noninfringing uses. Sony’s sale of such equipment to the general public does not constitute contributory infringement of respondent’s copyrights.”[1]
Perhaps the Court in Sony would have found efficiency-enhancing technology to be transformative for that reason alone had that argument been put to it. But I see no indication of that in the opinion. Rather, Sony turned on the question whether “time-shifting,” on the facts presented in that case, was a commercial use that affected the broadcasters’ ability to make a profit in the market. And the Court so concluded without considering, at least explicitly, whether the recordings served a purpose different from the original broadcasts. In fact, the Court said that “timeshifting merely enables a viewer to see such a work which he had been invited to witness.”[2] In other words, time-shifting allows a user to do exactly that which the user could have done with the original: watch the show for whatever entertainment, informational or other purpose it serves. No new purpose had been added. So I hesitate to conclude that Sony mandates, or even suggests, the idea that efficiency-enhancing technology is transformative.
My hesitation in this regard is strengthened by this Court’s subsequent treatment of Sony. No prior opinion of this Court says, or even suggests, that Sony stands for the proposition that time-shifting in particular, or efficiency-enhancing delivery technology in general, is transformative. In Swatch Group Management Services Ltd v. Bloomberg L.P., we described Sony as a decision “finding a non-transformative use to be a fair use.”[3] Infinity Broadcast Corp. described Sony’s discussion of time-shifting as a “determin[ation] that time-shifting of television programs by consumers in their homes was a non-commercial use.”[4] Indeed, as noted, we there held that an efficiency promoting technology was not transformative and gave no sign that Sony was relevant to that conclusion.
Similarly, Authors Guild, Inc. v. HathiTrust[5] and Google Books[6] cite Sony for various principles, but never for the proposition that efficiency-enhancing technology is transformative, despite that idea’s obvious potential application in those cases. Because HathiTrust and Google Books so clearly confront an issue closely related to that here, I see as instructive their omission of the idea that Sony declared efficiency-enhancing delivery technology to be transformative. I would join those
- ↑ Id. at 455.
- ↑ Id. at 449.
- ↑ 756 F.3d 73, 84 (2d Cir. 2014) (emphasis added).
- ↑ 150 F.3d at 109 n.3.
- ↑ 755 F.3d 87 (2d Cir. 2014).
- ↑ 804 F.3d at 202.
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