Federal Rules of Appellate Procedure, Rule 35 ....... Congressional Reports Nus. 79-3683, 79-3735, 79-3762 IN THE United States Court of Appeals FOR THE NINTII CIRCUIT UNIVERSAL CITY STUDIOS, INC., a corporation, dba UNIVERSAL TELEVISION and UNIVERSAL PICTURES, and WALT DISNEY PRODUCTIONS, a corporation. Plaintiffs, Appellants and Cross-Appellees. SONY CORPORATION OF AMERICA, a corporation, THE SONY CORPORATION, a corporation, CARTER HAWLEY HALE STORES, INC., a corporation, ASSOCIATED DRY GOODS CORPORATION, a corporation, FEDERATED DEPARTMENT STORES, INC., a corporation, HENRY'S CAMERA CORPORATION, a corporation, DOYLE dane bernBACII, INC., a corporation, and WILLIAM GRIFFITIIS, Defendants, Appellees, Cross-Appellants and Petitioners. PETITIONERS' BRIEF. Introduction. The panel's opinion in this case takes a limited dispute between the parties and uses the case (with no pretense of adhering to, or being confined to, the facts) as a vehicle to make lawbreakers out of every American consumer (over 3 million families to date, and increasing daily) who uses any video tape recorder (VTR) to record any television program no matter what the program and no matter what use is made of the recording. The opinion also makes the manufacturer, distributor and retailer of the VTR strictly and contributorily liable, along with the consumer, every time such a recording is made. The opinion is so blatantly erroneous that even laymen see its fallacies and deride it (eg., Appendix A hereto). The opinion must be withdrawn lest an industry be destroyed and the public be deprived of one of the most valuable technological achievements of the decade. Free off-the-air television in the United States is broadcast or transmitted by at least 986 stations (another 1(XX)1500 are coming) pursuant to licenses which have been granted by the Federal Communications Commission ("FCC'') for the purpose of furthering the public interest, convenience, and necessity" (47 U.S.C. § 309(a)); and lawfully is received by the public because it is broadcast or transmitted . . . for the use of the general public . . (47 U.S.C. § 605). For many years such public TV reception has been both by use of the television set for instanlaneous viewing and by use of the VTR for later ("timeshift'') playback and viewing. Both the television set and the VTR are FCC licensed receivers. This case is concerned only with such home use recording of free off-the-air television (district court opinion — 480 F.Supp. 429, 432-433, 442, 454). The home use recording issues in this case were whether any one or more of just 32 specific home recordings of the —2— two appellants' works constituted copyright infringement and, if so, whether any of certain appellees (the VTR_manufacturer, distributor or national advertiser) was liable therefor. The opinion of the Ninth Circuit panel refers to the district court's opinion as "elaborate, painstaking, and thoughtful" (p. 5251), acknowledges that the district court "carefully outlined the facts" (p. 5252), and then proceeds to overlook and misapprehend virtually every finding of fact made by the district court, reviewing none of the 32 specific instances involving appellants' works but rather making sweeping holdings that all "home video recording constitutes copyright infringement" and "that appellees are liable for such use"' irrespective of the circumstances — and remands the case to the district court for a "consideration of the appropriate relief" stating, inter alia, that the district court should "reconsider" its determination "that an injunction would not be an appropriate remedy (e.g., because 'An injunction would deprive the public of a new technology capable of noninfringing uses' - see 480 F.Supp. 464]" and that "In fashioning relief, the district court should not be overly concerned with the prospective harm to appellees" and "the continued profitability of appellees' businesses is of secondary concern. (pp. 5265-6). The Supreme Court can grant certiorari at this stage of the case or it can wait until after the remand (p. 5266). If issuance of a mandate to the district court is not stayed by the Supreme Court's grant of a writ of certiorari at this stage of the case, and if this petition for rehearing is not granted, the panel's opinion may stand for years as binding precedent in this Circuit wherein all future actions against VTR manufacturers and dealers can and presumably will be brought. The first to be crushed under appellants' heel will be appellees and the Betamax brand of VTR. Then will come the elimination of all VTRs, as appellants carry out their threat to divide and conquer (Appellants' Opening Brief p. 2, Appendix A). And then will come implemen -3 tation of appellants' threat to use the opinion in furthering their goal to climinate audio tape recording of radio broadcasts (C.R. 19/192, pp. 30-31). A. The Question of Contributory Infringement. The panel's opinion is the first judicial decision in American legal history to hold the manufacturer, distributor or retailer of a device liable as a contributory infringer of copyright when someone used that device in the course of direct infringement. First, the opinion states that videotape recorders are intended "for the primary purpose of reproducing television programming" and that "Virtually all television programming is copyrighted material"'; then, based thereon, the opinion makes the grossly erroneous non-sequitur holding that "Therefore, videotape recorders are not 'suitable' for substantial noninfringing use." (p. 5264). The opinion thus contravenes numerous district court findings of fact that "The videotape recorder, like a[n] [audio] tape recorder, is a staple item of commerce. Its uses are varied'', that the VTR is also used for purposes where no infringement could be alleged (e.g., recording material which is not copyrighted or where permission to record is given)'', etc. (480) F.Supp. 458, 464, 465, 468) travention which can be explained only if the panel overlooked the massive evidence at trial of televised noncopyrighted material or material whose owners consented to the copying" (480) F.Supp. 468) which is the subject of extensive home recording. a con Exemplar consenting owners of copyrighted televised programming included Major League Baseball, the National Football League, the National Hockey League, the National Collegiate Athletic Association, National Religious Broadcasters, Faith Center, the Bureau of Mass Communications of the New York State Education Department, the Center for Library Media and Telecommunications of the Board |