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438 LIMITATIONS ON EXCLUSIVE RIGHTS: FAIR USE
copyright owner the exclusive right to control the performance and the reproduction of
his work, and the fact that he has licensed a single television performance is really
irrelevant to the existence of his right to control its reproduction. Although a television
broadcast may be free to the viewer, this fact is equally irrelevant; a book borrowed from
the public library may not be copied any more freely than a book that is purchased.
It may be tempting, as, in my view, the Court today is tempted, to stretch the
doctrine of fair use so as to permit unfettered use of this new technology in order to
increase access to television programming. But such an extension risks eroding the very
basis of copyright law, by depriving authors of control over their works and consequently
of their incentive to create. Even in the context of highly productive educational uses,
Congress has avoided this temptation; in passing the 1976 Act, Congress made it clear
that off-the-air videotaping was to be permitted only in very limited situations. And, the
Senate Report adds, “[t]he committee does not intend to suggest . . . that off-the-air
recording for convenience would under any circumstances, be considered ‘fair use.’” I
cannot disregard these admonitions.
Questions:
1.) Sony is the first and perhaps the most important modern decision on secondary
copyright liability. What requirements does it lay down for the imposition of such
liability on a manufacturer of a device? Under that rule, was the fair use part of the
holding necessary? Even if the court had held that home taping was not fair use, would
Sony have been found liable?
2.) Why do you think that internet copyright debates have focused extensively on
contributory or secondary types of infringement, rather than on the illicit copying by the
direct infringer?
3.) Justice Blackmun thinks that the Court is stretching fair use to “increase access to
television programming.” Do you think that is the majority’s main goal? What are they
concerned about?
4.) The dissenting Justices stress a particular vision of fair use—one built around
“productive use.” In this vision, the second comer uses the original copyrighted
expression to create something new—a critical book review, for example, or a scholarly
discussion. Precisely because of the productive nature of the second use, we know that
the constitutional purpose of “promoting the progress” is being furthered. Authors are
standing on the shoulders of other authors—not merely passively receiving their works,
but actively building something out of them. Viewed through this lens, the activity of a
bunch of couch potatoes eating Doritos while watching reruns of The Dukes of Hazzard
does not seem particularly compelling as a fair use. Through the eyes of the majority,
though, the activity that is going on here looks very different. There is productivity and
innovation involved, activities that should not be stifled by the copyright holder. Who is
doing the innovating? Is the innovation involved in “the fair use” analyzed under § 107
or is it that copyright’s reach needs to be trimmed lest it pull in and exert control over
other activities? Do you agree with the majority or dissent?
5.) What rules does Sony lay down about the burden of proof on the market harm portion
of the fair use analysis?