My understanding is that they are permanent. Certainly it is true in the World Series. It is true in the All Star Game. On this technique of instant replays, I would hope that maybe administratively a technique could be developed by which you could file something less than the full exhibition and get the protection.

Mr. KASTEN MEIER. Otherwise you would feel that you would need to fulfill all the requirements that a motion picture company, or indeed the television stations who have recorded performances of plays which are copyrighted, now fulfill?

Mr. PORTER. I certainly think so in principle. Whether the mechanics would be the same is something that I would feel could be worked out administratively.

Mr. KASTEN MEIER. Is the baseball experience in terms of the CATV about the same presently as that of the professional football leagues! That is to say, are the game of the week and other games picked up and retransmitted with great frequency?

Mr. PORTER. Mr. Chairman, I tried to get, in preparation for this hearing, something of a statistical or factual support of the extent of this penetration of CATV into minor league markets. I was unable to do so, so I have to rely primarily upon the informed judg. ment and opinion of the operating executives in baseball. I was told at the Dearborn meeting and by the commissioner's office that they have received widespread complaints of the impact of CATV, in upstate New York, in Pennsylvania, on the Pacific coast-that the CATV penetration has had an impact, at least they so believe, on gate receipts and box office attendance.

But I could not put a quantitative value on it.

Mr. KASTEN MEIER. The question of CATV versus the networks and other television corporations has arisen both in the courts and before the FCC, and indeed I think before the House and Senate Commerce Committees. Has organized baseball interested itself in any of these forums with respect to this question?

Mr. PORTER. We have not appeared before the Senate Commerce Committee. Baseball is not currently involved in any of the litigation. I think United Artists and CBS if I recall-on matters that are clearly within the protected category-are litigating those issues.

Baseball has made in years past repeated representations--I have done this personally-to the Department of Justice in order to get a preclearance to enact protective rules that would give us better control of the broadcasts and telecasts, but not with success.

Mr. KASTEN MEIER. Thank you, Mr. Porter.

Mr. Tenzer?

Mr. TENZER. Mr. Porter, when you say better control, you mean protection, don't you?

Mr. PORTER. Protection, yes, and by control I meant that we could specify the conditions under which broadcasts or telecasts could go into a particular area or community. I think it ought to be emphasized that baseball not only deals with the network, at this point, ABC, for the "Saturday Game of the Week," but likewise with individual sponsors. For example, the Yankees could not come into the package this year because of a contract they had with their sponsor.

Similarly, in Philadelphia they have a sponsor contract. Baseball has a number of individual contracts market by market as distinguished from football packages, so we have a little more complicated structure. We hope to emulate football some of these days and have a general package.

Mr. TENZER. There was one reference to Pennsylvania this morning by my distinguished colleague from Virginia, but that was perhaps a Freudian slip, because what we are talking about here is an effort to do away with piracy of telecasts. You don't mean to get rid of

the Pirates, with a capital "P." do you?

Mr. PORTER. No, I think they are still in contention.
Mr. TENZER. Of course I come from New York.

Mr. PORTER. I know that.

Mr. TENZER. I am not chauvinistic about that.

Mr. KASTENMEIER. Mr. Poff.

Mr. CAROTHERS. Mr. Chairman on your most recent questionMr. KASTENMEIER. Mr. Carothers, will you come forward?

Mr. CAROTHERS (continuing). Relating to the location of CATV's currently, we have a list here of CATV's either now in operation or applied for in and about all cities in which major professional sports operate. I think it would be helpful if this was added to the record. Mr. KASTENMEIER. Yes, if you will summit that, without objection it will be received and made part of the record.

Mr. CAROTHERS. Thank you.

(The document referred to follows:)

Baltimore: A CATV system is under construction in Wilmington; franchises have been granted in Gettysburg and York, Pa.; applications are pending in Hanover and Oxford, Pa., and Newark and New Castle, Del.

Cleveland: Applications are pending in Cleveland and 20 suburbs.

Green Bay Systems are operating in Marinette, Menomonie, and Oshkosh, Wis.

Los Angeles: Systems are operating in Los Angeles, Beverly Hills, Redondo Beach, Santa Monica, Burbank, Sun Valley, Laguna Beach, Malibu, Tujunga, Saugus, Thousand Oaks, and Palmdale; applications are pending in Arcadia, Fillmore, Long Beach, and Pasadena.

New York: The New York City Bureau of Franchises has recommended that two applicants be permitted to construct systems; applications are pending for all major communities throughout the States of Connecticut and Rhode Island; applications also are pending in Goshen, and Babylon, N.Y., and Hackettstown,

N.J.

Philadelphia: Upwards of half a dozen applications are pending to serve the city and Camden County, N.J.; CATV's are operating in Reading, Northampton, Bethlehem, and Pottstown, Pa.: a system is being constructed in Wilmington: franchises have been granted in Media, Pa., Buena and Bridgeton, N.J.; applications are pending in Chester, York, Coatesville, and Upper Darby, Pa., and Salem, N.J.

Pittsburgh: Several applications are pending in the city; CATV's are operating in Pitcairn, Brownsville, Kittanning, Beaver Falls, Connelsville, Ford City and Isabella. Pa., and Weirton, W. Va.; a system is being constructed in Latrobe, Pa.: franchises have been granted in Steubenville, Ohio, and Donora, Pa.; applications are pending in Washington, Greensburg, Uniontown, and Aliquippa,

Pa.

San Francisco: CATV's are operating in the city itself and Alamo, Danville, San Ramon. Sausalito, San Pedro. San Rafael. Martinez, and Walnut Creek, Calif.: an application is pending in Richmond. Calif.

Boston: Applications are pending in Worcester, Mass., and throughout Rhode Island and Connecticut.

Buffalo: Applications are pending in Niagara Falls and Erie, N.Y.
Denver: A franchise has been granted in Boulder.

Houston: Franchises have been granted in Baytown, Galveston, and Texas City.

Oakland: CATV's are operating in San Francisco, Alamo, Danville, San Ramon, Walnut Creek, San Pedro, Sausalito, San Rafael, and Martinez, and an application is pending in Richmond.

San Diego: CATV's are operating in San Diego itself, Santeo, El Cajon, Chula Vista, and Le Mesa, and an application is pending in Imperial Beach. Cincinnati: An application is pending in Dayton.

Mr. POFF. Mr. Porter, I understand that you endorse the proposed amendment to section 101 defining these tapes as motion pictures. Do you also endorse the amendment to section 411 concerning eligibility for statutory damages?

Mr. PORTER. Yes; I think as a matter of practical enforcement that there must be those sanctions, and I would assume that it would follow that any of the protected areas that are covered by the bill would be subject to the punitive provisions.

Mr. POFF. I asked that question specifically because I do not see anything in your formal statement addressed to that.

Mr. PORTER. I tried to make it short, but we agree with the suggestion that it should be included.

Mr. POFF. The burden of your formal statement, as I have skimmed through it while you were speaking, seemed to me to be that the present draft of the bill could result in an anomalous not to say ridiculous situation, in wihch the industry, and I am speaking of the industry which you represent, could protect itself from CATV_rebroadcast simply by recording on video tape and transmitting a few seconds later the live broadcast, whereas if the industry undertakes to transmit simultaneously with the making of the tape, then it does not enjoy this protection.

Mr. PORTER. Correct. I think this is, as so often happens, where technology has outstripped our legal conceptual attitudes. This is an effort, it seems to me, to accommodate technology to an area that is entitled to a property right, that is entitled to protection.

Mr. POFF. Of course I know nothing about the technology, but I would assume that it would be very expensive to follow that procedure in order to get the protection you seek.

Mr. PORTER. It certainly would. It would take the immediacy out of it. I assume technically you could have the same fidelity and definition upon a rebroadcast, but it would be a useless and expensive cere

mony.

Mr. POFF. I must credit you and those representing your industry with more ingenuity than I might have in that field, but I can think of one thing that you might do which would make it extremely difficult for the CATV people to exploit your product. The recent use of instant replays of a particular play in a football game would become a tangible expression; would it not?

Mr. PORTER. Indeed.

Mr. POFF. And if it were used, under the language of the bill as now written, that would constitute an infringement; would it not? Mr. PORTER. Well, I think you could construe it that way, Mr. Poff, but it seems to me that this is something of a gadget of enforcement and that the problem should be faced up to by the Congress. If you can do this through the instant replay, why can't we do it for the package?

Mr. POFF. I understand, but I am simply saying that this would constitute a technical infringement and if you were eligible for statutory damages you could proceed to collect them if there was only a minor infringement.

Mr. PORTER. That is right.

Mr. POFF. I think I understand it. I appreciate your testimony. Mr. PORTER. Thank you, thank you, Mr. Chairman.

Mr. KASTEN MEIER. Thank you, Mr. Porter. That then concludes this morning's testimony and our next and last hearing session will be tomorrow morning at 10 o'clock, at which time we will hear the chairman of our committee, Mr. Emanuel Celler, and Mr. Abraham Kaminstein, Register of Copyrights.

The subcommittee will stand adjourned until 10 o'clock tomorrow morning.

(Whereupon, at 11:20 a.m., the subcommittee adjourned, to reconvene at 10 a.m., Thursday, September 2, 1965.)