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Clte as 954 F20 1417 Beh Cir. 1992) COP of a food shop who installed and played above quoted language. makes no mencion: ü radio with four speakers or the premises of square footage: "Under the particular or his business was required to pay licens. fact situation in che dicen case. assuming:

lees ior the music thus provided for his a small commercial establishment and the atrons. The Court, holding that in so use of a home receiver with four ordinary using a radio siken was not "performing" loudspeakers grouped within a relatively within the meanir.g of the Copyright Ac:, narrow circumference from the set, it is vied that he was got. The House Report intended that the performances wouid be or. ihe 1976 amendments to the Copyright exempe under clause (5)." Id. Further, Aci suggests that the section 110(5) exemp- the "fact situation" as described in diken. tion was added to the Copyright Act in makes no mention of the square footage of response to the Court's opinion in Aiken.

diken's shop: R. Rep. No. 1476. 94th Cong., 2c Sess. The respondent George Liken owns ES-87 (1976), reprinted in 1976 and operates a small fast-service food C.S.C.C.d.. 5659, 5700_01. The Report shop in downtown Pittsburgh, Pan, indicates that the new exemption was in. known as "George Hiken's Chicken.” tended io supersede the Court's holding in Some customers carry out the food chey fixen that the playing of a radio in a purchase, while others remain and eat at commerciai establishment open to the pub- counters or booths. Usually the "carti üs is noi o “performance," and thus not an oui" customers are in the restaurant for infringing act. At the same time, the Re. iess than five minuies, and those who eat pori suggests that on the facts of Aiken there seldom remain longer than 10 or 15 the Court's decision exempting Aiken from minutes. the payment of licensing fees was appropri- A radio with outlets to fou speakers aie and deserving of codification.

in the ceiling receives broadcasts of muThe language from the Report upon

sic and other normal radio programing at which BMI focuses is this: "the Committee the restaurant Aiken usually turns op considers this fact situation in Aiken} to

the radio each morning at the start of : represent the outer limit of the [homestyle)

business. Music, news, entertainment, exemption, and believes that the line should and commercial advertising broadcast by ve drawn at that point" id. at 87, reprint

radio stations are thus heard by Aiken, ed in 1976 U.S.C.C.AX, at 5701. Even his employees, and his customers during accepting arguendo che untenable proposi

the hours that the establishment is open sion that we would give greater weight to

for business. what a House Committee considers" than Aiken, 422 U.S. at 152, 95 S.C. at 20-42.5 ic che text the entire Congress enacts and BMI directs our attention to several opinche President signs, BMI aeglects to point ions where, BMI maintains. the square out that the "fact situation" described in iJotage of the establishment attempting to the Report, which immediately precedes the quality for the exemption was discussed. 3. Not oniv ut!= square footage figures omincd of the source of the information in the Sailor

liom the Supreme Coun's opinion in Twenticik opinion.
Century Music Corp. v. nikon. 422 W'.S. 151. 93
S.C.. 2040. -5 L.Ed.2: 84 (1975). they also are
.owhere :c be found in eithe: of the opinions

6. Scc, 4E.. Broadcası Müsis, Inc. v. Linires States from the couns below. Twentieth Century Maso

Shoc Corp., 678 F.2d $16 (9in Cir.1982) (squart sic Corp. w. Aixer. 500 F.2d 127 (3d Cir.1973)

footage of itc dcicndant stores was not cven subsequent history omirred): Twentieth Centu.

mentioned): Bruudcast Music, Inc. 3. Jeep Sales Music Corp: Aiken 3Só F.Supp. 271

& Soru. Co., 747 F.Supp. 1190 (ED.Va. 1990); W.D.Pa.1973) (subscqucnt history omitted).

Hickory Grove Musie v. Andrews, 749 F.Supp. .Appareatz: the dimensio: oi Aiken's shop firsi

1031 (D. Mont. 1990): Crabshaw Muzsv. K-Bob's öppeared in a publismcd opinioa in Sar!9r Music of Ei Paso. Ins.. 744 F.Supp. 763 (14.07. Tex.1990): v. Gup Scores. Inc., 316 F.Supp. 923. 924 Merrill v. Bill Miller's Bar-20 Enics, Inc. 688 S.D.N.Y.). affä. 668 F.2d 84 (20 Cir.1981). col. F.Supp. 1172 (W.D.Tcx.1988): Merril ». County ceniec, 336 U.S. 943. 102 S.Ct. 2012. 72 L.Ed.2d Sioras, Inc., 669 F.Supp. 116+ (D.X.H.1987): In365 (1952). filed some five years ahcr the enaci. ienctionai Korair. Corp. 4: Kouvoice, 665 ...: of section 11015.. There is no indication F.Supp. 652 (N.D.III.1987). atid, 855 7.26 375



954 FEDERAL REPORTER. 28 SERIES laving reviewed these cases. 'i'e rejec: is card radio or elevision. equipmier: änd corail; inaccurace BMI: assertion that "in :um :: 20. 10: pei: custumers' njom. irtuaiiy cer; case iic cscessive squürc Tani, Cül it wouid impose labii; where :ootage of ine rietcadast': store aione 4as che proprietor has it com..::80/a! 'sound iuund to cisquaiii; ibc deiendant irom in- Siste installed or converts 2 serdaron voking the

Section 110(5) exemption." home receiving apparatus .....che Erief of 4 peiiant at 27 n. !4. The fact is equivalent o: a corr..ercial scurc yusthat in none of these cases did the court base its decision soiely on the square foot id. at 130-31 cuotiaş 4.2.Rep. 13. !476. age of che stores vchost coasidering the

24h Coaz.. 2c Sess. 37 (1975), rcprinted i: nature of the equipment, i.e.. whethe: it

:976 T.S.C.C..... 5059. 5701. Clearif. was "homestyle." sor did any of them se

ri5 passage from the legislatie history, c!are chat hey would have reached the

Cirecis attention to the quality of wie sounc same resuit based only upon the square

sistem sed. anc ::00 to ene square footage footage of the iniringing stores. More

of me establishment using it.: over, none of the cases cited has any bind.

Although he legislative history is mier. ing precedential force in this Circuit.

esting, it is besice the point; te need oni; The closes: we come to Eighth Circuit look is the statuie itself. If Congress i.. precedent on this issue is this Couris dicta

:enced wo impose a physical size imitacion in National Football League r. UcBcc &

on the estabiishment qualifying so: che ... Bruno's Inc.. 792 F.28 726 (8th Cir.1986), err.ption, it might easil; have written it isio in which the challenged action was the re

the siature. But it did not; i dic aot even ceipt via satellite antenna of blacked-out qualify the exemption by limiting its availNFL games and the playing of the broad ability to a “smail commercial estudishcasts on television sets in bars. Although menc," the language of the legisiative his. the Court noted that "[t]he factors listed in

tory. The stature focuses on the equip the legislative history do speak of the size

ment being used and so must we. This of the area where the transmission will be Court is not a legisiative body, and it has played," i, at 131. the Court said nothing

no aüthority to rewrite the statuir. about a maximum square footage. Furo cher, the Court 3laced that the 1976 legisla- (4) The same observation applies fully tive history indicates that "to decide wheth- to BMI's aex: argument that the legislaer an infringement had occurred. the crit. ove history supports its contention that a ical question instead would be the type of section 110(5) exemption is avajabis only if equipment used by the putative infringer." "the jusiness (Goes) not have the ability to Id at 730. The Court also quoted this pay for its use of music or is not) of language from the legislative history of the sufficient size to justify, as a practical matexemption:

ter, a subscription to a commercial back the clause would exempt small commer- ground music service." Brief of sppe!!art cial establishments whose proprietors at 11. The iegislative history BMI relies merely bring onto their premises stan. (7th Cir. 1988): Rodgers *. Eighty Four Lumber she "for profira limization of the present stalCo., 617 F.Supp. 1021 (W.D.Pa.1985): Springs. ule. Il applies to performances acd displays icon v. Plaza Roller Dome, Inc., 602 F.Supp. 1113 of all types of works. and its purpose is to (M.D.N.C.1993): Sailor Music x Gay Scores.

uscmpt from copyrighi liability anyone it* Inc., 516 F.Supp. 923 (S.D.N.Y.). affid. 668 F.2d

merely cums on, in a public place an ordinari 84 (20 Cir.1981). cert denied, 456 U-S. 945, 102

radio or television receiving apparatus of a S.CL 2012. 72 L.Ed.2d 468 (1982).

kind commonly sold ro members of ihe public 7. If BMI wishes to base ils argument here on

for private use. language from the legislative history, it should H.R. Rep. No. 1976. gath. Cong.. iu Scss. 36 also nou the opening remarks of the ponion of (1976), reprinted in 1976 U.S.C.C.L.N. 3650, 700 the House Report that discusses section 11015); (emphasis added). Thai seniman of ih: c.e Unlike ibe first four clauses of scion !:0.

emption makes no mention of any size or Sinar.. clause (5) is not :o any cxicot a counterpart of

cial restrictions.

upon is this:


CICC mo 954 F.2d 1419 (dih Cir. 1992) ?? is the intent ri che conferees tha: 3 public; nor does it require that the entity's small commercial esiablishmeni of the ability to pay for a commercial background type involved in Trentieth Century Mo- music service be considered. The focus of .sic Corp. 1. viikon. which merely aug. che siatute is on the equipment in use, and . mented a home type receiver and which 33 each oi Edisor.'s ur licensed stores uses was not uf sufficien: size to justify: 38 3 oniy homestyie equipmen: each qualifies practical matter, & subscription to 3 com- for the homestyie exempcion.. mercial background music service, would be exempt

III. H.R.Conf.Rep. No. 1733. 94ch Cong.. 28 Finally, BMI argues that the District Sess. 75 (1976) (citation omitied). reprinted Court's decision defcais che purpose of the in 1976 C.S.C.C.A.N. 5610. 5816.8

Copyright Act and conflicts with this counThe intent expressed

wry's international tresty obligations. We the report of the

find no merit in BMI'; contention that the Pouse conferees is irrelevant when the

District Count's inte.pretation of the stat. statutory language does not say or even

ute expands the scope of the homestyle imply that the size or financial wherewithal cf the establishment has a bearing on eligi . See Aiken, 122 U.S. at 163, 95 S.C. 3: 2047

exemption beyond the intent of Coagress. bility for the homestyle exemption. As

(“exaction of such multiple tribute toy au. with the square footage requirement that BMI would have us read into the exemp

thorizing the sale of numerous licenses for

a single broadcast of a copyrighied work) cion. the opinions of other courts that men

would go far beyond what is required for cion this language do cot persuade us that,

the economic protection of copyright owneven though Congress enacted the law

ers, and would be wholly at odds with the without any such requirement. it truly in.

balanced congressional purpose behind" tended a size-and-financial

means test to be

the exclusive right of public performance) 3 part of the siatute. See Claire's Bou.

(footnote omitted). If Congress had intendliques, 949 ·F.2at 1492 (“ao case has

ed the exemption to be limited so as to relied solely on the financial size or ability exclude large retail chain stores such as of the defendant as a reason for denying Edison, it might easily have shown that the application of § 11015)''). Moreover, intention in the language of the statute. It we surmise that any such requirement did not and we will not assume that the wouid surely run into consututional prob omission was a mere oversight on the past iems for vagueness: who would determine

of the iegislators. We nole there is here when an establishment is "oi sufficient size

ao conception, nor could there plausibiy be. to justify a subscription to a commer of a "'scrivener's error producing aa abcial background music service," and what surd result" Union Bank, U.S. at criteria would they use?

112 S.Ct. at 534, 116 L.Ed.2d a: 525 Wo hold that !7 U.S.C. § !105) does not

(Scalia. J.. concurring). require that the square footage of a quali- BMI's argument thai whis decision inter fying establishment be less than 1055, with feres with the interational treaty oblifewer than 620 square feet open to the gations of the United Sutes also fails. 8. BMI argues fo: expansion of this purative re. us even funke: afieid from :h: sza:utory lanquirement and suggests that of sufficient size 10

guage. The Eighth Circui: dica BMI quotes as justify . ... a subscription to 3 commercial back.

support for iis argumen: says nothing about ground music senice,“ the language found ir.

ability to pay: "che question as a practicai mai. the legislative history (and only in the legislative

soz is whether in derendani establishmcar is of history). equalcs wich "abic to afiors a commer.

che size and kind chai Congress would expect ! cial background music se. vice or :o pay the

ob:aia a license through a subscriptiori music license fee to a pe:forming rights organization."

Nas? Fuoita!l icaze v. McBet e BraSee Brick or Appellan: at 29 (“it is beyond dis

no's, Inc., 792 F.2d 724, 731 (8th Cir. 1986) (deci. puic char Edison has the ability to compensato ihe creators and publishers or the music that it

sion denying ses:100 11015) czemplion based

primarily on the type ci cquipmeni used). uses in its stores“). This expansion would take


394 5.20-32



provisions of the Berne Conventio:.. e: ::e adherence of the Laited slaies :36 :0. toy rights in a muszki eligibi id; protection under this title that : from this citle, other jederzí ur smie siatutes. or the common iaw. siui: :: ir expanded or reduced by risive oi. c: :. reliance upon the provisioris ::. Berne Convention. or the adhere:ico ::

che United States hereto. ii U.S.C.A. § 10410) (West Supp.9.!!. ::: view of this unmistakably clear coord:98. sionai directive. Bil's cisim w a C or inierest by virtue of ... the of the United States" to the Berne Conse: tion cangot be sustained.

The cuigment of he Districi Cour: :: affirmeu.

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The breit; in question is the international
coforight agreement known as the Berae
Convention. Serne Convention ior the Pro-
tecrida of Lilerary and artistic works. S.
Treaty Doc. So. 27, 99th Cong., 2d Sess.
1:986!. The Convention. signed on jopreno-
ber 9. :S£o, as revised at Paris on July 24.
1971, entered into force for the United
States on March 1. 1989. See Berne Con.
vention Implementation Act of 1988, Pub...
No. :00–563, § 13, 102 Stat 2553, 2861
(1988). Congress then revised the Copy
righe Act (aithough section 1!0(5) was
unaitected) and declared that the Act as
amended "satisf[ies) the obügations of the
United States in adhering to the Berae
Couvertion and no further rights or inter-
ests shall be recognized or created for chat
purpose." id. § 2(3), 102 Stat 2853.

BMI asserts that the District Court's interpretation of section 1:0(5) to provide shelter for Edison under the homestyle exemption expands the scope of the eremp tion to such a degree that it readers section 110(5) ir violation of the United States' treaty obligations under Article Ilbis of the Berne Convention. Vader that article, authors. of artistic works have exclusive rights to authorize “the public communicadion by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work." Berne Convention, art, Iltistüü), S. Treaty Doc. No. 27, 99th Coag., 2d Sess. 44 (1986). The flaw in BMI's argument is that the District Court's interpretation of section 110(5) does aot expand the homestyle es. emption, but merely declares that the stat. utory language means what it says. We cannot presume that Congress, in enacting chis language, intended something else, and we know that Congress declared its handiwork :o be consistent with the Berne Coavention. 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 Suates' 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


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.
Mr. HUGHES. Thank you very much, Craig:
[The prepared statement of Mr. Thomas follows:)

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