No. 81-1687.

SONY CORPORATION OF AMERICA et al. v. UNIVERSAL CITY STUDIOS, INC., et al.

Decided January 17, 1984

Argued January 18, 1983 — Reargued October 3, 1983

with whom Justice Marshall, Justice Powell, and Justice Rehnquist join,

Dean C. Dunlavey reargued the cause for petitioners. With him on the briefs were Donald E. Sloan and Marshall Rutter.

Stephen A. Kroft reargued the cause for respondents. With him on the brief was Sondra E. Berchin.*

*

Briefs of amici curiae urging reversal were filed for the Virginia Citi­zens’ Consumer Council, Inc., et al. by William A. Dobrovir; for the Amer­ican Library Association by Newton N. Minow; for the Consumer Elec­tronics Group by J. Edward Day; for the Educators Ad Hoc Committee on Copyright Law by Michael H. Cardozo, August W. Steinhilber, and Gwen­dolyn H. Gregory; for General Electric Co. et al. by Alfred B. Engelberg, Morton Amster, Jesse Rothstein, and Joel E. Lutzker; for Hitachi, Ltd., et al. by John W. Armagost and Craig B. Jorgensen; for McCann-­Erickson, Inc., et al. by John A. Donovan, A. Howard Matz, and David Fleischer; for Minnesota Mining and Manufacturing Co. et al. by Sidney A. Diamond and Grier Curran Raclin; for the National Retail Merchants As­sociation by Peter R. Stem, TheodoreS. Steingut, and Robert A. Weiner; for Sanyo Electric, Inc., by Anthony Liebig; for Sears, Roebuck and Co. by Max L. Gillam and Mary E. Woytek; for TDK Electronics Co., Ltd., by Ko-Yung Tung and Adam Yarmolinsky; for Toshiba Corp. et al. by Don­ald J. Zoeller and Herve Gouraige; for Pfizer Inc. by Steven C. Kany; and for Viare Publishing by Peter F. Marvin.

Briefs of amici curiae urging affirmance were filed for the Association of American Publishers, Inc., et al. by Charles H. Lieb and Jon A. Baum-­garten; for the Authors League of America, Inc., by Irwin Karp; for CBS Inc. by Lloyd N. Cutler, Louis R. Cohen, and George Vradenburg III; for Creators and Distributors of Programs by Stuart Robinowitz and Andrew J. Peck; for the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, by Leo Geffner; for the Motion Picture Association of America, Inc., by Richard M. Cooper, Ellen S. Huvelle, and William Nix; for the National Music Publishers’ Association, Inc., by Jon A. Baumgarten; for the Recording Industry Association of America, Inc., by James F. Fitzpat­rick, Cary H. Sherman, and Ernest S. Meyers; for Volunteer Lawyers for the Arts, Inc., by I. Fred Koenigsberg; and for the Writers Guild of Amer­ica, West, Inc., et al. by Paul P. Selvin, Jerome B. Lurie, and Paul S. Berger.

Briefs of amici curiae were filed for the State of Missouri et al. by John Ashcroft, Attorney General of Missouri, and by the Attorneys General for their respective States as follows: Charles A. Graddick of Alabama, John Steven Clark of Arkansas, Michael J. Bowers of Georgia, Tany S. Hong of Hawaii, Tyrone C. Fahner of Illinois, Thomas J. Miller of Iowa, William J. Guste, Jr., oí Louisiana, William A. Attain of Mississippi, Michael T. Greely oí Montana, Rufus L. Edmisten of North Carolina, William J. Brown of Ohio, Jan Eric Cartwright of Oklahoma, Dennis J. Roberts II of Rhode Island, John J. Easton of Vermont, Gerald L. Battles of Virginia, and Bronson C. La Follette of Wisconsin; and for the Committee on Copy­right and Literary Property of the Association of the Bar of the City of New York by Michael S. Oberman and David H. Marks.

Justice Stevens

delivered the opinion of the Court.

Petitioners manufacture and sell home video tape record­ers. Respondents own the copyrights on some of the tele­vision programs that are broadcast on the public airwaves. Some members of the general public use video tape recorders sold by petitioners to record some of these broadcasts, as well as a large number of other broadcasts. The question presented is whether the sale of petitioners’ copying equip­ment to the general public violates any of the rights con­ferred upon respondents by the Copyright Act.

Respondents commenced this copyright infringement ac­tion against petitioners in the United States District Court for the Central District of California in 1976. Respondents alleged that some individuals had used Betamax video tape recorders (VTR’s) to record some of respondents’ copy­righted works which had been exhibited on commercially sponsored television and contended that these individuals had thereby infringed respondents’ copyrights. Respond­ents further maintained that petitioners were liable for the copyright infringement allegedly committed by Betamax con­sumers because of petitioners’ marketing of the Betamax VTR’s.1 Respondents sought no relief against any Beta-­max consumer. Instead, they sought money damages and an equitable accounting of profits from petitioners, as well as an injunction against the manufacture and marketing of Betamax VTR’s.

After a lengthy trial, the District Court denied respond­ents all the relief they sought and entered judgment for peti­tioners. 480 F. Supp. 429 (1979). The United States Court of Appeals for the Ninth Circuit reversed the District Court’s judgment on respondents’ copyright claim, holding petition­ers liable for contributory infringement and ordering the District Court to fashion appropriate relief. 659 F. 2d 963 (1981). We granted certiorari, 457 U. S. 1116 (1982); since we had not completed our study of the case last Term, we or­dered reargument, 463 U. S. 1226 (1983). We now reverse.

An explanation of our rejection of respondents’ unprece­dented attempt to impose copyright liability upon the distrib­utors of copying equipment requires a quite detailed recita­tion of the findings of the District Court. In summary, those findings reveal that the average member of the public uses a VTR principally to record a program he cannot view as it is being televised and then to watch it once at a later time. This practice, known as “time-shifting,” enlarges the tele­vision viewing audience. For that reason, a significant amount of television programming may be used in this man­ner without objection from the owners of the copyrights on the programs. For the same reason, even the two respond­ents in this case, who do assert objections to time-shifting in this litigation, were unable to prove that the practice has im­paired the commercial value of their copyrights or has cre­ated any likelihood of future harm. Given these findings, there is no basis in the Copyright Act upon which respond­ents can hold petitioners liable for distributing VTR’s to the general public. The Court of Appeals’ holding that respond­ents are entitled to enjoin the distribution of VTR’s, to collect royalties on the sale of such equipment, or to obtain other relief, if affirmed, would enlarge the scope of respondents’ statutory monopolies to encompass control over an article of commerce that is not the subject of copyright protection. Such an expansion of the copyright privilege is beyond the limits of the grants authorized by Congress.

The two respondents m this action, Universal City Studios, Inc., and Walt Disney Productions, produce and hold the copyrights on a substantial number of motion pictures and other audiovisual works. In the current marketplace, they can exploit their rights in these works in a number of ways: by authorizing theatrical exhibitions, by licensing limited showings on cable and network television, by selling syn­dication rights for repeated airings on local television sta­tions, and by marketing programs on prerecorded videotapes or videodiscs. Some works are suitable for exploitation through all of these avenues, while the market for other works is more limited.

Petitioner Sony manufactures millions of Betamax video tape recorders and markets these devices through numerous retail establishments, some of which are also petitioners in this action.2 Sony’s Betamax VTR is a mechanism consisting of three basic components: (1) a tuner, which receives elec­tromagnetic signals transmitted over the television band of the public airwaves and separates them into audio and visual signals; (2) a recorder, which records such signals on a mag­netic tape; and (3) an adapter, which converts the audio and visual signals on the tape into a composite signal that can be received by a television set.

Several capabilities of the machine are noteworthy. The separate tuner in the Betamax enables it to record a broad­cast off one station while the television set is tuned to another channel, permitting the viewer, for example, to watch two simultaneous news broadcasts by watching one “live” and re­cording the other for later viewing. Tapes may be reused, and programs that have been recorded may be erased either before or after viewing. A timer in the Betamax can be used to activate and deactivate the equipment at predetermined times, enabling an intended viewer to record programs that are transmitted when he or she is not at home. Thus a per­son may watch a program at home in the evening even though it was broadcast while the viewer was at work during the afternoon. The Betamax is also equipped with a pause button and a fast-forward control. The pause button, when depressed, deactivates the recorder until it is released, thus enabling a viewer to omit a commercial advertisement from the recording, provided, of course, that the viewer is present when the program is recorded. The fast-forward control enables the viewer of a previously recorded program to run the tape rapidly when a segment he or she does not desire to see is being played back on the television screen.

The respondents and Sony both conducted surveys of the way the Betamax machine was used by several hundred owners during a sample period in 1978. Although there were some differences in the surveys, they both showed that the primary use of the machine for most owners was “time-­shifting” — the practice of recording a program to view it once at a later time, and thereafter erasing it. Time-shifting en­ables viewers to see programs they otherwise would miss because they are not at home, are occupied with other tasks, or are viewing a program on another station at the time of a broadcast that they desire to watch. Both surveys also showed, however, that a substantial number of interviewees had accumulated libraries of tapes.3 Sony’s survey indicated that over 80% of the interviewees watched at least as much regular television as they had before owning a Betamax.4 Re­spondents offered no evidence of decreased television viewing by Betamax owners.5

Sony introduced considerable evidence describing televi­sion programs that could be copied without objection from any copyright holder, with special emphasis on sports, reli­gious, and educational programming,. For example, their survey indicated that 7.3% of all Betamax use is to record sports events, and representatives of professional baseball, football, basketball, and hockey testified that they had no ob­jection to the recording of their televised events for home use.6

Respondents offered opinion evidence concerning the fu­ture impact of the unrestricted sale of VTR’s on the commer­cial value of their copyrights. The District Court found, however, that they had failed to prove any likelihood of future harm from the use of VTR’s for time-shifting. 480 F. Supp., at 469.

The District Court’s Decision

The lengthy trial of the case in the District Court con­cerned the private, home use of VTR’s for recording pro­grams broadcast on the public airwaves without charge to the viewer.7 No issue concerning the transfer of tapes to other persons, the use of home-recorded tapes for public perform­ances, or the copying of programs transmitted on pay or cable television systems was raised. See id., at 432-433, 442.

The District Court concluded that noncommercial home use recording of material broadcast over the public airwaves was a fair use of copyrighted works and did not constitute copy­right infringement. It emphasized the fact that the material was broadcast free to the public at large, the noncommercial character of the use, and the private character of the activity conducted entirely within the home. Moreover, the court found that the purpose of this use served the public interest in increasing access to television programming, an interest that “is consistent with the First Amendment policy of pro­viding the fullest possible access to information through the public airwaves. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 102.” Id., at 454.8 Even when an entire copyrighted work was recorded, the District Court regarded the copying as fair use “because there is no accompanying reduction in the market for ‘plain­tiff’s original work.’” Ibid.

As an independent ground of decision, the District Court also concluded that Sony could not be held liable as a con­tributory infringer even if the home use of a VTR was consid­ered an infringing use. The District Court noted that Sony had no direct involvement with any Betamax purchasers who recorded copyrighted works off the air. Sony’s advertising was silent on the subject of possible copyright infringement, but its instruction booklet contained the following statement:

“Television programs, films, videotapes and other ma­terials may be copyrighted. Unauthorized recording of such material may be contrary to the provisions of the United States copyright laws.” Id., at 436.

The District Court assumed that Sony had constructive knowledge of the probability that the Betamax machine would be used to record copyrighted programs, but found that Sony merely sold a “product capable of a variety of uses, some of them allegedly infringing.” Id., at 461. It reasoned:

“Selling a staple article of commerce — e. g., a type­writer, a recorder, a camera, a photocopying machine— technically contributes to any infringing use subse­quently made thereof, but this kind of ‘contribution,’ if deemed sufficient as a basis for liability, would expand the theory beyond precedent and arguably beyond judi­cial management.

“.. . Commerce would indeed be hampered if manufac­turers of staple items were held liable as contributory in-­fringers whenever they ‘constructively’ knew that some purchasers on some occasions would use their product for a purpose which a court later deemed, as a matter of first impression, to be an infringement.” Ibid.

Finally, the District Court discussed the respondents’ prayer for injunctive relief, noting that they had asked for an injunction either preventing the future sale of Betamax ma­chines, or requiring that the machines be rendered incapable of recording copyrighted works off the air. The court stated that it had “found no case in which the manufacturers, dis­tributors, retailers and advertisers of the instrument en­abling the infringement were sued by the copyright holders,” and that the request for relief in this case “is unique.” Id., at 465.

It concluded that an injunction was wholly inappropriate because any possible harm to respondents was outweighed by the fact that “the Betamax could still legally be used to record noncopyrighted material or material whose owners consented to the copying. An injunction would deprive the public of the ability to use the Betamax for this noninfringing off-the-air recording.” Id., at 468.

The Court of Appeals’ Decision

The Court of Appeals reversed the District Court’s judg­ment on respondents’ copyright claim. It did not set aside any of the District Court’s findings of fact. Rather, it con­cluded as a matter of law that the home use of a VTR was not a fair use because it was not a “productive use.”9 It there­fore held that it was unnecessary for plaintiffs to prove any harm to the potential market for the copyrighted works, but then observed that it seemed clear that the cumulative effect of mass reproduction made possible by VTR’s would tend to diminish the potential market for respondents’ works. 659 F. 2d, at 974.

On the issue of contributory infringement, the Court of Ap­peals first rejected the analogy to staple articles of commerce such as tape recorders or photocopying machines. It noted that such machines “may have substantial benefit for some purposes” and do not “even remotely raise copyright prob­lems.” Id., at 975. VTR’s, however, are sold “for the pri­mary purpose of reproducing television programming” and “[virtually all” such programming is copyrighted material. Ibid. The Court of Appeals concluded, therefore, that VTR’s were not suitable for any substantial noninfringing use even if some copyright owners elect not to enforce their rights.

The Court of Appeals also rejected the District Court’s re­liance on Sony’s lack of knowledge that home use constituted infringement. Assuming that the statutory provisions defin­ing the remedies for infringement applied also to the non-­statutory tort of contributory infringement, the court stated that a defendant’s good faith would merely reduce his dam­ages liability but would not excuse the infringing conduct. It held that Sony was chargeable with knowledge of the homeowner’s infringing activity because the reproduction of copyrighted materials was either “the most conspicuous use” or “the major use” of the Betamax product. Ibid.

On the matter of relief, the Court of Appeals concluded that “statutory damages may be appropriate” and that the District Court should reconsider its determination that an in­junction would not be an appropriate remedy; and, referring to “the analogous photocopying area,” suggested that a con­tinuing royalty pursuant to a judicially created compulsory license may very well be an acceptable resolution of the relief issue. Id., at 976.

II

Article I, § 8, of the Constitution provides:

“The Congress shall have Power ... To Promote the Progress of Science and useful Arts, by securing for lim­ited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and in­ventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.

“The copyright law, like the patent statutes, makes re­ward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S. 123, 127, Chief Justice Hughes spoke as follows respecting the copyright mo­nopoly granted by Congress, ‘The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the pub­lic from the labors of authors.’ It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.” United States v. Paramount Pictures, Inc., 334 U. S. 131, 158 (1948).

As the text of the Constitution makes plain, it is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or to in­ventors in order to give the public appropriate access to their work product. Because this task involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand, our pat­ent and copyright statutes have been amended repeatedly.10

From its beginning, the law of copyright has developed in response to significant changes in technology.11 Indeed, it was the invention of a new form of copying equipment — the printing press — that gave rise to the original need for copy­right protection.12 Repeatedly, as new developments have occurred in this country, it has been the Congress that has fashioned the new rules that new technology made necessary. Thus, long before the enactment of the Copyright Act of 1909, 35 Stat. 1075, it was settled that the protection given to copyrights is wholly statutory. Wheaton v. Peters, 8 Pet. 591, 661-662 (1834). The remedies for infringement “are only those prescribed by Congress.” Thompson v. Hub­bard, 131 U. S. 123, 151 (1889).

The judiciary’s reluctance to expand the protections af­forded by the copyright without explicit legislative guidance is a recurring theme. See, e. g., Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U. S. 394 (1974); Fortnightly Corp. v. United Artists Television, Inc., 392 U. S. 390 (1968); White-Smith Music Publishing Co. v. Apollo Co., 209 U. S. 1 (1908); Williams & Wilkins Co. v. United States, 203 Ct. Cl. 74, 487 F. 2d 1345 (1973), aff’d by an equally divided Court, 420 U. S. 376 (1975). Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted 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.

In a case like this, in which Congress has not plainly marked our course, we must be circumspect in construing the scope of rights created by a legislative enactment which never contemplated such a calculus of interests. In doing so, we are guided by Justice Stewart’s exposition of the correct approach to ambiguities in the law of copyright:

“The limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. ‘The sole interest of the United States and the primary object in conferring the monopoly,’ this Court has said, ‘lie in the general bene­fits derived by the public from the labors of authors.’ Fox Film Corp. v. Doyal, 286 U. S. 123, 127. See Ken­dall v. Winsor, 21 How. 322, 327-328; Grant v. Ray­mond, 6 Pet. 218, 241-242. When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose.” Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 156 (1975) (footnotes omitted).

Copyright protection “subsists ... in original works of authorship fixed in any tangible medium of expression.” 17 U. S. C. § 102(a) (1982 ed.). This protection has never ac­corded the copyright owner complete control over all possible uses of his work.13 Rather, the Copyright Act grants the copyright holder “exclusive” rights to use and to authorize the use of his work in five qualified ways, including repro­duction of the copyrighted work in copies. § 106.14 All re­productions of the work, however, are not within the exclu­sive domain of the copyright owner; some are in the public domain. Any individual may reproduce a copyrighted work for a “fair use”; the copyright owner does not possess the exclusive right to such a use. Compare § 106 with § 107.

“Anyone who violates any of the exclusive rights of the copyright owner,” that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copy­righted work in one of the five ways set forth in the statute, “is an infringer of the copyright.” § 501(a). Conversely, anyone who is authorized by the copyright owner to use the copyrighted work in a way specified in the statute or who makes a fair use of the work is not an infringer of the copy­right with respect to such use.

The Copyright Act provides the owner of a copyright with a potent arsenal of remedies against an infringer of his work, including an injunction to restrain the infringer from violat­ing his rights, the impoundment and destruction of all re­productions of his work made in violation of his rights, a recovery of his actual damages and any additional profits re­alized by the infringer or a recovery of statutory damages, and attorney’s fees. §§502-505.15

The two respondents in this case do not seek relief against the Betamax users who have allegedly infringed their copy­rights. Moreover, this is not a class action on behalf of all copyright owners who license their works for television broadcast, and respondents have no right to invoke whatever rights other copyright holders may have to bring infringe­ment actions based on Betamax copying of their works.16 As was made clear by their own evidence, the copying of the re­spondents’ programs represents a small portion of the total use of VTR’s. It is, however, the taping of respondents’ own copyrighted programs that provides them with standing to charge Sony with contributory infringement. To prevail, they have the burden of proving that users of the Betamax have infringed their copyrights and that Sony should be held responsible for that infringement.

III

The Copyright Act does not expressly render anyone liable for infringement committed by another. In contrast, the Patent Act expressly brands anyone who “actively induces infringement of a patent” as an infringer, 35 U. S. C. § 271(b), and further imposes liability on certain individuals labeled “contributory” infringers, § 271(c). The absence of such ex­press language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity.17 For vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringe­ment is merely a species of the broader problem of identify­ing the circumstances in which it is just to hold one individual accountable for the actions of another.

Such circumstances were plainly present in Kalem Co. v. Harper Brothers, 222 U. S. 55 (1911), the copyright decision of this Court on which respondents place their principal reli­ance. In Kalem, the Court held that the producer of an un­authorized film dramatization of the copyrighted book Ben Hur was liable for his sale of the motion picture to jobbers, who in turn arranged for the commercial exhibition of the film. Justice Holmes, writing for the Court, explained:

“The defendant not only expected but invoked by ad­vertisement the use of its films for dramatic reproduc­tion of the story. That was the most conspicuous pur­pose for which they could be used, and the one for which especially they were made. If the defendant did not contribute to the infringement it is impossible to do so except by taking part in the final act. It is liable on principles recognized in every part of the law.” Id., at 62-63.

The use for which the item sold in Kalem had been “espe­cially” made was, of course, to display the performance that had already been recorded upon it. The producer had per­sonally appropriated the copyright owner’s protected work and, as the owner of the tangible medium of expression upon which the protected work was recorded, authorized that use by his sale of the film to jobbers. But that use of the film was not his to authorize: the copyright owner possessed the exclusive right to authorize public performances of his work. Further, the producer personally advertised the unau­thorized public performances, dispelling any possible doubt as to the use of the film which he had authorized.

Respondents argue that Kalem stands for the proposition that supplying the “means” to accomplish an infringing activ­ity and encouraging that activity through advertisement are sufficient to establish liability for copyright infringement. This argument rests on a gross generalization that cannot withstand scrutiny. The producer in Kalem did not merely provide the “means” to accomplish an infringing activity; the producer supplied the work itself, albeit in a new medium of expression. Sony in the instant case does not supply Betamax consumers with respondents’ works; respondents do. Sony supplies a piece of equipment that is generally capable of copying the entire range of programs that may be televised: those that are uncopyrighted, those that are copyrighted but may be copied without objection from the copyright holder, and those that the copyright holder would prefer not to have copied. The Betamax can be used to make authorized or unauthorized uses of copyrighted works, but the range of its potential use is much broader than the particular infringing use of the film Ben Hur involved in Kalem. Kalem does not support respondents’ novel theory of liability.

Justice Holmes stated that the producer had “contributed” to the infringement of the copyright, and the label “contribu­tory infringement” has been applied in a number of lower court copyright cases involving an ongoing relationship be­tween the direct infringer and the contributory infringer at the time the infringing conduct occurred. In such cases, as in other situations in which the imposition of vicarious lia­bility is manifestly just, the “contributory” infringer was in a position to control the use of copyrighted works by others and had authorized the use without permission from the copyright owner.18 This case, however, plainly does not fall in that category. The only contact between Sony and the users of the Betamax that is disclosed by this record occurred at the moment of sale. The District Court expressly found that “no employee of Sony, Sonam or DDBI had either direct involvement with the allegedly infringing activity or direct contact with purchasers of Betamax who recorded copy­righted works off-the-air.” 480 F. Supp., at 460. And it further found that “there was no evidence that any of the copies made by Griffiths or the other individual witnesses in this suit were influenced or encouraged by [Sony’s] adver­tisements.” Ibid.

If vicarious liability is to be imposed on Sony in this case, it must rest on the fact that it has sold equipment with con­structive knowledge of the fact that its customers may use that equipment to make unauthorized copies of copyrighted material. There is no precedent in the law of copyright for the imposition of vicarious liability on such a theory. The closest analogy is provided by the patent law cases to which it is appropriate to refer because of the historic kinship between patent law and copyright law.19

In the Patent Act both the concept of infringement and the concept of contributory infringement are expressly de­fined by statute.20 The prohibition against contributory in­fringement is confined to the knowing sale of a component especially made for use in connection with a particular pat­ent. There is no suggestion in the statute that one patentee may object to the sale of a product that might be used in con­nection with other patents. Moreover, the Act expressly provides that the sale of a “staple article or commodity of commerce suitable for substantial noninfringing use” is not contributory infringement. 35 U. S. C. § 271(c).

When a charge of contributory infringement is predicated entirely on the sale of an article of commerce that is used by the purchaser to infringe a patent, the public interest in ac­cess to that article of commerce is necessarily implicated. A finding of contributory infringement does not, of course, re­move the article from the market altogether; it does, how­ever, give the patentee effective control over the sale of that item. Indeed, a finding of contributory infringement is nor­mally the functional equivalent of holding that the disputed article is within the monopoly granted to the patentee.21

For that reason, in contributory infringement cases arising under the patent laws the Court has always recognized the critical importance of not allowing the patentee to extend his monopoly beyond the limits of his specific grant. These cases deny the patentee any right to control the distribution of unpatented articles unless they are “unsuited for any com­mercial noninfringing use.” Dawson Chemical Co. v. Rohm & Hass Co., 448 U. S. 176, 198 (1980). Unless a commodity “has no use except through practice of the patented method,” id., at 199, the patentee has no right to claim that its distri­bution constitutes contributory infringement. “To form the basis for contributory infringement the item must almost be uniquely suited as a component of the patented invention.” P. Rosenberg, Patent Law Fundamentals § 17.02[2] (2d ed. 1982). “[A] sale of an article which though adapted to an in­fringing use is also adapted to other and lawful uses, is not enough to make the seller a contributory infringer. Such a rule would block the wheels of commerce.” Henry v. A. B. Dick Co., 224 U. S. 1, 48 (1912), overruled on other grounds, Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 517 (1917).

We recognize there are substantial differences between the patent and copyright laws. But in both areas the contribu­tory infringement doctrine is grounded on the recognition that adequate protection of a monopoly may require the courts to look beyond actual duplication of a device or publi­cation to the products or activities that make such duplication possible. The staple article of commerce doctrine must strike a balance between a copyright holder’s legitimate de­mand for effective — not merely symbolic — protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.

IV

The question is thus whether the Betamax is capable of commercially significant noninfringing uses. In order to resolve that question, we need not explore all the different potential uses of the machine and determine whether or not they would constitute infringement. Rather, we need only consider whether on the basis of the facts as found by the District Court a significant number of them would be non-­infringing. Moreover, in order to resolve this case we need not give precise content to the question of how much use is commercially significant. For one potential use of the Beta-­max plainly satisfies this standard, however it is understood: private, noncommercial time-shifting in the home. It does so both (A) because respondents have no right to prevent other copyright holders from authorizing it for their pro­grams, and (B) because the District Court’s factual findings reveal that even the unauthorized home time-shifting of respondents’ programs is legitimate fair use.

A. Authorized, Time-Shifting

Each of the respondents owns a large inventory of valuable copyrights, but in the total spectrum of television program­ming their combined market share is small. The exact per­centage is not specified, but it is well below 10%.22 If they were to prevail, the outcome of this litigation would have a significant impact on both the producers and the viewers of the remaining 90% of the programming in the Nation. No doubt, many other producers share respondents’ concern about the possible consequences of unrestricted copying. Nevertheless the findings of the District Court make it clear that time-shifting may enlarge the total viewing audience and that many producers are willing to allow private time-shifting to continue, at least for an experimental time period.23

The District Court found:

“Even if it were deemed that home-use recording of copyrighted material constituted infringement, the Beta-­max could still legally be used to record noncopyrighted material or material whose owners consented to the copying. An injunction would deprive the public of the ability to use the Betamax for this noninfringing off-the-­air recording.

“Defendants introduced considerable testimony at trial about the potential for such copying of sports, re­ligious, educational and other programming. This in­cluded testimony from representatives of the Offices of the Commissioners of the National Football, Basketball, Baseball and Hockey Leagues and Associations, the Ex­ecutive Director of National Religious Broadcasters and various educational communications agencies. Plaintiffs attack the weight of the testimony offered and also con­tend that an injunction is warranted because infringing uses outweigh noninfringing uses.

“Whatever the future percentage of legal versus il­legal home-use recording might be, an injunction which seeks to deprive the public of the very tool or article of commerce capable of some noninfringing use would be an extremely harsh remedy, as well as one unprecedented in copyright law.” 480 F. Supp., at 468.

Although the District Court made these statements in the context of considering the propriety of injunctive relief, the statements constitute a finding that the evidence concerning “sports, religious, educational and other programming” was sufficient to establish a significant quantity of broadcasting whose copying is now authorized, and a significant potential for future authorized copying. That finding is amply sup­ported by the record. In addition to the religious and sports officials identified explicitly by the District Court,24 two items in the record deserve specific mention.

First is the testimony of John Kenaston, the station man­ager of Channel 58, an educational station in Los Angeles affiliated with the Public Broadcasting Service. He ex­plained and authenticated the station’s published guide to its programs.25 For each program, the guide tells whether un­limited home taping is authorized, home taping is authorized subject to certain restrictions (such as erasure within seven days), or home taping is not authorized at all. The Spring 1978 edition of the guide described 107 programs. Sixty-two of those programs or 58% authorize some home taping. Twenty-one of them or almost 20% authorize unrestricted home taping.26

Second is the testimony of Fred Rogers, president of the corporation that produces and owns the copyright on Mister Rogers’ Neighborhood. The program is carried by more public television stations than any other program. Its audi­ence numbers over 3,000,000 families a day. He testified that he had absolutely no objection to home taping for non­commercial use and expressed the opinion that it is a real service to families to be able to record children’s programs and to show them at appropriate times.27

If there are millions of owners of VTR’s who make copies of televised sports events, religious broadcasts, and educational programs such as Mister Rogers’ Neighborhood, and if the proprietors of those programs welcome the practice, the busi­ness of supplying the equipment that makes such copying fea­sible should not be stifled simply because the equipment is used by some individuals to make unauthorized reproductions of respondents’ works. The respondents do not represent a class composed of all copyright holders. Yet a finding of con­tributory infringement would inevitably frustrate the inter­ests of broadcasters in reaching the portion of their audience that is available only through time-shifting.

Of course, the fact that other copyright holders may wel­come the practice of time-shifting does not mean that re­spondents should be deemed to have granted a license to copy their programs. Third-party conduct would be wholly irrel­evant in an action for direct infringement of respondents’ copyrights. But in an action for contributory infringement against the seller of copying equipment, the copyright holder may not prevail unless the relief that he seeks affects only his programs, or unless he speaks for virtually all copyright hold­ers with an interest in the outcome. In this case, the record makes it perfectly clear that there are many important pro­ducers of national and local television programs who find nothing objectionable about the enlargement in the size of the television audience that results from the practice of time-­shifting for private home use.28 The seller of the equipment that expands those producers’ audiences cannot be a con­tributory infringer if, as is true in this case, it has had no direct involvement with any infringing activity.

B. Unauthorized Time-Shifting

Even unauthorized uses of a copyrighted work are not nec­essarily infringing. An unlicensed use of the copyright is not an infringement unless it conflicts with one of the specific ex­clusive rights conferred by the copyright statute. Twentieth Century Music Corp. v. Aiken, 422 U. S., at 154-155. More­over, the definition of exclusive rights in § 106 of the present Act is prefaced by the words “subject to sections 107 through 118.” Those sections describe a variety of uses of copy­righted material that “are not infringements of copyright” “notwithstanding the provisions of section 106.” The most pertinent in this case is § 107, the legislative endorsement of the doctrine of “fair use.”29

That section identifies various factors30 that enable a court to apply an “equitable rule of reason” analysis to particular claims of infringement.31 Although not conclusive, the first factor requires that “the commercial or nonprofit character of an activity” be weighed in any fair use decision.32 If the Betamax were used to make copies for a commercial or profit-­making purpose, such use would presumptively be unfair. The contrary presumption is appropriate here, however, be­cause the District Court’s findings plainly establish that time-­shifting for private home use must be characterized as a noncommercial, nonprofit activity. Moreover, when one con­siders the nature of a televised copyrighted audiovisual work, see 17 U. S. C. § 107(2) (1982 ed.), and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact that the entire work is reproduced, see § 107(3), does not have its ordinary effect of militating against a finding of fair use.33

This is not, however, the end of the inquiry because Con­gress has also directed us to consider “the effect of the use upon the potential market for or value of the copyrighted work.” §107(4). The purpose of copyright is to create incentives for creative effort. Even copying for noncom­mercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create. The prohibition of such noncommercial uses would merely inhibit access to ideas without any countervailing benefit.34

Thus, although every commercial use of copyrighted mate­rial is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncom­mercial uses are a different matter. A challenge to a non­commercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it nec­essary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evi­dence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated.

In this case, respondents failed to carry their burden with regard to home time-shifting. The District Court described respondents’ evidence as follows:

“Plaintiffs’ experts admitted at several points in the trial that the time-shifting without librarying would re­sult in ‘not a great deal of harm.’ Plaintiffs’ greatest concern about time-shifting is with ‘a point of important philosophy that transcends even commercial judgment.’ They fear that with any Betamax usage, ‘invisible bound­aries’ are passed: ‘the copyright owner has lost control over his program.’” 480 F. Supp., at 467.

Later in its opinion, the District Court observed:

“Most of plaintiffs’ predictions of harm hinge on specu­lation about audience viewing patterns and ratings, a measurement system which Sidney Sheinberg, MCA’s president, calls a ‘black art’ because of the significant level of imprecision involved in the calculations.” Id., at 469.35

There was no need for the District Court to say much about past harm. “Plaintiffs have admitted that no actual harm to their copyrights has occurred to date.” Id., at 451.

On the question of potential future harm from time-shifting, the District Court offered a more detailed analysis of the evidence. It rejected respondents’ “fear that persons ‘watch­ing’ the original telecast of a program will not be meas­ured in the live audience and the ratings and revenues will decrease,” by observing that current measurement technol­ogy allows the Betamax audience to be reflected. Id., at 466.36 It rejected respondents’ prediction “that live televi­sion or movie audiences will decrease as more people watch Betamax tapes as an alternative,” with the observation that “[tjhere is no factual basis for [the underlying] assumption.” Ibid}37 It rejected respondents’ “fear that time-shifting will reduce audiences for telecast reruns,” and concluded instead that “given current market practices, this should aid plain­tiffs rather than harm them.” Ibid.38 And it declared that respondents’ suggestion that “theater or film rental exhi­bition of a program will suffer because of time-shift recording of that program” “lacks merit.” Id., at 467.39

After completing that review, the District Court restated its overall conclusion several times, in several different ways. “Harm from time-shifting is speculative and, at best, mini­mal.” Ibid. “The audience benefits from the time-shifting capability have already been discussed. It is not implausible that benefits could also accrue to plaintiffs, broadcasters, and advertisers, as the Betamax makes it possible for more per­sons to view their broadcasts.” Ibid. “No likelihood of harm was shown at trial, and plaintiffs admitted that there had been no actual harm to date.” Id., at 468-469. “Testi­mony at trial suggested that Betamax may require adjust­ments in marketing strategy, but it did not establish even a likelihood of harm.” Id., at 469. “Television production by plaintiffs today is more profitable than it has ever been, and, in five weeks of trial, there was no concrete evidence to suggest that the Betamax will change the studios’ financial picture.” Ibid.

The District Court’s conclusions are buttressed by the fact that to the extent time-shifting expands public access to freely broadcast television programs, it yields societal bene­fits. In Community Television of Southern California v. Gottfried, 459 U. S. 498, 508, n. 12 (1983), we acknowledged the public interest in making television broadcasting more available. Concededly, that interest is not unlimited. But it supports an interpretation of the concept of “fair use” that requires the copyright holder to demonstrate some likelihood of harm before he may condemn a private act of time-shifting as a violation of federal law.

When these factors are all weighed in the “equitable rule of reason” balance, we must conclude that this record amply supports the District Court’s conclusion that home time-­shifting is fair use. In light of the findings of the Dis­trict Court regarding the state of the empirical data, it is clear that the Court of Appeals erred in holding that the statute as presently written bars such conduct.40

In summary, the record and findings of the District Court lead us to two conclusions. First, Sony demonstrated a sig­nificant likelihood that substantial numbers of copyright hold­ers who license their works for broadcast on free television would not object to having their broadcasts time-shifted by private viewers. And second, respondents failed to demon­strate that time-shifting would cause any likelihood of non-­minimal harm to the potential market for, or the value of, their copyrighted works. The Betamax is, therefore, capa­ble of substantial noninfringing uses. Sony’s sale of such equipment to the general public does not constitute contribu­tory infringement of respondents’ copyrights.

V

“The direction of Art. I is that Congress shall have the power to promote the progress of science and the useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress.” Deepsouth Packing Co. v. Laitram Corp., 406 U. S. 518, 530 (1972).

One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copy­ing possible.

It may well be that Congress will take a fresh look at this new technology, just as it so often has examined other inno­vations in the past. But it is not our job to apply laws that have not yet been written. Applying the copyright statute, as it now reads, to the facts as they have been developed in this case, the judgment of the Court of Appeals must be reversed.

It is so ordered.

1

The respondents also asserted causes of action under state law and § 43(a) of the Trademark Act of 1946, 60 Stat. 441, 15 U. S. C. § 1125(a). These claims are not before this Court.

2

The four retailers are Carter Hawley Hales Stores, Inc., Associated Dry Goods Corp., Federated Department Stores, Inc., and Henry’s Cam­era Corp. The principal defendants are Sony Corporation, the manufac­turer of the equipment, and its wholly owned subsidiary, Sony Corporation of America. The advertising agency of Doyle Dane Bernback, Inc., also involved in marketing the Betamax, is also a petitioner. An individual VTR user, William Griffiths, was named as a defendant in the District Court, but respondents sought no relief against him. Griffiths is not a petitioner. For convenience, we shall refer to petitioners collectively as Sony.

3

As evidence of how a VTR may be used, respondents offered the tes­timony of William Griffiths. Griffiths, although named as an individual defendant, was a client of plaintiffs’ law firm. The District Court sum­marized his testimony as follows:

“He owns approximately 100 tapes. When Griffiths bought his Betamax, he intended not only to time-shift (record, play-back and then erase) but also to build a library of cassettes. Maintaining a library, however, proved too expensive, and he is now erasing some earlier tapes and reusing them.

“Griffiths copied about 20 minutes of a Universal motion picture called ‘Never Give An Inch,’ and two episodes from Universal television series entitled ‘Baa Baa Black Sheep’ and ‘Holmes and Yo Yo.’ He would have erased each of these but for the request of plaintiffs’ counsel that it be kept. Griffiths also testified that he had copied but already erased Universal films called ‘Alpha Caper’ (erased before anyone saw it) and ‘Amelia Ear­hart.’ At the time of his deposition Griffiths did not intend to keep any Universal film in his library.

“Griffiths has also recorded documentaries, news broadcasts, sporting events and political programs such as a rerun of the Nixon/Kennedy debate.” 480 F. Supp. 429, 436-437 (1979).

Four other witnesses testified to having engaged in similar activity.

4

The District Court summarized some of the findings in these surveys as follows:

“According to plaintiffs’ survey, 75.4% of the VTR owners use their machines to record for time-shifting purposes half or most of the time. Defendants’ survey showed that 96% of the Betamax owners had used the machine to record programs they otherwise would have missed.

“When plaintiffs asked interviewees how many cassettes were in their li­brary, 55.8% said there were 10 or fewer. In defendants’ survey, of the total programs viewed by interviewees in the past month, 70.4% had been viewed only that one time and for 57.9%, there were no plans for further viewing.” Id., at 438.

5

“81.9% of the defendants’ interviewees watched the same amount or more of regular television as they did before owning a Betamax. 83.2% reported their frequency of movie going was unaffected by Betamax.” Id., at 439.

6

See Defendants’ Exh. OT, Table 20; Tr. 2447-2450, 2480, 2486-2487, 2515-2516, 2530-2534.

7

The trial also briefly touched upon demonstrations of the Betamax by the retailer petitioners which were alleged to be infringements by respond­ents. The District Court held against respondents on this claim, 480 F. Supp., at 456-457, the Court of Appeals affirmed this holding, 659 F. 2d 963, 976 (1981), and respondents did not cross-petition on this issue.

8

The court also found that this “access is not just a matter of conven­ience, as plaintiffs have suggested. Access has been limited not simply by inconvenience but by the basic need to work. Access to the better pro­gram has also been limited by the competitive practice of counterprogram-­ming.” 480 F. Supp., at 454.

9

“Without a ‘productive use,’ i. e. when copyrighted material is repro­duced for its intrinsic use, the mass copying of the sort involved in this case precludes an application of fair use.” 659 F. 2d, at 971-972.

10

In its Report accompanying the comprehensive revision of the Copy­right Act in 1909, the Judiciary Committee of the House of Represent­atives explained this balance:

“The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings, . . . but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods the exclusive rights to their writings. . . .

“In enacting a copyright law Congress must consider . . . two questions: First, how much will the legislation stimulate the producer and so benefit the public; and, second, how much will the monopoly granted be detri­mental to the public? The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the public that out­weighs the evils of the temporary monopoly.” H. R. Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909).

11

Thus, for example, the development and marketing of player pianos and perforated rolls of music, see White-Smith Music Publishing Co. v. Apollo Co., 209 U. S. 1 (1908), preceded the enactment of the Copyright Act of 1909; innovations in copying techniques gave rise to the statutory exemption for library copying embodied in § 108 of the 1976 revision of the copyright law; the development of the technology that made it possible to retransmit television programs by cable or by microwave systems, see Fortnightly Corp. v. United Artists Television, Inc., 392 U. S. 390 (1968), and Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U. S. 394 (1974), prompted the enactment of the complex provisions set forth in 17 U. S. C. § 111(d)(2)(B) and § 111(d)(5) (1982 ed.) after years of detailed congressional study, see Eastern Microwave, Inc. v. Doubleday Sports, Inc., 691 F. 2d 125, 129 (CA2 1982).

By enacting the Sound Recording Amendment of 1971, 85 Stat. 391, Congress also provided the solution to the “record piracy” problems that had been created by the development of the audio tape recorder. Sony argues that the legislative history of that Act, see especially H. R. Rep. No. 92-487, p. 7 (1971), indicates that Congress did not intend to prohibit the private home use of either audio or video tape recording equipment. In view of our disposition of the contributory infringement issue, we ex­press no opinion on that question.

12

“Copyright protection became necessary with the invention of the printing press and had its early beginnings in the British censorship laws. The fortunes of the law of copyright have always been closely connected with freedom of expression, on the one hand, and with technological im­provements in means of dissemination, on the other. Successive ages have drawn different balances among the interest of the writer in the con­trol and exploitation of his intellectual property, the related interest of the publisher, and the competing interest of society in the untrammeled dis­semination of ideas.” Foreword to B. Kaplan, An Unhurried View of Copyright vii-viii (1967).

13

See, e. g., White-Smith Music Publishing Co. v. Apollo Co., 209 U. S., at 19; cf. Deep South Packing Co. v. Laitram Corp., 406 U. S. 518, 530-531 (1972). While the law has never recognized an author's right to absolute control of his work, the natural tendency of legal rights to express themselves in absolute terms to the exclusion of all else is particularly pro­nounced in the history of the constitutionally sanctioned monopolies of the copyright and the patent. See, e. g., United States v. Paramount Pic­tures, Inc., 334 U. S. 131, 156-158 (1948) (copyright owners claiming right to tie license of one film to license of another under copyright law); Fox Film Corp. v. Doyal, 286 U. S. 123 (1932) (copyright owner claiming copy­right renders it immune from state taxation of copyright royalties); Bobbs-­Merrill Co. v. Straus, 210 U. S. 339, 349-351 (1908) (copyright owner claiming that a right to fix resale price of his works within the scope of his copyright); International Business Machines Corp. v. United States, 298 U. S. 131 (1936) (patentees claiming right to tie sale of unpatented article to lease of patented device).

14

Section 106 of the Act provides:

“Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

“(1) to reproduce the copyrighted work in copies or phonorecords;

“(2) to prepare derivative works based upon the copyrighted work;

“(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

“(4) in the ease of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and

“(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the indi­vidual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.”

15

Moreover, anyone who willfully infringes the copyright to reproduce a motion picture for purposes of commercial advantage or private financial gain is subject to substantial criminal penalties, 17 U. S. C. § 506(a) (1982 ed.), and the fruits and instrumentalities of the crime are forfeited upon conviction, § 506(b).

16

In this regard, we reject respondents’ attempt to cast this action as comparable to a class action because of the positions taken by amici with copyright interests and their attempt to treat the statements made by amici as evidence in this case. See Brief for Respondents 1, and n. 1, 6, 52, 53, and n. 116. The stated desires of amici concerning the outcome of this or any litigation are no substitute for a class action, are not evidence in the case, and do not influence our decision; we examine an amicus curiae brief solely for whatever aid it provides in analyzing the legal questions before us.

17

As the District Court correctly observed, however, “the lines between direct infringement, contributory infringement and vicarious liability are not clearly drawn ... .” 480 F. Supp., at 457-458. The lack of clarity in this area may, in part, be attributable to the fact that an infringer is not merely one who uses a work without authorization by the copyright owner, but also one who authorizes the use of a copyrighted work without actual authority from the copyright owner.

We note the parties’ statements that the questions of Sony’s liability under the “doctrines” of “direct infringement” and “vicarious liability” are not nominally before this Court. Compare Brief for Respondents 9, n. 22, 41, n. 90, with Reply Brief for Petitioners 1, n. 2. We also observe, how­ever, that reasoned analysis of respondents’ unprecedented contributory infringement claim necessarily entails consideration of arguments and case law which may also be forwarded under the other labels, and indeed the parties to a large extent rely upon such arguments and authority in support of their respective positions on the issue of contributory infringement.

18

The so-called “dance hall cases,” Famous Music Corp. v. Bay State Harness Horse Racing & Breeding Assn., Inc., 554 F. 2d 1213 (CA1 1977) (racetrack retained infringer to supply music to paying customers); KECA Music, Inc. v. Dingus McGee’s Co., 432 F. Supp. 72 (WD Mo. 1977) (cocktail lounge hired musicians to supply music to paying customers); Dreamland Ball Room, Inc. v. Shapiro, Bernstein & Co., 36 F. 2d 354 (CA7 1929) (dance hall hired orchestra to supply music to paying custom­ers), are often contrasted with the so-called landlord-tenant cases, in which landlords who leased premises to a direct infringer for a fixed rental and did not participate directly in any infringing activity were found not to be liable for contributory infringement. E. g., Deutsch v. Arnold, 98 F. 2d 686 (CA2 1938).

In Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F. 2d 304 (CA2 1963), the owner of 23 chainstores retained the direct infringer to run its record departments. The relationship was structured as a licensing ar­rangement, so that the defendant bore none of the business risk of running the department. Instead, it received 10% or 12% of the direct infringer’s gross receipts. The Court of Appeals concluded:

“[The dance-hall eases] and this one lie closer on the spectrum to the employer-employee model, than to the landlord-tenant model. . . . [0]n the particular facts before us, . . . Green’s relationship to its infringing licensee, as well as its strong concern for the financial success of the phono­graph record concession, renders it liable for the unauthorized sales of the ‘bootleg’ records.

“... [T]he imposition of vicarious liability in the ease before us cannot be deemed unduly harsh or unfair. Green has the power to police carefully the conduct of its concessionaire . . .; our judgment will simply encourage it to do so, thus placing responsibility where it can and should be effec­tively exercised." Id., at 308 (emphasis in original).

In Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F. 2d 1159 (CA2 1971), the direct infringers retained the contribu­tory infringer to manage their performances. The contributory infringer would contact each direct infringer, obtain the titles of the musical compo­sitions to be performed, print the programs, and then sell the programs to its own local organizations for distribution at the time of the direct infringe­ment. Id., at 1161. The Court of Appeals emphasized that the contribu­tory infringer had actual knowledge that the artists it was managing were performing copyrighted works, was in a position to police the infringing conduct of the artists, and derived substantial benefit from the actions of the primary infringers. Id., at 1163.

In Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc., 256 F. Supp. 399 (SDNY 1966), the direct infringer manufactured and sold boot­leg records. In denying a motion for summary judgment, the District Court held that the infringer’s advertising agency, the radio stations that advertised the infringer’s works, and the service agency that boxed and mailed the infringing goods could all be held liable, if at trial it could be demonstrated that they knew or should have known that they were dealing in illegal goods.

19

A. g., United States v. Paramount Pictures, Inc., 334 U. S., at 158; Fox Film Corp. v. Doyal, 286 U. S., at 131; Wheaton v. Peters, 8 Pet. 591, 657-658 (1834). The two areas of the law, naturally, are not identical twins, and we exercise the caution which we have expressed in the past in applying doctrine formulated in one area to the other. See generally Mazer v. Stein, 347 U. S. 201, 217-218 (1954); Bobbs-Merrill Co. v. Straus, 210 U. S., at 345.

We have consistently rejected the proposition that a similar kinship ex­ists between copyright law and trademark law, and in the process of doing so have recognized the basic similarities between copyrights and patents. The Trade-Mark Cases, 100 U. S. 82, 91-92 (1879); see also United Drug Co. v. Theodore Rectanus Co., 248 U. S. 90, 97 (1918) (trademark right “has little or no analogy” to copyright or patent); McLean v. Fleming, 96 U. S. 245, 254 (1878); Canal Co. v. Clark, 13 Wall. 311, 322 (1872). Given the fundamental differences between copyright law and trademark law, in this copyright case we do not look to the standard for contributory infringe­ment set forth in Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 854-855 (1982), which was crafted for application in trademark cases. There we observed that a manufacturer or distributor could be held liable to the owner of a trademark if it intentionally induced a mer­chant down the chain of distribution to pass off its product as that of the trademark owner’s or if it continued to supply a product which could readily be passed off to a particular merchant whom it knew was mislabel­ing the product with the trademark owner’s mark. If Inwood’s narrow standard for contributory trademark infringement governed here, re­spondents’ claim of contributory infringement would merit little discussion. Sony certainly does not “intentionally induc[e]” its customers to make infringing uses of respondents’ copyrights, nor does it supply its products to identified individuals known by it to be engaging in continuing infringe­ment of respondents’ copyrights, see id., at 855.

20

Title 36 U. S. C. §271 provides:

“(a) Except as otherwise provided in this title, whoever without author­ity makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.

“(b) Whoever actively induces infringement of a patent shall be liable as an infringer.

“(c) Whoever sells a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringe­ment of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.

“(d) No patent owner otherwise entitled to relief for infringement or contributory infringement of a patent shall be denied relief or deemed guilty of misuse or illegal extension of the patent right by reason of his hav­ing done one or more of the following: (1) derived revenue from acts which if performed by another without his consent would constitute contributory infringement of the patent; (2) licensed or authorized another to perform acts which if performed without his consent would constitute contributory infringement of the patent; (3) sought to enforce his patent rights against infringement or contributory infringement.”

21

It seems extraordinary to suggest that the Copyright Act confers upon all copyright owners collectively, much less the two respondents in this case, the exclusive right to distribute VTR’s simply because they may be used to infringe copyrights. That, however, is the logical implication of their claim. The request for an injunction below indicates that respond­ents seek, in effect, to declare VTR’s contraband. Their suggestion in this Court that a continuing royalty pursuant to a judicially created compulsory license would be an acceptable remedy merely indicates that respondents, for their part, would be willing to license their claimed monopoly interest in VTR’s to Sony in return for a royalty.

22

The record suggests that Disney’s programs at the time of trial con­sisted of approximately one hour a week of network television and one syndicated series. Universal’s percentage in the Los Angeles market on commercial television stations was under 5%. See Tr. 532-533, 549-550.

23

The District Court did not make any explicit findings with regard to how much broadcasting is wholly uncopyrighted. The record does include testimony that at least one movie — My Man Godfrey — falls within that cat­egory, id., at 2300-2301, and certain broadcasts produced by the Federal Government are also uncopyrighted. See 17 U. S. C. § 105 (1982 ed.). Cf. Schnapper v. Foley, 215 U. S. App. D. C. 59, 667 F. 2d 102 (1981) (explaining distinction between work produced by the Government and work commissioned by the Government). To the extent such broadcasting is now significant, it further bolsters our conclusion. Moreover, since copyright protection is not perpetual, the number of audiovisual works in the public domain necessarily increases each year.

24

See Tr. 2447-2450 (Alexander Hadden, Major League Baseball); id., at 2480, 2486-2487 (Jay Moyer, National Football League); id., at 2515-­2516 (David Stern, National Basketball Association); id., at 2530-2534 (Gilbert Stein, National Hockey League); id., at 2543-2552 (Thomas Han­sen, National Collegiate Athletic Association); id., at 2565-2572 (Benjamin Armstrong, National Religious Broadcasters). Those officials were au­thorized to be the official spokespersons for their respective institutions in this litigation. Id., at 2432, 2479, 2509-2510, 2530, 2538, 2563. See Fed. Rule Civ. Proc. 30(b)(6).

25

Tr. 2863-2902; Defendants’ Exh. PI.

26

See also Tr. 2833-2844 (similar testimony by executive director of New Jersey Public Broadcasting Authority). Cf. id., at 2592-2605 (testimony by chief of New York Education Department’s Bureau of Mass Communi­cations approving home taping for educational purposes).

27

“Some public stations, as well as commercial stations, program the ‘Neighborhood’ at hours when some children cannot use it. I think that it’s a real service to families to be able to record such programs and show them at appropriate times. I have always felt that with the advent of all of this new technology that allows people to tape the ‘Neighborhood’ off-­the-air, and I’m speaking for the ‘Neighborhood’ because that’s what I produce, that they then become much more active in the programming of their family’s television life. Very frankly, I am opposed to people being programmed by others. My whole approach in broadcasting has always been ‘You are an important person just the way you are. You can make healthy decisions.’ Maybe I’m going on too long, but I just feel that any­thing that allows a person to be more active in the control of his or her life, in a healthy way, is important.” Id., at 2920-2921. See also Defendants’ Exh. PI, p. 85.

28

It may be rare for large numbers of copyright owners to authorize duplication of their works without demanding a fee from the copier. In the context of public broadcasting, however, the user of the copyrighted work is not required to pay a fee for access to the underlying work. The traditional method by which copyright owners capitalize upon the tele­vision medium — commercially sponsored free public broadcast over the public airwaves — is predicated upon the assumption that compensation for the value of displaying the works will be received in the form of advertising revenues.

In the context of television programming, some producers evidently be­lieve that permitting home viewers to make copies of their works off the air actually enhances the value of their copyrights. Irrespective of their rea­sons for authorizing the practice, they do so, and in significant enough numbers to create a substantial market for a noninfringing use of the Sony VTR’s. No one could dispute the legitimacy of that market if the produc­ers had authorized home taping of their programs in exchange for a license fee paid directly by the home user. The legitimacy of that market is not compromised simply because these producers have authorized home taping of their programs without demanding a fee from the home user. The copy­right law does not require a copyright owner to charge a fee for the use of his works, and as this record clearly demonstrates, the owner of a copy­right may well have economic or noneconomic reasons for permitting cer­tain kinds of copying to occur without receiving direct compensation from the copier. It is not the role of the courts to tell copyright holders the best way for them to exploit their copyrights: even if respondents’ competitors were ill-advised in authorizing home videotaping, that would not change the fact that they have created a substantial market for a paradigmatic noninfringing use of Sony’s product.

29

The Copyright Act of 1909, 35 Stat. 1075, did not have a “fair use” pro­vision. Although that Act’s compendium of exclusive rights “to print, reprint, publish, copy, and vend the copyrighted work” was broad enough to encompass virtually all potential interactions with a copyrighted work, the statute was never so construed. The courts simply refused to read the statute literally in every situation. When Congress amended the statute in 1976, it indicated that it “intended to restate the present judicial doc­trine of fair use, not to change, narrow, or enlarge it in any way.” H. R. Rep. No. 94-1476, p. 66 (1976).

30

Section 107 provides:

“Notwithstanding the provisions of section 106, the fair use of a copy­righted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criti­cism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copy­right. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

“(2) the nature of the copyrighted work;

“(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

“(4) the effect of the use upon the potential market for or value of the copyrighted work.” 17 U. S. C. § 107 (1982 ed.).

31

The House Report expressly stated that the fair use doctrine is an “equitable rule of reason” in its explanation of the fair use section:

“Although the courts have considered and ruled upon the fair use doc­trine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no gen­erally applicable definition is possible, and each case raising the question must be decided on its own facts. . . .

“General intention behind the provision

“The statement of the fair use doctrine in section 107 offers some guid­ance to users in determining when the principles of the doctrine apply. However, the endless variety of situations and combinations of circum­stances that can rise in particular cases precludes the formulation of exact rules in the statute. The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis.” H. R. Rep. No. 94-1476, swpra, at 65-66.

The Senate Committee similarly eschewed a rigid, bright-line approach to fair use. The Senate Report endorsed the view “that off-the-air record­ing for convenience” could be considered “fair use” under some circum­stances, although it then made it clear that it did not intend to suggest that off-the-air recording for convenience should be deemed fair use under any circumstances imaginable. S. Rep. No. 94-473, pp. 65-66 (1975). The latter qualifying statement is quoted by the dissent, post, at 481, and if read in isolation, would indicate that the Committee intended to con­demn all off-the-air recording for convenience. Read in context, however, it is quite clear that that was the farthest thing from the Committee’s intention.

32

“The Committee has amended the first of the criteria to be consid­ered — ‘the purpose and character of the use’ — to state explicitly that this factor includes a consideration of ‘whether such use is of a commercial nature or is for non-profit educational purposes.’ This amendment is not intended to be interpreted as any sort of not-for-profit limitation on edu­cational uses of copyrighted works. It is an express recognition that, as under the present law, the commercial or non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors in fair use decisions.” H. R. Rep. No. 94-1476, supra, at 66.

33

It has been suggested that “consumptive uses of copyrights by home VTR users are commercial even if the consumer does not sell the home­made tape because the consumer will not buy tapes separately sold by the copyrighth older.” Home Recording of Copyrighted Works: Hearing be­fore the Subcommittee on Courts, Civil Liberties and the Administration of Justice of the House Committee on the Judiciary, 97th Cong., 2d Sess., pt. 2, p. 1250 (1982) (memorandum of Prof. Laurence H. Tribe). Further­more, “[t]he error in excusing such theft as noncommercial,” we are told, “can be seen by simple analogy: jewel theft is not converted into a noncom­mercial veniality if stolen jewels are simply worn rather than sold.” Ibid. The premise and the analogy are indeed simple, but they add nothing to the argument. The use to which stolen j ewelry is put is quite irrelevant in determining whether depriving its true owner of his present possessory in­terest in it is venial; because of the nature of the item and the true owner’s interests in physical possession of it, the law finds the taking objectionable even if the thief does not use the item at all. Theft of a particular item of personal property of course may have commercial significance, for the thief deprives the owner of his right to sell that particular item to any in­dividual. Time-shifting does not even remotely entail comparable con­sequences to the copyright owner. Moreover, the time-shifter no more steals the program by watching it once than does the live viewer, and the live viewer is no more likely to buy prerecorded videotapes than is the time-shifter. Indeed, no live viewer would buy a prerecorded videotape if he did not have access to a VTR.

34

Cf. 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., 30 (1960):

“In certain situations, the copyright owner suffers no substantial harm from the use of his work. . . . Here again, is the partial marriage between the doctrine of fair use and the legal maxim de minimus non curat lex.”

35

See also 480 F. Supp., at 451:

“It should be noted, however, that plaintiffs’ argument is more complicated and speculative than was the plaintiff’s in Williams & Wilkins. . . . Here, plaintiffs ask the court to find harm based on many more assumptions. . . . As is discussed more fully in Part IV infra, some of these assumptions are based on neither fact nor experience, and plaintiffs admit that they are to some extent inconsistent and illogical.”

36

«There was testimony at trial, however, that Nielsen Ratings has already developed the ability to measure when a Betamax in a sample home is recording the program. Thus, the Betamax owner will be meas­ured as a part of the live audience. The later diary can augment that measurement with information about subsequent viewing.” Id., at 466.

In a separate section, the District Court rejected plaintiffs’ suggestion that the commercial attractiveness of television broadcasts would be dimin­ished because Betamax owners would use the pause button or fast-forward control to avoid viewing advertisements:

“It must be remembered, however, that to omit commercials, Betamax owners must view the program, including the commercials, while record­ing. To avoid commercials during playback, the viewer must fast-forward and, for the most part, guess as to when the commercial has passed. For most recordings, either practice may be too tedious. As defendants’ sur­vey showed, 92% of the programs were recorded with commercials and only 25% of the owners fast-forward through them. Advertisers will have to make the same kinds of judgments they do now about whether persons viewing televised programs actually watch the advertisements which inter­rupt them.” Id., at 468.

37

“Here plaintiffs assume that people will view copies when they would otherwise be watching television or going to the movie theater. There is no factual basis for this assumption. It seems equally likely that Betamax owners will play their tapes when there is nothing on television they wish to see and no movie they want to attend. Defendants’ survey does not show any negative effect of Betamax ownership on television viewing or theater attendance.” Id., at 466.

38

“The underlying assumptions here are particularly difficult to accept. Plaintiffs explain that the Betamax increases access to the original tele­vised material and that the more people there are in this original audience, the fewer people the rerun will attract. Yet current marketing practices, including the success of syndication, show just the opposite. Today, the larger the audience for the original telecast, the higher the price plaintiffs can demand from broadcasters from rerun rights. There is no survey within the knowledge of this court to show that the rerun audience is com­prised of persons who have not seen the program. In any event, if ratings can reflect Betamax recording, original audiences may increase and, given market practices, this should aid plaintiffs rather than harm them.” Ibid.

39

“This suggestion lacks merit. By definition, time-shift recording en­tails viewing and erasing, so the program will no longer be on tape when the later theater run begins. Of course, plaintiffs may fear that the Beta-­max owners will keep the tapes long enough to satisfy all their interest in the program and will, therefore, not patronize later theater exhibitions. To the extent that this practice involves librarying, it is addressed in section V. C., infra. It should also be noted that there is no evidence to suggest that the public interest in later theatrical exhibitions of motion pictures will be reduced any more by Betamax recording than it already is by the television broadcast of the film.” Id., at 467.

40

The Court of Appeals chose not to engage in any “equitable rule of rea­son” analysis in this case. Instead, it assumed that the category of “fair use” is rigidly circumscribed by a requirement that every such use must be “productive.” It therefore concluded that copying a television program merely to enable the viewer to receive information or entertainment that he would otherwise miss because of a personal scheduling conflict could never be fair use. That understanding of “fair use” was erroneous.

Congress has plainly instructed us that fair use analysis calls for a sensi­tive balancing of interests. The distinction between “productive” and “un­productive” uses may be helpful in calibrating the balance, but it cannot be wholly determinative. Although copying to promote a scholarly endeavor certainly has a stronger claim to fair use than copying to avoid interrupting a poker game, the question is not simply two-dimensional. For one thing, it is not true that all copyrights are fungible. Some copyrights govern ma­terial with broad potential secondary markets. Such material may well have a broader claim to protection because of the greater potential for com­mercial harm. Copying a news broadcast may have a stronger claim to fair use than copying a motion picture. And, of course, not all uses are fungible. Copying for commercial gain has a much weaker claim to fair use than copying for personal enrichment. But the notion of social “pro­ductivity” cannot be a complete answer to this analysis. A teacher who copies to prepare lecture notes is clearly productive. But so is a teacher who copies for the sake of broadening his personal understanding of his specialty. Or a legislator who copies for the sake of broadening her under­standing of what her constituents are watching; or a constituent who copies a news program to help make a decision on how to vote.

Making a copy of a copyrighted work for the convenience of a blind per­son is expressly identified by the House Committee Report as an example of fair use, with no suggestion that anything more than a purpose to enter­tain or to inform need motivate the copying. In a hospital setting, using a VTR to enable a patient to see programs he would otherwise miss has no productive purpose other than contributing to the psychological well-being of the patient. Virtually any time-shifting that increases viewer access to television programming may result in a comparable benefit. The statu­tory language does not identify any dichotomy between productive and nonproductive time-shifting, but does require consideration of the eco­nomic consequences of copying.

Justice Blackmun,

dissenting.

A restatement of the facts and judicial history of this case is necessary, in my view, for a proper focus upon the issues. Respondents’ position is hardly so “unprecedented,” ante, at 421, in the copyright law, nor does it really embody a “gross generalization,” ante, at 436, or a “novel theory of liability,” ante, at 437, and the like, as the Court, in belittling their claims, describes the efforts of respondents.

I

The introduction of the home videotape recorder (VTR) upon the market has enabled millions of Americans to make recordings of television programs in their homes, for future and repeated viewing at their own convenience. While this practice has proved highly popular with owners of television sets and VTR’s, it understandably has been a matter of con­cern for the holders of copyrights in the recorded programs. A result is the present litigation, raising the issues whether the home recording of a copyrighted television program is an infringement of the copyright, and, if so, whether the manu­facturers and distributors of VTR’s are liable as contribu­tory infringers. I would hope that these questions ultimately will be considered seriously and in depth by the Congress and be resolved there, despite the fact that the Court’s decision today provides little incentive for congressional action. Our task in the meantime, however, is to resolve these issues as best we can in the light of ill-fitting existing copyright law.

It is no answer, of course, to refer to and stress, as the Court does, this Court’s “consistent deference to Congress” when­ever “major technological innovations” appear. Ante, at 431. Perhaps a better and more accurate description is that the Court has tended to evade the hard issues when they arise in the area of copyright law. I see no reason for the Court to be particularly pleased with this tradition or to continue it. Indeed, it is fairly clear from the legislative history of the 1976 Act that Congress meant to change the old pattern and enact a statute that would cover new technologies, as well as old.

II

In 1976, respondents Universal City Studios, Inc., and Walt Disney Productions (Studios) brought this copyright infringement action in the United States District Court for the Central District of California against, among others, peti­tioners Sony Corporation, a Japanese corporation, and Sony Corporation of America, a New York corporation, the manu­facturer and distributor, respectively, of the Betamax VTR. The Studios sought damages, profits, and a wide-ranging injunction against further sales or use of the Betamax or Betamax tapes.

The Betamax, like other VTR’s, presently is capable of re­cording television broadcasts off the air on videotape cassettes, and playing them back at a later time.1 Two kinds of Beta-­max usage are at issue here.2 The first is “time-shifting,” whereby the user records a program in order to watch it at a later time, and then records over it, and thereby erases the program, after a single viewing. The second is “library-­building,” in which the user records a program in order to keep it for repeated viewing over a longer term. Sony’s ad­vertisements, at various times, have suggested that Betamax users “record favorite shows” or “build a library.” Sony’s Betamax advertising has never contained warnings about copyright infringement, although a warning does appear in the Betamax operating instructions.

The Studios produce copyrighted “movies” and other works that they release to theaters and license for television broad­cast. They also rent and sell their works on film and on prerecorded videotapes and videodiscs. License fees for television broadcasts are set according to audience ratings, compiled by rating services that do not measure any play­backs of videotapes. The Studios make the serious claim that VTR recording may result in a decrease in their revenue from licensing their works to television and from marketing them in other ways.

After a 5-week trial, the District Court, with a detailed opinion, ruled that home VTR recording did not infringe the Studios’ copyrights under either the Act of Mar. 4,1909 (1909 Act), 35 Stat. 1075, as amended (formerly codified as 17 U. S. C. § 1 et seq.), or the Copyright Revision Act of 1976 (1976 Act), 90 Stat. 2541, 17 U. S. C. § 101 et seq. (1982 ed.).3 The District Court also held that even if home VTR recording were an infringement, Sony could not be held liable under theories of direct infringement, contributory infringement, or vicarious liability. Finally, the court concluded that an in­junction against sales of the Betamax would be inappropriate even if Sony were liable under one or more of those theories. 480 F. Supp. 429 (1979).

The United States Court of Appeals for the Ninth Circuit reversed in virtually every respect. 659 F. 2d 963 (1981). It held that the 1909 Act and the 1976 Act contained no im­plied exemption for “home use” recording, that such record­ing was not “fair use,” and that the use of the Betamax to record the Studios’ copyrighted works infringed their copy­rights. The Court of Appeals also held Sony liable for con­tributory infringement, reasoning that Sony knew and antici­pated that the Betamax would be used to record copyrighted material off the air, and that Sony, indeed, had induced, caused, or materially contributed to the infringing conduct. The Court of Appeals remanded the case to the District Court for appropriate relief; it suggested that the District Court could consider the award of damages or a continuing royalty in lieu of an injunction. Id., at 976.

III

The Copyright Clause of the Constitution, Art. I, § 8, cl. 8, empowers Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and In­ventors the exclusive Right to their respective Writings and Discoveries.” This Nation’s initial copyright statute was passed by the First Congress. Entitled “An Act for the en­couragement of learning,” it gave an author “the sole right and liberty of printing, reprinting, publishing and vending” his “map, chart, book or books” for a period of 14 years. Act of May 31, 1790, § 1, 1 Stat. 124. Since then, as the technol­ogy available to authors for creating and preserving their writings has changed, the governing statute has changed with it. By many amendments, and by complete revisions in 1831, 1870, 1909, and 1976,4 authors’ rights have been expanded to provide protection to any “original works of authorship fixed in any tangible medium of expression,” in­cluding “motion pictures and other audiovisual works.” 17 U. S. C. § 102(a) (1982 ed.).5

Section 106 of the 1976 Act grants the owner of a copyright a variety of exclusive rights in the copyrighted work,6 includ­ing the right “to reproduce the copyrighted work in copies or phonorecords.”7 This grant expressly is made subject to §§ 107-118, which create a number of exemptions and limita­tions on the copyright owner’s rights. The most important of these sections, for present purposes, is § 107; that section states that “the fair use of a copyrighted work ... is not an infringement of copyright.”8

The 1976 Act, like its predecessors,9 does not give the copyright owner full and complete control over all possible uses of his work. If the work is put to some use not enumer­ated in §106, the use is not an infringement. See Fort­nightly Corp. v. United Artists Television, Inc., 392 U. S. 390, 393-395 (1968). Thus, before considering whether home videotaping comes within the scope of the fair use ex­emption, one first must inquire whether the practice appears to violate the exclusive right, granted in the first instance by § 106(1), “to reproduce the copyrighted work in copies or phonorecords.”

A

Although the word “copies” is in the plural in §106(1), there can be no question that under the Act the making of even a single unauthorized copy is prohibited. The Senate and House Reports explain: “The references to ‘copies or phonorecords,’ although in the plural, are intended here and throughout the bill to include the singular (1 U. S. C. § l).”10 S. Rep. No. 94-473, p. 58 (1975) (1975 Senate Report); H. R. Rep. No. 94-1476, p. 61 (1976) (1976 House Report). The Reports then describe the reproduction right established by §106(1):

“[T]he right ‘to reproduce the copyrighted work in copies or phonorecords’ means the right to produce a material object in which the work is duplicated, transcribed, imi­tated, or simulated in a fixed form from which it can be ‘perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.’ As under the present law, a copyrighted work would be infringed by reproducing it in whole or in any sub­stantial part, and by duplicating it exactly or by imita­tion or simulation.” 1975 Senate Report 58; 1976 House Report 61.

The making of even a single videotape recording at home falls within this definition; the VTR user produces a material ob­ject from which the copyrighted work later can be perceived. Unless Congress intended a special exemption for the making of a single copy for personal use, I must conclude that VTR recording is contrary to the exclusive rights granted by § 106(1).

The 1976 Act and its accompanying Reports specify in some detail the situations in which a single copy of a copy­righted work may be made without infringement concerns. Section 108(a), for example, permits a library or archives “to reproduce no more than one copy or phonorecord of a work” for a patron, but only under very limited conditions; an entire work, moreover, can be copied only if it cannot be obtained elsewhere at a fair price.11 § 108(e); see also § 112(a) (broad­caster may “make no more than one copy or phonorecord of a particular transmission program,” and only under certain conditions). In other respects, the making of single copies is permissible only within the limited confines of the fair use doctrine. The Senate Report, in a section headed “Single and multiple copying,” notes that the fair use doctrine would permit a teacher to make a single copy of a work for use in the classroom, but only if the work was not a “sizable” one such as a novel or treatise. 1975 Senate Report 63-64; accord, 1976 House Report 68-69, 71. Other situations in which the making of a single copy would be fair use are described in the House and Senate Reports.12 But neither the statute nor its legislative history suggests any intent to create a general exemption for a single copy made for per­sonal or private use.

Indeed, it appears that Congress considered and rejected the very possibility of a special private use exemption. The issue was raised early in the revision process, in one of the studies prepared for Congress under the supervision of the Copyright Office. A. Latman, Pair 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) (Latman Fair Use Study). This study found no reported case supporting the existence of an exemption for private use, although it noted that “the purpose and nature of a private use, and in some cases the small amount taken, might lead a court to apply the general principles of fair use in such a way as to deny liabil­ity.” Id., at 12. After reviewing a number of foreign copy­right laws that contained explicit statutory exemptions for private or personal use, id., at 25, Professor Latman outlined several approaches that a revision bill could take to the gen­eral issue of exemptions and fair use. One of these was the adoption of particularized rules to cover specific situations, including “the field of personal use.” Id., at 33.13

Rejecting the latter alternative, the Register of Copyrights recommended that the revised copyright statute simply men­tion the doctrine of fair use and indicate its general scope. The Register opposed the adoption of rules and exemptions to cover specific situations,14 preferring, instead, to rely on the judge-made fair use doctrine to resolve new problems as they arose. See Register’s 1961 Report 25; Register’s Supplementary Report 27-28.

The Register’s approach was reflected in the first copy­right revision bills, drafted by the Copyright Office in 1964. These bills, like the 1976 Act, granted the copyright owner the exclusive right to reproduce the copyrighted work, sub­ject only to the exceptions set out in later sections. H. R. 11947/S. 3008, 88th Cong., 2d Sess., §5(a) (1964). The pri­mary exception was fair use, § 6, containing language virtu­ally identical to § 107 of the 1976 Act. Although the copy­right revision bills underwent change in many respects from their first introduction in 1964 to their final passage in 1976, these portions of the bills did not change.15 I can con­clude only that Congress, like the Register, intended to rely on the fair use doctrine, and not on a per se exemption for private use, to separate permissible copying from the impermissible.16

When Congress intended special and protective treatment for private use, moreover, it said so explicitly. One such explicit statement appears in § 106 itself. The copyright owner’s exclusive right to perform a copyrighted work, in contrast to his right to reproduce the work in copies, is lim­ited. Section 106(4) grants a copyright owner the exclusive right to perform the work “publicly,” but does not afford the owner protection with respect to private performances by others. A motion picture is “performed” whenever its images are shown or its sounds are made audible. § 101. Like “sing­[ing] a copyrighted lyric in the shower,” Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 155 (1975), watching television at home with one’s family and friends is now con­sidered a performance. 1975 Senate Report 59-60; 1976 House Report 63.17 Home television viewing nevertheless does not infringe any copyright — but only because § 106(4) contains the word “publicly.”18 See generally 1975 Senate Report 60-61; 1976 House Report 63-64; Register’s 1961 Report 29-30. No such distinction between public and pri­vate uses appears in § 106(l)’s prohibition on the making of copies.19

Similarly, an explicit reference to private use appears in § 108. Under that section, a library can make a copy for a patron only for specific types of private use: “private study, scholarship, or research.”20 §§ 108(d)(1) and (e)(1); see 37 CFR §201.14(b) (1983). Limits also are imposed on the ex­tent of the copying and the type of institution that may make copies, and the exemption expressly is made inapplicable to motion pictures and certain other types of works. § 108(h). These limitations would be wholly superfluous if an entire copy of any work could be made by any person for private use.21

B

The District Court in this case nevertheless concluded that the 1976 Act contained an implied exemption for “home-use recording.” 480 F. Supp., at 444-446. The court relied pri­marily on the legislative history of a 1971 amendment to the 1909 Act, a reliance that this Court today does not duplicate. Ante, at 430, n. 11. That amendment, however, was ad­dressed to the specific problem of commercial piracy of sound recordings. Act of Oct. 15, 1971, 85 Stat. 391 (1971 Amend­ment). The House Report on the 1971 Amendment, in a section entitled “Home Recording,” contains the following statement:

“In approving the creation of a limited copyright in sound recordings it is the intention of the Committee that this limited copyright not grant any broader rights than are accorded to other copyright proprietors under the existing title 17. Specifically, it is not the intention of the Committee to restrain the home recording, from broadcasts or from tapes or records, of recorded per­formances, where the home recording is for private use and with no purpose of reproducing or otherwise capital­izing commercially on it. This practice is common and unrestrained today, and the record producers and per­formers would be in no different position from that of the owners of copyright in recorded musical composi­tions over the past 20 years.” H. R. Rep. No. 92-487, p. 7 (1971) (1971 House Report).

Similar statements were made during House hearings on the bill22 and on the House floor,23 although not in the Senate proceedings. In concluding that these statements created a general exemption for home recording, the District Court, in my view, paid too little heed to the context in which the statements were made, and failed to consider the limited pur­pose of the 1971 Amendment and the structure of the 1909 Act.

Unlike television broadcasts and other types of motion pictures, sound recordings were not protected by copyright prior to the passage of the 1971 Amendment. Although the underlying musical work could be copyrighted, the 1909 Act provided no protection for a particular performer’s rendition of the work. Moreover, copyrighted musical works that had been recorded for public distribution were subject to a “com­pulsory license”: any person was free to record such a work upon payment of a 2-cent royalty to the copyright owner. § 1(e), 35 Stat. 1075-1076. While reproduction without pay­ment of the royalty was an infringement under the 1909 Act, damages were limited to three times the amount of the un­paid royalty. § 25(e), 35 Stat. 1081-1082; Shapiro, Bernstein & Co. v. Goody, 248 F. 2d 260, 262-263, 265 (CA2 1957), cert. denied, 355 U. S. 952 (1958). It was observed that the prac­tical effect of these provisions was to legalize record piracy. See S. Rep. No. 92-72, p. 4 (1971); 1971 House Report 2.

In order to suppress this piracy, the 1971 Amendment ex­tended copyright protection beyond the underlying work and to the sound recordings themselves. Congress chose, how­ever, to provide only limited protection: owners of copyright in sound recordings were given the exclusive right “[t]o re­produce [their works] and distribute [them] to the public.” 1971 Amendment, § 1(a), 85 Stat. 391 (formerly codified as 17 U. S. C. § 1(f)).24 This right was merely the right of com­mercial distribution. See 117 Cong. Rec. 34748-34749 (1971) (colloquy of Reps. Kazen and Kastenmeier) (“the bill pro­tects copyrighted material that is duplicated for commercial purposes only”).

Against this background, the statements regarding home recording under the 1971 Amendment appear in a very dif­ferent light. If home recording was “common and unre­strained” under the 1909 Act, see 1971 House Report 7, it was because sound recordings had no copyright protection and the owner of a copyright in the underlying musical work could collect no more than a 2-cent royalty plus 6 cents in damages for each unauthorized use. With so little at stake, it is not at all surprising that the Assistant Register “d[id] not see anybody going into anyone’s home and preventing this sort of thing.” 1971 House Hearings 23.

But the references to home sound recording in the 1971 Amendment’s legislative history demonstrate no congres­sional intent to create a generalized home-use exemption from copyright protection. Congress, having recognized that the 1909 Act had been unsuccessful in controlling home sound recording, addressed only the specific problem of com­mercial record piracy. To quote Assistant Register Ringer again, home use was “not what this legislation [was] ad­dressed to.” Id., at 22.25

While the 1971 Amendment narrowed the sound record­ings loophole in then existing copyright law, motion pictures and other audiovisual works have been accorded full copy­right protection since at least 1912, see Act of Aug. 24, 1912, 37 Stat. 488, and perhaps before, see Edison v. Lubin, 122 F. 240 (CA3 1903), appeal dism’d, 195 U. S. 625 (1904). Con­gress continued this protection in the 1976 Act. Unlike the sound recording rights created by the 1971 Amendment, the reproduction rights associated with motion pictures under § 106(1) are not limited to reproduction for public distribu­tion; the copyright owner's right to reproduce the work ex­ists independently, and the “mere duplication of a copy may constitute an infringement even if it is never distributed.” Register's Supplementary Report 16; see 1975 Senate Report 57 and 1976 House Report 61. Moreover, the 1976 Act was intended as a comprehensive treatment of all aspects of copy­right law. The Reports accompanying the 1976 Act, unlike the 1971 House Report, contain no suggestion that home-use recording is somehow outside the scope of this all-inclusive statute. It was clearly the intent of Congress that no addi­tional exemptions were to be implied.26

I therefore find in the 1976 Act no implied exemption to cover the home taping of television programs, whether it be for a single copy, for private use, or for home use. Taping a copyrighted television program is infringement unless it is permitted by the fair use exemption contained in § 107 of the 1976 Act. I now turn to that issue.

IV

Fair Use

The doctrine of fair use has been called, with some justifi­cation, “the most troublesome in the whole law of copyright.” Dellar v. Samuel Goldwyn, Inc., 104 F. 2d 661, 662 (CA2 1939); see Triangle Publications, Inc. v. Knight-Ridder News­papers, Inc., 626 F. 2d 1171, 1174 (CA5 1980); Meeropol v. Nizer, 560 F. 2d 1061, 1068 (CA2 1977), cert. denied, 434 U. S. 1013 (1978). Although courts have constructed lists of factors to be considered in determining whether a particular use is fair,27 no fixed criteria have emerged by which that determination can be made. This Court thus far has pro­vided no guidance; although fair use issues have come here twice, on each occasion the Court was equally divided and no opinion was forthcoming. Williams & Wilkins Co. v. United States, 203 Ct. Cl. 74, 487 F. 2d 1345 (1973), aff’d, 420 U. S. 376 (1975); Benny v. Loew’s Inc., 239 F. 2d 532 (CA9 1956), aff’d sub nom. Columbia Broadcasting System, Inc. v. Loew’s Inc., 356 U. S. 43 (1958).

Nor did Congress provide definitive rules when it codified the fair use doctrine in the 1976 Act; it simply incorporated a list of factors “to be considered”: the “purpose and charac­ter of the use,” the “nature of the copyrighted work,” the “amount and substantiality of the portion used,” and, perhaps the most important, the “effect of the use upon the potential market for or value of the copyrighted work” (emphasis sup­plied). § 107. No particular weight, however, was assigned to any of these, and the list was not intended to be exclusive. The House and Senate Reports explain that §107 does no more than give “statutory recognition” to the fair use doc­trine; it was intended “to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.” 1976 House Report 66. See 1975 Senate Report 62; S. Rep. No. 93-983, p. 116 (1974); H. R. Rep. No. 83, 90th Cong., 1st Sess., 32 (1967); H. R. Rep. No. 2237, 89th Cong., 2d Sess., 61 (1966).

A

Despite this absence of clear standards, the fair use doc­trine plays a crucial role in the law of copyright. The pur­pose of copyright protection,, in the words of the Constitu­tion, is to “promote the Progress of Science and useful Arts.” Copyright is based on the belief that by granting authors the exclusive rights to reproduce their works, they are given an incentive to create, and that “encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Sci­ence and the useful Arts.’” Mazer v. Stein, 347 U. S. 201, 219 (1954). The monopoly created by copyright thus re­wards the individual author in order to benefit the public. Twentieth Century Music Corp. v. Aiken, 422 U. S., at 156; Fox Film Corp. v. Doyal, 286 U. S. 123, 127-128 (1932); see H. R. Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909).

There are situations, nevertheless, in which strict enforce­ment of this monopoly would inhibit the very “Progress of Science and useful Arts” that copyright is intended to pro­mote. An obvious example is the researcher or scholar whose own work depends on the ability to refer to and to quote the work of prior scholars. Obviously, no author could create a new work if he were first required to repeat the re­search of every author who had gone before him.28 The scholar, like the ordinary user, of course could be left to bar­gain with each copyright owner for permission to quote from or refer to prior works. But there is a crucial difference be­tween the scholar and the ordinary user. When the ordinary user decides that the owner’s price is too high, and forgoes use of the work, only the individual is the loser. When the scholar forgoes the use of a prior work, not only does his own work suffer, but the public is deprived of his contribution to knowledge. The scholar’s work, in other words, produces external benefits from which everyone profits. In such a case, 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. See Latman Fair Use Study 31; Gordon, Fair Use as Market Failure: A Structural Analysis of the Betamax Case and its Predecessors, 82 Colum. L. Rev. 1600, 1630 (1982).

A similar subsidy may be appropriate in a range of areas other than pure scholarship. The situations in which fair use is most commonly recognized are listed in § 107 itself; fair use may be found when a work is used “for purposes such as criti­cism, comment, news reporting, teaching, . . . scholarship, or research.” The House and Senate Reports expand on this list somewhat,29 and other examples may be found in the case law.30 Each of these uses, however, reflects a common theme: each is a productive use, resulting in some added ben­efit to the public beyond that produced by the first author’s work.31 The fair use doctrine, in other words, permits works to be used for “socially laudable purposes.” See Copyright Office, Briefing Papers on Current Issues, reprinted in 1975 House Hearings 2051, 2055. I am aware of no case in which the reproduction of a copyrighted work for the sole benefit of the user has been held to be fair use.32

I do not suggest, of course, that every productive use is a fair use. A finding of fair use still must depend on the facts of the individual case, and on whether, under the circum­stances, it is reasonable to expect the user to bargain with the copyright owner for use of the work. The fair use doc­trine must strike a balance between the dual risks created by the copyright system: on the one hand, that depriving au­thors of their monopoly will reduce their incentive to create, and, on the other, that granting authors a complete monopoly will reduce the creative ability of others.33 The inquiry is necessarily a flexible one, and the endless variety of situa­tions that may arise precludes the formulation of exact rules. But when a user reproduces an entire work and uses it for its original purpose, with no added benefit to the public, the doc­trine of fair use usually does not apply. There is then no need whatsoever to provide the ordinary user with a fair use subsidy at the author's expense.

The making of a videotape recording for home viewing is an ordinary rather than a productive use of the Studios’ copy­righted works. The District Court found that “Betamax owners use the copy for the same purpose as the original. They add nothing of their own.” 480 F. Supp., at 453. Al­though applying the fair use doctrine to home VTR record­ing, as Sony argues, may increase public access to material broadcast free over the public airwaves, I think Sony’s argu­ment misconceives the nature of copyright. Copyright gives the author a right to limit or even to cut off access to his work. Fox Film Corp. v. Doyal, 286 U. S., at 127. A VTR recording creates no public benefit sufficient to justify limit­ing this right. Nor is this right extinguished by the copy­right owner’s choice to make the work available over the airwaves. Section 106 of the 1976 Act grants the 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.34 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. See 1976 House Report 71; 1975 Senate Report 64. 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.’” Id., at 66. I cannot disregard these admonitions.

B

I recognize, nevertheless, that there are situations where permitting even an unproductive use would have no effect on the author’s incentive to create, that is, where the use would not affect the value of, or the market for, the author’s work. Photocopying an old newspaper clipping to send to a friend may be an example; pinning a quotation on one’s bulletin board may be another. In each of these cases, the effect on the author is truly de minimis. Thus, even though these uses provide no benefit to the public at large, no purpose is served by preserving the author’s monopoly, and the use may be regarded as fair.

Courts should move with caution, however, in depriving authors of protection from unproductive “ordinary” uses. As has been noted above, even in the case of a productive use, § 107(4) requires consideration of “the effect of the use upon the potential market for or value of the copyrighted work” (emphasis added). “[A] particular use which may seem to have little or no economic impact on the author’s rights today can assume tremendous importance in times to come.” Register’s Supplementary Report 14. Although such a use may seem harmless when viewed in isolation, “[i]solated instances of minor infringements, when multiplied many times, become in the aggregate a major inroad on copy­right that must be prevented.” 1975 Senate Report 65.

I therefore conclude that, at least when the proposed use is an unproductive one, a copyright owner need prove only a potential for harm to the market for or the value of the copy­righted work. See 3 M. Nimmer, Copyright § 13.05[E][4][c], p. 13-84 (1983). Proof of actual harm, or even probable harm, may be impossible in an area where the effect of a new technology is speculative, and requiring such proof would present the “real danger ... of confining the scope of an au­thor’s rights on the basis of the present technology so that, as the years go by, his copyright loses much of its value because of unforeseen technical advances.” Register’s Supplemen­tary Report 14. Infringement thus would be found if the copyright owner demonstrates a reasonable possibility that harm will result from the proposed use. When the use is one that creates no benefit to the public at large, copyright pro­tection should not be denied on the basis that a new technol­ogy that may result in harm has not yet done so.

The Studios have identified a number of ways in which VTR recording could damage their copyrights. VTR re­cording could reduce their ability to market their works in movie theaters and through the rental or sale of prerecorded videotapes or videodiscs; it also could reduce their rerun au­dience, and consequently the license fees available to them for repeated showings. Moreover, advertisers may be will­ing to pay for only “live” viewing audiences, if they believe VTR viewers will delete commercials or if rating services are unable to measure VTR use; if this is the case, VTR record­ing could reduce the license fees the Studios are able to charge even for first-run showings. Library-building may raise the potential for each of the types of harm identified by the Studios, and time-shifting may raise the potential for substantial harm as well.35

Although the District Court found no likelihood of harm from VTR use, 480 F. Supp., at 468, I conclude that it ap­plied an incorrect substantive standard and misallocated the burden of proof. The District Court reasoned that the Stu­dios had failed to prove that library-building would occur “to any significant extent,” id., at 467; that the Studios’ prere­corded videodiscs could compete with VTR recordings and were “arguably . . . more desirable,” ibid.; that it was “not clear that movie audiences will decrease,” id., at 468; and that the practice of deleting commercials “may be too te­dious” for many viewers, ibid. To the extent any decrease in advertising revenues would occur, the court concluded that the Studios had “marketing alternatives at hand to recoup some of that predicted loss.” Id., at 452. Because the Stu­dios’ prediction of harm was “based on so many assumptions and on a system of marketing which is rapidly changing,” the court was “hesitant to identify ‘probable effects’ of home-use copying.” Ibid.

The District Court’s reluctance to engage in prediction in this area is understandable, but, in my view, the court was mistaken in concluding that the Studios should bear the risk created by this uncertainty. The Studios have demon­strated a potential for harm, which has not been, and could not be, refuted at this early stage of technological development.

The District Court's analysis of harm, moreover, failed to consider the effect of VTR recording on “the potential mar­ket for or the value of the copyrighted work,” as required by § 107(4).36 The requirement that a putatively infringing use of a copyrighted work, to be “fair,” must not impair a “poten­tial” market for the work has two implications. First, an infringer cannot prevail merely by demonstrating that the copyright holder suffered no net harm from the infringer’s ac­tion. Indeed, even a showing that the infringement has re­sulted in a net benefit to the copyright holder will not suffice. Rather, the infringer must demonstrate that he had not im­paired the copyright holder’s ability to demand compensation from (or to deny access to) any group who would otherwise be willing to pay to see or hear the copyrighted work. Second, the fact that a given market for a copyrighted work would not be available to the copyright holder were it not for the in-­fringer’s activities does not permit the infringer to exploit that market without compensating the copyright holder. See Iowa State University Research Foundation, Inc. v. American Broadcasting Cos., 621 F. 2d 57 (CA2 1980).

In this case, the Studios and their amici demonstrate that the advent of the VTR technology created a potential market for their copyrighted programs. That market consists of those persons who find it impossible or inconvenient to watch the programs at the time they are broadcast, and who wish to watch them at other times. These persons are willing to pay for the privilege of watching copyrighted work at their con­venience, as is evidenced by the fact that they are willing to pay for VTR’s and tapes; undoubtedly, most also would be willing to pay some kind of royalty to copyright holders. The Studios correctly argue that they have been deprived of the ability to exploit this sizable market.

It is thus apparent from the record and from the findings of the District Court that time-shifting does have a substantial adverse effect upon the “potential market for” the Studios’ copyrighted works. Accordingly, even under the formula­tion of the fair use doctrine advanced by Sony, time-shifting cannot be deemed a fair use.

V

Contributory Infringement

From the Studios’ perspective, the consequences of home VTR recording are the same as if a business had taped the Studios’ works off the air, duplicated the tapes, and sold or rented them to members of the public for home viewing. The distinction is that home VTR users do not record for commercial advantage; the commercial benefit accrues to the manufacturer and distributors of the Betamax. I thus must proceed to discuss whether the manufacturer and distribu­tors can be held contributorily liable if the product they sell is used to infringe.

It is well established that liability for copyright infringe­ment can be imposed on persons other than those who actu­ally carry out the infringing activity. Kalem Co. v. Harper Brothers, 222 U. S. 55, 62-63 (1911); 3 M. Nimmer, Copy­right § 12.04[A] (1983); see Twentieth Century Music Corp. v. Aiken, 422 U. S., at 160, n. 11; Buck v. Jewell-LaSalle Realty Co., 283 U. S. 191, 198 (1931). Although the liability provision of the 1976 Act provides simply that “[ajnyone who violates any of the exclusive rights of the copyright owner . . . is an infringer of the copyright,” 17 U. S. C. § 501(a) (1982 ed.), the House and Senate Reports demonstrate that Congress intended to retain judicial doctrines of contributory infringement. 1975 Senate Report 57; 1976 House Report 61.37

The doctrine of contributory copyright infringement, how­ever, is not well defined. One of the few attempts at defini­tion appears in Gershwin Publishing Corp. v. Columbia Art­ists Management, Inc., 443 F. 2d 1159 (CA2 1971). In that case the Second Circuit stated that “one 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.” Id., at 1162 (footnote omitted). While I have no quarrel with this general state­ment, it does not easily resolve the present case; the District Court and the Court of Appeals, both purporting to apply it, reached diametrically opposite results.

A

In absolving Sony from liability, the District Court rea­soned that Sony had no direct involvement with individual Betamax users, did not participate in any off-the-air copying, and did not know that such copying was an infringement of the Studios’ copyright. 480 F. Supp., at 460. I agree with the Gershwin court that contributory liability may be im­posed even when the defendant has no formal control over the infringer. The defendant in Gershwin was a concert pro­moter operating through local concert associations that it sponsored; it had no formal control over the infringing per­formers themselves. 443 F. 2d, at 1162-1163. See also Twentieth Century Music Corp. v. Aiken, 422 U. S., at 160, n. 11. Moreover, a finding of contributory infringement has never depended on actual knowledge of particular instances of infringement; it is sufficient that the defendant have rea­son to know that infringement is taking place. 443 F. 2d, at 1162; see Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc., 256 F. Supp. 399 (SDNY 1966).38 In the so-­called “dance hall” cases, in which questions of contributory infringement arise with some frequency, proprietors of en­tertainment establishments routinely are held liable for un­authorized performances on their premises, even when they have no knowledge that copyrighted works are being per­formed. In effect, the proprietors in those cases are charged with constructive knowledge of the performances.39

Nor is it necessary that the defendant be aware that the infringing activity violates the copyright laws. Section 504(c)(2) of the 1976 Act provides for a reduction in statutory damages when an infringer proves he “was not aware and had no reason to believe that his or her acts constituted an infringement of copyright,” but the statute establishes no general exemption for those who believe their infringing activities are legal. Moreover, such an exemption would be meaningless in a case such as this, in which prospective relief is sought; once a court has established that the copying at issue is infringement, the defendants are necessarily aware of that fact for the future. It is undisputed in this case that Sony had reason to know the Betamax would be used by some owners to tape copyrighted works off the air. See 480 F. Supp., at 459-460.

The District Court also concluded that Sony had not caused, induced, or contributed materially to any infringing activities of Betamax owners. Id., at 460. In a case of this kind, however, causation can be shown indirectly; it does not depend on evidence that particular Betamax owners relied on particular advertisements. In an analogous case decided just two Terms ago, this Court approved a lower court’s con­clusion that liability for contributory trademark infringement could be imposed on a manufacturer who “suggested, even by implication” that a retailer use the manufacturer’s goods to infringe the trademark of another. Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 851 (1982); see id., at 860 (opinion concurring in result). I think this stand­ard is equally appropriate in the copyright context.

The District Court found that Sony has advertised the Betamax as suitable for off-the-air recording of “favorite shows,” “novels for television,” and “classic movies,” 480 F. Supp., at 436, with no visible warning that such recording could constitute copyright infringement. It is only with the aid of the Betamax or some other VTR, that it is possible today for home television viewers to infringe copyright by recording off-the-air. Off-the-air recording is not only a foreseeable use for the Betamax, but indeed is its intended use. Under the circumstances, I agree with the Court of Appeals that if off-the-air recording is an infringement of copyright, Sony has induced and materially contributed to the infringing conduct of Betamax owners.40

B

Sony argues that the manufacturer or seller of a product used to infringe is absolved from liability whenever the prod­uct can be put to any substantial noninfringing use. Brief for Petitioners 41-42. The District Court so held, borrowing the “staple article of commerce” doctrine governing liability for contributory infringement of patents. See 85 U. S. C. §271.41 This Court today is much less positive. See ante, at 440-442. I do not agree that this technical judge-made doctrine of patent law, based in part on considerations irrele­vant to the field of copyright, see generally Dawson Chemi­cal Co. v. Rohm & Haas Co., 448 U. S. 176, 187-199 (1980), should be imported wholesale into copyright law. Despite their common constitutional source, see U. S. Const., Art. I, § 8, cl. 8, patent and copyright protections have not devel­oped in a parallel fashion, and this Court in copyright cases in the past has borrowed patent concepts only sparingly. See Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 345-346 (1908).

I recognize, however, that many of the concerns underly­ing the “staple article of commerce” doctrine are present in copyright law as well. As the District Court noted, if liabil­ity for contributory infringement were imposed on the manu­facturer or seller of every product used to infringe — a type­writer, a camera, a photocopying machine — the “wheels of commerce” would be blocked. 480 F. Supp., at 461; see also Kalem Co. v. Harper Brothers, 222 U. S., at 62.

I therefore conclude that if a significant portion of the product’s use is noninfringing, the manufacturers and sellers cannot be held contributorily liable for the product’s infring­ing uses. See ante, at 440-441. If virtually all of the prod­uct’s use, however, is to infringe, contributory liability may be imposed; if no one would buy the product for noninfringing purposes alone, it is clear that the manufacturer is purposely profiting from the infringement, and that liability is appro­priately imposed. In such a case, the copyright owner’s monopoly would not be extended beyond its proper bounds; the manufacturer of such a product contributes to the infring­ing activities of others and profits directly thereby, while providing no benefit to the public sufficient to justify the infringement.

The Court of Appeals concluded that Sony should be held liable for contributory infringement, reasoning that “[video­tape recorders are manufactured, advertised, and sold for the primary purpose of reproducing television programming,” and “[virtually all television programming is copyrighted material.” 659 F. 2d, at 975. While I agree with the first of these propositions,42 the second, for me, is problematic. The key question is not the amount of television programming that is copyrighted, but rather the amount of VTR usage that is infringing.43 Moreover, the parties and their amici have argued vigorously about both the amount of television pro­gramming that is covered by copyright and the amount for which permission to copy has been given. The proportion of VTR recording that is infringing is ultimately a question of fact,44 and the District Court specifically declined to make findings on the “percentage of legal versus illegal home-use recording.” 480 F. Supp., at 468. In light of my view of the law, resolution of this factual question is essential. I there­fore would remand the case for further consideration of this by the District Court.

VI

The Court has adopted an approach very different from the one I have outlined. It is my view that the Court’s approach alters dramatically the doctrines of fair use and contributory infringement as they have been developed by Congress and the courts. Should Congress choose to respond to the Court’s decision, the old doctrines can be resurrected. As it stands, however, the decision today erodes much of the coherence that these doctrines have struggled to achieve.

The Court’s disposition of the case turns on its conclusion that time-shifting is a fair use. Because both parties agree that time-shifting is the primary use of VTR’s, that conclu­sion, if correct, would settle the issue of Sony’s liability under almost any definition of contributory infringement. The Court concludes that time-shifting is fair use for two reasons. Each is seriously flawed.

The Court’s first reason for concluding that time-shifting is fair use is its claim that many copyright holders have no ob­jection to time-shifting, and that “respondents have, no right to prevent other copyright holders from authorizing it for their programs.” Ante, at 442. The Court explains that a finding of contributory infringement would “inevitably frus­trate the interests of broadcasters in reaching the portion of their audience that is available only through time-shifting.” Ante, at 446. Such reasoning, however, simply confuses the question of liability with the difficulty of fashioning an appro­priate remedy. It may be that an injunction prohibiting the sale of VTR’s would harm the interests of copyright holders who have no objection to others making copies of their pro­grams. But such concerns should and would be taken into account in fashioning an appropriate remedy once liability has been found. Remedies may well be available that would not interfere with authorized time-shifting at all. The Court of Appeals mentioned the possibility of a royalty payment that would allow VTR sales and time-shifting to continue un­abated, and the parties may be able to devise other narrowly tailored remedies. Sony may be able, for example, to build a VTR that enables broadcasters to scramble the signal of individual programs and “jam” the unauthorized recording of them. Even were an appropriate remedy not available at this time, the Court should not misconstrue copyright holders’ rights in a manner that prevents enforcement of them when, through development of better techniques, an appropriate remedy becomes available.45

The Court’s second stated reason for finding that Sony is not liable for contributory infringement is its conclusion that even unauthorized time-shifting is fair use. Ante, at 447 et seq. This conclusion is even more troubling. The Court begins by suggesting that the fair use doctrine operates as a general “equitable rule of reason.” That interpretation mischaracterizes the doctrine, and simply ignores the lan­guage of the statute. Section 107 establishes the fair use doctrine “for purposes such as criticism, comment, news re­porting, teaching, . . . scholarship, or research.” These are all productive uses. It is true that the legislative history states repeatedly that the doctrine must be applied flexibly on a case-by-case basis, but those references were only in the context of productive uses. Such a limitation on fair use comports with its purpose, which is to facilitate the creation of new works. There is no indication that the fair use doc­trine has any application for purely personal consumption on the scale involved in this case,46 and the Court’s application of it here deprives fair use of the major cohesive force that has guided evolution of the doctrine in the past.

Having bypassed the initial hurdle for establishing that a use is fair, the Court then purports to apply to time-shifting the four factors explicitly stated in the statute. The first is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educa­tional purposes.” §107(1). The Court confidently describes time-shifting as a noncommercial, nonprofit activity. It is clear, however, that personal use of programs that have been copied without permission is not what § 107(1) protects. The intent of the section is to encourage users to engage in activi­ties the primary benefit of which accrues to others. Time-­shifting involves no such humanitarian impulse. It is like­wise something of a mischaracterization of time-shifting to describe it as noncommercial in the sense that that term is used in the statute. As one commentator has observed, time-shifting is noncommercial in the same sense that steal­ing jewelry and wearing it — instead of reselling it — is non­commercial.47 Purely consumptive uses are certainly not what the fair use doctrine was designed to protect, and the awkwardness of applying the statutory language to time-­shifting only makes clearer that fair use was designed to pro­tect only uses that are productive.

The next two statutory factors are all but ignored by the Court — though certainly not because they have no applicabil­ity. The second factor — “the nature of the copyrighted work” — strongly supports the view that time-shifting is an infringing use. The rationale guiding application of this fac­tor is that certain types of works, typically those involving “more of diligence than of originality or inventiveness,” New York Times Co. v. Roxbury Data Interface, Inc., 434 P. Supp. 217, 221 (NJ 1977), require less copyright protection than other original works; Thus, for example, informational works, such as news reports, that readily lend themselves to productive use by others, are less protected than creative works of entertainment. Sony’s own surveys indicate that entertainment shows account for more than 80% of the pro­grams recorded by Betamax owners.48

The third statutory factor — “the amount and substanti-­ality of the portion used” — is even more devastating to the Court’s interpretation. It is undisputed that virtually all VTR owners record entire works, see 480 F. Supp., at 454, thereby creating an exact substitute for the copyrighted orig­inal. Fair use is intended to allow individuals engaged in productive uses to copy small portions of original works that will facilitate their own productive endeavors. Time-shifting bears no resemblance to such activity, and the complete du­plication that it involves might alone be sufficient to preclude a finding of fair use. It is little wonder that the Court has chosen to ignore this statutory factor.49

The fourth factor requires an evaluation of “the effect of the use upon the potential market for or value of the copy­righted work.” This is the factor upon which the Court focuses, but once again, the Court has misread the statute. As mentioned above, the statute requires a court to consider the effect of the use on the potential market for the copy­righted work. The Court has struggled mightily to show that VTR use has not reduced the value of the Studios’ copy­righted works in their present markets. Even if true, that showing only begins the proper inquiry. The development of the VTR has created a new market for the works produced by the Studios. That market consists of those persons who desire to view television programs at times other than when they are broadcast, and who therefore purchase VTR record­ers to enable them to time-shift.50 Because time-shifting of the Studios’ copyrighted works involves the copying of them, however, the Studios are entitled to share in the benefits of that new market. Those benefits currently go to Sony through Betamax sales. Respondents therefore can show harm from VTR use simply by showing that the value of their copyrights would increase if they were compensated for the copies that are used in the new market. The existence of this effect is self-evident.

Because of the Court’s conclusion concerning the legality of time-shifting, it never addresses the amount of noninfringing use that a manufacturer must show to absolve itself from liability as a contributory infringer. Thus, it is difficult to discuss how the Court’s test for contributory infringement would operate in practice under a proper analysis of time-­shifting. One aspect of the test as it is formulated by the Court, however, particularly deserves comment. The Court explains that a manufacturer of a product is not liable for con­tributory infringement as long as the product is “capable of substantial noninfringing uses.” Ante, at 442 (emphasis sup­plied). Such a definition essentially eviscerates the concept of contributory infringement. Only the most unimaginative manufacturer would be unable to demonstrate that a image-­duplicating product is “capable” of substantial noninfringing uses. Surely Congress desired to prevent the sale of prod­ucts that are used almost exclusively to infringe copyrights; the fact that noninfringing uses exist presumably would have little bearing on that desire.

More importantly, the rationale for the Court’s narrow standard of contributory infringement reveals that, once again, the Court has confused the issue of liability with that of remedy. The Court finds that a narrow definition of con­tributory infringement is necessary in order to protect “the rights of others freely to engage in substantially unrelated areas of commerce.” Ante, at 442. But application of the contributory infringement doctrine implicates such rights only if the remedy attendant upon a finding of liability were an injunction against the manufacture of the product in ques­tion. The issue of an appropriate remedy is not before the Court at this time, but it seems likely that a broad injunction is not the remedy that would be ordered. It is unfortunate that the Court has allowed its concern over a remedy to infect its analysis of liability.

VII

The Court of Appeals, having found Sony liable, remanded for the District Court to consider the propriety of injunctive or other relief. Because of my conclusion as to the issue of liability, I, too, would not decide here what remedy would be appropriate if liability were found. I concur, however, in the Court of Appeals’ suggestion that an award of damages, or continuing royalties, or even some form of limited injunc­tion, may well be an appropriate means of balancing the equi­ties in this case.51 Although I express no view on the merits of any particular proposal, I am certain that, if Sony were found liable in this case, the District Court would be able to fashion appropriate relief. The District Court might con­clude, of course, that a continuing royalty or other equitable relief is not feasible. The Studios then would be relegated to statutory damages for proven instances of infringement. But the difficulty of fashioning relief, and the possibility that complete relief may be unavailable, should not affect our interpretation of the statute.

Like so many other problems created by the interaction of copyright law with a new technology, “[t]here can be no really satisfactory solution to the problem presented here, until Congress acts.” Twentieth Century Music Corp. v. Aiken, 422 U. S., at 167 (dissenting opinion). But in the ab­sence of a congressional solution, courts cannot avoid difficult problems by refusing to apply the law. We must “take the Copyright Act... as we find it,” Fortnightly Corp. v. United Artists Television, Inc., 392 U. S., at 401-402, and “do as little damage as possible to traditional copyright principles . . . until the Congress legislates.” Id., at 404 (dissenting opinion).

1

The Betamax has three primary components: a tuner that receives tele­vision (“RF”) signals broadcast over the airwaves; an adapter that con­verts the RF signals into audio-video signals; and a recorder that places the audio-video signals on magnetic tape. Sony also manufactures VTR’s without built-in tuners; these are capable of playing back prerecorded tapes and recording home movies on videotape, but cannot record off the air. Since the Betamax has its own tuner, it can be used to record off one channel while another channel is being watched.

The Betamax is available with auxiliary features, including a timer, a pause control, and a fast-forward control; these allow Betamax owners to record programs without being present, to avoid (if they are present) recording commercial messages, and to skip over commercials while play­ing back the recording. Videotape is reusable; the user erases its record by recording over it.

2

This ease involves only the home recording for home use of television programs broadcast free over the airwaves. No issue is raised concerning cable or pay television, or the sharing or trading of tapes.

3

At the trial, the Studios proved 32 individual instances where their copyrighted works were recorded on Betamax VTR’s. Two of these in­stances occurred after January 1, 1978, the primary effective date of the 1976 Act; all the others occurred while the 1909 Act was still effective. My analysis focuses primarily on the 1976 Act, but the principles governing copyright protection for these works are the same under either Act.

4

Act of Feb. 3,1831, eh. 16, 4 Stat. 436; Act of July 8,1870, §§ 85-111,16 Stat. 212-217; Act of Mar. 4, 1909, 35 Stat. 1075 (formerly codified as 17 U. S. C. § 1 et seq.); Copyright Revision Act of 1976, 90 Stat. 2541 (codified as 17 U. S. C. § 101 et seq. (1982 ed.)).

5

Section 102(a) provides:

“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

“(1) literary works;

“(2) musical works, including any accompanying words;

“(3) dramatic works, including any accompanying music;

“(4) pantomimes and choreographic works;

“(5) pictorial, graphic, and sculptural works;

“(6) motion pictures and other audiovisual works; and

“(7) sound recordings.”

Definitions of terms used in § 102(a)(6) are provided by § 101: “Audiovisual works” are “works that consist of a series of related images which are in­trinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together -with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.” And “motion pictures” are “audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with ac­companying sounds, if any.” Most commercial television programs, if fixed on film or tape at the time of broadcast or before, qualify as “audio­visual works.” Since the categories set forth in § 102(a) are not mutually exclusive, a particular television program may also qualify for protection as a dramatic, musical, or other type of work.

6

Section 106 provides:

“Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

“(1) to reproduce the copyrighted work in copies or phonorecords;

“(2) to prepare derivative works based upon the copyrighted work;

“(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

“(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and

“(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the indi­vidual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.”

7

A “phonorecord” is defined by § 101 as a reproduction of sounds other than sounds accompanying an audiovisual work, while a “copy” is a re­production of a work in any form other than a phonorecord.

8

Section 107 provides:

“Notwithstanding the provisions of section 106, the fair use of a copy­righted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criti­cism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copy­right. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

“(2) the nature of the copyrighted work;

“(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

“(4) the effect of the use upon the potential market for or value of the copyrighted work.”

Section 101 makes it clear that the four factors listed in this section are “illustrative and not limitative.”

9

The 1976 Act was the product of a revision effort lasting more than 20 years. Spurred by the recognition that “significant developments in technology and communications” had rendered the 1909 Act inadequate, S. Rep. No. 94-473, p. 47 (1975); see H. R. Rep. No. 94-1476, p. 47 (1976), Congress in 1955 authorized the Copyright Office to prepare a series of studies on all aspects of the existing copyright law. Thirty-four studies were prepared and presented to Congress. The Register of Copyrights drafted a comprehensive report with recommendations, House Committee on the Judiciary, Copyright Law Revision, Report of the Register of Copy­rights on the General Revision of the U. S. Copyright Law, 87th Cong., 1st Sess. (Comm. Print 1961) (Register’s 1961 Report), and general revision bills were introduced near the end of the 88th Congress in 1964. H. R. 11947/S. 3008, 88th Cong., 2d Sess. (1964). The Register issued a second report in 1965, with revised recommendations. House Committee on the Judiciary, Copyright Law Revision, pt. 6, Supplementary Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law: 1965 Revision Bill, 89th Cong., 1st Sess. (Comm. Print 1965) (Regis­ter’s Supplementary Report). Action on copyright revision was delayed from 1967 to 1974 by a dispute on cable television, see generally Second Supplementary Report of the Register of Copyrights on the General Revi­sion of the U. S. Copyright Law: 1975 Revision Bill, ch. V, pp. 2-26 (Draft Oct.-Dec. 1975) (Register’s Second Supplementary Report), but a compro­mise led to passage of the present Act in 1976.

10

Title 1 U. S. C. § 1 provides in relevant part:

“In determining the meaning of any Act of Congress, unless the con­text indicates otherwise . . . words importing the plural include the singular . . . .”

11

The library photocopying provisions of § 108 do not excuse any person who requests “a copy” from a library if the requester’s use exceeds fair use. § 108(f)(2). Moreover, a library is absolved from liability for the un­supervised use of its copying equipment provided that the equipment bears a notice informing users that “the making of a copy” may violate the copy­right law. § 108(f)(1).

12

For example, “the making of a single copy or phonorecord by an indi­vidual as a free service for a blind person” would be a fair use, as would “a single copy reproduction of an excerpt from a copyrighted work by a callig­rapher for a single client” or “a single reproduction of excerpts from a copy­righted work by a student calligrapher or teacher in a learning situation.” 1975 Senate Report 66-67; see 1976 House Report 73-74. Application of the fair use doctrine in these situations, of eourse, would be unnecessary if the 1976 Act created a general exemption for the making of a single copy.

13

professor Latman made special mention of the “personal use” issue be­cause the area was one that “has become disturbed by recent developments .... Photoduplieation devices may make authors’ and publishers’ groups apprehensive. The Copyright Charter recently approved by [the Interna­tional Confederation of Societies of Authors and Composers] emphasizes the concern of authors over ‘private’ uses which, because of technological developments, are said to be competing seriously with the author’s eco­nomic interests.” Latman Fair Use Study 33-34.

14

The one exemption proposed by the Register, permitting a library to make a single photocopy of an out-of-print work and of excerpts that a requester certified were needed for research, met with opposition and was not included in the bills initially introduced in Congress. See Register’s 1961 Report 26; H. R. 11947/S. 3008, 88th Cong., 2d Sess. (1964); Regis­ter’s Supplementary Report 26. A library copying provision was restored to the bill in 1969, after pressure from library associations. Register’s Second Supplementary Report, ch. Ill, pp. 10-11; see S. 543, 91st Cong., 1st Sess., § 108 (Comm. Print, Dec. 10, 1969); 1975 Senate Report 48.

15

The 1964 bills provided that the fair use of copyrighted material for purposes “such as criticism, comment, news reporting, teaching, scholar­ship, or research” was not an infringement of copyright, and listed four “factors to be considered” in determining whether any other particular use was fair. H. R. 11947/S. 3008, 88th Cong., 2d Sess., § 6 (1964). Revised bills, drafted by the Copyright Office in 1965, contained a fair use provision merely mentioning the doctrine but not indicating its scope: “Notwith­standing the provisions of section 106, the fair use of a copyrighted work is not an infringement of copyright.” H. R. 4347/S. 1006, 89th Cong., 1st Sess., § 107 (1965). The House Judiciary Committee restored the provi­sion to its earlier wording, H. R. Rep. No. 2237, 89th Cong., 2d Sess., 5, 58 (1966), and the language adopted by the Committee remained in the bill in later Congresses. See H. R. 2512/S. 597, 90th Cong., 1st Sess., § 107 (1967); S. 543, 91st Cong., 1st Sess., §107 (1969); S. 644, 92d Cong., 1st Sess., §107 (1971); S. 1361, 93d Cong., 1st Sess., §107 (1973); H. R. 2223/S. 22, 94th Cong., 1st Sess., § 107 (1975). With a few additions by the House Judiciary Committee in 1976, see 1976 House Report 5; H. R. Conf. Rep. No. 94-1733, p. 70 (1976), the same language appears in § 107 of the 1976 Act.

16

In Williams & Wilkins Co. v. United States, 203 Ct. Cl. 74, 487 F. 2d 1345 (1973), aff’d by an equally divided Court, 420 U. S. 376 (1975), decided during the process of the revision of the copyright statutes, the Court of Claims suggested that copying for personal use might be outside the scope of copyright protection under the 1909 Act. The court reasoned that be­cause “hand copying” for personal use has always been regarded as permis­sible, and because the practice of making personal copies continued after typewriters and photostat machines were developed, the making of per­sonal copies by means other than hand copying should be permissible as well. 203 Ct. CL, at 84-88, 487 F. 2d, at 1350-1352.

There appear to me to be several flaws in this reasoning. First, it is by no means clear that the making of a “hand copy” of an entire work is permissible; the most that can be said is that there is no reported case on the subject, possibly because no copyright owner ever thought it worth­while to sue. See Latman Fair Use Study 11-12; 3 M. Nimmer, Copyright § 13.05[E][4][a] (1983). At least one early treatise asserted that infringe­ment would result “if an individual made copies for his personal use, even in his own handwriting, as there is no rule of law excepting manuscript copies from the law of infringement.” A. Weil, American Copyright Law § 1066 (1917). Second, hand copying or even copying by typewriter is self-­limiting. The drudgery involved in making hand copies ordinarily ensures that only necessary and fairly small portions of a work are taken; it is un­likely that any user would make a hand copy as a substitute for one that could be purchased. The harm to the copyright owner from hand copying thus is minimal. The recent advent of inexpensive and readily available copying machines, however, has changed the dimensions of the problem. See Register’s Second Supplementary Report, ch. Ill, p. 3; Hearings on H. R. 2223 before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 94th Cong., 1st Sess., 194 (1975) (1975 House Hearings) (remarks of Rep. Dan-­ielson); id., at 234 (statement of Robert W. Cairns); id., at 250 (remarks of Rep. Danielson); id., at 354 (testimony of Irwin Karp); id., at 467 (testi­mony of Rondo Cameron); id., at 1795 (testimony of Barbara Ringer, Reg­ister of Copyrights). Thus, “[t]he supposition that there is no tort in­volved in a scholar copying a copyrighted text by hand does not much advance the question of machine copying.” B. Kaplan, An Unhurried View of Copyright 101-102 (1967).

17

In a trio of eases, Fortnightly Corp. v. United Artists Television, Inc., 392 U. S. 390, 398 (1968); Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U. S. 394, 403-405 (1974); and Twentieth Century Music Corp. v. Aiken, 422 U. S. 151 (1975), this Court had held that the reception of a radio or television broadcast was not a “performance” under the 1909 Act. The Court’s “narrow construction” of the word “perform” was “com­pletely overturned by the [1976 Act] and its broad definition of ‘perform’ in section 101.” 1976 House Report 87.

18

A work is performed “publicly” if it takes place “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” § 101.

19

One purpose of the exemption for private performances was to permit the home viewing of lawfully made videotapes. The Register noted in 1961 that “[n]ew technical devices will probably make it practical in the future to reproduce televised motion pictures in the home. We do not be­lieve the private use of such a reproduction can or should be precluded by copyright.” Register’s 1961 Report 30 (emphasis added). The Register did not suggest that the private making of a reproduction of a televised motion picture would be permitted by the copyright law. The Register later reminded Congress that “[i]n general the concept of ‘performance’ must be distinguished sharply from the reproduction of copies.” Regis­ter’s Supplementary Report 22.

20

During hearings on this provision, Representative Danielson inquired whether it would apply to works of fiction such as “Gone With the Wind,” or whether it was limited to “strictly technical types of information.” The uncontradicted response was that it would apply only in “general terms of science . .. [and] the useful arts.” 1975 House Hearings 251 (testimony of Robert W. Cairns); cf. id., at 300 (statement of Harry Rosenfield) (“We are not asking ... for the right to copy ‘Gone With the Wind’ ”).

21

The mention in the Senate and House Reports of situations in which copies for private use would be permissible under the fair use doctrine — for example, the making of a free copy for a blind person, 1975 Senate Report 66; 1976 House Report 73, or the “recordings of performances by music stu­dents for purposes of analysis and criticism,” 1975 Senate Report 63— would be superfluous as well. See n. 12, supra.

22

The following exchange took place during the testimony of Barbara Ringer, then Assistant Register of Copyrights:

“[Rep.] Biester. ... I can tell you I must have a small pirate in my own home. My son has a cassette tape recorder, and as a particular record be­comes a hit, he will retrieve it onto his little set. . . . [T]his legislation, of course, would not point to his activities, would it?

“Miss Ringer. I think the answer is clearly,‘No, it would not.’ I have spoken at a couple of seminars on video cassettes lately, and this question is usually asked: ‘What about the home recorders?’ The answer I have given and will give again is that this is something you cannot control. You simply cannot control it. My own opinion, whether this is philosophical dogma or not, is that sooner or later there is going to be a crunch here. But that is not what this legislation is addressed to, and I do not see the crunch coming in the immediate future. ... I do not see anybody going into anyone’s home and preventing this sort of thing, or forcing legisla­tion that would engineer a piece of equipment not to allow home taping.” Hearings on S. 646 and H. R. 6927 before Subcommittee No. 3 of the House Committee on the Judiciary, 92d Cong., 1st Sess., 22-23 (1971) (1971 House Hearings).

23

Shortly before passage of the bill, a colloquy took place between Representative Kastenmeier, Chairman of the House Subcommittee that produced the bill, and Representative Kazen, who was not on the Subcommittee:

“Mr. KAZEN. Am I correct in assuming that the bill protects copy­righted material that is duplicated for commercial purposes only?

“Mr. KASTENMEIER. Yes.

“Mr. KAZEN. In other words, if your child were to record off of a pro­gram which comes through the air on the radio or television, and then used it for her own personal pleasure, for listening pleasure, this use would not be included under the penalties of this bill?

“Mr. KASTENMEIER. This is not included in the bill. I am glad the gentleman raises the point.

“On page 7 of the report, under ‘Home Recordings,’ Members will note that under the bill the same practice which prevails today is called for; namely, this is considered both presently and under the proposed law to be fair use. The child does not do this for commercial purposes. This is made clear in the report.” 117 Cong. Rec. 34748-34749 (1971).

24

The 1909 Act’s grant of an exclusive right to “copy,” § 1(a), was of no assistance to the owner of a copyright in a sound recording, because a reproduction of a sound recording was technically considered not to be a “copy.” See 1971 House Hearings 18 (testimony of Barbara Ringer, Assistant Register of Copyrights); 1971 Amendment, § 1(e), 85 Stat. 391 (formerly codified as 17 U. S. C. §26) (“For the purposes of [specified sections, not including § 1(a)], but not for any other purpose, a reproduc­tion of a [sound recording] shall be considered to be a copy thereof”). This concept is carried forward into the 1976 Act, which distinguishes between “copies” and “phonoreeords.” See n. 7, supra.

25

During consideration of the 1976 Act, Congress, of course, was well aware of the limited nature of the protection granted to sound recordings under the 1971 Amendment. See 1975 House Hearings 113 (testimony of Barbara Ringer, Register of Copyrights) (1971 Amendment “created a copyright in a sound recording . . . but limited it to the particular situation of so-called piracy”); id., at 1380 (letter from John Lorenz, Acting Librar­ian of Congress) (under 1971 Amendment “only the unauthorized reproduc­tion and distribution to the public of copies of the sound recording is pro­hibited. Thus, the duplication of sound recordings for private, personal use and the performance of sound recordings through broadcasting or other means are outside the scope of the amendment”).

26

Representative Kastenmeier, the principal House sponsor of the 1976 revision bill and Chairman of the House Subcommittee that produced it, made this explicit on the opening day of the House hearings:

“[F]rom time to time, certain areas have not been covered in the bill. But is it not the case, this being a unified code, that the operation of the bill does apply whether or not we specifically deal with a subject or not? . . .

“Therefore, we can really not fail to deal with an issue. It will be dealt with one way or the other. The code, title 17, will cover it. So we have made a conscientious decision even by omission. . . .

“. . . By virtue of passing this bill, we will deal with every issue. Whether we deal with it completely or not for the purpose of resolving the issues involved is the only question, not whether it has dealt with the four corners of the bill because the four corners of the bill will presume to deal with everything in copyright.” Id., at 115.

27

The precise phrase “fair use” apparently did not enter the case law until 1869, see Lawrence v. Dana, 15 F. Cas. 26, 60 (No. 8,136) (CC Mass.), but the doctrine itself found early expression in Folsom v. Marsh, 9 F. Cas. 342 (No. 4,901) (CC Mass. 1841). Justice Story was faced there with the “intricate and embarrassing questio[n]” whether a biography con­taining copyrighted letters was “a justifiable use of the original materials, such as the law recognizes as no infringement of the copyright of the plain­tiffs.” Id., at 344, 348. In determining whether the use was permitted, it was necessary, said Justice Story, to consider “the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work. . . . Much must, in such cases, depend upon the nature of the new work, the value and extent of the copies, and the degree in which the original authors may be injured thereby.” Id., at 348-349.

Similar lists were compiled by later courts. See, e. g., Tennessee Fabri­cating Co. v. Moultrie Mfg. Co., 421 F. 2d 279, 283 (CA5), cert. denied, 398 U. S. 928 (1970); Mathews Conveyer Co. v. Palmer-Bee Co., 135 F. 2d 73, 85 (CA6 1943); Columbia Pictures Corp. v. National Broadcasting Co., 137 F. Supp. 348 (SD Cal. 1955); Shapiro, Bernstein & Co. v. P. F. Collier & Son Co., 26 USPQ 40, 43 (SDNY 1934); Hill v. Whalen & Martell, Inc., 220 F. 359, 360 (SDNY 1914).

28

“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.’” Chafee, Reflections on the Law of Copy­right: I, 45 Colum. L. Rev. 503, 511 (1945).

29

Quoting from the Register’s 1961 Report, the Senate and House Re­ports give examples of possible fair uses:

“ ‘quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or arti­cle, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduc­tion of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.’ ” 1975 Senate Report 61-62; 1976 House Report 65.

30

See, e. g., Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F. 2d 1171 (CA5 1980) (comparative advertising).

31

Professor Seltzer has characterized these lists of uses as “reflectfing] what in fact the subject matter of fair use has in the history of its adjudica­tion consisted in: it has always had to do with the use by a second author of a first author’s work.” L. Seltzer, Exemptions and Fair Use in Copyright 24 (1978) (emphasis removed). He distinguishes “the mere reproduction of a work in order to use it for its intrinsic purpose — to make what might be called the ‘ordinary’ use of it.” When copies are made for “ordinary” use of the work, “ordinary infringement has customarily been triggered, not notions of fair use” (emphasis in original). Ibid. See also 3 M. Nimmer, Copyright § 13.05[A][1] (1983) (“Use of a work in each of the foregoing con­texts either necessarily or usually involves its use in a derivative work”).

32

Williams & Wilkins Co. v. United States, 203 Ct. Cl. 74, 487 F. 2d 1345 (1973), aff’d by an equally divided Court, 420 U. S. 376 (1975), in­volved the photocopying of scientific journal articles; the Court of Claims stressed that the libraries performing the copying were “devoted solely to the advancement and dissemination of medical knowledge,” 203 Ct. Cl., at 91, 487 F. 2d, at 1354, and that “medical science would be seriously hurt if such library photocopying were stopped.” Id., at 95, 487 F. 2d, at 1356.

The issue of library copying is now covered by § 108 of the 1976 Act. That section, which Congress regarded as “authorizing] certain photo­copying practices which may not qualify as a fair use,” 1975 Senate Report 67; 1976 House Report 74, permits the making of copies only for “private study, scholarship, or research.” §§ 108(d)(1) and (e)(1).

33

In the words of Lord Mansfield: “[W]e must take care to guard against two extremes equally prejudicial; the one, that men of ability, who have employed their time for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour; the other, that the world may not be deprived of improvements, nor the progress of the arts be retarded.” Sayre v. Moore, as set forth in Cary v. Longman, 1 East 358, 361, n. (b), 102 Eng. Rep. 138, 140, n. (b) (K. B. 1785). See Register’s Supplementary Report 13.

34

This point was brought home repeatedly by the Register of Copy­rights. Mentioning the “multitude of technological developments” since passage of the 1909 Act, including “remarkable developments in the use of video tape,” Register’s Supplementary Report xiv-xv, the Register cautioned:

“I realize, more clearly now than I did in 1961, that the revolution in communications has brought with it a serious challenge to the author’s copyright. This challenge comes not only from the ever-growing commer­cial interests who wish to use the author’s works for private gain. An equally serious attack has come from people with a sincere interest in the public welfare who fully recognize . . . ‘that the real heart of civiliza­tion . . . owes its existence to the author’; ironically, in seeking to make the author’s works widely available by freeing them from copyright re­strictions, they fail to realize that they are whittling away the very thing that nurtures authorship in the first place. An accommodation among con­flicting demands must be worked out, true enough, but not by denying the fundamental constitutional directive: to encourage cultural progress by securing the author’s exclusive rights to him for a limited time.” Id., at xv; see 1975 House Hearings 117 (testimony of Barbara Ringer, Regis­ter of Copyrights).

35

A VTR owner who has taped a favorite movie for repeated viewing will be less likely to rent or buy a tape containing the same movie, watch a tele­vised rerun, or pay to see the movie at a theater. Although time-shifting may not replace theater or rerun viewing or the purchase of prerecorded tapes or discs, it may well replace rental usage; a VTR user who has re­corded a first-run movie for later viewing will have no need to rent a copy when he wants to see it. Both library-builders and time-shifters may avoid commercials; the library-builder may use the pause control to record without them, and all users may fast-forward through commercials on playback.

The Studios introduced expert testimony that both time-shifting and librarying would tend to decrease their revenue from copyrighted works. See 480 F. Supp., at 440. The District Court’s findings also show substan­tial library-building and avoidance of commercials. Both sides submitted surveys showing that the average Betamax user owns between 25 and 32 tapes. The Studios’ survey showed that at least 40% of users had more than 10 tapes in a “library”; Sony’s survey showed that more than 40% of users planned to view their tapes more than once; and both sides’ surveys showed that commercials were avoided at least 25% of the time. Id., at 438-439.

36

Concern over the impact of a use upon “potential” markets is to be found in cases decided both before and after § 107 lent Congress’ imprima­tur to the judicially created doctrine of fair use. See, e. g., Iowa State University Research Foundation, Inc. v. American Broadcasting Cos., 621 F. 2d 57, 60 (CA2 1980) (“the effect of the use on the copyright holder’s potential market for the work”); Meeropol v. Nizer, 560 F. 2d 1061, 1070 (CA2 1977) (“A key issue in fair use cases is whether the defendant’s work tends to diminish or prejudice the potential sale of plaintiff’s work”), cert. denied, 434 U. S. 1013 (1978); Williams & Wilkins Co. v. United States, 203 Ct. Cl., at 88, 487 F. 2d, at 1352 (“the effect of the use on a copyright owner’s potential market for and value of his work”); Encyclopaedia Bri­tannica Educational Corp. v. Crooks, 542 F. Supp. 1156, 1173 (WDNY 1982) (“[T]he concern here must be focused on a copyrighted work’s poten­tial market. It is perfectly possible that plaintiffs’ profits would have been greater, but for the kind of videotaping in question”) (emphasis in original).

37

This intent is manifested further by provisions of the 1976 Act that exempt from liability persons who, while not participating directly in any infringing activity, could otherwise be charged with contributory infringe­ment. See § 108(f)(1) (library not liable “for the unsupervised use of re­producing equipment located on its premises,” provided that certain warn­ings are posted); § 110(6) (“governmental body” or “nonprofit agricultural or horticultural organization” not liable for infringing performance by con­cessionaire “in the course of an annual agricultural or horticultural fair or exhibition”).

38

In Screen Gems, on which the Gershwin court relied, the court held that liability could be imposed on a shipper of unauthorized “bootleg” records and a radio station that broadcast advertisements of the records, provided they knew or should have known that the records were infring­ing. The court concluded that the records’ low price and the manner in which the records were marketed could support a finding of “constructive knowledge” even if actual knowledge were not shown.

39

See, e. g., Famous Music Corp. v. Bay State Harness Horse Racing & Breeding Assn., Inc., 554 F. 2d 1213 (CA1 1977); Dreamland Ball Room, Inc. v. Shapiro, Bernstein & Co., 36 F. 2d 354 (CA7 1929); M. Witmark & Sons v. Tremont Social & Athletic Club, 188 F. Supp. 787, 790 (Mass. 1960); see also Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 157 (1975); Buck v. Jewell-LaSalle Realty Co., 283 U. S. 191, 198-199 (1931); 3 M. Nimmer, Copyright § 12.04[A], p. 12-35 (1983).

Courts have premised liability in these cases on the notion that the de­fendant had the ability to supervise or control the infringing activities, see, e. g., Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F. 2d 304, 307 (CA2 1963); KECA Music, Inc. v. Dingus McGee’s Co., 432 F. Supp. 72, 74 (WD Mo. 1977). This notion, however, is to some extent fictional; the defendant cannot escape liability by instructing the performers not to play copyrighted music, or even by inserting a provision to that effect into the performers’ contract. Famous Music Corp. v. Bay State Harness Horse Racing & Breeding Assn., Inc., 554 F. 2d, at 1214-1215; KECA Music, Inc. v. Dingus McGee’s Co., 432 F. Supp., at 75; Shapiro, Bernstein & Co. v. Veltin, 47 F. Supp. 648, 649 (WD La. 1942). Congress expressly re­jected a proposal to exempt proprietors from this type of liability under the 1976 Act. See 1975 Senate Report 141-142; 1976 House Report 159-160; 1975 House Hearings 1812-1813 (testimony of Barbara Ringer, Register of Copyrights); id., at 1813 (colloquy between Rep. Pattison and Barbara Ringer).

The Court’s attempt to distinguish these cases on the ground of “con­trol,” ante, at 437, is obviously unpersuasive. The direct infringer ordi­narily is not employed by the person held liable; instead, he is an independ­ent contractor. Neither is he always an agent of the person held liable; Screen Gems makes this apparent.

40

My conclusion respecting contributory infringement does not include the retailer defendants. The District Court found that one of the retailer defendants had assisted in the advertising campaign for the Betamax, but made no other findings respecting their knowledge of the Betamax’s in­tended uses. I do not agree with the Court of Appeals, at least on this record, that the retailers “are sufficiently engaged in the enterprise to be held accountable,” 659 F. 2d 963, 976 (1981). In contrast, the advertising agency employed to promote the Betamax was far more actively engaged in the advertising campaign, and petitioners have not argued that the agency’s liability differs in any way from that of Sony Corporation and Sony Corporation of America.

41

The “staple article of commerce” doctrine protects those who manufac­ture products incorporated into or used with patented inventions — for ex­ample, the paper and ink used with patented printing machines, Henry v. A. B. Dick Co., 224 U. S. 1 (1912), or the dry ice used with patented refrig­eration systems, Carbice Corp. v. American Patents Corp., 283 U. S. 27 (1931). Because a patent holder has the right to control the use of the patented item as well as its manufacture, see Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 509-510 (1917); 35 U. S. C. § 271(a), such protection for the manufacturer of the incorporated product is necessary to prevent patent holders from extending their monopolies by suppressing competition in unpatented components and supplies suitable for use with the patented item. See Dawson Chemical Co. v. Rohm & Haas Co., 448 U. S. 176, 197-198 (1980). The doctrine of contributory patent infringement has been the subject of attention by the courts and by Congress, see id., at 202-212, and has been codified since 1952, 66 Stat. 792, but was never mentioned during the copyright law revision process as having any relevance to contributory copyright infringement.

42

Although VTR’s also may be used to watch prerecorded video cassettes and to make home motion pictures, these uses do not require a tuner such as the Betamax contains. See n. 1, supra. The Studios do not object to Sony’s sale of VTR’s without tuners. Brief for Respondents 5, n. 9. In considering the noninfringing uses of the Betamax, therefore, those uses that would remain possible without the Betamax’s built-in tuner should not be taken into account.

43

Noninfringing uses would include, for example, recording works that are not protected by copyright, recording works that have entered the public domain, recording with permission of the copyright owner, and, of course, any recording that qualifies as fair use. See, e. g., Bruzzone v. Miller Brewing Co., 202 USPQ 809 (ND Cal. 1979) (use of home VTR for market research studies).

44

Sony asserts that much or most television broadcasting is available for home recording because (1) no copyright owner other than the Studios has brought an infringement action, and (2) much televised material is ineligi­ble for copyright protection because videotapes of the broadcasts are not kept. The first of these assertions is irrelevant; Sony’s liability does not turn on the fact that only two copyright owners thus far have brought suit. The amount of infringing use must be determined through consideration of the television market as a whole. Sony’s second assertion is based on a faulty premise; the Copyright Office permits audiovisual works transmit­ted by television to be registered by deposit of sample frames plus a de­scription of the work. See 37 CFR §§ 202.20(c)(2)(ii) and 202.21(g) (1983). Moreover, although an infringement action cannot be brought unless the work is registered, 17 U. S. C. § 411(a) (1982 ed.), registration is not a con­dition of copyright protection. § 408(a). Copying an unregistered work still may be infringement. Cf. § 506(a) (liability for criminal copyright infringement; not conditioned on prior registration).

45

Even if concern with remedy were appropriate at the. liability stage, the Court's use of the District Court’s findings is’ somewhat cavalier. The Court relies heavily on testimony by representatives of professional sports leagues to the effect that they have no objection to VTR recording. The Court never states, however, whether the sports leagues are copyright holders, and if so, whether they have exclusive copyrights to sports broad­casts. It is therefore unclear whether the sports leagues have authority to consent to copying the broadcasts of their events.

Assuming that the various sports leagues do have exclusive copyrights in some of their broadcasts, the amount of authorized time-shifting still would not be overwhelming. Sony’s own survey indicated that only 7.3% of all Betamax use is to record sports events of all kinds. Tr. 2353, De­fendants’ Exh. OT, Table 20. Because Sony’s witnesses did not represent all forms of sports events, moreover, this figure provides only a tenuous basis for this Court to engage in factfinding of its own.

The only witness at trial who was clearly an exclusive copyright owner and who expressed no objection to unauthorized time-shifting was the owner of the copyright in Mister Rogers’ Neighborhood. But the Court cites no evidence in the record to the effect that anyone makes VTR copies of that program. The simple fact is that the District Court made no find­ings on the amount of authorized time-shifting that takes place. The Court seems to recognize this gap in its reasoning, and phrases its argu­ment as a hypothetical. The Court states: “If there are millions of owners of VTR’s who make copies of televised sports events, religious broadcasts, and educational programs such as Mister Rogers’ Neighborhood, and 2/the proprietors of those programs welcome the practice,” the sale of VTR’s “should not be stifled” in order to protect respondents’ copyrights. Ante, at 446 (emphasis supplied). Given that the Court seems to recognize that its argument depends on findings that have not been made, it seems that a remand is inescapable.

46

As has been explained, some uses of time-shifting, such as copying an old newspaper clipping for a friend, are fair use because of their de minimis effect on the copyright holder. The scale of copying involved in this case, of course, is of an entirely different magnitude, precluding appli­cation of such an exception.

47

Home Recording of Copyrighted Works: Hearing before the Sub­committee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 97th Cong., 2d Sess., pt. 2, p. 1260 (1982) (memorandum of Prof. Laurence H. Tribe).

48

See A Survey of Betamax Owners, Tr. 2353, Defendants’ Exh. OT, Table 20, cited in Brief for Respondents 52.

49

The Court’s one oblique acknowledgment of this third factor, ante, at 447, and n. 30, seems to suggest that the fact that time-shifting involves copying complete works is not very significant because the viewers already have been asked to watch the initial broadcast free. This suggestion misses the point. As has been noted, a book borrowed from a public li­brary may not be copied any more freely than one that has been purchased. An invitation to view a showing is completely different from an invitation to copy a copyrighted work.

50

The Court implicitly has recognized that this market is very significant. The central concern underlying the Court's entire opinion is that there is a large audience who would like very much to be able to view programs at times other than when they are broadcast. Ante, at 446. The Court sim­ply misses the implication of its own concerns.

51

Other nations have imposed royalties on the manufacturers of products used to infringe copyright. See, e. g., Copyright Laws and Treaties of the World (UNESCO/BNA 1982) (English translation), reprinting Federal Act on Copyright in Works of Literature and Art and on Related Rights (Aus­tria), §§ 42(5)-(7), and An Act dealing with Copyright and Related Rights (Federal Republic of Germany), Art. 53(5). A study produced for the Commission of European Communities has recommended that these re­quirements “serve as a pattern” for the European community. A. Dietz, Copyright Law in the European Community 135 (1978). While these roy­alty systems ordinarily depend on the existence of authors’ collecting soci­eties, see id., at 119, 136, such collecting societies are a familiar part of our copyright law. See generally Broadcast Music, Inc. v. Columbia Broad­casting System, Inc., 441 U. S. 1, 4-5 (1979). Fashioning relief of this sort, of course, might require bringing other copyright owners into court through certification of a class or otherwise.

Respondent companies distribute free software that allows computer users to share electronic files through peer-to-peer networks, so called because the computers communicate directly with each other, not through central servers. Although such networks can be used to share any type of digital file, recipients of respondents' software have mostly used them to share copyrighted music and video files without authorization. Seeking damages and an injunction, a group of movie studios and other copyright holders (hereinafter MGM) sued respondents for their users' copyright infringements, alleging that respondents knowingly and intentionally distributed their software to enable users to infringe copyrighted works in violation of the Copyright Act.

Discovery revealed that billions of files are shared across peer-to-peer networks each month. Respondents are aware that users employ their software primarily to download copyrighted files, although the decentralized networks do not reveal which files are copied, and when. Respondents have sometimes learned about the infringement directly when users have e-mailed questions regarding copyrighted works, and respondents have replied with guidance. Respondents are not merely passive recipients of information about infringement. The record is replete with evidence that when they began to distribute their free software, each of them clearly voiced the objective that recipients use the software to download copyrighted works and took active steps to encourage infringement. After the notorious file-sharing service, Napster, was sued by copyright holders for facilitating copyright infringement, both respondents promoted and marketed themselves as Napster alternatives. They receive no revenue from users, but, instead, generate income by selling advertising space, then streaming the advertising to their users. As the number of users increases, advertising opportunities are worth more. There is no evidence that either respondent made an effort to filter copyrighted material from users' downloads or otherwise to impede the sharing of copyrighted files.

While acknowledging that respondents' users had directly infringed MGM's copyrights, the District Court nonetheless granted respondents summary judgment as to liability arising from distribution of their software. [545 U.S. 914] The Ninth Circuit affirmed. It read Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, as holding that the distribution of a commercial product capable of substantial noninfringing uses could not give rise to contributory liability for infringement unless the distributor had actual knowledge of specific instances of infringement and failed to act on that knowledge. Because the appeals court found respondents' software to be capable of substantial noninfringing uses and because respondents had no actual knowledge of infringement owing to the software's decentralized architecture, the court held that they were not liable. It also held that they did not materially contribute to their users' infringement because the users themselves searched for, retrieved, and stored the infringing files, with no involvement by respondents beyond providing the software in the first place. Finally, the court held that respondents could not be held liable under a vicarious infringement theory because they did not monitor or control the software's use, had no agreed-upon right or current ability to supervise its use, and had no independent duty to police infringement.

Held: One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses. Pp. 928-941.

(a) The tension between the competing values of supporting creativity through copyright protection and promoting technological innovation by limiting infringement liability is the subject of this case. Despite offsetting considerations, the argument for imposing indirect liability here is powerful, given the number of infringing downloads that occur daily using respondents' software. When a widely shared product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, so that the only practical alternative is to go against the device's distributor for secondary liability on a theory of contributory or vicarious infringement. One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise the right to stop or limit it. Although "[t]he Copyright Act does not expressly render anyone liable for [another's] infringement," Sony, 464 U. S., at 434, these secondary liability doctrines emerged from common law principles and are well established in the law, e. g., id., at 486. Pp. 928-931.

(b) Sony addressed a claim that secondary liability for infringement can arise from the very distribution of a commercial product. There, [545 U.S. 915] copyright holders sued Sony, the manufacturer of videocassette recorders, claiming that it was contributorily liable for the infringement that occurred when VCR owners taped copyrighted programs. The evidence showed that the VCR's principal use was "time-shifting," i. e., taping a program for later viewing at a more convenient time, which the Court found to be a fair, noninfringing use. 464 U. S., at 423-424. Moreover, there was no evidence that Sony had desired to bring about taping in violation of copyright or taken active steps to increase its profits from unlawful taping. Id., at 438. On those facts, the only conceivable basis for liability was on a theory of contributory infringement through distribution of a product. Id., at 439. Because the VCR was "capable of commercially significant noninfringing uses," the Court held that Sony was not liable. Id., at 442. This theory reflected patent law's traditional staple article of commerce doctrine that distribution of a component of a patented device will not violate the patent if it is suitable for use in other ways. 35 U. S. C. § 271(c). The doctrine absolves the equivocal conduct of selling an item with lawful and unlawful uses and limits liability to instances of more acute fault. In this case, the Ninth Circuit misread Sony to mean that when a product is capable of substantial lawful use, the producer cannot be held contributorily liable for third parties' infringing use of it, even when an actual purpose to cause infringing use is shown, unless the distributors had specific knowledge of infringement at a time when they contributed to the infringement and failed to act upon that information. Sony did not displace other secondary liability theories. Pp. 931-934.

(c) Nothing in Sony requires courts to ignore evidence of intent to promote infringement if such evidence exists. It was never meant to foreclose rules of fault-based liability derived from the common law. 464 U. S., at 439. Where evidence goes beyond a product's characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement, Sony's staple-article rule will not preclude liability. At common law a copyright or patent defendant who "not only expected but invoked [infringing use] by advertisement" was liable for infringement. Kalem Co. v. Harper Brothers, 222 U. S. 55, 62-63. The rule on inducement of infringement as developed in the early cases is no different today. Evidence of active steps taken to encourage direct infringement, such as advertising an infringing use or instructing how to engage in an infringing use, shows an affirmative intent that the product be used to infringe, and overcomes the law's reluctance to find liability when a defendant merely sells a commercial product suitable for some lawful use. A rule that premises liability on purposeful, culpable expression and conduct [545 U.S. 916] does nothing to compromise legitimate commerce or discourage innovation having a lawful promise. Pp. 934-937.

(d) On the record presented, respondents' unlawful objective is unmistakable. The classic instance of inducement is by advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations. MGM argues persuasively that such a message is shown here. Three features of the evidence of intent are particularly notable. First, each of the respondents showed itself to be aiming to satisfy a known source of demand for copyright infringement, the market comprising former Napster users. Respondents' efforts to supply services to former Napster users indicate a principal, if not exclusive, intent to bring about infringement. Second, neither respondent attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software. While the Ninth Circuit treated that failure as irrelevant because respondents lacked an independent duty to monitor their users' activity, this evidence underscores their intentional facilitation of their users' infringement. Third, respondents make money by selling advertising space, then by directing ads to the screens of computers employing their software. The more their software is used, the more ads are sent out and the greater the advertising revenue. Since the extent of the software's use determines the gain to the distributors, the commercial sense of their enterprise turns on high-volume use, which the record shows is infringing. This evidence alone would not justify an inference of unlawful intent, but its import is clear in the entire record's context. Pp. 937-940.

(e) In addition to intent to bring about infringement and distribution of a device suitable for infringing use, the inducement theory requires evidence of actual infringement by recipients of the device, the software in this case. There is evidence of such infringement on a gigantic scale. Because substantial evidence supports MGM on all elements, summary judgment for respondents was error. On remand, reconsideration of MGM's summary judgment motion will be in order. Pp. 940-941.

380 F. 3d 1154, vacated and remanded.

SOUTER, J., delivered the opinion for a unanimous Court. GINSBURG, J., filed a concurring opinion, in which REHNQUIST, C. J., and KENNEDY, J., joined, post, p. 942. BREYER, J., filed a concurring opinion, in which STEVENS and O'CONNOR, JJ., joined, post, p. 949.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Donald B. Verrilli, Jr., argued the cause for petitioners. With him on the briefs for the motion picture studio and recording company petitioners were Ian Heath Gershengorn, [545 U.S. 917] William M. Hohengarten, Steven B. Fabrizio, Thomas J. Perrelli, Matthew J. Oppenheim, David E. Kendall, Thomas G. Hentoff, Kenneth W. Starr, Russell J. Frackman, George M. Borkowski, Robert M. Schwartz, Gregory P. Goeckner, Dean C. Garfield, Elaine J. Goldenberg, Matthew Hersh, Steven M. Marks, and Stanley Pierre-Louis. Carey R. Ramos, Peter L. Felcher, Aidan Synnott, Theodore K. Cheng, Kelli L. Sager, Andrew J. Thomas, Jeffrey H. Blum, and Jeffrey L. Fisher filed briefs for the songwriter and music publisher petitioners.

Acting Solicitor General Clement argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Keisler, Deputy Solicitor General Hungar, Douglas H. Hallward-Driemeier, Anthony A. Yang, David O. Carson, and John M. Whealan.

Richard G. Taranto argued the cause for respondents. With him on the brief were H. Bartow Farr III, Cindy A. Cohn, Fred Von Lohmann, Michael H. Page, Mark A. Lemley, Charles S. Baker, and Matthew A. Neco.^[*]

[545 U.S. 918] JUSTICE SOUTER delivered the opinion of the Court.

The question is under what circumstances the distributor of a product capable of both lawful and unlawful use is liable [545 U.S. 919] for acts of copyright infringement by third parties using the product. We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.

Respondents, Grokster, Ltd., and StreamCast Networks, Inc., defendants in the trial court, distribute free software products that allow computer users to share electronic files through peer-to-peer networks, so called because users' computers communicate directly with each other, not through [545 U.S. 920] central servers. The advantage of peer-to-peer networks over information networks of other types shows up in their substantial and growing popularity. Because they need no central computer server to mediate the exchange of information or files among users, the high-bandwidth communications capacity for a server may be dispensed with, and the need for costly server storage space is eliminated. Since copies of a file (particularly a popular one) are available on many users' computers, file requests and retrievals may be faster than on other types of networks, and since file exchanges do not travel through a server, communications can take place between any computers that remain connected to the network without risk that a glitch in the server will disable the network in its entirety. Given these benefits in security, cost, and efficiency, peer-to-peer networks are employed to store and distribute electronic files by universities, government agencies, corporations, and libraries, among others.^[1]

Other users of peer-to-peer networks include individual recipients of Grokster's and StreamCast's software, and although the networks that they enjoy through using the software can be used to share any type of digital file, they have prominently employed those networks in sharing copyrighted music and video files without authorization. A group of copyright holders (MGM for short, but including motion picture studios, recording companies, songwriters, and music publishers) sued Grokster and StreamCast for their users' copyright infringements, alleging that they [545 U.S. 921] knowingly and intentionally distributed their software to enable users to reproduce and distribute the copyrighted works in violation of the Copyright Act, 17 U. S. C. § 101 et seq. (2000 ed. and Supp. II).^[2] MGM sought damages and an injunction.

Discovery during the litigation revealed the way the software worked, the business aims of each defendant company, and the predilections of the users. Grokster's eponymous software employs what is known as FastTrack technology, a protocol developed by others and licensed to Grokster. StreamCast distributes a very similar product except that its software, called Morpheus, relies on what is known as Gnutella technology.^[3] A user who downloads and installs either software possesses the protocol to send requests for files directly to the computers of others using software compatible with FastTrack or Gnutella. On the FastTrack network opened by the Grokster software, the user's request goes to a computer given an indexing capacity by the software and designated a supernode, or to some other computer with comparable power and capacity to collect temporary indexes of the files available on the computers of users connected to it. The supernode (or indexing computer) searches its own index and may communicate the search request to other supernodes. If the file is found, the supernode discloses its location to the computer requesting it, and the requesting user can download the file directly from the computer located. The copied file is placed in a designated sharing folder on the requesting user's computer, where it is available for other users to download in turn, along with any other file in that folder.[545 U.S. 922] In the Gnutella network made available by Morpheus, the process is mostly the same, except that in some versions of the Gnutella protocol there are no supernodes. In these versions, peer computers using the protocol communicate directly with each other. When a user enters a search request into the Morpheus software, it sends the request to computers connected with it, which in turn pass the request along to other connected peers. The search results are communicated to the requesting computer, and the user can download desired files directly from peers' computers. As this description indicates, Grokster and StreamCast use no servers to intercept the content of the search requests or to mediate the file transfers conducted by users of the software, there being no central point through which the substance of the communications passes in either direction.^[4]

Although Grokster and StreamCast do not therefore know when particular files are copied, a few searches using their software would show what is available on the networks the software reaches. MGM commissioned a statistician to conduct a systematic search, and his study showed that nearly 90% of the files available for download on the FastTrack system were copyrighted works.^[5] Grokster and StreamCast dispute this figure, raising methodological problems and arguing that free copying even of copyrighted works may be authorized by the rightholders. They also argue that potential noninfringing uses of their software are significant in kind, even if infrequent in practice. Some musical performers, for example, have gained new audiences by distributing [545 U.S. 923] their copyrighted works for free across peer-to-peer networks, and some distributors of unprotected content have used peer-to-peer networks to disseminate files, Shakespeare being an example. Indeed, StreamCast has given Morpheus users the opportunity to download the briefs in this very case, though their popularity has not been quantified.

As for quantification, the parties' anecdotal and statistical evidence entered thus far to show the content available on the FastTrack and Gnutella networks does not say much about which files are actually downloaded by users, and no one can say how often the software is used to obtain copies of unprotected material. But MGM's evidence gives reason to think that the vast majority of users' downloads are acts of infringement, and because well over 100 million copies of the software in question are known to have been downloaded, and billions of files are shared across the FastTrack and Gnutella networks each month, the probable scope of copyright infringement is staggering.

Grokster and StreamCast concede the infringement in most downloads, Brief for Respondents 10, n. 6, and it is uncontested that they are aware that users employ their software primarily to download copyrighted files, even if the decentralized FastTrack and Gnutella networks fail to reveal which files are being copied, and when. From time to time, moreover, the companies have learned about their users' infringement directly, as from users who have sent e-mail to each company with questions about playing copyrighted movies they had downloaded, to whom the companies have responded with guidance.^[6] App. 559-563, 808-816, 939-954. And MGM notified the companies of 8 million copyrighted files that could be obtained using their software.

Grokster and StreamCast are not, however, merely passive recipients of information about infringing use. The record is replete with evidence that from the moment Grokster [545 U.S. 924] and StreamCast began to distribute their free software, each one clearly voiced the objective that recipients use it to download copyrighted works, and each took active steps to encourage infringement.

After the notorious file-sharing service, Napster, was sued by copyright holders for facilitation of copyright infringement, A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896 (ND Cal. 2000), aff'd in part, rev'd in part, 239 F. 3d 1004 (CA9 2001), StreamCast gave away a software program of a kind known as OpenNap, designed as compatible with the Napster program and open to Napster users for downloading files from other Napster and OpenNap users' computers. Evidence indicates that "[i]t was always [StreamCast's] intent to use [its OpenNap network] to be able to capture email addresses of [its] initial target market so that [it] could promote [its] StreamCast Morpheus interface to them," App. 861; indeed, the OpenNap program was engineered "`to leverage Napster's 50 million user base,'" id., at 746.

StreamCast monitored both the number of users downloading its OpenNap program and the number of music files they downloaded. Id., at 859, 863, 866. It also used the resulting OpenNap network to distribute copies of the Morpheus software and to encourage users to adopt it. Id., at 861, 867, 1039. Internal company documents indicate that StreamCast hoped to attract large numbers of former Napster users if that company was shut down by court order or otherwise, and that StreamCast planned to be the next Napster. Id., at 861. A kit developed by StreamCast to be delivered to advertisers, for example, contained press articles about StreamCast's potential to capture former Napster users, id., at 568-572, and it introduced itself to some potential advertisers as a company "which is similar to what Napster was," id., at 884. It broadcast banner advertisements to users of other Napster-compatible software, urging them to adopt its OpenNap. Id., at 586. An internal e-mail from a company executive stated: "`We have put this network in [545 U.S. 925] place so that when Napster pulls the plug on their free service . . . or if the Court orders them shut down prior to that . . . we will be positioned to capture the flood of their 32 million users that will be actively looking for an alternative.'" Id., at 588-589, 861.

Thus, StreamCast developed promotional materials to market its service as the best Napster alternative. One proposed advertisement read: "Napster Inc. has announced that it will soon begin charging you a fee. That's if the courts don't order it shut down first. What will you do to get around it?" Id., at 897. Another proposed ad touted StreamCast's software as the "#1 alternative to Napster" and asked "[w]hen the lights went off at Napster . . . where did the users go?" Id., at 836 (ellipsis in original).^[7] StreamCast even planned to flaunt the illegal uses of its software; when it launched the OpenNap network, the chief technology officer of the company averred that "[t]he goal is to get in trouble with the law and get sued. It's the best way to get in the new[s]." Id., at 916.

The evidence that Grokster sought to capture the market of former Napster users is sparser but revealing, for Grokster launched its own OpenNap system called Swaptor and inserted digital codes into its Web site so that computer users using Web search engines to look for "Napster" or "[f]ree file sharing" would be directed to the Grokster Web site, where they could download the Grokster software. Id., at 992-993. And Grokster's name is an apparent derivative of Napster.

StreamCast's executives monitored the number of songs by certain commercial artists available on their networks, and an internal communication indicates they aimed to have a larger number of copyrighted songs available on their networks [545 U.S. 926] than other file-sharing networks. Id., at 868. The point, of course, would be to attract users of a mind to infringe, just as it would be with their promotional materials developed showing copyrighted songs as examples of the kinds of files available through Morpheus. Id., at 848. Morpheus in fact allowed users to search specifically for "Top 40" songs, id., at 735, which were inevitably copyrighted. Similarly, Grokster sent users a newsletter promoting its ability to provide particular, popular copyrighted materials. Brief for Motion Picture Studio and Recording Company Petitioners 7-8.

In addition to this evidence of express promotion, marketing, and intent to promote further, the business models employed by Grokster and StreamCast confirm that their principal object was use of their software to download copyrighted works. Grokster and StreamCast receive no revenue from users, who obtain the software itself for nothing. Instead, both companies generate income by selling advertising space, and they stream the advertising to Grokster and Morpheus users while they are employing the programs. As the number of users of each program increases, advertising opportunities become worth more. Cf. App. 539, 804. While there is doubtless some demand for free Shakespeare, the evidence shows that substantive volume is a function of free access to copyrighted work. Users seeking Top 40 songs, for example, or the latest release by Modest Mouse, are certain to be far more numerous than those seeking a free Decameron, and Grokster and StreamCast translated that demand into dollars.

Finally, there is no evidence that either company made an effort to filter copyrighted material from users' downloads or otherwise impede the sharing of copyrighted files. Although Grokster appears to have sent e-mails warning users about infringing content when it received threatening notice from the copyright holders, it never blocked anyone from continuing to use its software to share copyrighted files. [545 U.S. 927] Id., at 75-76. StreamCast not only rejected another company's offer of help to monitor infringement, id., at 928-929, but blocked the Internet Protocol addresses of entities it believed were trying to engage in such monitoring on its networks, id., at 917-922.

After discovery, the parties on each side of the case crossmoved for summary judgment. The District Court limited its consideration to the asserted liability of Grokster and StreamCast for distributing the current versions of their software, leaving aside whether either was liable "for damages arising from past versions of their software, or from other past activities." 259 F. Supp. 2d 1029, 1033 (CD Cal. 2003). The District Court held that those who used the Grokster and Morpheus software to download copyrighted media files directly infringed MGM's copyrights, a conclusion not contested on appeal, but the court nonetheless granted summary judgment in favor of Grokster and StreamCast as to any liability arising from distribution of the then-current versions of their software. Distributing that software gave rise to no liability in the court's view, because its use did not provide the distributors with actual knowledge of specific acts of infringement. Case No. CV 01 08541 SVW (PJWx) (CD Cal., June 18, 2003), App. 1213.

The Court of Appeals affirmed. 380 F. 3d 1154 (CA9 2004). In the court's analysis, a defendant was liable as a contributory infringer when it had knowledge of direct infringement and materially contributed to the infringement. But the court read Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 (1984), as holding that distribution of a commercial product capable of substantial noninfringing uses could not give rise to contributory liability for infringement unless the distributor had actual knowledge of specific instances of infringement and failed to act on that knowledge. The fact that the software was capable of substantial noninfringing uses in the Ninth Circuit's view meant [545 U.S. 928] that Grokster and StreamCast were not liable, because they had no such actual knowledge, owing to the decentralized architecture of their software. The court also held that Grokster and StreamCast did not materially contribute to their users' infringement because it was the users themselves who searched for, retrieved, and stored the infringing files, with no involvement by the defendants beyond providing the software in the first place.

The Ninth Circuit also considered whether Grokster and StreamCast could be liable under a theory of vicarious infringement. The court held against liability because the defendants did not monitor or control the use of the software, had no agreed-upon right or current ability to supervise its use, and had no independent duty to police infringement. We granted certiorari. 543 U. S. 1032 (2004).

MGM and many of the amici fault the Court of Appeals's holding for upsetting a sound balance between the respective values of supporting creative pursuits through copyright protection and promoting innovation in new communication technologies by limiting the incidence of liability for copyright infringement. The more artistic protection is favored, the more technological innovation may be discouraged; the administration of copyright law is an exercise in managing the tradeoff. See Sony Corp. v. Universal City Studios, supra, at 442; see generally Ginsburg, Copyright and Control Over New Technologies of Dissemination, 101 Colum. L. Rev. 1613 (2001); Lichtman & Landes, Indirect Liability for Copyright Infringement: An Economic Perspective, 16 Harv. J. L. & Tech. 395 (2003).

The tension between the two values is the subject of this case, with its claim that digital distribution of copyrighted material threatens copyright holders as never before, because every copy is identical to the original, copying is easy, [545 U.S. 929] and many people (especially the young) use file-sharing software to download copyrighted works. This very breadth of the software's use may well draw the public directly into the debate over copyright policy, Peters, Brace Memorial Lecture: Copyright Enters the Public Domain, 51 J. Copyright Soc. 701, 705-717 (2004) (address by Register of Copyrights), and the indications are that the ease of copying songs or movies using software like Grokster's and Napster's is fostering disdain for copyright protection, Wu, When Code Isn't Law, 89 Va. L. Rev. 679, 724-726 (2003). As the case has been presented to us, these fears are said to be offset by the different concern that imposing liability, not only on infringers but on distributors of software based on its potential for unlawful use, could limit further development of beneficial technologies. See, e. g., Lemley & Reese, Reducing Digital Copyright Infringement Without Restricting Innovation, 56 Stan. L. Rev. 1345, 1386-1390 (2004); Brief for Innovation Scholars and Economists as Amici Curiae 15-20; Brief for Emerging Technology Companies as Amici Curiae 19-25; Brief for Intel Corporation as Amicus Curiae 20-22.^[8]

The argument for imposing indirect liability in this case is, however, a powerful one, given the number of infringing downloads that occur every day using StreamCast's and Grokster's software. When a widely shared service or product is used to commit infringement, it may be impossible to [545 U.S. 930] enforce rights in the protected work effectively against all direct infringers, the only practical alternative being to go against the distributor of the copying device for secondary liability on a theory of contributory or vicarious infringement. See In re Aimster Copyright Litigation, 334 F. 3d 643, 645-646 (CA7 2003).

One infringes contributorily by intentionally inducing or encouraging direct infringement, see Gershwin Pub. Corp. v. Columbia Artists Management, Inc., 443 F. 2d 1159, 1162 (CA2 1971), and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it, Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F. 2d 304, 307 (CA2 1963).^[9] Although "[t]he Copyright Act does not expressly render anyone liable for infringement committed by another," Sony Corp. v. Universal City Studios, 464 U. S., at 434, these doctrines of secondary liability emerged from common law principles and are well established in the law, id., at 486 (Blackmun, J., dissenting); Kalem Co. v. Harper Brothers, 222 U. S. 55, 62-63 (1911); Gershwin Pub. Corp. v. Columbia Artists Management, [545 U.S. 931] supra, at 1162; 3 M. Nimmer & D. Nimmer, Copyright § 12.04[A] (2005).

Despite the currency of these principles of secondary liability, this Court has dealt with secondary copyright infringement in only one recent case, and because MGM has tailored its principal claim to our opinion there, a look at our earlier holding is in order. In Sony Corp. v. Universal City Studios, supra, this Court addressed a claim that secondary liability for infringement can arise from the very distribution of a commercial product. There, the product, novel at the time, was what we know today as the videocassette recorder or VCR. Copyright holders sued Sony as the manufacturer, claiming it was contributorily liable for infringement that occurred when VCR owners taped copyrighted programs because it supplied the means used to infringe, and it had constructive knowledge that infringement would occur. At the trial on the merits, the evidence showed that the principal use of the VCR was for "`time-shifting,'" or taping a program for later viewing at a more convenient time, which the Court found to be a fair, not an infringing, use. Id., at 423-424. There was no evidence that Sony had expressed an object of bringing about taping in violation of copyright or had taken active steps to increase its profits from unlawful taping. Id., at 438. Although Sony's advertisements urged consumers to buy the VCR to "`record favorite shows'" or "`build a library'" of recorded programs, id., at 459 (Blackmun, J., dissenting), neither of these uses was necessarily infringing, id., at 424, 454-455.

On those facts, with no evidence of stated or indicated intent to promote infringing uses, the only conceivable basis for imposing liability was on a theory of contributory infringement arising from its sale of VCRs to consumers with knowledge that some would use them to infringe. Id., at 439. But because the VCR was "capable of commercially significant noninfringing uses," we held the manufacturer [545 U.S. 932] could not be faulted solely on the basis of its distribution. Id., at 442.

This analysis reflected patent law's traditional staple article of commerce doctrine, now codified, that distribution of a component of a patented device will not violate the patent if it is suitable for use in other ways. 35 U. S. C. § 271(c); Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U. S. 476, 485 (1964) (noting codification of cases); id., at 486, n. 6 (same). The doctrine was devised to identify instances in which it may be presumed from distribution of an article in commerce that the distributor intended the article to be used to infringe another's patent, and so may justly be held liable for that infringement. "One who makes and sells articles which are only adapted to be used in a patented combination will be presumed to intend the natural consequences of his acts; he will be presumed to intend that they shall be used in the combination of the patent." New York Scaffolding Co. v. Whitney, 224 F. 452, 459 (CA8 1915); see also James Heekin Co. v. Baker, 138 F. 63, 66 (CA8 1905); Canda v. Michigan Malleable Iron Co., 124 F. 486, 489 (CA6 1903); Thomson-Houston Electric Co. v. Ohio Brass Co., 80 F. 712, 720-721 (CA6 1897); Red Jacket Mfg. Co. v. Davis, 82 F. 432, 439 (CA7 1897); Holly v. Vergennes Machine Co., 4 F. 74, 82 (CC Vt. 1880); Renwick v. Pond, 20 F. Cas. 536, 541 (No. 11,702) (CC SDNY 1872).

In sum, where an article is "good for nothing else" but infringement, Canda v. Michigan Malleable Iron Co., supra, at 489, there is no legitimate public interest in its unlicensed availability, and there is no injustice in presuming or imputing an intent to infringe, see Henry v. A. B. Dick Co., 224 U. S. 1, 48 (1912), overruled on other grounds, Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502 (1917). Conversely, the doctrine absolves the equivocal conduct of selling an item with substantial lawful as well as unlawful uses, and limits liability to instances of more acute [545 U.S. 933] fault than the mere understanding that some of one's products will be misused. It leaves breathing room for innovation and a vigorous commerce. See Sony Corp. v. Universal City Studios, 464 U. S., at 442; Dawson Chemical Co. v. Rohm & Haas Co., 448 U. S. 176, 221 (1980); Henry v. A. B. Dick Co., supra, at 48.

The parties and many of the amici in this case think the key to resolving it is the Sony rule and, in particular, what it means for a product to be "capable of commercially significant noninfringing uses." Sony Corp. v. Universal City Studios, supra, at 442. MGM advances the argument that granting summary judgment to Grokster and StreamCast as to their current activities gave too much weight to the value of innovative technology, and too little to the copyrights infringed by users of their software, given that 90% of works available on one of the networks was shown to be copyrighted. Assuming the remaining 10% to be its noninfringing use, MGM says this should not qualify as "substantial," and the Court should quantify Sony to the extent of holding that a product used "principally" for infringement does not qualify. See Brief for Motion Picture Studio and Recording Company Petitioners 31. As mentioned before, Grokster and StreamCast reply by citing evidence that their software can be used to reproduce public domain works, and they point to copyright holders who actually encourage copying. Even if infringement is the principal practice with their software today, they argue, the noninfringing uses are significant and will grow.

We agree with MGM that the Court of Appeals misapplied Sony, which it read as limiting secondary liability quite beyond the circumstances to which the case applied. Sony barred secondary liability based on presuming or imputing intent to cause infringement solely from the design or distribution of a product capable of substantial lawful use, which the distributor knows is in fact used for infringement. The [545 U.S. 934] Ninth Circuit has read Sony's limitation to mean that whenever a product is capable of substantial lawful use, the producer can never be held contributorily liable for third parties' infringing use of it; it read the rule as being this broad, even when an actual purpose to cause infringing use is shown by evidence independent of design and distribution of the product, unless the distributors had "specific knowledge of infringement at a time at which they contributed to the infringement, and failed to act upon that information." 380 F. 3d, at 1162 (internal quotation marks and brackets omitted). Because the Circuit found the StreamCast and Grokster software capable of substantial lawful use, it concluded on the basis of its reading of Sony that neither company could be held liable, since there was no showing that their software, being without any central server, afforded them knowledge of specific unlawful uses.

This view of Sony, however, was error, converting the case from one about liability resting on imputed intent to one about liability on any theory. Because Sony did not displace other theories of secondary liability, and because we find below that it was error to grant summary judgment to the companies on MGM's inducement claim, we do not revisit Sony further, as MGM requests, to add a more quantified description of the point of balance between protection and commerce when liability rests solely on distribution with knowledge that unlawful use will occur. It is enough to note that the Ninth Circuit's judgment rested on an erroneous understanding of Sony and to leave further consideration of the Sony rule for a day when that may be required.

Sony's rule limits imputing culpable intent as a matter of law from the characteristics or uses of a distributed product. But nothing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from [545 U.S. 935] the common law.^[10] Sony Corp. v. Universal City Studios, supra, at 439 ("If vicarious liability is to be imposed on Sony in this case, it must rest on the fact that it has sold equipment with constructive knowledge" of the potential for infringement). Thus, where evidence goes beyond a product's characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement, Sony's staple-article rule will not preclude liability.

The classic case of direct evidence of unlawful purpose occurs when one induces commission of infringement by another, or "entic[es] or persuad[es] another" to infringe, Black's Law Dictionary 790 (8th ed. 2004), as by advertising. Thus at common law a copyright or patent defendant who "not only expected but invoked [infringing use] by advertisement" was liable for infringement "on principles recognized in every part of the law." Kalem Co. v. Harper Brothers, 222 U. S., at 62-63 (copyright infringement). See also Henry v. A. B. Dick Co., 224 U. S., at 48-49 (contributory liability for patent infringement may be found where a good's "most conspicuous use is one which will coöperate in an infringement when sale to such user is invoked by advertisement" of the infringing use); Thomson-Houston Electric Co. v. Kelsey Electric R. Specialty Co., 75 F. 1005, 1007-1008 (CA2 1896) (relying on advertisements and displays to find defendant's "willingness . . . to aid other persons in any attempts which they may be disposed to make towards [patent] infringement"); Rumford Chemical Works v. Hecker, 20 F. Cas. 1342, 1346 (No. 12,133) (CC NJ 1876) (demonstrations of infringing activity along with "avowals of the [infringing] purpose and use for which it was made" supported liability for patent infringement).

[545 U.S. 936] The rule on inducement of infringement as developed in the early cases is no different today.^[11] Evidence of "active steps . . . taken to encourage direct infringement," Oak Industries, Inc. v. Zenith Electronics Corp., 697 F. Supp. 988, 992 (ND Ill. 1988), such as advertising an infringing use or instructing how to engage in an infringing use, show an affirmative intent that the product be used to infringe, and a showing that infringement was encouraged overcomes the law's reluctance to find liability when a defendant merely sells a commercial product suitable for some lawful use, see, e. g., Water Technologies Corp. v. Calco, Ltd., 850 F. 2d 660, 668 (CA Fed. 1988) (liability for inducement where one "actively and knowingly aid[s] and abet[s] another's direct infringement" (emphasis deleted)); Fromberg, Inc. v. Thornhill, 315 F. 2d 407, 412-413 (CA5 1963) (demonstrations by sales staff of infringing uses supported liability for inducement); Haworth Inc. v. Herman Miller Inc., 37 USPQ 2d 1080, 1090 (WD Mich. 1994) (evidence that defendant "demonstrate[d] and recommend[ed] infringing configurations" of its product could support inducement liability); Sims v. Mack Trucks, Inc., 459 F. Supp. 1198, 1215 (ED Pa. 1978) (finding inducement where the use "depicted by the defendant in its promotional film and brochures infringes the . . . patent"), overruled on other grounds, 608 F. 2d 87 (CA3 1979). Cf. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 37 (5th ed. 1984) ("There is a definite tendency to impose greater responsibility upon a defendant whose conduct was intended to do harm, or was morally wrong").

For the same reasons that Sony took the staple-article doctrine of patent law as a model for its copyright safe-harbor rule, the inducement rule, too, is a sensible one for copyright. We adopt it here, holding that one who distributes a device with the object of promoting its use to infringe copyright, as [545 U.S. 937] shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. We are, of course, mindful of the need to keep from trenching on regular commerce or discouraging the development of technologies with lawful and unlawful potential. Accordingly, just as Sony did not find intentional inducement despite the knowledge of the VCR manufacturer that its device could be used to infringe, 464 U. S., at 439, n. 19, mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.

The only apparent question about treating MGM's evidence as sufficient to withstand summary judgment under the theory of inducement goes to the need on MGM's part to adduce evidence that StreamCast and Grokster communicated an inducing message to their software users. The classic instance of inducement is by advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations. MGM claims that such a message is shown here. It is undisputed that StreamCast beamed onto the computer screens of users of Napster-compatible programs ads urging the adoption of its OpenNap program, which was designed, as its name implied, to invite the custom of patrons of Napster, then under attack in the courts for facilitating massive infringement. Those who accepted StreamCast's OpenNap program were offered software to perform the same services, which a factfinder could conclude [545 U.S. 938] would readily have been understood in the Napster market as the ability to download copyrighted music files. Grokster distributed an electronic newsletter containing links to articles promoting its software's ability to access popular copyrighted music. And anyone whose Napster or free file-sharing searches turned up a link to Grokster would have understood Grokster to be offering the same file-sharing ability as Napster, and to the same people who probably used Napster for infringing downloads; that would also have been the understanding of anyone offered Grokster's suggestively named Swaptor software, its version of OpenNap. And both companies communicated a clear message by responding affirmatively to requests for help in locating and playing copyrighted materials.

In StreamCast's case, of course, the evidence just described was supplemented by other unequivocal indications of unlawful purpose in the internal communications and advertising designs aimed at Napster users ("When the lights went off at Napster . . . where did the users go?" App. 836 (ellipsis in original)). Whether the messages were communicated is not to the point on this record. The function of the message in the theory of inducement is to prove by a defendant's own statements that his unlawful purpose disqualifies him from claiming protection (and incidentally to point to actual violators likely to be found among those who hear or read the message). See supra, at 935-937. Proving that a message was sent out, then, is the preeminent but not exclusive way of showing that active steps were taken with the purpose of bringing about infringing acts, and of showing that infringing acts took place by using the device distributed. Here, the summary judgment record is replete with other evidence that Grokster and StreamCast, unlike the manufacturer and distributor in Sony, acted with a purpose to cause copyright violations by use of software suitable for illegal use. See supra, at 924-927.

[545 U.S. 939] Three features of this evidence of intent are particularly notable. First, each company showed itself to be aiming to satisfy a known source of demand for copyright infringement, the market comprising former Napster users. StreamCast's internal documents made constant reference to Napster, it initially distributed its Morpheus software through an OpenNap program compatible with Napster, it advertised its OpenNap program to Napster users, and its Morpheus software functions as Napster did except that it could be used to distribute more kinds of files, including copyrighted movies and software programs. Grokster's name is apparently derived from Napster, it too initially offered an OpenNap program, its software's function is likewise comparable to Napster's, and it attempted to divert queries for Napster onto its own Web site. Grokster and StreamCast's efforts to supply services to former Napster users, deprived of a mechanism to copy and distribute what were overwhelmingly infringing files, indicate a principal, if not exclusive, intent on the part of each to bring about infringement.

Second, this evidence of unlawful objective is given added significance by MGM's showing that neither company attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software. While the Ninth Circuit treated the defendants' failure to develop such tools as irrelevant because they lacked an independent duty to monitor their users' activity, we think this evidence underscores Grokster's and StreamCast's intentional facilitation of their users' infringement.^[12]

Third, there is a further complement to the direct evidence of unlawful objective. It is useful to recall that StreamCast [545 U.S. 940] and Grokster make money by selling advertising space, by directing ads to the screens of computers employing their software. As the record shows, the more the software is used, the more ads are sent out and the greater the advertising revenue becomes. Since the extent of the software's use determines the gain to the distributors, the commercial sense of their enterprise turns on high-volume use, which the record shows is infringing.^[13] This evidence alone would not justify an inference of unlawful intent, but viewed in the context of the entire record its import is clear.

The unlawful objective is unmistakable.

In addition to intent to bring about infringement and distribution of a device suitable for infringing use, the inducement theory of course requires evidence of actual infringement by recipients of the device, the software in this case. As the account of the facts indicates, there is evidence of infringement on a gigantic scale, and there is no serious issue of the adequacy of MGM's showing on this point in order to survive the companies' summary judgment requests. Although [545 U.S. 941] an exact calculation of infringing use, as a basis for a claim of damages, is subject to dispute, there is no question that the summary judgment evidence is at least adequate to entitle MGM to go forward with claims for damages and equitable relief.

* * *

In sum, this case is significantly different from Sony and reliance on that case to rule in favor of StreamCast and Grokster was error. Sony dealt with a claim of liability based solely on distributing a product with alternative lawful and unlawful uses, with knowledge that some users would follow the unlawful course. The case struck a balance between the interests of protection and innovation by holding that the product's capability of substantial lawful employment should bar the imputation of fault and consequent secondary liability for the unlawful acts of others.

MGM's evidence in this case most obviously addresses a different basis of liability for distributing a product open to alternative uses. Here, evidence of the distributors' words and deeds going beyond distribution as such shows a purpose to cause and profit from third-party acts of copyright infringement. If liability for inducing infringement is ultimately found, it will not be on the basis of presuming or imputing fault, but from inferring a patently illegal objective from statements and actions showing what that objective was.

There is substantial evidence in MGM's favor on all elements of inducement, and summary judgment in favor of Grokster and StreamCast was error. On remand, reconsideration of MGM's motion for summary judgment will be in order.

The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

[545 U.S. 942] JUSTICE GINSBURG, with whom THE CHIEF JUSTICE and JUSTICE KENNEDY join, concurring.

I concur in the Court's decision, which vacates in full the judgment of the Court of Appeals for the Ninth Circuit, ante, at 941, and write separately to clarify why I conclude that the Court of Appeals misperceived, and hence misapplied, our holding in Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 (1984). There is here at least a "genuine issue as to [a] material fact," Fed. Rule Civ. Proc. 56(c), on the liability of Grokster or StreamCast, not only for actively inducing copyright infringement, but also, or alternatively, based on the distribution of their software products, for contributory copyright infringement. On neither score was summary judgment for Grokster and StreamCast warranted.

At bottom, however labeled, the question in this case is whether Grokster and StreamCast are liable for the direct infringing acts of others. Liability under our jurisprudence may be predicated on actively encouraging (or inducing) infringement through specific acts (as the Court's opinion develops) or on distributing a product distributees use to infringe copyrights, if the product is not capable of "substantial" or "commercially significant" noninfringing uses. Sony, 464 U. S., at 442; see also 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 12.04[A][2] (2005). While the two categories overlap, they capture different culpable behavior. Long coexisting, both are now codified in patent law. Compare 35 U. S. C. § 271(b) (active inducement liability) with § 271(c) (contributory liability for distribution of a product not "suitable for substantial noninfringing use").

In Sony, 464 U. S. 417, the Court considered Sony's liability for selling the Betamax videocassette recorder. It did so enlightened by a full trial record. Drawing an analogy to the staple article of commerce doctrine from patent law, [545 U.S. 943] the Sony Court observed that the "sale of an article . . . adapted to [a patent] infringing use" does not suffice "to make the seller a contributory infringer" if the article "is also adapted to other and lawful uses." Id., at 441 (quoting Henry v. A. B. Dick Co., 224 U. S. 1, 48 (1912), overruled on other grounds, Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 517 (1917)).

"The staple article of commerce doctrine" applied to copyright, the Court stated, "must strike a balance between a copyright holder's legitimate demand for effective—not merely symbolic—protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce." Sony, 464 U. S., at 442. "Accordingly," the Court held, "the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses." Ibid. Thus, to resolve the Sony case, the Court explained, it had to determine "whether the Betamax is capable of commercially significant noninfringing uses." Ibid.

To answer that question, the Court considered whether "a significant number of [potential uses of the Betamax were] noninfringing." Ibid. The Court homed in on one potential use—private, noncommercial time-shifting of television programs in the home (i. e., recording a broadcast TV program for later personal viewing). Time-shifting was noninfringing, the Court concluded, because in some cases trial testimony showed it was authorized by the copyright holder, id., at 443-447, and in others it qualified as legitimate fair use, id., at 447-455. Most purchasers used the Betamax principally to engage in time-shifting, id., at 421, 423, a use that "plainly satisfie[d]" the Court's standard, id., at 442. Thus, there was no need in Sony to "give precise content to the question of how much [actual or potential] use is commercially [545 U.S. 944] significant." Ibid.^[14] Further development was left for later days and cases.

The Ninth Circuit went astray, I will endeavor to explain, when that court granted summary judgment to Grokster and StreamCast on the charge of contributory liability based on distribution of their software products. Relying on its earlier opinion in A&M Records, Inc. v. Napster, Inc., 239 F. 3d 1004 (CA9 2001), the Court of Appeals held that "if substantial noninfringing use was shown, the copyright owner would be required to show that the defendant had reasonable knowledge of specific infringing files." 380 F. 3d 1154, 1161 (CA9 2004). "A careful examination of the record," the [545 U.S. 945] court concluded, "indicates that there is no genuine issue of material fact as to noninfringing use." Ibid. The appeals court pointed to the band Wilco, which made one of its albums available for free downloading, to other recording artists who may have authorized free distribution of their music through the Internet, and to public domain literary works and films available through Grokster's and StreamCast's software. Ibid. Although it acknowledged petitioners' (hereinafter MGM) assertion that "the vast majority of the software use is for copyright infringement," the court concluded that Grokster's and StreamCast's proffered evidence met Sony's requirement that "a product need only be capable of substantial noninfringing uses." 380 F. 3d, at 1162.^[15]

This case differs markedly from Sony. Cf. Peters, Brace Memorial Lecture: Copyright Enters the Public Domain, 51 J. Copyright Soc. 701, 724 (2004) ("The Grokster panel's reading of Sony is the broadest that any court has given it . . . ."). Here, there has been no finding of any fair use and little beyond anecdotal evidence of noninfringing uses. In finding the Grokster and StreamCast software products capable of substantial noninfringing uses, the District Court and the Court of Appeals appear to have relied largely on declarations submitted by the defendants. These declarations include assertions (some of them hearsay) that a number of copyright owners authorize distribution of their works on the Internet and that some public domain material is available through peer-to-peer networks including those accessed through Grokster's and StreamCast's software. 380 F. 3d, at 1161; 259 F. Supp. 2d 1029, 1035-1036 (CD Cal. 2003); App. 125-171.

[545 U.S. 946] The District Court declared it "undisputed that there are substantial noninfringing uses for Defendants' software," thus obviating the need for further proceedings. 259 F. Supp. 2d, at 1035. This conclusion appears to rest almost entirely on the collection of declarations submitted by Grokster and StreamCast. Ibid. Review of these declarations reveals mostly anecdotal evidence, sometimes obtained secondhand, of authorized copyrighted works or public domain works available online and shared through peer-to-peer networks, and general statements about the benefits of peer-to-peer technology. See, e. g., Decl. of Janis Ian ¶ 13, App. 128 ("P2P technologies offer musicians an alternative channel for promotion and distribution."); Decl. of Gregory Newby ¶ 12, id., at 136 ("Numerous authorized and public domain Project Gutenberg eBooks are made available on Morpheus, Kazaa, Gnutella, Grokster, and similar software products."); Decl. of Aram Sinnreich ¶ 6, id., at 151 ("file sharing seems to have a net positive impact on music sales"); Decl. of John Busher ¶ 8, id., at 166 ("I estimate that Acoustica generates sales of between $1,000 and $10,000 per month as a result of the distribution of its trialware software through the Gnutella and FastTrack Networks."); Decl. of Patricia D. Hoekman ¶¶ 3-4, id., at 169-170 (search on Morpheus for "President Bush speeches" found several video recordings, searches for "Declaration of Independence" and "Bible" found various documents and declarant was able to download a copy of the Declaration); Decl. of Sean L. Mayers ¶ 11, id., at 67 ("Existing open, decentralized peer-to-peer file-sharing networks . . . offer content owners distinct business advantages over alternate online distribution technologies."). Compare Decl. of Brewster Kahle ¶ 20, id., at 142 ("Those who download the Prelinger films . . . are entitled to redistribute those files, and the Archive welcomes their redistribution by the Morpheus-Grokster-KaZaa community of users."), with Deposition of Brewster Kahle (Sept. 18, [545 U.S. 947] 2002), id., at 396-403 (testifying that he has no knowledge of any person downloading a Prelinger film using Morpheus, Grokster, or KaZaA). Compare also Decl. of Richard Prelinger ¶ 17, id., at 147 ("[W]e welcome further redistribution of the Prelinger films . . . by individuals using peer-to-peer software products like Morpheus, KaZaA and Grokster."), with Deposition of Richard Prelinger (Oct. 1, 2002), id., at 410-411 ("Q. What is your understanding of Grokster? A. I have no understanding of Grokster. . . . Q. Do you know whether any user of the Grokster software has made available to share any Prelinger film? A. No."). See also Deposition of Aram Sinnreich (Sept. 25, 2002), id., at 390 (testimony about the band Wilco based on "[t]he press and industry news groups and scuttlebutt."). These declarations do not support summary judgment in the face of evidence, proffered by MGM, of overwhelming use of Grokster's and StreamCast's software for infringement.^[16]

[545 U.S. 948] Even if the absolute number of noninfringing files copied using the Grokster and StreamCast software is large, it does not follow that the products are therefore put to substantial noninfringing uses and are thus immune from liability. The number of noninfringing copies may be reflective of, and dwarfed by, the huge total volume of files shared. Further, the District Court and the Court of Appeals did not sharply distinguish between uses of Grokster's and StreamCast's software products (which this case is about) and uses of peer-to-peer technology generally (which this case is not about).

In sum, when the record in this case was developed, there was evidence that Grokster's and StreamCast's products were, and had been for some time, overwhelmingly used to infringe, ante, at 922-924; App. 434-439, 476-481, and that this infringement was the overwhelming source of revenue from the products, ante, at 925-926; 259 F. Supp. 2d, at 1043-1044. Fairly appraised, the evidence was insufficient to demonstrate, beyond genuine debate, a reasonable prospect that substantial or commercially significant noninfringing uses were likely to develop over time. On this record, the District Court should not have ruled dispositively on the contributory infringement charge by granting summary judgment to Grokster and StreamCast.^[17]

If, on remand, the case is not resolved on summary judgment in favor of MGM based on Grokster and StreamCast actively inducing infringement, the Court of Appeals, I [545 U.S. 949] would emphasize, should reconsider, on a fuller record, its interpretation of Sony's product distribution holding.

---------------

JUSTICE BREYER, with whom JUSTICE STEVENS and JUSTICE O'CONNOR join, concurring.

I agree with the Court that the distributor of a dual-use technology may be liable for the infringing activities of third parties where he or she actively seeks to advance the infringement. Ante, at 919. I further agree that, in light of our holding today, we need not now "revisit" Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 (1984). Ante, at 934. Other Members of the Court, however, take up the Sony question: whether Grokster's product is "capable of `substantial' or `commercially significant' noninfringing uses." Ante, at 942 (GINSBURG, J., concurring) (quoting Sony, supra, at 442). And they answer that question by stating that the Court of Appeals was wrong when it granted summary judgment on the issue in Grokster's favor. Ante, at 944. I write to explain why I disagree with them on this matter.

The Court's opinion in Sony and the record evidence (as described and analyzed in the many briefs before us) together convince me that the Court of Appeals' conclusion has adequate legal support.

I begin with Sony's standard. In Sony, the Court considered the potential copyright liability of a company that did not itself illegally copy protected material, but rather sold a machine—a videocassette recorder (VCR)—that could be used to do so. A buyer could use that machine for non-infringing purposes, such as recording for later viewing (sometimes called "`time-shifting,'" Sony, 464 U. S., at 421) uncopyrighted television programs or copyrighted programs with a copyright holder's permission. The buyer could use [545 U.S. 950] the machine for infringing purposes as well, such as building libraries of taped copyrighted programs. Or, the buyer might use the machine to record copyrighted programs under circumstances in which the legal status of the act of recording was uncertain (i. e., where the copying may, or may not, have constituted a "fair use," id., at 425-426). Sony knew many customers would use its VCRs to engage in unauthorized copying and "`library-building.'" Id., at 458-459 (Blackmun, J., dissenting). But that fact, said the Court, was insufficient to make Sony itself an infringer. And the Court ultimately held that Sony was not liable for its customers' acts of infringement.

In reaching this conclusion, the Court recognized the need for the law, in fixing secondary copyright liability, to "strike a balance between a copyright holder's legitimate demand for effective—not merely symbolic—protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce." Id., at 442. It pointed to patent law's "staple article of commerce" doctrine, ibid., under which a distributor of a product is not liable for patent infringement by its customers unless that product is "unsuited for any commercial noninfringing use." Dawson Chemical Co. v. Rohm & Haas Co., 448 U. S. 176, 198 (1980). The Court wrote that the sale of copying equipment, "like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses." Sony, 464 U. S., at 442 (emphasis added). The Court ultimately characterized the legal "question" in the particular case as "whether [Sony's VCR] is capable of commercially significant noninfringing uses" (while declining to give "precise content" to these terms). Ibid. (emphasis added).

It then applied this standard. The Court had before it a survey (commissioned by the District Court and then prepared by the respondents) showing that roughly 9% of all [545 U.S. 951] VCR recordings were of the type—namely, religious, educational, and sports programming—owned by producers and distributors testifying on Sony's behalf who did not object to time-shifting. See Brief for Respondents, O. T. 1983, No. 81-1687, pp. 52-53; see also Sony, supra, at 424 (7.3% of all Sony VCR use is to record sports programs; representatives of the sports leagues do not object). A much higher percentage of VCR users had at one point taped an authorized program, in addition to taping unauthorized programs. And the plaintiffs—not a large class of content providers as in this case—owned only a small percentage of the total available unauthorized programming. See ante, at 947, n. 3 (GINSBURG, J., concurring). But of all the taping actually done by Sony's customers, only around 9% was of the sort the Court referred to as authorized.

The Court found that the magnitude of authorized programming was "significant," and it also noted the "significant potential for future authorized copying." 464 U. S., at 444. The Court supported this conclusion by referencing the trial testimony of professional sports league officials and a religious broadcasting representative. Id., at 444, and n. 24. It also discussed (1) a Los Angeles educational station affiliated with the Public Broadcasting Service that made many of its programs available for home taping, and (2) Mr. Rogers' Neighborhood, a widely watched children's program. Id., at 445. On the basis of this testimony and other similar evidence, the Court determined that producers of this kind had authorized duplication of their copyrighted programs "in significant enough numbers to create a substantial market for a noninfringing use of the" VCR. Id., at 447, n. 28 (emphasis added).

The Court, in using the key word "substantial," indicated that these circumstances alone constituted a sufficient basis for rejecting the imposition of secondary liability. See id., at 456 ("Sony demonstrated a significant likelihood that substantial numbers of copyright holders" would not object [545 U.S. 952] to time-shifting (emphasis added)). Nonetheless, the Court buttressed its conclusion by finding separately that, in any event, un-authorized time-shifting often constituted not infringement, but "fair use." Id., at 447-456.

When measured against Sony's underlying evidence and analysis, the evidence now before us shows that Grokster passes Sony's test—that is, whether the company's product is capable of substantial or commercially significant noninfringing uses. Id., at 442. For one thing, petitioners' (hereinafter MGM) own expert declared that 75% of current files available on Grokster are infringing and 15% are "likely infringing." See App. 436-439, ¶¶ 6-17 (Decl. of Dr. Ingram Olkin); cf. ante, at 922 (opinion of the Court). That leaves some number of files near 10% that apparently are noninfringing, a figure very similar to the 9% or so of authorized time-shifting uses of the VCR that the Court faced in Sony.

As in Sony, witnesses here explained the nature of the noninfringing files on Grokster's network without detailed quantification. Those files include:

—Authorized copies of music by artists such as Wilco, Janis Ian, Pearl Jam, Dave Matthews, John Mayer, and others. See App. 152-153, ¶¶ 9-13 (Decl. of Aram Sinnreich) (Wilco's "lesson has already been adopted by artists still signed to their major labels"); id., at 170, ¶¶ 5-7 (Decl. of Patricia D. Hoekman) (locating "numerous audio recordings" that were authorized for swapping); id., at 74, ¶ 10 (Decl. of Daniel B. Rung) (describing Grokster's partnership with a company that hosts music from thousands of independent artists)

—Free electronic books and other works from various online publishers, including Project Gutenberg. See id., at 136, ¶ 12 (Decl. of Gregory Newby) ("Numerous authorized and public domain Project Gutenberg eBooks are made available" on Grokster. Project Gutenberg "welcomes this widespread [545 U.S. 953] sharing . . . using these software products[,] since they assist us in meeting our objectives"); id., at 159-160, ¶ 32 (Decl. of Sinnreich)

—Public domain and authorized software, such as WinZip 8.1. Id., at 170, ¶ 8 (Decl. of Hoekman); id., at 165, ¶¶ 4-7 (Decl. of John Busher)

—Licensed music videos and television and movie segments distributed via digital video packaging with the permission of the copyright holder. Id., at 70, ¶ 24 (Decl. of Sean L. Mayers).

The nature of these and other lawfully swapped files is such that it is reasonable to infer quantities of current lawful use roughly approximate to those at issue in Sony. At least, MGM has offered no evidence sufficient to survive summary judgment that could plausibly demonstrate a significant quantitative difference. See ante, at 922 (opinion of the Court); see also Brief for Motion Picture Studio and Recording Company Petitioners i (referring to "at least 90% of the total use of the services"); but see ante, at 947, n. 3 (GINSBURG, J., concurring). To be sure, in quantitative terms these uses account for only a small percentage of the total number of uses of Grokster's product. But the same was true in Sony, which characterized the relatively limited authorized copying market as "substantial." (The Court made clear as well in Sony that the amount of material then presently available for lawful copying—if not actually copied— was significant, see 464 U. S., at 444, and the same is certainly true in this case.)

Importantly, Sony also used the word "capable," asking whether the product is "capable of" substantial noninfringing uses. Its language and analysis suggest that a figure like 10%, if fixed for all time, might well prove insufficient, but that such a figure serves as an adequate foundation where there is a reasonable prospect of expanded legitimate uses over time. See ibid. (noting a "significant potential for future authorized copying"). And its language also indicates [545 U.S. 954] the appropriateness of looking to potential future uses of the product to determine its "capability."

Here the record reveals a significant future market for noninfringing uses of Grokster-type peer-to-peer software. Such software permits the exchange of any sort of digital file—whether that file does, or does not, contain copyrighted material. As more and more uncopyrighted information is stored in swappable form, it seems a likely inference that lawful peer-to-peer sharing will become increasingly prevalent. See, e. g., App. 142, ¶ 20 (Decl. of Brewster Kahle) ("[T]he [Internet Archive] welcomes [the] redistribution [of authorized films] by the Morpheus-Grokster-KaZaa community of users"); id., at 166, ¶ 8 (Decl. of Busher) (sales figures of $1,000 to $10,000 per month through peer-to-peer networks "will increase in the future as Acoustica's trialware is more widely distributed through these networks"); id., at 156-163, ¶¶ 21-40 (Decl. of Sinnreich).

And that is just what is happening. Such legitimate noninfringing uses are coming to include the swapping of: research information (the initial purpose of many peer-to-peer networks); public domain films (e. g., those owned by the Prelinger Archive); historical recordings and digital educational materials (e. g., those stored on the Internet Archive); digital photos (OurPictures, for example, is starting a P2P photo-swapping service); "shareware" and "freeware" (e. g., Linux and certain Windows software); secure licensed music and movie files (Intent MediaWorks, for example, protects licensed content sent across P2P networks); news broadcasts past and present (the BBC Creative Archive lets users "rip, mix and share the BBC"); user-created audio and video files (including "podcasts" that may be distributed through P2P software); and all manner of free "open content" works collected by Creative Commons (one can search for Creative Commons material on StreamCast). See Brief for Distributed Computing Industry Association as Amicus Curiae 15-26; Merges, A New Dynamism in the Public Domain, 71 [545 U.S. 955] U. Chi. L. Rev. 183 (2004). I can find nothing in the record that suggests that this course of events will not continue to flow naturally as a consequence of the character of the software taken together with the foreseeable development of the Internet and of information technology. Cf. ante, at 920 (opinion of the Court) (discussing the significant benefits of peer-to-peer technology).

There may be other now-unforeseen noninfringing uses that develop for peer-to-peer software, just as the homevideo rental industry (unmentioned in Sony) developed for the VCR. But the foreseeable development of such uses, when taken together with an estimated 10% noninfringing material, is sufficient to meet Sony's standard. And while Sony considered the record following a trial, there are no facts asserted by MGM in its summary judgment filings that lead me to believe the outcome after a trial here could be any different. The lower courts reached the same conclusion.

Of course, Grokster itself may not want to develop these other noninfringing uses. But Sony's standard seeks to protect not the Groksters of this world (which in any event may well be liable under today's holding), but the development of technology more generally. And Grokster's desires in this respect are beside the point.

The real question here, I believe, is not whether the record evidence satisfies Sony. As I have interpreted the standard set forth in that case, it does. And of the Courts of Appeals that have considered the matter, only one has proposed interpreting Sony more strictly than I would do—in a case where the product might have failed under any standard. In re Aimster Copyright Litigation, 334 F. 3d 643, 653 (CA7 2003) (defendant "failed to show that its service is ever used for any purpose other than to infringe" copyrights (emphasis added)); see Matthew Bender & Co. v. West Pub. Co., 158 [545 U.S. 956] F. 3d 693, 706-707 (CA2 1998) (court did not require that noninfringing uses be "predominant," it merely found that they were predominant, and therefore provided no analysis of Sony's boundaries); but see ante, at 944, n. 1 (GINSBURG, J., concurring); see also A&M Records, Inc. v. Napster, Inc., 239 F. 3d 1004, 1020 (CA9 2001) (discussing Sony); Cable/Home Communication Corp. v. Network Productions, Inc., 902 F. 2d 829, 842-847 (CA11 1990) (same); Vault Corp. v. Quaid Software, Ltd., 847 F. 2d 255, 262 (CA5 1988) (same); cf. Dynacore Holdings Corp. v. U. S. Philips Corp., 363 F. 3d 1263, 1275 (CA Fed. 2004) (same); see also Doe v. GTE Corp., 347 F. 3d 655, 661 (CA7 2003) ("A person may be liable as a contributory infringer if the product or service it sells has no (or only slight) legal use").

Instead, the real question is whether we should modify the Sony standard, as MGM requests, or interpret Sony more strictly, as I believe JUSTICE GINSBURG'S approach would do in practice. Compare ante, at 944-948 (concurring opinion) (insufficient evidence in this case of both present lawful uses and of a reasonable prospect that substantial noninfringing uses would develop over time), with Sony, 464 U. S., at 442-447 (basing conclusion as to the likely existence of a substantial market for authorized copying upon general declarations, some survey data, and common sense).

As I have said, Sony itself sought to "strike a balance between a copyright holder's legitimate demand for effective— not merely symbolic—protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce." Id., at 442. Thus, to determine whether modification, or a strict interpretation, of Sony is needed, I would ask whether MGM has shown that Sony incorrectly balanced copyright and new-technology interests. In particular: (1) Has Sony (as I interpret it) worked to protect new technology? (2) If so, would modification or strict interpretation significantly weaken that protection? (3) If [545 U.S. 957] so, would new or necessary copyright-related benefits outweigh any such weakening?

The first question is the easiest to answer. Sony's rule, as I interpret it, has provided entrepreneurs with needed assurance that they will be shielded from copyright liability as they bring valuable new technologies to market.

Sony's rule is clear. That clarity allows those who develop new products that are capable of substantial noninfringing uses to know, ex ante, that distribution of their product will not yield massive monetary liability. At the same time, it helps deter them from distributing products that have no other real function than—or that are specifically intended for—copyright infringement, deterrence that the Court's holding today reinforces (by adding a weapon to the copyright holder's legal arsenal).

Sony's rule is strongly technology protecting. The rule deliberately makes it difficult for courts to find secondary liability where new technology is at issue. It establishes that the law will not impose copyright liability upon the distributors of dual-use technologies (who do not themselves engage in unauthorized copying) unless the product in question will be used almost exclusively to infringe copyrights (or unless they actively induce infringements as we today describe). Sony thereby recognizes that the copyright laws are not intended to discourage or to control the emergence of new technologies, including (perhaps especially) those that help disseminate information and ideas more broadly or more efficiently. Thus Sony's rule shelters VCRs, typewriters, tape recorders, photocopiers, computers, cassette players, compact disc burners, digital video recorders, MP3 players, Internet search engines, and peer-to-peer software. But Sony's rule does not shelter descramblers, even if one could theoretically use a descrambler in a noninfringing way. 464 [545 U.S. 958] U. S., at 441-442. Compare Cable/Home Communication Corp., supra, at 837-850 (developer liable for advertising television signal descrambler), with Vault Corp., supra, at 262 (primary use infringing but a substantial noninfringing use).

Sony's rule is forward looking. It does not confine its scope to a static snapshot of a product's current uses (thereby threatening technologies that have undeveloped future markets). Rather, as the VCR example makes clear, a product's market can evolve dramatically over time. And Sony—by referring to a capacity for substantial noninfringing uses—recognizes that fact. Sony's word "capable" refers to a plausible, not simply a theoretical, likelihood that such uses will come to pass, and that fact anchors Sony in practical reality. Cf. Aimster, 334 F. 3d, at 651.

Sony's rule is mindful of the limitations facing judges where matters of technology are concerned. Judges have no specialized technical ability to answer questions about present or future technological feasibilility or commercial viability where technology professionals, engineers, and venture capitalists themselves may radically disagree and where answers may differ depending upon whether one focuses upon the time of product development or the time of distribution. Consider, for example, the question whether devices can be added to Grokster's software that will filter out infringing files. MGM tells us this is easy enough to do, as do several amici that produce and sell the filtering technology. See, e. g., Brief for Motion Picture Studio and Recording Company Petitioners 11; Brief for Audible Magic Corp. et al. as Amici Curiae 3-10. Grokster says it is not at all easy to do, and not an efficient solution in any event, and several apparently disinterested computer science professors agree. See Brief for Respondents 31; Brief for Computer Science Professor Harold Abelson et al. as Amici Curiae 6-10, 14-18. Which account should a judge credit? Sony says that the judge will not necessarily have to decide.

[545 U.S. 959] Given the nature of the Sony rule, it is not surprising that in the last 20 years, there have been relatively few contributory infringement suits—based on a product distribution theory—brought against technology providers (a small handful of federal appellate court cases and perhaps fewer than two dozen District Court cases in the last 20 years). I have found nothing in the briefs or the record that shows that Sony has failed to achieve its innovation-protecting objective.

The second, more difficult, question is whether a modified Sony rule (or a strict interpretation) would significantly weaken the law's ability to protect new technology. JUSTICE GINSBURG'S approach would require defendants to produce considerably more concrete evidence—more than was presented here—to earn Sony's shelter. That heavier evidentiary demand, and especially the more dramatic (case-by-case balancing) modifications that MGM and the Government seek, would, I believe, undercut the protection that Sony now offers.

To require defendants to provide, for example, detailed evidence—say, business plans, profitability estimates, projected technological modifications, and so forth—would doubtless make life easier for copyright holder plaintiffs. But it would simultaneously increase the legal uncertainty that surrounds the creation or development of a new technology capable of being put to infringing uses. Inventors and entrepreneurs (in the garage, the dorm room, the corporate lab, or the boardroom) would have to fear (and in many cases endure) costly and extensive trials when they create, produce, or distribute the sort of information technology that can be used for copyright infringement. They would often be left guessing as to how a court, upon later review of the product and its uses, would decide when necessarily rough estimates amounted to sufficient evidence. They would have no way to predict how courts would weigh the respective [545 U.S. 960] values of infringing and noninfringing uses; determine the efficiency and advisability of technological changes; or assess a product's potential future markets. The price of a wrong guess—even if it involves a good-faith effort to assess technical and commercial viability—could be large statutory damages (not less than $750 and up to $30,000 per infringed work). 17 U. S. C. § 504(c)(1). The additional risk and uncertainty would mean a consequent additional chill of technological development.

The third question—whether a positive copyright impact would outweigh any technology-related loss—I find the most difficult of the three. I do not doubt that a more intrusive Sony test would generally provide greater revenue security for copyright holders. But it is harder to conclude that the gains on the copyright swings would exceed the losses on the technology roundabouts.

For one thing, the law disfavors equating the two different kinds of gain and loss; rather, it leans in favor of protecting technology. As Sony itself makes clear, the producer of a technology which permits unlawful copying does not himself engage in unlawful copying—a fact that makes the attachment of copyright liability to the creation, production, or distribution of the technology an exceptional thing. See 464 U. S., at 431 (courts "must be circumspect" in construing the copyright laws to preclude distribution of new technologies). Moreover, Sony has been the law for some time. And that fact imposes a serious burden upon copyright holders like MGM to show a need for change in the current rules of the game, including a more strict interpretation of the test. See, e. g., Brief for Motion Picture Studio and Recording Company Petitioners 31 (Sony should not protect products when the "primary or principal" use is infringing).

In any event, the evidence now available does not, in my view, make out a sufficiently strong case for change. To say [545 U.S. 961] this is not to doubt the basic need to protect copyrighted material from infringement. The Constitution itself stresses the vital role that copyright plays in advancing the "useful Arts." Art. I, § 8, cl. 8. No one disputes that "reward to the author or artist serves to induce release to the public of the products of his creative genius." United States v. Paramount Pictures, Inc., 334 U. S. 131, 158 (1948). And deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft. See, e. g., 18 U. S. C. § 2319 (2000 ed. and Supp. II) (criminal copyright infringement); § 1961(1)(B) (2000 ed., Supp. II) (copyright infringement can be a predicate act under the Racketeer Influenced and Corrupt Organizations Act); § 1956(c)(7)(D) (2000 ed., Supp. II) (money laundering includes the receipt of proceeds from copyright infringement). But these highly general principles cannot by themselves tell us how to balance the interests at issue in Sony or whether Sony's standard needs modification. And at certain key points, information is lacking.

Will an unmodified Sony lead to a significant diminution in the amount or quality of creative work produced? Since copyright's basic objective is creation and its revenue objectives but a means to that end, this is the underlying copyright question. See Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 156 (1975) ("Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts"). And its answer is far from clear.

Unauthorized copying likely diminishes industry revenue, though it is not clear by how much. Compare S. Liebowitz, Will MP3 Downloads Annihilate the Record Industry? The Evidence So Far 2 (June 2003), http://www.utdallas.edu/~liebowit/intprop/records.pdf (all Internet materials as visited June 24, 2005, and available in Clerk of Court's case file)

[545 U.S. 962] (file sharing has caused a decline in music sales), and Press Release, Informa Telecoms & Media, Steady Download Growth Defies P2P (Dec. 6, 2004), http://www.informatm.com (citing Informa Media Group Report, Music on the Internet (5th ed. 2004)) (estimating total lost sales to the music industry in the range of $2 billion annually), with F. Oberholzer & K. Strumpf, The Effect of File Sharing on Record Sales: An Empirical Analysis 24 (Mar. 2004), www.unc.edu/~cigar/papers/FileSharing_March2004.pdf (academic study concluding that "file sharing has no statistically significant effect on purchases of the average album"), and D. McGuire, Study: File-Sharing No Threat to Music Sales (Mar. 29, 2004), http://www.washingtonpost.com/ac2/wp-dyn/A34300-2004Mar29?language=printer (discussing mixed evidence).

The extent to which related production has actually and resultingly declined remains uncertain, though there is good reason to believe that the decline, if any, is not substantial. See, e. g., M. Madden, Pew Internet & American Life Project, Artists, Musicians, and the Internet 21 (Dec. 5, 2004), http://www.pewinternet.org/pdfs/PIP_Artists. Musicians_Report.pdf (nearly 70% of musicians believe that file sharing is a minor threat or no threat at all to creative industries); Benkler, Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production, 114 Yale L. J. 273, 351-352 (2004) ("Much of the actual flow of revenue to artists—from performances and other sources—is stable even assuming a complete displacement of the CD market by peer-to-peer distribution . . . . [I]t would be silly to think that music, a cultural form without which no human society has existed, will cease to be in our world [because of illegal file swapping]").

More importantly, copyright holders at least potentially have other tools available to reduce piracy and to abate whatever threat it poses to creative production. As today's opinion makes clear, a copyright holder may proceed against [545 U.S. 963] a technology provider where a provable specific intent to infringe (of the kind the Court describes) is present. Ante, at 941. Services like Grokster may well be liable under an inducement theory.

In addition, a copyright holder has always had the legal authority to bring a traditional infringement suit against one who wrongfully copies. Indeed, since September 2003, the Recording Industry Association of America (RIAA) has filed "thousands of suits against people for sharing copyrighted material." Walker, New Movement Hits Universities: Get Legal Music, Washington Post, Mar. 17, 2005, p. E1. These suits have provided copyright holders with damages; have served as a teaching tool, making clear that much file sharing, if done without permission, is unlawful; and apparently have had a real and significant deterrent effect. See, e. g., L. Rainie, M. Madden, D. Hess, & G. Mudd, Pew Internet Project and comScore Media Metrix Data Memo: The state of music downloading and file-sharing online 2, 4, 6, 10 (Apr. 2004), http://www.pewinternet.org/pdfs/PIP_Filesharing_April_04.pdf (number of people downloading files fell from a peak of roughly 35 million to roughly 23 million in the year following the first suits; 38% of current downloaders report downloading fewer files because of the suits); M. Madden & L. Rainie, Pew Internet Project Data Memo: Music and video downloading moves beyond P2P, p. 7 (Mar. 2005), http://www. pewinternet.org/pdfs/PIP_Filesharing_March05.pdf (number of downloaders has "inched up" but "continues to rest well below the peak level"); Note, Costs and Benefits of the Recording Industry's Litigation Against Individuals, 20 Berkeley Tech. L. J. 571 (2005); but see Evangelista, File Sharing; Downloading Music and Movie Files is as Popular as Ever, San Francisco Chronicle, Mar. 28, 2005, p. E1 (referring to the continuing "tide of rampant copyright infringement," while noting that the RIAA says it believes the "campaign of lawsuits and public education has at least contained the problem").

[545 U.S. 964] Further, copyright holders may develop new technological devices that will help curb unlawful infringement. Some new technology, called "digital `watermarking'" and "digital fingerprint[ing]," can encode within the file information about the author and the copyright scope and date, which "fingerprints" can help to expose infringers. RIAA Reveals Method to Madness, Wired News (Aug. 28, 2003), http:// www.wired.com/news/digiwood/0,1412,60222,00.html; Besek, Anti-Circumvention Laws and Copyright: A Report from the Kernochan Center for Law, Media and the Arts, 27 Colum. J. L. & Arts 385, 391, 451 (2004). Other technology can, through encryption, potentially restrict users' ability to make a digital copy. See J. Borland, Tripping the Rippers, C/net News.com (Sept. 28, 2001), http://news.com.com/ Tripping+the+rippers/2009-1023_3-273619.html; but see Brief for Bridgemar Services, Ltd. d/b/a iMesh.com as Amicus Curiae 5-8 (arguing that peer-to-peer service providers can more easily block unlawful swapping).

At the same time, advances in technology have discouraged unlawful copying by making lawful copying (e. g., downloading music with the copyright holder's permission) cheaper and easier to achieve. Several services now sell music for less than $1 per song. (Walmart.com, for example, charges $0.88 each.) Consequently, many consumers initially attracted to the convenience and flexibility of services like Grokster are now migrating to lawful paid services (services with copying permission) where they can enjoy at little cost even greater convenience and flexibility without engaging in unlawful swapping. See Wu, When Code Isn't Law, 89 Va. L. Rev. 679, 731-735 (2003) (noting the prevalence of technological problems on unpaid swapping sites); K. Dean, P2P Tilts Toward Legitimacy, Wired News (Nov. 24, 2004), http://www.wired.com/news/ digiwood/0,1412,65836,00.html; Madden & Rainie, March 2005 Data Memo, supra, at 6-8 (percentage of current downloaders who have used paid services rose from 24% to 43% in a year; number using free services fell from 58% to 41%).

[545 U.S. 965] Thus, lawful music downloading services—those that charge the customer for downloading music and pay royalties to the copyright holder—have continued to grow and to produce substantial revenue. See Brief for Internet Law Faculty as Amicus Curiae 5-20; Bruno, Digital Entertainment: Piracy Fight Shows Encouraging Signs (Mar. 5, 2005), available at LEXIS, News Library, Billboard File (in 2004, consumers worldwide purchased more than 10 times the number of digital tracks purchased in 2003; global digital music market of $330 million in 2004 expected to double in 2005); Press Release, Informa Telecoms & Media, Steady Download Growth Defies P2P (global digital revenues will likely exceed $3 billion in 2010); Ashton, [International Federation of the Phonographic Industry] Predicts Downloads Will Hit the Mainstream, Music Week, Jan. 29, 2005, p. 6 (legal music sites and portable MP3 players "are helping to transform the digital music market" into "an everyday consumer experience"). And more advanced types of non-music-oriented peer-to-peer networks have also started to develop, drawing in part on the lessons of Grokster.

Finally, as Sony recognized, the legislative option remains available. Courts are less well suited than Congress to the task of "accommodat[ing] fully the varied permutations of competing interests that are inevitably implicated by such new technology." Sony, 464 U. S., at 431; see, e. g., Audio Home Recording Act of 1992, 106 Stat. 4237 (adding 17 U. S. C., ch. 10); Protecting Innovation and Art While Preventing Piracy: Hearing before the Senate Committee on the Judiciary, 108th Cong., 2d Sess. (2004).

I do not know whether these developments and similar alternatives will prove sufficient, but I am reasonably certain that, given their existence, a strong demonstrated need for modifying Sony (or for interpreting Sony's standard more strictly) has not yet been shown. That fact, along with the added risks that modification (or strict interpretation) would impose upon technological innovation, leads me to the conclusion that we should maintain Sony, reading its standard as I [545 U.S. 966] have read it. As so read, it requires affirmance of the Ninth Circuit's determination of the relevant aspects of the Sony question.

* * *

For these reasons, I disagree with JUSTICE GINSBURG, but I agree with the Court and join its opinion.

Notes:

[*] Briefs of amici curiae urging reversal were filed for the State of Utah et al. by Mark Shurtleff, Attorney General of Utah, and by the Attorneys General for their respective jurisdictions as follows: Troy King of Alabama, Gregg Renkes of Alaska, Terry Goddard of Arizona, Mike Beebe of Arkansas, M. Jane Brady of Delaware, Charles J. Crist, Jr., of Florida, Thurbert E. Baker of Georgia, Douglas B. Moylan of Guam, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Steve Carter of Indiana, Phill Kline of Kansas, Gregory D. Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, Thomas F. Reilly of Massachusetts, Michael A. Cox of Michigan, Mike Hatch of Minnesota, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Jon Bruning of Nebraska, Brian Sandoval of Nevada, Peter C. Harvey of New Jersey, Patricia A. Madrid of New Mexico, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma, Thomas W. Corbett, Jr., of Pennsylvania, Patrick Lynch of Rhode Island, Henry McMaster of South Carolina, Lawrence E. Long of South Dakota, Paul G. Summers of Tennessee, Greg Abbott of Texas, William H. Sorrell of Vermont, Jerry Kilgore of Virginia, Darrell V. McGraw, Jr., of West Virginia, and Peg Lautenschlager of Wisconsin; for the American Federation of Musicians of the United States and Canada et al. by George H. Cohen, Patricia Polach, and Laurence Gold; for the American Society of Composers, Authors and Publishers et al. by I. Fred Koenigsberg, Michael E. Salzman, and Marvin L. Berenson; for Americans for Tax Reform by Carter G. Phillips, Alan Charles Raul, Jay T. Jorgensen, and Eric A. Shumsky; for the Commissioner of Baseball et al. by Robert Alan Garrett and Hadrian R. Katz; for Defenders of Property Rights by Theodore B. Olson, Thomas H. Dupree, Jr., Matthew D. McGill, Nancie G. Marzulla, and Roger Marzulla; for International Rights Owners by Christopher Wolf; for Kids First Coalition et al. by Viet D. Dinh; for Law Professors et al. by James Gibson; for Macrovision Corp. by Geoffrey L. Beauchamp, Kelly G. Huller, and James H. Salter; for Napster, LLC, et al. by Barry I. Slotnick; for the National Academy of Recording Arts & Sciences, Inc., et al. by Jon A. Baumgarten and Jay L. Cooper; for the National Association of Broadcasters by Marsha J. MacBride, Jane E. Mago, Benjamin F. P. Ivins, and Jerianne Timmerman; for the National Association of Recording Merchandisers by Alan R. Malasky and Melanie Martin-Jones; for the Progress & Freedom Foundation by James V. DeLong; for the Video Software Dealers Association by John T. Mitchell; and for Professor Peter S. Menell et al. by Mr. Menell, pro se.

Briefs of amici curiae urging affirmance were filed for Altnet, Inc., by Roderick G. Dorman; for the American Civil Liberties Union et al. by Christopher A. Hansen, Steven R. Shapiro, Sharon M. McGowan, Ann Brick, and Jordan C. Budd; for the American Conservative Union et al. by David Post; for the Cellular Telecommunications & Internet Association et al. by Andrew G. McBride, Joshua S. Turner, Michael Altschul, James W. Olson, Frank L. Politano, Laura Kaster, Jeffrey A. Rackow, Grier C. Raclin, Michael Standard, John Thorne, Sarah B. Deutsch, and Paul J. Larkin, Jr.; for the Consumer Electronics Association et al. by Bruce G. Joseph and Scott E. Bain; for the Consumer Federation of America et al. by Peter Jaszi; for the Distributed Computing Industry Association by Mr. Dorman; for the Eagle Forum Education & Legal Defense Fund by Andrew L. Schlafly and Karen B. Tripp; for the Free Software Foundation et al. by Eben Moglen; for Intel Corp. by James M. Burger and Jonathan D. Hart; for Internet Law Faculty by William W. Fisher III and Jonathan Zittrain; for Law Professors by J. Glynn Lunney, Jr.; for the National Association of Shareholder and Consumer Attorneys by Kevin P. Roddy and Matthew E. Van Tine; for Sixty Intellectual Property and Technology Law Professors et al. by Deirdre K. Mulligan and Pamela Samuelson; for Sovereign Artists et al. by James R. Wheaton; for Computer Science Professor Harold Abelson et al. by James S. Tyre; for Professor Edward Lee et al. by Mr. Lee, pro se; for Charles Nesson by Mr. Nesson, pro se; and for Malla Pollack et al. by Ms. Pollack, pro se.

Briefs of amici curiae were filed for the American Intellectual Property Law Association by Rick D. Nydegger and Melvin C. Garner; for Audible Magic Corp. et al. by Bruce V. Spiva and Jeremy H. Stern; for Bridgemar Services, Ltd. d/b/a iMesh.com by Jeffrey A. Kimmel; for the Business Software Alliance by E. Edward Bruce and Robert A. Long, Jr.; for Creative Commons by Lawrence Lessig; for the Digital Media Association et al. by Lawrence Robbins, Alan Untereiner, Markham C. Erickson, and Jerry Berman; for Emerging Technology Companies by Michael Traynor and Matthew D. Brown; for IEEE-USA by Matthew J. Conigliaro, Andrew C. Greenberg, Joseph H. Lang, Jr., and Daniel E. Fisher; for Innovation Scholars and Economists by Laurence F. Pulgram; for the Intellectual Property Owners Association by James H. Pooley; for Media Studies Professors by Roy I. Liebman; for the National Venture Capital Association by Michael K. Kellogg, Mark L. Evans, and David L. Schwarz; for Sharman Networks Limited by Mr. Dorman; for SNOCAP, Inc., by Joel W. Nomkin; for Kenneth J. Arrow et al. by David A. Strauss; for Lee A. Hollaar by Lloyd W. Sadler; for U. S. Senator Patrick Leahy et al. by Mr. Leahy, pro se, and Senator Orrin G. Hatch, pro se; and for Felix Oberholzer-Gee et al. by Carl H. Settlemyer III and Arnold P. Lutzker.

[1] Peer-to-peer networks have disadvantages as well. Searches on peer-to-peer networks may not reach and uncover all available files because search requests may not be transmitted to every computer on the network. There may be redundant copies of popular files. The creator of the software has no incentive to minimize storage or bandwidth consumption, the costs of which are borne by every user of the network. Most relevant here, it is more difficult to control the content of files available for retrieval and the behavior of users.

[2] The studios and recording companies and the songwriters and music publishers filed separate suits against the defendants that were consolidated by the District Court.

[3] Subsequent versions of Morpheus, released after the record was made in this case, apparently rely not on Gnutella but on a technology called Neonet. These developments are not before us.

[4] There is some evidence that both Grokster and StreamCast previously operated supernodes, which compiled indexes of files available on all of the nodes connected to them. This evidence, pertaining to previous versions of the defendants' software, is not before us and would not affect our conclusions in any event.

[5] By comparison, evidence introduced by the plaintiffs in A&M Records, Inc. v. Napster, Inc., 239 F. 3d 1004 (CA9 2001), showed that 87% of files available on the Napster file-sharing network were copyrighted, id., at 1013.

[6] The Grokster founder contends that in answering these e-mails he often did not read them fully. App. 77, 769.

[7] The record makes clear that StreamCast developed these promotional materials but not whether it released them to the public. Even if these advertisements were not released to the public and do not show encouragement to infringe, they illuminate StreamCast's purposes.

[8] The mutual exclusivity of these values should not be overstated, however. On the one hand technological innovators, including those writing file-sharing computer programs, may wish for effective copyright protections for their work. See, e. g., Wu, When Code Isn't Law, 89 Va. L. Rev. 679, 750 (2003). (StreamCast itself was urged by an associate to "get [its] technology written down and [its intellectual property] protected." App. 866.) On the other hand the widespread distribution of creative works through improved technologies may enable the synthesis of new works or generate audiences for emerging artists. See Eldred v. Ashcroft, 537 U. S. 186, 223-226 (2003) (Stevens, J., dissenting); Van Houweling, Distributive Values in Copyright, 83 Texas L. Rev. 1535, 1539-1540, 1562-1564 (2005); Brief for Sovereign Artists et al. as Amici Curiae 11.

[9] We stated in Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 (1984), that "`the lines between direct infringement, contributory infringement and vicarious liability are not clearly drawn' . . . . [R]easoned analysis of [the Sony plaintiffs' contributory infringement claim] necessarily entails consideration of arguments and case law which may also be forwarded under the other labels, and indeed the parties . . . rely upon such arguments and authority in support of their respective positions on the issue of contributory infringement," id., at 435, n. 17 (quoting Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, 457-458 (CD Cal. 1979)). In the present case MGM has argued a vicarious liability theory, which allows imposition of liability when the defendant profits directly from the infringement and has a right and ability to supervise the direct infringer, even if the defendant initially lacks knowledge of the infringement. See, e. g., Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F. 2d 304, 308 (CA2 1963); Dreamland Ball Room, Inc. v. Shapiro, Bernstein & Co., 36 F. 2d 354, 355 (CA7 1929). Because we resolve the case based on an inducement theory, there is no need to analyze separately MGM's vicarious liability theory.

[10] Nor does the Patent Act's exemption from liability for those who distribute a staple article of commerce, 35 U. S. C. § 271(c), extend to those who induce patent infringement, § 271(b).

[11] Inducement has been codified in patent law. Ibid.

[12] Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor.

[13] Grokster and StreamCast contend that any theory of liability based on their conduct is not properly before this Court because the rulings in the trial and appellate courts dealt only with the present versions of their software, not "past acts . . . that allegedly encouraged infringement or assisted . . . known acts of infringement." Brief for Respondents 14; see also id., at 34. This contention misapprehends the basis for their potential liability. It is not only that encouraging a particular consumer to infringe a copyright can give rise to secondary liability for the infringement that results. Inducement liability goes beyond that, and the distribution of a product can itself give rise to liability where evidence shows that the distributor intended and encouraged the product to be used to infringe. In such a case, the culpable act is not merely the encouragement of infringement but also the distribution of the tool intended for infringing use. See Kalem Co. v. Harper Brothers, 222 U. S. 55, 62-63 (1911); Cable/Home Communication Corp. v. Network Productions, Inc., 902 F. 2d 829, 846 (CA11 1990); A&M Records, Inc. v. Abdallah, 948 F. Supp. 1449, 1456 (CD Cal. 1996).

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[14] JUSTICE BREYER finds in Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 (1984), a "clear" rule permitting contributory liability for copyright infringement based on distribution of a product only when the product "will be used almost exclusively to infringe copyrights." Post, at 957. But cf. Sony, 464 U. S., at 442 (recognizing "copyright holder's legitimate demand for effective—not merely symbolic—protection"). Sony, as I read it, contains no clear, near-exclusivity test. Nor have Courts of Appeals unanimously recognized JUSTICE BREYER'S clear rule. Compare A&M Records, Inc. v. Napster, Inc., 239 F. 3d 1004, 1021 (CA9 2001) ("[E]vidence of actual knowledge of specific acts of infringement is required to hold a computer system operator liable for contributory copyright infringement."), with In re Aimster Copyright Litigation, 334 F. 3d 643, 649-650 (CA7 2003) ("[W]hen a supplier is offering a product or service that has noninfringing as well as infringing uses, some estimate of the respective magnitudes of these uses is necessary for a finding of contributory infringement. . . . But the balancing of costs and benefits is necessary only in a case in which substantial noninfringing uses, present or prospective, are demonstrated."). See also Matthew Bender & Co. v. West Pub. Co., 158 F. 3d 693, 707 (CA2 1998) ("The Supreme Court applied [the Sony] test to prevent copyright holders from leveraging the copyrights in their original work to control distribution of . . . products that might be used incidentally for infringement, but that had substantial noninfringing uses. . . . The same rationale applies here [to products] that have substantial, predominant and noninfringing uses as tools for research and citation."). All Members of the Court agree, moreover, that "the Court of Appeals misapplied Sony," at least to the extent it read that decision to limit "secondary liability" to a hardly ever category, "quite beyond the circumstances to which the case applied." Ante, at 933.

[15] Grokster and StreamCast, in the Court of Appeals' view, would be entitled to summary judgment unless MGM could show that the software companies had knowledge of specific acts of infringement and failed to act on that knowledge—a standard the court held MGM could not meet. 380 F. 3d, at 1162-1163.

[16] JUSTICE BREYER finds support for summary judgment in this motley collection of declarations and in a survey conducted by an expert retained by MGM. Post, at 952-955. That survey identified 75% of the files available through Grokster as copyrighted works owned or controlled by the plaintiffs, and 15% of the files as works likely copyrighted. App. 439. As to the remaining 10% of the files, "there was not enough information to form reasonable conclusions either as to what those files even consisted of, and/or whether they were infringing or non-infringing." Id., at 479. Even assuming, as JUSTICE BREYER does, that the Sony Court would have absolved Sony of contributory liability solely on the basis of the use of the Betamax for authorized time-shifting, post, at 950-951, summary judgment is not inevitably appropriate here. Sony stressed that the plaintiffs there owned "well below 10%" of copyrighted television programming, 464 U. S., at 443, and found, based on trial testimony from representatives of the four major sports leagues and other individuals authorized to consent to home recording of their copyrighted broadcasts, that a similar percentage of program copying was authorized, id., at 424. Here, the plaintiffs allegedly control copyrights for 70% or 75% of the material exchanged through the Grokster and StreamCast software, 380 F. 3d 1154, 1158 (CA9 2004); App. 439, and the District Court does not appear to have relied on comparable testimony about authorized copying from copyright holders.

[17] The District Court's conclusion that "[p]laintiffs do not dispute that [d]efendants' software is being used, and could be used, for substantial noninfringing purposes," 259 F. Supp. 2d 1029, 1036 (CD Cal. 2003); accord 380 F. 3d, at 1161, is, to say the least, dubious. In the courts below and in this Court, MGM has continuously disputed any such conclusion. Brief for Motion Picture Studio and Recording Company Petitioners 30-38; Brief for MGM Plaintiffs-Appellants in No. 03-55894 etc. (CA9), p. 41; App. 356-357, 361-365.