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walls of one's home, or that one may freely use gas,

electric and water services merely because those

utilities have sent their property into private homes. Thus, while it may be difficult and certainly undesirable to enforce copyright infringement liability against

an individual home taper, this difficulty does not render lawful an otherwise infringing act.

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Although home audio taping constitutes copyright infringement under current law, there is in fact no

adequate mechanism to compensate copyright owners whose On the contrary, a

works are thereby appropriated.

series of legal actions to recover damages from

individual home tapers would be both undesirable and impractical. Legal action against manufacturers and distributors of audio recorders and tape would be almost as difficult. Nor is there any assurance that such litigation would result in the creation of a fair, workable and enforceable royalty system for the future.

RIAA therefore believes that the home taping problem should be resolved with comprehensive legislation in the Congress, not through piecemeal litigation in

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by the Court of Appeals in the "Betamax" case, when

it indicated that a continuing royalty on the sale of recording equipment and tape "may very well be an acceptable resolution in this context. 26/ As Professor Nimmer points out, such a royalty system would negate any concerns with the privacy implications of legal action against individual home tapers, while at the same time protect the interests of copyright owners. (Appendix Seven, at 26-31.) And while noting that such a royalty system could be imposed by judicial decree, he adds that the "far more efficient" approach would be for such a system to be adopted by legislation. (Id. at 30.)

25/

Professor Nimmer's conclusion, with which

The courts themselves evidently agree. The District Court in the "Betamax" case stated that:

26/

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"[T]he full resolution of these issues
is preeminently a problem for Congress
The choices involve economic,
social and policy factors which are
far better sifted by a legislature.
The possible intermediate solutions
are also of the pragmatic kind
legislatures, not courts, can and should
fashion." Universal City Studios Inc.
v. Sony Corp. of America, 480 F. Supp.
at 469. See also Universal City Studios
Inc. v. Sony Corp. of America, 659
F.2d at 971.

Universal City Studios Inc. v. Sony Corp. of America, 659 F.2d at 976.

36

RIAA strongly concurs, is that "[t]he proposed Mathias

Amendment No. 1333 and Edwards Bill H.R. 5705 would

accomplish exactly such a salutary objective." at 31.)

IV. BASIC CONSTITUTIONAL PRINCIPLES MANDATE
COMPENSATION FOR HOME AUDIO TAPING

(Id.

The purpose of the home taping legislation introduced by Senator Mathias and Representative Don Edwards is not merely to compensate copyright owners for the economic losses attributable to home audio taping, nor merely to provide an enforceable remedy for the infringement of existing legal rights, important though these purposes are. It also implements certain basic constitutional principles and property rights.

The first basic principle served by this

legislation is found in the Copyright Clause of the U.S. Constitution.

That clause authorizes Congress

to establish a copyright system that will reward creators for the use of their works and thereby stimulate the creation of new works for the public benefit. Uncompensated home taping offends that constitutional principle because it denies creators a just reward for the use of their works. And by denying creative artists their just compensation, home taping frustrates the

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copyright system and thereby works to diminish the

quantity and diversity of new creations that can be offered to the public.

The second basic principle served by this legislation is the right to compensation for the taking of private property. Home taping involves the invasion of legally protected property the exclusive right

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to reproduce a copyrighted work

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belonging to the

owners of copyrights in sound recordings and musical

works. Without any compensation, home taping is nothing more than a "home taking" of private property.

detail.

We next discuss each of these points in more

A. The Constitutional Basis of
Copyright Protection

In considering the issue of home taping, it

is important to bear in mind that our American copyright system is based not merely upon statutory enactment

but upon the United States Constitution itself. Article One, Section Eight of the Constitution authorizes the

Congress:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

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"The economic philosophy behind the
clause empowering Congress to grant
patents and copyrights is the conviction
that encouragement of individual effort
by personal gain is the best way to
advance public welfare through the
talents of authors

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In other words, the purpose of affording

copyright protection is both to reward the creator and to encourage the production of literary and artistic works for the public benefit. As the Supreme Court has put it:

But

"The immediate effect of our copyright
law is to secure a fair return for
an 'author's' creative labor.
the ultimate aim is, by this incentive,
to stimulate artistic creativity for
the general public good. 'The sole
interest of the United States and the
primary object in conferring the
monopoly . . . lie in the general
benefits derived by the public from
the labor of authors.' 287

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The musical arts in our country have flourished under

this system, and as a result, the consumer has enjoyed

27/ Mazer v. Stein, 347 U.S. 201, 219 (1954).

28/

Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

96-601 0-82-48

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