Page:Sony Computer Entertainment America, Inc. v. Bleem, LLC.pdf/8

 seems clear that the third factor supports a finding of fair use.

In addressing this fourth and most important factor, the Supreme Court considered "not only the extent of market harm caused by the particular actions of the alleged infringer, but also “whether unrestricted and widespread conduct of the sort engaged in by the defendant … would result in a substantially adverse impact on the potential market.”"

Campbell, 510 U.S. at 590, 114 S.Ct. 1164 (quoting 3 M. Nimmer & D. Nimmer, Nimmer on Copyright, § 13.05[A][4], at 13-102.61 (1993)). The first question in this appeal is what precisely the market is. The market cannot be the video games themselves because it is the emulator that competes in that niche, not the screen shots that adorn the emulator’s advertising. We have already ruled that the emulator is not a violation of the copyright laws. See Connectix, 203 F.3d at 607. Sony argues that the market is in the screen shots themselves: Bleem’s use of the screen shots impinges upon Sony’s ability to use the screen shots for promotional purposes in the market. Bleem responds by contending that there is no market in screen shots. Certainly screen shots are a standard device used in the industry to demonstrate video game graphics, but there is not a market for them, or at least not one in which Bleem may participate given Sony’s refusal to license to it.

Assuming there is a market for screen shots, however, this factor still weighs in Bleem’s favor, not because Bleem does not compete with Sony, as it contends, but because almost all precedent indicates that this sort of use does not sufficiently impair Sony. First, the Supreme Court has noted that commercial use is not a controlling factor in this question and that a use of the copyrighted work to critique the work may harm its market without producing cognizable harm under the Copyright Act. Campbell, 510 U.S. at 591–92, 114 S.Ct. 1164 (providing the example of a “scathing theater review” that “kills demand for the original” while still being a fair use). Second, the Fifth Circuit’s comparative advertising decision similarly plays down such a “de minimis” effect on the copyrighted material’s market: "If the plaintiff loses a significant share of its present market, that would result not from the display of plaintiff’s cover in defendant’s advertising but from commercial competition with a work that does not in any way make use of plaintiff’s copyrighted material."

Triangle Publications, 626 F.2d at 1177. We made a similar observation in our recent decision, also involving Sony, stating that "some economic loss by Sony as a result of this competition does not compel a finding of no fair use. Sony understandably seeks control over the market for devices that play games Sony produces or licenses. The copyright law, however, does not confer such a monopoly."

Connectix, 203 F.3d at 607.

Bleem’s use of a handful of screen shots in its advertising will have no noticeable effect on Sony’s ability to do with its screen shots what it chooses. If sales of Sony consoles drop, it will be due to the Bleem emulator’s technical superiority over the PlayStation console, not because Bleem used screen shots to illustrate that comparison. This fourth factor, like all the others, appears to weigh in Bleem’s favor.

Given that all four factors weigh in favor of the conclusion that Bleem’s use of the screen shots was fair, our attention must turn to whether the district court abused its discretion in entering injunctive relief in favor of Sony. Upon the record before us, we cannot tell whether the district court engaged in the § 107 analysis and thus we have no evidence of its discretion. In the absence of such an analysis, it does appear that the district court abused its