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.-110/ However, [i]n this case, there is no corresponding 2. CONGRESS IN AND AS A COURT 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. 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 111/ 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 intenDifferent persons 112/ tions of those earlier legislatures. 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. 112/ 113/ Implicit in the separation United States v. Southwestern Cable Co., 392 U.S. 157, 170 (1968); Haynes v. United States, 390 U.S. 85, 87 n.4 (1967); United States v. Price, 361 U.S. 304, 313 (1959); Rainwater v. United States, 356 U.S. 590, 593 (1958). 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 courts have not found the statute to contain.114/ 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 the legislative from the judicial power. 115/ Even if one concedes for the moment - 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 "clarification" 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 - to use the transparent falsity of Congress' "finding" to impeach Congress' claim that what it is doing is "interpreting" the copyright law. Rather, Congress will, in all likelihood, be found to have taken property not only without compensation, but without exercising constitutionally appropriate authority. In judgments of law, unlike choices of social policy, Congress has nothing even approaching an unreviewable right to be wrong. C. PRIVACY AND PUBLICITY, FREE SPEECH AND A final category of argument might be invoked to claim that copyrightholders never really possessed a right to control this copying of their works. That argument would be based on a misunderstanding of the First Amendment and of Congress' relation to it. Copyrightholders' works, the argument goes, 116/ were lost to the "public domain" once they were broadcast on the public airwaves and into private homes. In fact, the argument continues, the First Amendment may actually require that the public be able to record televised works, and it at least permits Congress to promote the public's right to listen by allowing VTR owners freely to record these works and VTR manufacturers freely to profit from the desire of consumers to do so. 117/ 117/ Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). |