conglomerate's taunt of "sue me." The bill would give the individual author additional leverage, making legal resources more equally available according to the merits of the case. Another benefit of the legislation could be to eliminate confusion on standards for prevailing plaintiffs--whether a fee award is appropriate only when infringement is deliberate, or whether a close question of law would mean that no award would be granted. On the other hand, the existing law already provides these remedies in most cases. Frankly, there does not appear to be such confusion among the circuits on awarding prevailing plaintiff attorney's fees that a legislative amendment is necessary to correct a confused legal situation. The courts have exercised sound discretion and balanced appropriate factors in deciding when to award attorney's fees. If Congress does determine it necessary to send a message to those who would deliberately infringe copyrights belonging to small businesses and individual authors, we recommend certain amendments to the existing bill or discussion of certain points in the legislative history. These points are: defendants. (1) Clarification that nominal awards may be made. (2) Clarification of the award of attorney's fees to prevailing Presently the bill does not address the real confusion regarding attorney's fees, which is the award to prevailing defendants. (3) Clarification of who is an "employee" for the small business to qualify for mandatory attorney's fees. Reasonable attorney's fees are frequently challenged, but the higher market price award is gaining favor. On balance, the Copyright Office favors continuation of discretionary award of attorney's fees. The courts have done a good job and can be trusted to weigh the appropriate factors in reaching their decision. APPENDIX I 1909 Act Cases Burndy Engineering Co. v. Sheldon Service Corp., 39 F. Supp. 274, (1941) a'd 127 F.2d 661, (2d Cir. 1942). 10,000 2,500 7,750 1,000 Accounting ordered. Revision Study No. 23: The Operation of the Damage Provisions of the Copyright Law: An Exploratory Study, Senate Committee on the Judiciary (1960), 86th Cong., 2d Sess. 91. Mr. KASTENMEIER. How do you interpret the law today with respect to whether nursing home displays are or are not subject to copyright? To perform or display the work publicly means to perform or display it at a place open to the public at any place where a substantial number of persons outside a normal circle of family and its social acquaintances is gathered. Apparently this hasn't been litigated precisely. What do you think the state of the law is at the moment on that question? Mr. OMAN. The state of the law I think clearly, Mr. Chairman, would include a nursing home or a hospital as a place open to the public. The legislative history, I think, of the act would probably make that clear. I would like to ask Ms. Schrader, if I could, who has studied that issue in some depth, to comment at this point. Mr. KASTENMEIER. Yes, Ms. Schrader. In a sense, this goes to the question of whether a nursing home is a home to someone, in the context used by Senator Roth. What is your view of the legal status of, let's say, a nursing home? Ms. SCHRADER. Well, Mr. Chairman, I think you will recall that in the copyright revision of 1976 there was a major change made in redefining the line between public and private. Before 1978, many semipublic places, social clubs, all sorts of so-called private clubs, were possibly not considered places where public performances took place. This was considered unfair and inconsistent by the copyright owners and authors and they persuaded the Congress to change the law. The line was redrawn, and it was redrawn as you quoted essentially. But I would emphasize that the definition now says that the work is publicly performed if it is performed at a place open to the public, "or" at any place where a substantial number of persons outside a normal circle of family and friends are gathered. So it is in either instance, whether you consider the place is, in fact, generally open to the public, or if a substantial number of persons outside of the circle of friends and acquaintances would gather, then it's a public performance. The decision was taken in 1976 to redefine this line and to create a series of specific exemptions to the newly defined public performance right. The reason we have an issue now with respect to performance by VCR's is because the VCR was too new, the technology was too new in 1976, and so the issue really wasn't discussed at that point. Mr. KASTENMEIER. If I understand your statement, Mr. Oman, you do not take a position as to whether the bill or such an agreement is legislatively necessary or sound public policy. I think you take the position that it should not be considered a precedent if undertaken. Am I stating that correctly? Mr. OMAN. That is exactly our position, Mr. Chairman. Mr. KASTENMEIER. One thing I did not ask the authors is whether the same principle ought to apply to audio public performances or other than what would today be a VCR public performance. How do you feel about that? I take it you would prefer it to be as narrow as possible. Mr. OMAN. We would prefer it to be as narrow as possible. In fact, the bill does apply to VCR's. If, in fact, you're considering the |