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, n27 no fixed criteria have emerged by which that [p.476] 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).

n27 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 [question]" 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).

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). Section 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 Section 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).

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. n28 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 [p.478] 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 Section 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, n29 and other examples may be found in the case law. n30 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. n31 The fair use doctrine, in other words, permits works [p.479] 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. n32

"’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.

n31 Professor Seltzer has characterized these lists of uses as "[reflecting] 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 Section 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").

n32 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 Section 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." Sections 108(d)(1) and (e)(1).

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. n33 The inquiry is [p.480] 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.

n33 In the words of Lord Mansfield: "[We] 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.

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 [p.481] 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. n34 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, "[the] 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.

"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).

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 [p.482] 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, Section 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, "[isolated] 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 Section 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.

[p.483] 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. n35

n35 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.

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 [p.484] 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 Section 107(4). n36 The requirement that a putatively infringing use [p.485] 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 infringer’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).

n36 Concern over the impact of a use upon "potential" markets is to be found in cases decided both before and after Section 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) ("[The] 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).

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 [p.486] 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.