By far the most controversial of the Supreme court's ‘trilogy’ of cases dealing with the tort of contributory infringement of intellectual property has been Sony Corp. of America v. Universal City Studios (Betamax case). The Court, by a five-to-four majority, held that it was not contributory infringement of the Studios' copyrights for Sony to sell its Betamax type of video cassette recorder (VCR) to consumers who used them to record copyrighted works off-the-air. The Court concluded that such recording by consumers was permissible ‘fair use,’ because the VCRs were ‘widely used for legitimate, unobjectionable purposes,’ namely, ‘private, noncommercial time-shifting in the home,’ and hence did not constitute direct infringement of the Studios' copyrights. Absent such direct infringement, there could be no contributory infringement by Sony.

The Betamax decision may be characterized as a victory for the VCR industry and their users in eliminating the broad-based employment of contributory infringement. Nonetheless, Betamax, in the long run, may be viewed as a mere failure on the part of the copyright owners to prove substantial direct infringement.

While there is no question that copy technology creates significant worries for copyright owners, there is no inherent tension between copyright and technology. More often than not technology is sympathetic and complementary rather than antagonistic and antithetical to copyright. Copyright owners, however, clearly understand that copy technology is technically indifferent to their copyrighted works; indeed, a significant part of such copy technology's value may reside in this indifference.

Consequently tension is created between copyright owners whose works are easily copied and technology owners whose equipment permits such copying. The availability of a contributory infringement action may provide copyright owners with a potent weapon to enforce their copyrights against unauthorized copying by owners of copy equipment within their own homes or offices. Indiscriminately broad application of the doctrine, however, would exacerbate tensions between copyright and technology. A more productive approach would examine the underlying policies and tort principles supporting the doctrine. Proposed legislative solutions also miss the mark by creating conflict between the development of patentable and copyrightable subject matter.

This article examines the tort of contributory copyright infringement along with its underlying tensions. Part I examines the general tort theory underlying contributory copyright infringement and its application to copyright law as evidenced by Betamax. Part II identifies various factors that bear upon the scope of contributory copyright infringement with reference to their relevance in the Betamax case. Part III examines the tensions between copyright owners and developers of copy technology. Additionally, Part III addresses the public interest in having access to both copyrighted works and copy technology. Finally, Part IV explores solutions to these tensions in light of the constitutional mandates ‘ t o promote the Progress of Science as embodied in copyrightable works and useful Arts as embodied in patentable inventions .’