ruling primarily on three nested propositions: (a) recording
without permission a copyrighted television program for the purpose of "time-shifting"
-- i.e., watching the program once and only once at a later time -- is a fair
use of the copyrighted work; 20
(b) evidence adduced at trial established that VCRs are often used for time-shifting;
21
(c) because Sony's products thus are manifestly "capable of commercially
significant noninfringing uses," the manufacture of those products does
not constitute contributory copyright infringement, 22
regardless of whether Sony is aware that the machines are regularly used in
ways that violate the copyright law. 23
Justice Blackmun's dissent 24
argued for a less forgiving test for contributory copyright infringement 25
and disputed the majority's conclusion that time-shifting constitutes a fair
use. 26
[*1666]
While Sony was being decided, the second of the two controversies
was brewing. 27
In 1977, former President Gerald Ford entered into a contract giving Harper
& Row and The Reader's Digest 28
the exclusive right to publish his as yet unwritten memoirs and to license
prepublication serialization of those memoirs. In 1979, Time Magazine
purchased from Harper & Row the right to publish immediately before the
release of the book excerpts of Ford's account of his decision to pardon President
Nixon. A few weeks before the Time article was to appear, someone,
without authorization from Ford, Harper & Row, or Time, provided
a copy of the manuscript to Victor Navasky, editor of The Nation.
Navasky quickly drafted an article describing the book. A significant portion
of the article was made up of paraphrases of passages in the memoirs, and
approximately 300 words of the article consisted of direct quotations from
Ford's manuscript. When Time, upon seeing the article, abandoned
its plans to publish excerpts from the book and refused to pay the balance
of the purchase price of the serialization rights, Harper & Row brought
a copyright infringement action against The Nation. 29
The district court held that although Ford could have copyrighted neither
the facts he described nor memoranda prepared by others upon which he relied,
"the totality of these facts and memoranda collected together with Ford's
reflections" were "protected by the copyright laws," and The
Nation's article had infringed that copyright. 30
By a [*1667]
vote of two to one, the Second Circuit repudiated the district court's view
of the case, holding that Ford could acquire a copyright only in his original
expression and that, especially in view of the public importance of the memoirs,
the reproduction of short passages from the book should be deemed a fair use.
31
By a vote of six to three, the Supreme Court reversed. 32
Justice O'Connor, writing for the Court, 33
avoided the issue of what portions of the memoirs were protected by the statute,
assuming arguendo that only the 300 words directly quoted from the manuscript
constituted copyrighted material. 34
Navasky's unauthorized copying of those words, she held, could not qualify
as a fair use. 35
Justice Brennan's dissent did reach the issue of how much of the book was
copyrightable, agreeing with the court of appeals that only Ford's original
expression was protected. 36
Turning to the issue of fair use, Justice Brennan argued that the proper question
was whether The Nation's unauthorized use of the "literary form"
of the quoted passages was legitimate. 37
Taking into account the importance of protecting the "robust public debate
essential to an enlightened citizenry," 38
Justice Brennan contended that it was.
Part II: The Doctrine and Its Defects
n13
See 464 U.S. at 419-20. Only the essential features of the case will
be described here. Various additional details will be provided in the course
of the critical analysis contained in Part II. Readers interested in more
thorough or consolidated discussion of the background of the controversy should
consult: Lardner, Annals of the Law: The Betamax Case, THE NEW YORKER,
Apr. 6, 1987, at 45; id., Apr. 13, 1987, at 60; Note, Sony v. Universal
City Studios: Can the Marketplace Relationship Between Creator and Consumer
Be Preserved?, 62 DENV. U.L. REV. 873 (1985); The Supreme Court,
1983 Term -- Leading Cases, 98 HARV. L. REV. 87, 284-95 (1984); Note,
The Parody Defense to Copyright Infringement: Productive Fair Use After
Betamax, 97 HARV. L. REV. 1395 (1984) [hereinafter Note, The Parody Defense];
Comment, Betamax Meets the Supreme Court: A Judicial Disappointment,
20 NEW ENG. L. REV. 285 (1984); Note, The Betamax Case: Accommodating
Public Access and Economic Incentive in Copyright Law, 31 STAN. L. REV.
243 (1979) [hereinafter Note, The Betamax Case].
n14
Also named as defendants were four retailers of Sony VCRs, the advertising
agency responsible for marketing the machines, and an individual VCR owner.
See 464 U.S. at 422 n.2. The principal target of the suit, however,
was Sony.
n15
See Universal City Studios v. Sony Corp., 480 F. Supp. 429 (C.D.
Cal. 1979).
n16
See Universal City Studios v. Sony Corp., 659 F.2d 963 (9th Cir.
1981).
n17
See 457 U.S. 1116 (1982) (granting certiorari); 463 U.S. 1226 (1983)
(scheduling the case for reargument).
n18
See 464 U.S. 417, 421 (1984).
n19
Chief Justice Burger and Justices Brennan, White, and O'Connor joined Justice
Stevens' opinion.
n20
See 464 U.S. at 447-55. The majority appeared to accept the argument
(developed at length by the dissent, see id. at 463-75)
that using a VCR to make a single copy of a copyrighted program presumptively
violates § 106 of the statute and would give rise to liability if it did not
qualify as a fair use under § 107.
n21
See id. at 423, 447-56; 480 F. Supp. at 443-47. Justice
Stevens also placed some weight on the district court's finding that VCRs
are often used to record copyrighted programs with the consent of their owners.
See 464 U.S. at 443. However, the linchpin of Justice Stevens' argument
was that time-shifting is permissible even when copyright owners object to
the recording.
n22
See 464 U.S. at 442. The test for contributory copyright infringement
was stated in various ways in the Court's opinion. At one point, Justice Stevens
asserted that, for a manufacturer to escape liability, "[the machine]
need merely be capable of substantial noninfringing uses." Id.
n23
Evidence at trial indicated that VCRs are sometimes used for "librarying"
-- making permanent or semi-permanent copies of recorded programs that can
be viewed several times. See 480 F. Supp. at 436-37. All parties
and all members of the Court assumed, at least for the sake of argument, that
librarying is not a fair use and that therefore a substantial number of VCR
owners often violate the copyright law.
n24
Justice Blackmun was joined by the unusual combination of Justices Marshall,
Powell, and Rehnquist.
n25
See 464 U.S. at 490-91 (Blackmun, J., dissenting).
n26
See id. at 493-98.
n27
Again, only the essential features of the case will be described here. For
thorough treatments of the factual or procedural background, see Francione,
Facing The Nation: The Standards for Copyright, Infringement,
and Fair Use of Factual Works, 134 U. PA. L. REV. 519 (1986); Hamel,
Harper & Row v. The Nation: A First Amendment Privilege for News Reporting
of Copyrightable Material?, 19 COLUM. J.L. & SOC. PROBS. 253 (1985);
Note, When "Fair is Foul": A Narrow Reading of the Fair Use
Doctrine in Harper & Row Publishers, Inc. v. Nation Enterprises,
72 CORNELL L. REV. 218 (1986); Note, Two Approaches to the Fair Use Doctrine:
A Look at the Harper & Row Publishers, Inc. v. Nation Enterprises Decisions,
2 ENT. & SPORTS L.J. 89 (1984); The Supreme Court, 1984 Term -- Leading
Cases, 99 HARV. L. REV. 120, 292-302 (1985); Note, Harper & Row Publishers,
Inc. v. Nation Enterprises: Pirating Unpublished Copyrighted Works: Does
the Fair Use Doctrine Vindicate First Amendment Rights?, 19 J. MARSHALL
L. REV. 501 (1986); Note, Copyright and the First Amendment: Nurturing
the Seeds for Harvest, 65 NEB. L. REV. 631 (1986); Note, Fair Use
of Copyrighted Work Under Harper & Row Publishers, Inc. v. Nation
Enterprises, 61 TUL. L. REV. 415 (1986); Note, Copyright: The Public Figure
Expansion of the Fair Use Doctrine Rejected, 25 WASHBURN L. REV. 385
(1986).
n28
For convenience, this Article will refer to the two publishers collectively
as "Harper & Row."
n29
See Harper & Row, Publishers v. Nation Enters., 471 U.S. 539,
543 (1985). The complaint also asserted pendent claims based upon the New
York law of conversion and tortious interference with contract, but those
claims were dismissed by the district court, the dismissal was affirmed by
the court of appeals, see Harper & Row, Publishers v. Nation
Enters., 723 F.2d 195, 199-201 (2d Cir. 1983), and the Supreme Court did not
reconsider them.
n30
See Harper & Row, Publishers v. Nation Enters., 557 F. Supp.
1067, 1072 (S.D.N.Y. 1983).
n31
See 723 F.2d at 205-09.
n32
See 471 U.S. 539, 542 (1985).
n33
The other members of the majority were Chief Justice Burger and Justices Blackmun,
Powell, Rehnquist, and Stevens.
n34
See 471 U.S. at 548-49.
n35
See id. at 555.
n36
See id. at 579-87 (Brennan, J., dissenting). Justice Brennan
was joined by Justices White and Marshall.
n37
See id. at 587.
n38
Id. at 579.