measures. The bills now pending in Congress, bills that film undertakings no view - but would also destroy a vast portion of the property now possessed, in the form of existing copyrights, by the producers and distributors of motion pictures and television shows property in which the American film industry invested tens of billions of dollars, over nearly three-quarters of a century, under a set of ground rules that Congress is being urged to modify even as applied to existing films and film contracts. I. PUBLIC POWER AND PRIVATE USES It is worth observing at the outset that, for two reasons, Congress may be forbidden to take such copyright owners' existing property even if Congress is willing to pay for doing so. First, the takings clause is a limitation on the power of Congress, not an independent grant of authority to take anything for which it pays. Even if Congress is willing to pay for the property it takes, the taking must be independently justified under some other constitutional grant of power. Second, regardless of the asserted source of Congress' authority, the takings clause permits government to take property only 8/ See Kaiser Aetna v. United States, 444 U.S. 163 (1979): Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). when the taking serves a public purpose. The Constitution nowhere sanctions the use of the legislature's power to take 10/ property for merely private purposes. Indeed, one of the reasons the takings clause requires the public to pay for what it takes is to help ensure that what is paid for benefits the public,11/ since the public will soon tire of paying for purely private acquisitions that do not benefit the commonweal. The copyright-repealing bills before the Congress, as applied to copyrights already in existence at the time such bills take effect, appear to satisfy neither of these two indispensible prerequisites. The retroactive repeal of existing copyright protection cannot be sustained as an exercise of the independent power of Congress to create copyrights, because it does the very opposite. And, as will be shown below, the First Amendment does not require or empower Congress to revoke these copyrights, and in fact may forbid it to do so. The proposed bills are also open to the serious charge that they take the property of copyrightholders for purely private reasons, precisely the sort of "robbery" that the 12/ 10/ See Missouri Pac. Ry. v. Nebraska, 164 U.S. 403 (1096) (compensation cannot cure the unconstitutionality of a taking for a private purpose); accord, Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55 (1937) (Brandeis, J.). 11/ L Tribe, American Constitutional Law, $58-5, 9-2 (1978). United States Constitution, Article I, $8. takings clause is designed to prevent.13/ This much is indeed explicit in their very language, which allows VTR owners 14/ freely to copy ance-protected materials for private use. Once the copies are sold or traded for value -- that is, when they benefit someone other than the primary copyright infringer 15/ Furthermore, it can hardly the law no longer exempts them. be contended that the persons who will be aided by the proposed bills are the public at large. Only relatively well-to-do television owners can now afford Betamax, 16/ and the claim that Congress intends to aid all those who will eventually own such costly equipment is suspect because Congress will be passing the measure when only the wealthier strata of the population possess these machines machines whose very use will likely reduce the amount of quality television programming available, to the detriment of all television viewers.17/ - The special benefits that these bills would bestow on such foreign corporations as Sony also make suspect the claim they they are designed to aid the American public. While 13/ See Webb's Fabulous Pharmacies v. Beckwith, 101 S.Ct. 446; 452 (1980) ("[A] State, by ipse dixit, may not transform private property into public property without compensation. This is the very kind of thing that the Takings Clause of the Fifth Amendment was designed to prevent.") (unanimous decision). 15/ Id. The bills cited in note 1, supra, protect only noncommercial recording. : : 16/ The average unit costs between $650 and $1300. See p. 14, infra. special aid to distressed domestic firms and their employees is permitted -- as in the case of Chrysler or Lockheed, where the entire American public might suffer if the imperilled giant fell -- Sony is in no financial distress and is, of course, not even a domestically-based corporation. Takings for purely private purposes, it must be stressed, are constitutionally..... forbidden even where compensation is provided. And, although the courts characteristically defer to the judgment of the legislature as to the existence of public purposes for its regulatory actions in economic matters, 18/ such deference is not total 19/ and readily turns to distrust where, as here, the public has not been willing to pay for what some few private for their property, in short, Congress would better ensure that Indeed, the fact that Congress provides compensation to those from whom it takes property may be its only proof in such a case as this that the exception serves a public purpose within the ken of Congress' power. 18/ 19/ Berman v. Parker, 348 U.S. 26, 32 (1954). See, e.g., Allied Structural Steel Co. v. Spannaus, 438 438 U.S. 234 (1978); U.S. Dept. of Agriculture v. Moreno, 413 C.S. 528, 529, 533 (1973). 20/ Cf. United States Trust Co. of New York v. New Jersey, 97 S.Ct. 1505, 1520 (1977) (judicial oversight must be tightened when "self-interest is at stake"). It should be added that, if Congress adopts a royalty scheme where copyright owners are paid some appropriate 11 fraction of the value of each VTR or blank tape sold to consumers, the odds that one of these bills could withstand constitutional attack are also enhanced because such a scheme burdens those who actually profit from the infringement of the copyright rather than burdening the public at large. Such a plan would also avoid the need to increase taxes or cut other programs in order to pay for the property Congress has chosen to bestow on a small segment of the public in a period of tight budgets and broad national sacrifice. - Whether or not these two high hurdles could be overcome, those unfamiliar with the legal use of the term "property" may argue that a copyright, whatever sort of animal it may be, is not "property" at all, and that Congress thus cannot be required to pay for having taken one or, for that matter, compelled to adduce a public purpose for such a taking. After all, you can't plant corn or put up a house on a copyright; copyrights make unusual Christmas presents. But these doubts begin to fade with a moment's reflection, and they evaporate altogether with a minute's research. There can be no mistaking that a copyright is property in the strictest legal sense. 21/ 21/ See J. Cribbet, Principles of the Law of Property 4 (1962); T. Fields Jr., Intellectual and Industrial Property in a Nutshell, 77 W.Va.L.Rev. 525 (1977); 21 Santa Clara L. Rev. 49, 52 (1981); 8 N.Y.U. Rev. L. & Soc. Change 45, 47 (1978-79). |