With a copyright comes "the right to dispose of a thing in enforced since early in the seventeenth century. 23/ And in- 22/ - as are their corporeal and visible Black's Law Dictionary 1382 (rev. 4th ed. 1968). See Fox Film Corp. v. Doval, 286 U.S. 123 (1932). 23/ 24/ 24/ Copinger and Skone James on Copyright, 1-12 (11th ed., 1971). H.R. Rep. No. 756, 62nd Cong., 2nd Sess., p.1 Restatement of Property ch. I, Introductory Note (1936). If existing copyrights are either confiscated or rendered substantially less valuable by a sudden change in law, their owners must therefore be compensated. 26/ Courts routinely find that an owner's property has been substantially diminished in value, and thus "taken" in the constitutional sense, when it has been physically occupied or consumed by government; physical invasion is a reliable proxy for such substantial, and readily discernible, diminution in value. And if the government had to compensate the owners of property only when it had physically seized or occupied it, it is no doubt true that the administrative costs of identifying and compensating all relevant claimants would be low indeed. But even though all physical invasions may be takings, not all takings are caused by physical invasions. Attempts to define "takings" of property by reference exclusively to the invasion of physical space have proven impossibly ambiguous, 27/ in addition to being too narrow to serve the ends of the takings clause. For the value even of physical property may be dramatically diminished without laying a hand on it, as where a zoning law renders And many formerly valuable property suddenly worthless. - types of incorporeal property such as contracts, patents, and even future interests in land would be left unacceptably vulnerable by a takings rule that covered only tangible seiz ures and literal confiscations. 26/ See Michelman, supra note 6, at 1184 n.37. the The most basic defining element of "property" right to exclude others from its use without the owner's permis28/ sion - is perhaps even more essential to a copyright than it is to most other forms of property; for this right is, in essence, the only source of a copyright's economic value. Unlike bricks of gold or acres of land, which may remain valu29/ able even after they have been seized or trespassed upon, a copyright's value is truly lost once the right to exclude others from its unlicensed and unpaid-for enjoyment and exploitation has been eliminated. This is so both because infringers are then free to make copies for themselves (something they cannot do with gold or land), and because the interest of viewers in seeing audiovisual works is limited to at most a few showings, while there is truth in the maxim that gold and land, like diamonds, are a joy forever. Because the legal prerogative to control a film's availability for viewing and copying is thus so central to the value of the underlying copyright, the primary power (and hence the principal value) protected as property by the copyright statute in this context is the legal power to exclude others a power that includes from using the copyrighted property30/ 28/ - See Kaiser Aetna v. United States, 444 U.S. 164, 17980 (1979). 29/ Fox Film Corp. v. Doval, 286 U.S. 123, 127 (1932). the right to sue for damages those who infringe the copyright,31/ as well as the right to enjoin infringing activities.32/ Each of these rights is a species of value created by the right to copy; all would be greatly debased if not wholly eliminated by the bills now before Congress; those bills would thus unmistakably work what the Constitution deems a "taking" of private property. III. COMPENSABLE HARMS TO COPYRIGHTHOLDERS' A. THE VALUE OF THE RIGHT TO EXCLUDE More specifically, the bills take from copyright owners, first of all, the exclusive right under Section 106 (1) 33/ to copy their works. The District Court in Universal v. Sonyconceded that VTR copying does not merely trespass on this Section 106 (1) right: "Home use recording off-the-air usually involves copying the entire work."34/ No careful line-drawing is called for here, no borderline call about how much of the plaintiffs' rights would be lost if the proposed bills pass, because the entire right to copy is lost if VTR taping is permitted. 33/ Universal City Studios v. Sony Corp. of America, 480 F.Supp. 429 (1979); Nor is there genuine doubt that the loss of this right will gravely harm copyrightholders who have relied on it. 35/ - 36/ Common sense alone makes clear that viewers will not willingly pay to see movies that they can tape for free, and that advertisers will be reluctant to invest in television spots that home viewers can easily erase before actually watching the surrounding material. Detailed proof is hardly necessary to make the point, but such proof exists in abundance for those who might require it. Thus, industry experts expect that 75% of the American television market will have VTRS in the near future and the wealthy, most sought-after, strata of the market will have VTRS sooner than the rest. Furthermore, the two chief applications of these machines involve copying regular TV series and movies 37/ -- the core of copyrightholders' business. If VTR owners can freely tape and replay copyrighted works from their televisions, the owners of copyrighted shows and movies suffer in two distinct ways: the value of their programs to television broadcasters and advertisers is disastrously diminished, and sales from and licenses for use with noninfringing technologies are seriously undermined. First-run ad-space in a movie or television series 35/ VTR's Breaking and Entering the Home Market, Broadcasting, Oct. 24, 1977 at 32; Reporter's Transcript ("R.T.") in Sony, 1798, 1839-40, 3043. 36/ 37/ VTR's commonly range in price from $650-$1300. See Agostino, Home Video: A Report on the Status, Projected. · Development and Consumer Use of Videocassette Recorders and Videodisc Players in the United States, Preliminary Report on Prospects for Additional Networks at 69 (preliminary draft of report from FCC Network Inquiry Special Staff, February 1980). 96-601 0-82--7 |