cathode ray tube, or captured momentarily in the "memory" of a computer. "The committee has therefore added a new definition of "fixed" to section 101. Under the first sentence of this definition a work would be considered "fixed in a tangible medium of expression" if there has been an authorized embodiment in a copy or phonorecord and if that embodiment "is sufficiently permanent or stable" to permit the work "to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." The second sentence makes clear that, in the case of "a work consisting of sounds, images, or both, that are being transmitted," the work is regarded as "fixed" if a fixation is being made at the same time as the transmission."

Mr. KASTENMEIER. The gentleman from California, Mr. Danielson. Mr. DANIELSON. While I was not here during all of your presentation, I am familiar with the material, Mr. Kuhn. I really have only one question. Your opposition, or rather, your concern in the copyright bill is substantially the same as that that has been voiced by Mr. Valenti this morning, and other people, I think, in the last several days.

You would have no objection to the cable, provided you had some kind of a royalty payment, copyright license fee arrangement. Is that the idea?

Mr. KUHN. No; actually it is not.

The motion picture people understandably take the view that there is a reasonable arrangement for compensation statutorily that would be acceptable to them. I have to tell you that as far as we are concerned, we would prefer there was no cable carriage of our game at all. We are not looking for revenue.

Mr. DANIELSON. Would you prefer it if there was no television coverage?

Mr. KUHN. No; we would not.

Mr. DANIELSON. Your objection to diffusion of the programing, then, is the medium. If it is broadcast through the airwaves, so to speak, that is OK; but if it is carried through cable, something inherently bad attaches?

Mr. KUHN. We have no objection to the coaxial cable, as long as it is in the traditional pattern of cable supplementing over the air, whether it is in grade A or B contours or the mountainous or rural regions.

Mr. DANIELSON. You are talking about the primary viewing area? Mr. KUHN. Yes. But, when cable does not act to simply implement, let us say, channel 9 in New York, but rather carries channel 9 in New York up into New England, then we think that is a very different thing. It is not so much a matter of how it is done as the fact that it is done.

Mr. DANIELSON. It is distance that counts, then?

Mr. KÜHN. It is distance, and the fact that what it then does is constitute what we think is unfair competition with what the Boston Redsox are trying to do up there. They are trying to develop a market, make the Redsox attractive, trying to sell broadcasting rights. What it intends to do, Congressman, I am afraid, is to throw baseball back into the days that I never want to see returned, when we were dominated by two or three or four very strong and rich teams. This is the halcyon days of the Yankees. These were the good days for the Yankees, but they were not such good days for baseball.

Today we have general strength among all clubs.

Mr. DANIELSON. I am trying to identify the cause of complaint. Is it the importation of distant signals?

Mr. KUHN. The importation of distant signals is certainly part of it. Mr. DANIELSON. Is there another part?

Mr. KUHN. The other part of it is we would like, ideally, since we create the property, to control what is done with it.

There are some instances where we would like to say yes, it is perfectly proper for it to go there. There are circumstances where it is proper, and others where we think it is not.

Mr. DANIELSON. But you say you have no objection within the primary viewing area?

Mr. KUHN. Within the primary viewing area of channel 9 in New York, we have no objection; that is correct.

Mr. DANIELSON. Whether you like it or not, you are objecting to the export, or import, as you want to call it, of the signal beyond the primary viewing area.

Mr. KUHN. Yes; I am objecting to it under certain circumstances. There may well be occasions where we would be perfectly happy to have it exported.

Mr. DANIELSON. I want to know this.

What is it that baseball copyrights?

Mr. KUHN. Baseball, under this copyright law, it would be the account and impressions of the baseball games as broadcast that would be copyrighted under common law, and apart from this there is an existing common law copyright which has been recognized in the courts of this country-the same thing.

Mr. DANIELSON. Do you have any decision of the Supreme Court recognizing a copyright of a baseball game? I would like to see one. Mr. KUHN. I would like to go back and give you some briefing onMr. DANIELSON. I do not want much briefing. I have 5 minutes, and 3 of them are gone.

Mr. KUHN. I would like to submit it to you then, Congressman. I think you will find the AP v. INS case (International News Service v. Associated Press, 248 U.S. 215 (1918)) relevant.

Mr. DANIELSON. The Constitution says that you promote the progress of science and the useful arts. Baseball must either be a science or a useful art. By securing for a limited time to authors and inventorsI do not know who is the author or inventor of your baseball gamethe exclusive right to the respective writings and discoveries-that is all there is in copyright.

Mr. KUHN. This new bill would expressly cover sports.

Mr. DANIELSON. We work under a Constitution, and we cannot put anything into that Constitution through legislation, nor can we take anything out of it by legislation. It could be that the courts would say you have a copyrightable property interest. I am willing to be convinced. But I must be convinced.

What is it who obtains a copyright for a baseball game? That has to come in somebody's name. Somebody has to own the copyright?

Mr. KUHN. No. I would be following the procedures that are provided for in the statute for the fixation of a copyright. Those are detailed in the statute. I frankly do not have them on my mind, Congressman, but it is set out in the bill that you have before you.

Mr. DANIELSON. The bill before us is not law.

Mr. KUHN. Without this bill, there is no fixation of copyright because the question there is what is the next status of baseball under common law copyright.

57-786-76-pt. 2- -9

Mr. DANIELSON. I think probably you have a problem which probably can be reached through a communications policy which is administered by the Federal Communications Commission or which could be reached through legislation. But this committee uniquely is dealing with the problem of copyright. You have a competition problem. You are trying to resolve it through copyright. I think it may be the wrong vehicle. Again, I am willing to be convinced. But I am not going to take judicial notice of anything that is not shown

to me.

I have one last question. What is your objection to legalized gambling?

Mr. KUHN. I have a position that I am afraid I can only state in much too much length for the minute you have.

Legalized gambling, in a nutshell, would bring into the following of sports a great many people who do not gamble on games today.

Mr. DANIELSON. It is moral?

Mr. KUHN. It is both moral and practical, because if you bring a lot more people into gambling on sports, what you are going to have is a great deal of suspicion cast on the honesty of sports. The more gambling you have on sports, Congressman, in my judgment, the more people you are going to have saying that every time a foul ball is dropped or a ball slips away from the catcher, that that was done dishonestly. The more suspicion you have of professional sports, then the more public harm you are going to do to those professional sports and amateur sports.

Mr. DANIELSON. Would you say that applies equally to horseracing? Mr. KUHN. No, I do not think so.

Mr. DANIELSON. Thank you very much.

Mr. KASTEN MEIER. The gentleman from Illinois.

Mr. RAILSBACK. Commissioner, I want to welcome you, first of all, and ask you if there is any empirical data that would indicate the decline in attendance as a result of, for example, the Boston, Mass., incident to which you refer in your testimony. I think that would be very helpful to us.

Mr. KUHN. I wish I had some I could give you.

The problem is really too new to have developed empirical data that would be convincing on the subject at this point. We are working largely with the very strong conviction of people in professional and amateur sports and in the broadcast industry. But at this point I could not actually prove it to you.

Mr. RAILSBACK. There are two areas that concern me. One is in respect to minor league franchises. When they are playing ball, what effect would cable television have on that particular attendance?

I want to say I personally can see where, if you had 11 cable systems importing the New York Mets games, that that could have an effect. I think that certainly could have an adverse effect. But how were those 11 systems licensed to do what they did with respect to the Boston station?

Mr. KUHN. They make application to the FCC and get-it grants the license permitting the carriage of the signal of certain other stations in other cities. This is the proceeding on this.

Mr. RAILSBACK. When the FCC does that, is there any opportunity for the local station to appear and resist? Also, is there a chance for

the copyright holder to also complain or file a grievance as wellhow does that work?

Mr. KUHN. I think the answer to that question is in the negative. These proceedings have been going on for some time now, as these new licenses have been granted. I believe that the answer to that is, no. Mr. RAILSBACK. Were these new licenses granted beginning after the so-called Consensus Agreement? Had they been prevented up until that time?

Mr. KUHN. I am not sure about the date of the Consensus Agreement, but they began to be granted after the breaking of the freeze on March 31, 1972.

Mr. RAILSBACK. And, up until that time, you did not have the problem, at least certainly not to the extent or magnitude that you have had since that time?

Mr. KUHN. That is correct.

Mr. RAILSBACK. That is why you do not have the empirical data. Are you planning to develop that kind of data?

Mr. KUHN. We will develop everything we can on it. If we have empirical data, we will certainly be putting it into the hands of the people who ought to be considering this problem. I am sorry we do not have it now.

Mr. RAILSBACK. That is all, Mr. Chairman.

Thank you.

Mr. KASTENMEIER. The gentleman from New York, Mr. Badillo. Mr. BADILLO. You do not support the bill as it stands now; is that correct?

Mr. KUHN. That is correct.

Mr. BADILLO. You would recommend the amendments which are listed in your statement on pages 15 to 18 from first through five? Mr. KUHN. That is correct.

Mr. BADILLO. That is what you call the baseball compromise. Who comprised on that? Why do you call it the baseball compromise?

Mr. KUHN. They call it a compromise in the sense-perhaps the word is not a good one-when the copyright bill first started out, it provided that the sports interests would have control over the dissemination of their product by secondary transmissions.

As it wound its way through the editorial process, those original positions of control were eliminated, and were replaced with the language now appearing in here. So what I am saying is that our position, that we are really and fairly entitled to control, as we do with over-the-air television, has been compromised down to a position which we state here.

Mr. BADILLO. That does not mean that the cable television people have consented?

Mr. KUHN. I did not mean to imply that; they certainly have not agreed to it.

Mr. BADILLO. It is not like the Consensus Agreement, which is neither a consensus nor an agreement?

Mr. KUHN. No, sir, it is not.

Mr. BADILLO. The 75-mile zone-you say it should be a 75-mile zone in major league cities, into which cable could not import distance signals on an unconsented basis. That means you would have to consent, the baseball team, each time-is that what you mean?

Mr. KUHN. Yes. What I am saying is that if the system in Milwaukee was to carry WGN in Chicago, a Cubs game, they would have to have the consent of the clubs, just as they do with over-the-air today.

Mr. BADILLO. That would be even if there were no game at all in the city to which it is being carried?

Mr. KUHN. That would be up to the Cubs. The Cubs today, if they wanted to, could sell broadcasting rights in the territory of the Milwaukee clubs, and some of our major league clubs have done that.

Mr. BADILLO. If the clubs do not want to give the right, so that you really are giving the clubs the exclusive control-it is really not a question of consent; you are really saying the exclusive control is for the clubs?

Mr. KUHN. I would say it is a question of consent. If I may just make this point, the word blackout has been used by our friends in the cable industry very effectively in the pejorative sense, to make it appear that what we are trying to achieve is very bad, here. This is not a blackout question, any more than our control of over-the-air television is a blackout question. If it were, then presumably you would not see all the over-the-air television that you do see, and you would not see the 200 games being televised in New York City that we have today. We have not exercised our rights of control on over-the-air in any unfair way or any way that would work against the public interest, in my judgment. Nor do I think there is any reason to think we would exercise such rights in a wrong-headed sense, with respect to public interests where they do apply to cable.

Mr. BADILLO. But you want the right-if you decide to have a total blackout, you could have it?

Mr. KUHN. Theoretically, just as in over-the-air.

Mr. DANIELSON. I have been trying to understand whether you mean the control would be in the team that does the playing or the team which is resident in a city?

Mr. BADILLO. The team that does the playing. In other words, just like the word compromise is not really compromise, an unconsented basis is another way of saying total control by the team that does the playing does not want a town, at any time, because they threw them out, let's say, to have a game broadcast, it just would not happen. There is no review at all. That is what is being proposed?

Mr. KUHN. That is correct. I think it is unfair to suggest that there would be an unreasonable use of that any more than there is with the television.

Mr. BADILLO. I am suggesting that the proposal you make is one for exclusive and sole control by the team which is playing.

Thank you.

Mr. KASTEN MEIER. The gentleman from New York, Mr. Pattison. Mr. PATTISON. The team that is resident in Milwaukee-does that team have something to say, under your proposal

Mr. KUHN. No; it does not.

Mr. PATTISON. As to whether another signal is imported?

Mr. KUHN. No; it does not.

Mr. PATTISON. In other words, the effect of having 11 baseball games going on in Boston, competing with the Red Sox game being played there is not something you are addressing yourself to here?