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 Sony considered a claim that the manufacturer of Betamax video recorders was liable for contributory copyright infringement because its sale of the recorders facilitated copyright infringement by consumers by virtue of the consumers’ recording of copyrighted broadcasts to enable them to view the programs at times more convenient to them. The Court rejected the contributory infringement claim, essentially on the bases that (a) substantial numbers of copyright holders would not object to the consumers’ use of the Sony equipment for “time shifting,” and (b) the plaintiffs had failed to prove any likelihood of consequent economic harm.

The majority here reads Sony as reasoning “that a secondary use may be a fair use if it utilizes transformative technology to improve the efficiency of delivering content.” But Sony was decided before Judge Leval’s article introduced the concept of transformative use or purpose into the copyright lexicon.” [sic] I thus find what Sony teaches about transformative purpose, if anything, to be less than perfectly clear. I certainly do not find within Sony the idea that efficiency-enhancing technology is transformative.

The efficiency enhancement at issue in Sony was “time-shifting” – the use by a consumer of a Betamax device to record a broadcast so that the consumer could watch that show at a later, presumably more convenient, time. The Court asked whether time-shifting was a substantial noninfringing use; the answer to that question determined whether Sony could be liable for contributory infringement. It was in that context that the Court found that unauthorized time shifting – consumers recording copyrighted shows without authorization to watch the shows once at a later time – was “not necessarily infringing.”

The Court’s discussion of time-shifting focused on the non-commercial nature of in-home recording: “[R]espondents failed to demonstrate that time-shifting would cause any likelihood of nonminimal harm to the potential market for, or the value of, their copyrighted works. The Betamax is, therefore, capable of substantial