EDISON BROS. STORES, INC. v. BROADCAST MUSIC, INC. tor of a food shop who installed and played a radio with four speakers or the premises ɔf his business was required to pay licens ing fees for the music thus provided for his patrons. The Court, holding that in so using a radio Aiken was not "performing" within the meaning of the Copyright Act, ruled that he was not. The House Report on the 1976 amendments to the Copyright Act suggests that the section 110(5) exemption was added to the Copyright Act in response to the Court's opinion in Aiken. H.R.Rep. No. 1476. 94th Cong., 2d Sess. 86-87 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5700-01. The Report indicates that the new exemption was intended to supersede the Court's holding in Aiken that the playing of a radio in a commercial establishment open to the public is not a "performance," and thus not an infringing act. At the same time, the Report suggests that on the facts of Aiken the Court's decision exempting Aiken from the payment of licensing fees was appropri ate and deserving of codification. The language from the Report upon which BMI focuses is this: "the Committee considers this fact situation [in Aiken] to represent the outer limit of the [homestyle] exemption, and believes that the line should be drawn at that point." Id. at 87, reprinted in 1976 U.S.C.C.A.N. at 5701. Even accepting arguendo the untenable proposition that we would give greater weight to what a House Committee "considers" than to the text the entire Congress enacts and the President signs, BMI neglects to point out that the "fact situation" described in the Report, which immediately precedes the 5. Not only were square footage figures omitted from the Supreme Court's opinion in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151. 93 S.Ct. 2040. 43 L.Ed.2d 34 (1975), they also are nowhere to be found in either of the opinions from the couns below. Twentieth Century Mu sic Corp. v. Aiker. 300 F.2d 127 (3d Cir.1974) :subsequent history omitted): Twentieth Centu Music Corp. v. Aiken. 356 F.Supp. 271 (W.D.Pa.1973) subsequent history omitted). Apparently, the dimensions of Aiken's shop first oppeared in a published opinion in Sailor Music v. Gup Stores, Inc., 316 F.Supp. 923. 924 (S.D.N.Y.), aff'd, 668 F.2d 84 (2d Cir.1981), cert. denied, 136 U.S. 943, 102 S.Ct. 2012. 72 L.Ed.2d 465 (1982). filed some five years after the enactmen: of section 110(5). There is no indication 1423 above-quoted language. makes no mention: of square footage: "Under the particular fact situation in the Aiken case. assuming: a small commercial establishment and the use of a home receiver with four ordinary loudspeakers grouped within a relatively narrow circumference from the set, it is intended that the performances would be exempt under clause (5)." Id. Further, the "fact situation" as described in Aiken. makes no mention of the square footage of Aiken's shop: The respondent George Aiken owns and operates a small fast-service food shop in downtown Pittsburgh, Pa., known as "George Aiken's Chicken." Some customers carry out the food they purchase, while others remain and eat at counters or booths. Usually the “carryout" customers are in the restaurant for iess than five minutes, and those who eat there seldom remain longer than 10 or 15 minutes. A radio with outlets to four speakers in the ceiling receives broadcasts of music and other normal radio programing at the restaurant. Aiken usually turns on the radio each morning at the start of business. Music, news, entertainment, and commercial advertising broadcast by radio stations are thus heard by Aiken, his employees, and his customers during the hours that the establishment is open for business. Aiken, 422 U.S. at 152, 95 S.Ct. at 2042.5 BMI directs our attention to several opinions where, BMI maintains, the square 1ootage of the establishment attempting to qualify for the exemption was discussed." of the source of the information in the Sailor opinion. 6. See, eg., Broadcast Music, Inc. v. United States Shoe Corp., 673 F.2d 816 (9th Cir.1982) (square footage of the defendant stores was not even mentioned): Broadcast Music, inc. :. Jeep Sales & Serv. Co., 747 F.Supp. 1190 (E.D.Va.1990); Hickory Grove Music v. Andrews, 749 F.Supp. 1031 (D.Mont.1990): Crabshaw Music v. K-Bob's of Ei Paso. Inc.. 744 F.Supp. 763 (W.D.Tex.1990): Merrill v. Bill Miller's Bar-B-Q Enters., Inc.. 688 F.Supp. 1172 (W.D.Tcx.1988); Merrill v. County Stores, Inc., 669 F.Supp. 1:64 (D.N.H.1987); international Korwin. Corp. v. Kowalczyk, 665 F.Supp. 632 (N.D.Ili.1987), aff'd, 855 F.2d 375 1424 954 FEDERAL REPORTER. 2d SERIES Having reviewed these cases. we reject as totally inaccurate BMI's assertion that "in virtually every case the excessive squarc footage of the defendant's store aione was found to disqualify the defendant from invoking the Section 110(3) exemption." Erief of Appellant at 27 n. 14. The fact is that in none of these cases did the court base its decision solely on the square footage of the stores without considering the nature of the equipment, i.e.. whether it was "homestyle." nor did any of them declare that they would have reached the same result based only upon the square footage of the infringing stores. More over, none of the cases cited has any binding precedential force in this Circuit. The closest we come to Eighth Circuit precedent on this issue is this Court's dieta in National Football League v. McBec & Bruno's, Inc.. 792 F.2d 726 (8th Cir.1986), in which the challenged action was the receipt via satellite antenna of blacked-out NFL games and the playing of the broadcasts on television sets in bars. Although the Court noted that "[t]he factors listed in the legislative history do speak of the size of the area where the transmission will be played," id at 731. the Court said nothing about a maximum square footage. Further, the Court stated that the 1976 legislative history indicates that "to decide whether an infringement had occurred, the crit ical question instead would be the type of equipment used by the putative infringer." Id at 730. The Court also quoted this language from the legislative history of the exemption: the clause would exempt small commercial establishments whose proprietors merely bring onto their premises stan (7th Cir.1988); Rodgers v. Eighty Four Lumber Co., 617 F.Supp. 1021 (W.D.Pa. 1985); Springs. teen v. Plaza Roller Dome, Inc., 602 F.Supp. 1113 (M.D.N.C.1993): Sailor Music v. Gap Stores. Inc., 516 F.Supp. 923 (S.D.N.Y.), aff'd, 668 F.2d 84 (2d Cir.1981), cert. denied, 456 U.S. 945, 102 S.CL 2012, 72 L.Ed.2d 468 (1982). 7. If BMI wishes to base its argument here on language from the legislative history, it should also note the opening remarks of the portion of the House Report that discusses section 110(5): Unlike the first four clauses of section 110. clause (5) is not to any extent a counterpart of dard radio or television equipment and turn it on for their customers enjoy. ment, but it would impose liability where the proprietor has a commercial 'sound system installed or converts a standard home receiving apparatus ... into the equivalent of a commercial sound sys tem. Id. at 730-31 (quoting H.R.Rep. Nɔ. 1476. 94th Cong.. 28 Sess. 37 (1976), reprinted in 1976 U.S.C.C.A.N. 5659. 5701). Clearly. this passage from the legislative history directs attention to the quality of the sound system used, and not to the square footage of the establishment using it.i Although the legislative history is interesting, it is beside the point; we need onig look to the statute itself. If Congress intended to impose a physical size limitation on the establishment qualifying for the exemption, it might easily have written it into the statute. But it did not; it did not even qualify the exemption by limiting its availability to a "smail commercial establishment," the language of the legislative history. The statute focuses on the equip ment being used, and so must we. This Court is not a legislative body, and it has no authority to rewrite the statute. [4] The same observation applies fully to BMI's next argument: that the legisiative history supports its contention that a section 110(5) exemption is available only if "the business [does] not have the ability to pay for its use of music or is not] of sufficient size to justify, as a practical matter, a subscription to a commercial background music service." Brief of Appellant at 11. The legislative history BMI relies upon is this: the "for profit" limitation of the present stat ute. It applies to performances and displays of all types of works, and its purpose is to exempt from copyright liability anyone who merely turns on, in a public place, an ordinary radio or television receiving apparatus of a kind commonly sold to members of the 'public for private use. H.R.Rep. No. 1476, 94th Cong.. 28 Sess. 56 (1976), reprinted in 1976 U.S.C.C.A.N. 3659. 3700 (emphasis added). That summary of the CX emption makes no mention of any size or finan cial restrictions. EDISON BROS. STORES. INC. v. BROADCAST MUSIC. INC. It is the intent of the conferees that a H.R.Conf.Rep. No. 1733. 94th Cong.. 2d Sess. 75 (1976) (citation omitted), reprinted in 1976 U.S.C.C.A.N. 5610. 5816.* The intent expressed in the report of the House conferees is irrelevant when the statutory language does not say or even imply that the size or financial wherewithal of the establishment has a bearing on eligibility for the homestyle exemption. As with the square footage requirement that BMI would have us read into the exemption. the opinions of other courts that mention this language do not persuade us that, even though Congress enacted the law without any such requirement. it truly intended a size-and-financial-means test to be a part of the statute. See Claire's Boutiques, 949 F.2d at 1492 ("no case has relied solely on the financial size or ability of the defendant as a reason for denying the application of § 110(5)"). Moreover, we surmise that any such requirement would surely run into constitutional probiems for vagueness: who would determine when an establishment is "of sufficient size to justify a subscription to a commer cial background music service," and what criteria would they use? ... We hold that 17 U.S.C. § 110(5) does not require that the square footage of a qualifying establishment be less than 1055, with fewer than 620 square feet open to the 8. BMI argues for expansion of this putative re quirement and suggests that "of sufficient size to justify a subscription to a commercial background music service," the language found in. the legislative history (and only in the legislative history), equates with “abie to afford a commer. cial background music service or to pay the license fee to a performing rights organization." See Brief of Appellan: at 29 ("it is beyond dispute that Edison has the ability to compensate the creators and publishers of the music that it uses in its stores"). This expansion would take 354 F.20-32 1425 public; nor does it require that the entity's ability to pay for a commercial background music service be considered. The focus of the statute is on the equipment in use. and as each of Edison's unlicensed stores uses only homestyle equipment each qualifies for the homestyle exemption. III. Finally, BMI argues that the District Court's decision defeats the purpose of the Copyright Act and conflicts with this country's international treaty obligations. We find no merit in BMI's contention that the District Court's interpretation of the stat ute expands the scope of the homestyle See Aiken, 422 U.S. at 163, 95 S.Ct. at 2047 exemption beyond the intent of Congress. ("exaction of such multiple tribute by authorizing the sale of numerous licenses for a single broadcast of a copyrighted work] would go far beyond what is required for the economic protection of copyright owners. and would be wholly at odds with the balanced congressional purpose behind" the exclusive right of public performance) (footnote omitted). If Congress had intended the exemption to be limited so as to exclude large retail chain stores such as Edison, it might easily have shown that intention in the language of the statute. It did not and we will not assume that the omission was a mere oversight on the part of the legislators. We note there is here no contention, nor could there plausibly be. of a "scrivener's error' producing an absurd result." Union Bank, U.S. at 112 S.Ct. at 534, 116 L.Ed.2d at 525 (Scalia. J.. concurring). BMI's argument that this decision inter feres with the international treaty obligations of the United States also fails. us even further afield from the statutory lan guage. The Eighth Circuit dicta BMI quotes as support for its argumen: says nothing about ability to pay: "the question as a practicai mal. ter is whether the defendant establishment is of the size and kind that Congress would expect !0 obtain a license through a subscription music Na: Football League v. McBee & Bruno's, Inc., 792 F.2d 726. 731 (8th Cir.1986) (decision denying section 110(5) exemption based primarily on the type of equipment used). service. 1426 954 FEDERAL REPORTER, 2d SERIES The treaty in question is the international BMI asserts that the District Court's interpretation of section 110(5) to provide shelter for Edison under the homestyle exemption expands the scope of the exemp tion to such a degree that it renders section 110(5) in violation of the United States' treaty obligations under Article 11bis of the Berne Convention. Under that article, authors of artistic works have exclusive rights to authorize "the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work." Berne Convention, art. 11bis(iii), S. Treaty Doc. No. 27, 99th Cong., 2d Sess. 44 (1986). The flaw in BMI's argument is that the District Court's interpretation of section 110(5) does not expand the homestyle exemption, but merely declares that the statutory language means what it says. We cannot presume that Congress, in enacting this language, intended something else, and we know that Congress declared its handiwork to be consistent with the Berne Convention. Congress thus declared the public policy of the United States and, for us, that is the end of the matter. Congress was emphatic that the United States' participation in the Berne Convention should not give rise to an expanded claim of copyright protection. No right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the provisions of the Berne Convention, or IT U.S.C.A. § 104(c) (West Supp.1901). I The judgment of the District Court:s affirmed. KEY NUMBER SYSTEM STATEMENT OF HON. CRAIG THOMAS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WYOMING Mr. THOMAS. Thank you very much, Mr. Chairman. I appreciate the opportunity to appear before your committee. As you know, we have introduced the bill H.R. 3288, which is designed to clarify the situation with respect to music used in these particular kinds of establishments in this particular kind of a way. It is designed to amend the 1976 Copyright Act to provide places of public accommodation with an exemption from licensing fees relating to radio and television used in these establishments. Currently, the law is vague and has, as the chairman has pointed out, caused a good deal of concern, and litigation and uncertainty. The issue is complex. No one would dispute the right of performers to be properly compensated for their music or their compositions. However, the current law has caused confusion and hardship for many business owners in my State and indeed across the country. Every bar, restaurant and other establishment that serves food and drink in places of public accommodation has at one time or another been charged by the performing rights societies for television and radio programming they present in their establishments. Actually, in the past I had some direct experience with this. I had a motel, full-service motel, so I have some experience with it. Unfortunately, the fees that are charged are confusing and ambiguous manner, and it is difficult for either the owner or the collector to know where we are. I've heard from folks across Wyoming and indeed across the country that have experienced this trouble. Our bill is designed to clarify the law. It would exempt small business operators from being charged fees for playing radios and televisions that are commonly used in private homes. In fact, Congress acted on this issue during the 94th Congress. The conference report accompanying the 1976 Copyright Act discusses at length the need to exempt from copyright liability businesses that merely operate ordinary radio and television apparatus in their establishments. It is important to note a number of specific provisions in the bill that Ed has already pointed out. This legislation is designed to address the unique problem that restaurant and tavern owners are experiencing, clarifies the law so those individuals can operate their business without fear of costly litigation. Important to note, the bill only deals with performances which are incidental to the main purpose of the establishment, and does not cover transmission where a fee is charged in order to hear the broadcast. Tapes, jukeboxes, video recordings, are not-are not-covered in the bill. The bottom line is the legislation is designed to help small business owners resolve a difficult problem. It will clarify the law. We look forward to working with members of the committee to making this a reality in simplifying the rules for businessmen. Thank you again for allowing us the chance to appear. [The prepared statement of Mr. Thomas follows:] |