grounds: even ignoring the obvious and massive commercial interest Sony has in the misappropriation of copyrights, consumptive uses of copyrights by home VTR users are commercial even if the consumer does not sell the homemade tape because the consumer will not buy tapes separately sold by the copyrightholder. The error in excusing such theft as "noncommercial" can be seen by simple analogy: jewel theft surely is not converted into a noncommercial veniality if stolen jewels are simply worn rather than sold. Finally, the lower court's treatment of the substantiality issue was also clouded by its failure to consider the consumptive use issue. Copying of an entire copyrighted work even in the educational has never been excused as a fair use, 107/ context. 106/ Aside from the District Court's opinion, the only other decision upholding the copying of an entire work as a fair use, often referred to as the Dred Scott decision of 109/ is Williams & Wilkins Co. v. United States, copyright, 108/ in which the Court of Claims upheld as fair use the copying of complete magazine articles by the National Library of Medicine 106/ 3 Nimmer on Copyright, $13.05 [D], 13-61. 107/ Encyclopedia Britannica Educational Corp. v. Crooks, 447 F.Supp. 243 (W.D.N.Y. 1978). 108/ 109/ 487 F.2d at 1387 (Nichols, J., dissenting). 487 F.2d 1345 (1973), aff'd per curiam by an equally divided Court, 420 U.S. 376 (1975). and the National Institute of Health. The court in Williams & Wilkins upheld the use chiefly, as the Court of Appeals in Sony noted, because of the "serious damage to medical science that would result if it held for the plaintiff." [i]n this case, there is no corresponding But Congress may claim that, in passing a bill extending the fair use exemption, it is not doing anything quite so bold as essaying the retroactive repeal of property rights. Instead, Congress may claim that it is only "clarifying" the law of fair use as it has always been, and that the law of fair use, rightly understood, has always exempted home VTR recording despite the contrary analysis summarized above. 80 : That possible claim, apart from its demonstrable implausibility as a substantive matter, grossly misconceives the institutional role of Congress and the courts. First, the current Congress is without capacity to shed light on the issue of fair use by instructing the courts as 110/ 659 F.2d at 971. 111/ Id. to the actual intent of prior Congresses in passing the Copyright Act. Any such "clarification" by Congress in 1981, as to the intent of the Congresses that sat in 1976 or 1971.or 1912 or 1909 or in any of the intervening years in which other Congresses have protected the copyright in movies and televised works -- - would, as the Supreme Court has held repeatedly, be of virtually no use in interpreting the inten tions of those earlier legislatures. 112/ Different persons serve in Congress now than served in Congress then, and a More fundamentally, Congress would not only be wrong in fact if it asserted that the law had always contained the VTR exception; it would be wrong in constitutional law even to inject any such assertion into the inherently judicial process of construing extant laws. Chief Justice John Marshall said it best in 1803: "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule."113/ Implicit in the separation 112/ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78 (1803). of powers is the postulate that Congress cannot constitutionally claim to sit as a court and, through judicious rereading of a statute, retroactively give it a meaning that reviewing 114/ courts have not found the statute to contain. Congress might try to evade these broad institutional limitations of its role by the expedient of instructing the courts as to the proper determination of intent in the Sony case itself, but that seemingly narrower option too is constitutionally foreclosed -- in this instance by the longsettled rule of United States v. Klein, which establishes that Congress may not, while a case is pending on review before the Supreme Court, instruct the Federal Judiciary on the proper resolution of the claims put forth therein. Were Congress to ignore that rule, "[w]e must think that Congress [would have] inadvertently passed the limit which separates 115/ the legislative from the judicial power. Even if one concedes for the moment -- but only for just a moment -- that Congress has any such power retroactively to "clarify" the law, it does not necessarily follow that Congress may use such power to enrich a chosen few at the expense of copyrightholders. If Congress chooses the "clarifi cation" route rather than a straightforward repeal of copyright 114/ See, e.g., Buckley v. Valeo, 424 U.S. 1, 120-24 (1976); Chadha v. INS, 634 F.2d 408, 431 (9th Cir. 1980), probable Jurisdiction postponed, 50 U.S.L. Week 3244 (1981). 115/ 80 U.S. (13 Wall.) 128, 146-47 (1872). protection, the constitutional infirmity of the resulting taking for private use may be all the more easily discerned. By behaving like a court by adjusting the claims as between the particular parties already engaged in litigation Congress would not only act in a manner that courts have for nearly two centuries deemed inherently judicial, but would also open itself to even closer substantive scrutiny of its legal decisions than might otherwise be appropriate. In matters of economic and social policy, judgments made by Congress that its laws benefit the public and do so at reasonable cost are generally and deferentially respected by the courts because it is often beyond the competence and outside the institutional authority of the courts to review such matters of degree. But courts are ideally and constitutionally equipped to review questions of law. Once Congress tries its hand at the interpretation of statutes, the defects in the District Court's analysis of fair use take on constitutional significance. That court's analysis failed to uncover any productive or derivative uses to be served by a home VTR exemption. By exposing for scrutiny the exclusively private uses of home VTR recordings, the District Courts' failed reasoning highlights the unconstitutionality of the same taking if committed by Act of Congress. If Congress makes a judgment that the copyright laws have always exempted VTR recording of copyrighted works a judgment that, on the merits, is simply and egregiously incorrect the courts may quite properly be tempted |