economic interests. For example, in rejecting the content property owners that the government only has the authori ted "perfectly lawful uses" involving no adverse 4 #large que ayensation for aveable belarlonship to implementator Interests & long as the Impact Beats a B. Congress Has the Authority to Enact As discussed above, the Supreme Court has recognized that governmental actions affecting private economic interests must bear a reasonable relationship to the interests affected. In a famous case the Court was asked to require just compensation for the action of a state official in ordering the removal of a large number of ornamental red cedar trees from property in the vicinity of apple orchards because the cedars carried a plant disease that destroyed apple trees but left the cedars unaffected. The Court upheld the state government's choice between the preservation of one class of property over the other on the ground that the state could reasonably conclude that the apple orchards were of greater value to the community. The Court stated: "For where, as here, the choice is unavoidable, we cannot say that its exercise, controlled by considerations of social policy which are not unreasonable, involves any denial of due process. 61/ It has not been shown that the adoption of the proposed exemption by Congress will result in a substantial detrimental impact upon the economic interests of copyright holders. Even so, any impact on 61/ Miller v. Schoene, 276 U.S. 272, 280 (1928). their interests, however small, will be reasonably related to the public purpose of enacting the exemption in order to enhance the availability of the air waves to the public for private, noncommercial purposes. IV. Congress Has Ample Authority to Enact the Tribe contends that Congress has no authority to "clarify" existing law and may usurp judicial functions by adopting the exemption while related litigation is still pending in the courts. 62/ Congress can, however, choose to call the proposed legislation a clarification of existing law. The Supreme Court has ruled that Congressional clarifications of law are entitled to "significant" weight in the construction of ambiguous stat631 utes. Of course Congress can also choose to reach the same result by amending the statute outright. Tribe questions such an approach only insofar as it resolves ongoing litigation. In an early case the Supreme Court upheld Congressional legislation preserving a bridge that had been ordered destroyed 63/ Seatrain Shipbuilding Corporation v. Shell Oil Company, 444 U.S. 572, 596 (1980); Glidden Company v. Zdanok, 370 U.S. 530, 541 (1962), quoting Federal Housing Administration v. Darlington, Inc., 358 U.S. 84, 90 (1958). by a lower court as an obstruction of navigation. It ruled that, while under most circumstances private rights that have passed into judgment cannot be altered by legislative action, those rights may be altered by Congressional actions that are for the benefit of the public at large, as defined by Congress. According to the Court, such public rights will be enforced by 64/ higher courts ruling on the case. In a later case the Court stated that legislation may abate pending actions, 65/and the Court has interpreted intervening legislation to render cases 66/ moot. Chief Justice Marshall observed more than a century and a half ago that if, "subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the [new] law must be obeyed . . . [even] where individual rights . . . are sacrificed for national purposes. U.S. v. Schooner Peggy, 1 Cranch 103, 110 (1801). Under this rule the courts have consistently applied the new statute to cases filed, and often decided, before the new law was enacted, even when application of the new law changed the 67/ outcome of the case. There is therefore very little, if any, Pennsylvania v. Wheeling and Belmont Bridge Company, 18 How. 421, 431 (1856). 64/ 65/ 66/ McCullough v. Virginia, 172 U.S. 102, 123-124 (1898). 67/ basis for questioning the Congress' authority to enact the proposed exemption at this time. 68/ The legal analysis in Tribe's Memorandum is based upon inaccurate factual assumptions about the use of VCR technology and the effects of the proposed exemption upon copyright holders. Moreover, Tribe's discussions of the current state of the law of takings do not accurately reflect the reasoning of the Supreme Court in relevant cases. Adoption by Congress of the proposed exemption to the Copyright Act for private off-air recordings of television broadcasts would not violate the Fifth Amendment to the Constitution. As noted above, the Supreme Court has confirmed time and time again: "[W] here an owner possesses a full 'bundle' of property rights, the destruction of the one 'strand' 69/ of the bundle is not a taking The proposed exemption would leave copyright holders with a large bundle of profitable economic rights and affirm the right of American consumers to enjoy in their homes the full benefits of programming disseminated over the public air waves. 68/ Robert R. Bruce Tribe's suggestion that Congressional enactment of the proposed exemption would confirm that the statute constitutes an unconstitutional taking for a private purpose has no basis in the Tribe Memorandum at 41-42. law. 69/ Andrus v. Allard, 444 U.S. at 65-66. |