However, Professor Nimmer demonstrates that none of these factors justifies the conclusion that home audio taping of copyrighted sound recordings should be considered a fair use. (Appendix Six, at 19-26.) First, the judicial doctrine of fair use is generally limited to those cases where the purpose of the use is "productive," i.e., where it involves use by a second author of a first author's work for purposes such as criticism, comment, news reporting, teaching, scholarship or research. The doctrine is not applicable where the user makes a copy merely for purposes of entertainment. Yet that is precisely the purpose involved in home audio taping of records. Such use clearly does not satisfy the first fair use factor.22/ Second, a claim of fair use is less likely to be accepted where the nature of the work may be characterized as "entertainment" rather than information. [Footnote continued] 22/ "(3) The amount and substantiality "(4) The effect of the use upon the Nor can the purpose of home audio taping be characterized as "educational" or "noncommercial" within the meaning of the copyright law. Home audio taping of records obviously constitutes the copying of entertainment, not information. Third, the fair use defense is generally unavailable in cases where the entire copyrighted work is copied. Yet home audio taping invariably involves the reproduction of an entire musical composition or sound recording. Fourth, the defense of fair use is less and less applicable as the economic effect of the copying on the potential market for the copyrighted work becomes more and more severe. The studies, market statistics and economic analysis discussed in section II, above, vividly demonstrate the negative effect of home audio taping on the sales of records and pre-recorded tapes. Whatever the precise number of lost sales, there can be no doubt that it is substantial in the range of - $1 billion. And, as Professor Nimmer states: "[These] studies merely confirm what A separate consideration sometimes cited in support of the fair use defense is that audio home taping occurs in private homes. Professor Nimmer emphasizes that this does not make home taping a fair use: "This assumption that property rights No one would argue that one may destroy a book borrowed from a library as long as it is done within the four walls of one's home, or that one may freely use gas, electric and water services merely because those utilities have sent their property into private homes. Thus, while it may be difficult and certainly undesirable to enforce copyright infringement liability against an individual home taper, this difficulty does not render lawful an otherwise infringing act. Although home audio taping constitutes copyright infringement under current law, there is in fact no adequate mechanism to compensate copyright owners whose works are thereby appropriated. On the contrary, a' series of legal actions to recover damages from individual home tapers would be both undesirable and impractical. Legal action against manufacturers and distributors of audio recorders and tape would be almost as difficult. Nor is there any assurance that such litigation would result in the creation of a fair, workable and enforceable royalty system for the future. RIAA therefore believes that the home taping problem should be resolved with comprehensive legislation in the Congress, not through piecemeal litigation in the courts.23/ Just such a mechanism was suggested by the Court of Appeals in the "Betamax" case, when it indicated that a continuing royalty on the sale of recording equipment and tape "may very well be an 23/ The courts themselves evidently agree. The District Court in the "Betamax" case stated that: · . . . . "[T]he full resolution of these issues acceptable resolution in this context."24/ As Professor Nimmer points out, such a royalty system would negate any concerns with the privacy implications of legal action against individual home tapers, while at the same time protect the interests of copyright owners. (Appendix Six, at 26-31.) And while noting that such a royalty system could be imposed by judicial decree, he adds that the "far more efficient" approach would be for such a system to be adopted by legislation. (Id. at 30.) Professor Nimmer's conclusion, with which RIAA strongly concurs, is that "[t]he proposed Mathias Amendment No. 1333 and Edwards Bill H.R. 5705 would accomplish exactly such a salutary objective." at 31.) (Id. IV. BASIC CONSTITUTIONAL PRINCIPLES MANDATE The purpose of the home taping legislation introduced by Representative Don Edwards and Senator Mathias is not merely to compensate copyright owners for the economic losses attributable to home audio taping, nor merely to provide an enforceable remedy for the infringement of existing legal rights, important 24/ Universal City Studios Inc. v. Sony Corp. of America, 659 F.2d at 976. |