Copyright Infringements (audio and Video Recorders)

when the taking serves a public purpose.

The Constitution

nowhere sanctions the use of the legislature's power to take

10/

property for merely private purposes.

Indeed, one of the

reasons the takings clause requires the public to pay for what it takes is to help ensure that what is paid for benefits the

public, 11/

The

since the public will soon tire of paying for purely private acquisitions that do not benefit the commonweal. copyright-repealing bills before the Congress, as applied to copyrights already in existence at the time such bills take effect, appear to satisfy neither of these two indispensible

prerequisites.

The retroactive repeal of existing copyright protection cannot be sustained as an exercise of the independent power of Congress to create copyrights, because it does the very opposite. And, as will be shown below, the First Amendment does not require or empower Congress to revoke these copyrights, and in fact may forbid it to do so.

The proposed bills are also open to the serious charge that they take the property of copyrightholders for purely private reasons, precisely the sort of "robbery" that the

12/

10/

See Missouri Pac. Ry. v. Nebraska, 164 U.S. 403 (1096) (compensation cannot cure the unconstitutionality of a taking for a private purpose); accord, Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55 (1937) (Brandeis, J.).

11/ L; Tribe, American Constitutional Law, $58-5, 9-2 (1978).

United States Constitution, Article I, $8.

13/ This much is indeed

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takings clause is designed to prevent. explicit in their very language, which allows VTR owners freely to copy ance-protected materials for "private use. Once the copies are sold or traded for value they benefit someone other than the primary copyright infringer 15/ the law no longer exempts them. Furthermore, it can hardly

that is, when

be contended that the persons who will be aided by the proposed

bills are the public at large. Only relatively well-to-do 16/

television owners can now afford Betamax, and the claim

that Congress intends to aid all those who will eventually own such costly equipment is suspect because Congress will be passing the measure when only the wealthier strata of the population possess these machines machines whose very use

will likely reduce the amount of quality television programming available, to the detriment of all television viewers. 17/

The special benefits that these bills would bestow on such foreign corporations as Sony also make suspect the claim they they are designed to aid the American public. While

13/

See Webb's Fabulous Pharmacies v. Beckwith, 101 S.Ct. 446; 452 (1980) ("[A] State, by ipse dixit, may not transform private property into public property without compensation. This is the very kind of thing that the Takings Clause of the Fifth Amendment was designed to prevent.") (unanimous decision).

15/

Id. The bills cited in note 1, supra, protect only noncommercial recording.

16/

The average unit costs between $650 and $1300.

is permitted

special aid to distressed domestic firms and their employees as in the case of Chrysler or Lockheed, where the entire American public might suffer if the imperilled giant fell

Sony is in no financial distress and is, of course, not even a domestically-based corporation. Takings for purely private purposes, it must be stressed, are constitutionally... forbidden even where compensation is provided. And, although

"not

the courts characteristically defer to the judgment of the legislature as to the existence of public purposes for its 18/ regulatory actions in economic matters, such deference is total19/ and readily turns to distrust where, as here, the public has not been willing to pay for what some few private 20/ parties have been given. for their property, in short, Congress would better ensure that the proposed exception to the copyright laws will not be found unconstitutional as a private taking. Indeed, the fact that Congress provides compensation to those from whom it takes property may be its only proof in such a case as this that the exception serves a public purpose within the ken 'of Congress' power.

By compensating copyrightholders

18/

19/

Berman v. Parker, 348 U.S. 26, 32 (1954).

See, e.g., Allied Structural Steel Co. v. Spannaus, 438 438 U.S. 234 (1978); U.S. Dept. of Agriculture v. Moreno, 413 C.S. 528, 529, 533 (1973).

20/

Cf. United States Trust Co. of New York v. New Jersey, 97 S.Ct. 1505, 1520 (1977) (judicial oversight must be tightened when "self-interest is at stake").

It should be added that, if Congress adopts a royalty

scheme where copyright owners are paid some appropriate
fraction of the value of each VTR or blank tape sold to con-
sumers, the odds that one of these bills could withstand con-
stitutional attack are also enhanced because such a scheme
burdens those who actually profit from the infringement of
the copyright rather than burdening the public at large.
Such a plan would also avoid the need to increase taxes or
cut other programs in order to pay for the property Congress
has chosen to bestow on a small segment of the public in a
period of tight budgets and broad national sacrifice.

Whether or not these two high hurdles could be overcome, those unfamiliar with the legal use of the term "property" may argue that a copyright, whatever sort of animal it may be, is not "property" at all, and that Congress thus cannot be required to pay for having taken one for that matter, compelled to adduce a public purpose for such a taking. After all, you can't plant corn or put up a house on a copyright; copyrights make unusual Christmas presents. But these doubts begin to fade with a moment's reflection, and they evaporate altogether with a minute's research. There can be no mistaking 21/ that a copyright is property in the strictest legal sense. 21/

See J. Cribbet, Principles of the Law of Property 4 (1962); T. Fields Jr., Intellectual and Industrial Property in a Nutshell, 77 W.Va.L.Rev. 525 (1977); 21 Santa Clara L. Rev. 49, 52 (1981); 8 N.Y.U. Rev. L. & Soc. Change 45, 47 (1978-79).

With a copyright comes "the right to dispose of a thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it.

22/

Property rights

in intangibles have been recognized at common law since the
sixteenth century; rights specifically in copyright have been
23/
enforced since early in the seventeenth century. And in-
1912 Congress extended the protection of federal copyright law
to the new motion picture industry because "the money invested
therein is so great and the property rights so valuable.
The fact that copyrights are incorporeal does not deprive them
of their nature as species of property. They are, of course,
man-made and are therefore different from land, but all manner
of protectable property including automobiles and, indeed,

the Betamax itself