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these thousands of infringements or potentially millions of infringements when you think of how many people own this equipment, that we have here.
Congress has to step in one way or another to provide for the mechanism. The current mechanism is too clumsy and too cumbersome to deal with this kind of a situation. Of the various mechanisms that are available, it seems to me, largely because of the privacy issue that we are concerned about, that the mechanism they should come in and say is, "No infringement. We do not consider this an act of infringement. It fits exactly into the sort of provision already in the law, one dealing with home recording of records off the air and the other the whole series of provisions we find in 110 and 504(c)(2)."
It seems to me that if a librarian should be let off scot free for making too many photocopies of a copyrighted document, the consumer making it for his own home use should absolutely be let off scot free for making that kind of use for his own personal pleasure. For those reasons, I think that S. 1758 is within Congress power. It is an appropriate use of Congress power, and it is a desirable use of Congress power.
Senator DECONCINI. Professor, thank you very much.
As a matter of fact, looking at the court cases, certainly it is clear to me, and I believe that is what you are saying too, the courts are almost begging Congress to do something here.
I notice in the opinion of the district court, the court said that the courts recognize that the resolution of these issues is preeminently a problem for Congress and possible intermediate solutions are also the pragmatic kind legislatures, not courts, can and should fashion.
Then of course the ninth circuit, as you pointed out, said that exemptions from the normal workings of the copyright scheme involve a public policy determination. These are permanently decisions for Congress and not the courts. So it falls right in line with your testimony that Congress has to do something, whatever it is. We need to act.
My question to you is this. Probably we ought to be acting in far greater depth, too, in other areas, but this bill is before us because of this decision. Would you recommend that the appropriate committees look at this whole area of copyright and what technological advances have posed to the problems of this act and the parties involved in it?
Mr. FRIEDMAN. Absolutely. It is not unusual for Congress to take two bites of the apple. I was involved in a whole issue about the Nixon papers where first Congress dealt with the immediate problem in front of them when Richard Nixon was running off with all his tapes and papers, and they said, "No, just a second; we don't want you to do that; we want control of those tapes and papers.' They passed a law in 1974 to control that. Then they passed a more general law dealing with Presidential Papers for all Presidents thereafter, the Presidential Records Act of 1978.
So Congress has often faced the situation where there is an immediate problem which they have to resolve right at the time, because otherwise some bad thing will happen, but it just leaves open a more general dealing with this kind of an issue, which requires a
little more time, a little more consideration, and I think that certainly is the kind of response that the ninth circuit decision requires.
Senator DECONCINI. One last question, just out of curiosity for myself. I would like to have your views. Would you explain to us as a professor of law what you believe the ultimate purpose behind the copyright laws were? What is your legal perception of what was behind that?
Mr. FRIEDMAN. The constitutional provision says that Congress has the power to pass laws to give to authors and scientists for a limited time the benefit of their writings and inventions. So ultimately the copyright law is there to give to the author of a creative work some economic benefit from his labor for a limited time.
Senator DECONCINI. How is that best effectuated in your opinion? What is the best way to do just that?
Mr. FRIEDMAN. The copyright law has provided an elaborate mechanism for protecting the authors or the creators of any of these works. They do get the benefit of their contracts with producers when their show goes on television. They write a book, and that becomes a movie. They will get the benefit of the dollars from the movie producer.
I will say this: The movie producers are not running to give authors a share of the video cassette market. So the idea that the authors would share in this is simply not the case. We just saw that there were a couple of strikes in which both the writers and directors got only a minimal share of this market.
There has not been a mechanism for giving anything to the author, the original creator of this. Of course the directors do share in that; they do make their own creative contribution, but they are getting their money from deals with the networks, and the idea that they must reap a huge benefit-a much greater benefit-out of the exploitation of the video cassette recorder does not follow at all from the constitutional requirement.
It seems to me this would be a huge windfall for the producers in this area, the markets that actually create the movies, and not contemplated by the law at all.
As to the way in which this could be enforced, with huge amounts of money going either from the consumer or from Sony, the contributory infringer, as the court said, it seems to me the authors are getting their share from the initial production of the film and it is not fair for the producer to whom they sold their right to get this huge windfall that the ninth circuit case contemplates.
Senator DECONCINI. Thank you very much, Professor Friedman. We appreciate having you here.
Senator D'Amato, do you have any questions?
Senator D'AMATO. Mr. Chairman, I think it is important for the record to note that neither the chairman, Senator DeConcini, nor Senator D'Amato attended Hofstra Law School.
Professor, there have been those who have said that this legislation is premature, that indeed before Congress acts we should wait until the Supreme Court reviews this matter. Would you care to comment in respect to those who allege that this is precipitousthat S. 1758 should not be advanced until the Supreme Court has acted?
Mr. FRIEDMAN. As Senator DeConcini said, we already have a situation where the statutory materials are really not available. It is a guess one way or another: Did Congress intend that video recording would be an infringement, or did they intend that the broad, fair use provision, section 107, really protects this?
Both the lower courts were simply guessing at rather broad language in two separate sections. The court of appeals relied on section 106, which gave the copyright owner very broad control of his material. The district court judge relied on section 107, which has a very broad definition of "fair use."
The materials on which to determine what Congress intended are not there. The Supreme Court would just look into the crystal ball, like both other courts have done, and try and guess at what Congress intended. If Congress intends one thing or another, it can tell the Supreme Court, it can tell the Federal court, "Here's what we really had in mind.'
Senator D'AMATO. So you reject that contention that we should wait for the Supreme Court to act?
Mr. FRIEDMAN. No, because the Supreme Court is not going to determine a remedy. Congress has to determine a remedy.
Senator D'AMATO. In any event, even if we determine that there is a violation of some copyright law, then comes the matter of enforcement and the rest, as you have spelled out.
Mr. FRIEDMAN. The equipment is simply not there. The statutory materials are simply not there. Congress has to do something, one way or another.
Senator D'AMATO. In your analysis of S. 1758, Professor, did you indicate, or does it appear to you, that the enforcement of S. 1758 would in any way work a hardship on, for example, the authors or the producers?
Mr. FRIEDMAN. Well, it is going to work a hardship on the producers, because they are not going to get a huge windfall.
Senator D'AMATO. But would it work a hardship on them?
Mr. FRIEDMAN. No, I do not see how it would work any hardship on them. They have already made their deals with the television networks, with everyone else, with syndicators, or whatever. This is a total windfall for them, one way or another.
Senator D'AMATO. Does it work a hardship on the writers, the authors, et cetera?
Mr. FRIEDMAN. As I said, there was a strike this summer in which the writers ended up with a very small amount of the total coming in, and mostly I believe from the actual sale of video cassettes over the counter.
Senator D'AMATO. But S. 1758 in itself would not work a hardship on them?
Mr. FRIEDMAN. No, it would not work a hardship on them at all. Senator D'AMATO. Thank you very much, Professor.
I have no further questions, Mr. Chairman.
Senator DECONCINI. Congressman, do you wish to make a statement?
Mr. PARRIS. I have just one very quick question, Senator.
Would you agree with the statement that the adoption of this legislation would render the question of individual use by the Supreme Court, the ninth circuit, or whoever-would render that
moot and that the adoption of this legislation would be, in effect, even an appropriate delinkage of the mechanism of the profoundly more complex issues of payments of royalties, the entertainment fees, and all those questions, as opposed to individual use of this equipment? Would that be an effective way to approach it?
Mr. FRIEDMAN. It would be effective. Let me just, if I can, act professorial for a moment. There is some technical gap in the legislation. The one thing it does not cover is if there is a performance under State law which is not being simultaneously recorded, so that there is no Federal statutory copyright protection. There still may be enforcement under State misappropriation laws.
I think there should be an additional technical amendment to make sure that any home video recording of any kind is neither a violation of copyright nor of any State statutory or common law. That would simply eliminate that issue. The home video recording would simply not be actionable under the laws of either the Federal Government or of any State. Then Congress can come in and make a more appropriate examination of the technologies and determine what it thinks would be desirable over the long run.
Mr. PARRIS. But do you think we should limit it just to the home? How about the priest who wants to watch the Notre Dame replays on Sunday morning during mass? He wants to do that on the next Saturday night in his office, for example.
Mr. FRIEDMAN. There is a definition for public performance in the statute which talks about,
To publicly perform the work is to perform or to display it at a place open to the public or in any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.
I think you can simply plug in that definition. If there is a normal circle of social acquaintances, that is what we are talking about, but that already exists within the statute, and that might be plugged into this situation.
Mr. PARRIS. Thank you.
Senator DECONCINI. Thank you very much, Professor Friedman. We appreciate your enthusiastic analysis of this legislation and Congress' involvement in it. It has been very helpful to us.
Mr. FRIEDMAN. Thank you very much.
PROFESSOR LEON FRIEDMAN
My name is Leon Friedman and I welcome the opportunity
I am a professor of law at Hofstra Law School in
The Universal City Studios decision held that off-the-air