commercials. I can get up and go to the refrigerator or the bath room. By the same token, I can fast forward through a video taped commercial. If I use a fast forward, I at least have to watch the action that goes on the screen. But if I get up and go to the bathroom, I have left the room. I do not hear. I do not see. You get more of the commercial with a fast forward than you do if you get up and leave during the commercials. Senator MATHIAS. You have a pretty slow finger, then. [Laughter.] Ms. FOREMAN. I think that I am pretty well coordinated, and I think you have to watch fairly carefully to use the fast forward effectively. We hear a lot about these zappers, these things that would cut out commercials altogether, and I think that if Congress really feels that some action is necessary to protect the industries, Congress should take into consideration outlawing zappers. We do not have one at our house and I do not know anyone who does, if you mean by that something other than the fast forward button. In addition, you could take some action to prohibit the reproduction of prerecorded tapes and the loaning of those. I think they already fall prey to the- Senator MATHIAS. Do you have any suggestions for us? MS. FOREMAN. Make it against the law. Senator MATHIAS. It is against the law. Ms. FOREMAN. OK. Then why are we here considering a tax on those of us who obey the law? Senator MATHIAS. Piracy is a very difficult problem for us to deal with, as Senator DeConcini has already expressed. Ms. FOREMAN. Do you resolve piracy by imposing a tax, a fee on those of us who are law abiding and who rent Mr. Valenti's tapes and pay his industry $350 million a year in order to watch that material, a market that he never had before? Senator MATHIAS. Well, I assume that there are some people-I would not want to speculate how many, but there are some who use alcoholic beverages only for medicinal purposes. They pay the tax when they buy it, just as those who use it for joy juice. There are some inequities in life. I do not know that there are answers to every problem. We are looking for the best answer to this problem, and it seems to me there is a problem. And if you have a better answer, we surely do want it. Ms. FOREMAN. I think that the Consumer Federation suggested to you a pretty good resolution, exempt individual taping, and then when you have proof of harm Senator MATHIAS. That is not an answer. You know, that is a Churchillian response, I must confess; I do not know that I ought to dignify it by associating it with Churchill, but he said a problem postponed is a problem half solved. I do not think that it—— Ms. FOREMAN. Sir, I think postponing this one probably would solve it, because as time goes by it will be shown that the movie industry is benefitting enormously by this technology. What would they have done with all those old films that they are now renting out to me and other VCR owners? They used to sell a few of them to television, but mostly they were in a storage vault. Now we go to the video stores each week and rent those and pay those copyright owners money they never ever would have gotten. It is a whole found market, and I think the longer that you go without imposing a tax on this, the more the movie industry will see that. And, incidentally, you know the history of the motion picture industry better than I; throughout their history they have responded to every new development in technology as a threat and tried to curtail that technology and tried to impose costs on consumers that were not justified. And each time either you or the Supreme Court has stopped them from doing that. And here they are today, more profitable than ever. Senator MATHIAS. Senator DeConcini? Senator DECONCINI. Mr. Chairman, I am not going to prolong this excellent hearing because I know that it has gone way beyond perhaps the patience of our chairman. And I thank him for doing that. Senator MATHIAS. Not the patience of the chairman, but the other commitment that I have. So I am going to ask Senator DeConcini to take the Chair. Senator DECONCINI. I thank the chairman very much. I only want to say, Ms. Foreman, that I think you make a very convincing argument, as do all of the witnesses here. I am glad the chairman was able to hear the testimony given and the review of the surveys, because I think your case is overwhelming why we should not impose a tax for an industry that does not need it. The movie industry is not suffering, and really, I believe, that what the videorecorders have done and will continue to make that industry more prosperous. I am glad that someone is here espousing that this is a tax, and that it is an infringement on the rights of the consumers. I compliment you for your testimony. Thank you very much. [Whereupon, at 1:10 p.m., the hearing was adjourned.] APPENDIX ADDITIONAL SUBMISSIONS FOR THE RECORD ECONOMIC HARM: AN INAPPROPRIATE AND DAMAGING Prepared by Akin, Gump, Strauss, Hauer & Feld Opponents of recent bills which provide compensation to motion picture copyright owners for home videotape recording of their works assert that such compensation is unwarranted unless copyright owners first prove that they have been harmed by such copying. This memorandum examines the validity of this assertion. In particular, the memorandum examines the question whether, from the standpoint of copyright law, a copyright owner must demonstrate harm or damage to his copyrighted work in order to recover for copyright infringement. The memorandum concludes that copyright law has always expressly rejected the concept that a demonstration of actual harm is a necessary condition of establishing either liability or the right to recover for infringement. Indeed, to precondition recovery on proof of past or future economic loss would conflict with the fundamental concept underlying copyright law the absolute right of the copyright - owner to control and therefore prohibit all unauthorized uses of his property. (483) I. Copyright Is A Property Right Over seventy years ago English copyright cases recognized that a showing of harm or damage is unnecessary to establish liability for copyright infringement. E.g., Weatherby & Sons v. International Horse Agency, etc. 2 Ch. 297, 304; 79 L.J.Ch. 609 ("After all copyright is property, and an action will lie even if no damage be shown"). These and subsequent American copyright decisions reason that since copyright is a property right which may not be invaded without permission of the copyright owner, the owner obviously has the right to prevent all prohibited uses of his property, regardless of whether he would suffer any economic damage by failing to do so. See Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) ("The owner of the copyright, if he pleases, may content himself with simply exercising the right to exclude others from using his property"); Leon v. Pacific Telephone & Telegraph Co., 91 F.2d 484, 487 (9th Cir. 1937); Loew's, Inc. v. Columbia Broadcasting System, Inc., 131 F. Supp. 165, 184 (S.D. Cal. 1955), aff'd sub nom. Benny v. Loew's Inc., 239 F.2d 532 (9th Cir. 1956), aff'd by equally divided court, 356 U.S. 43 (1958). II. Fair Use The question whether a plaintiff must prove pecuniary loss in order to recover for copyright infringement has usually arisen in connection with the fair use defense. Copyright infringers have often maintained that when their infringing conduct does not cause any harm to the copyright owner, such conduct should for this reason alone be excused as fair use. Because this argument, if accepted, would obviously undermine a copyright owner's fundamental right to exclude others from use of his property, the argument has been categorically rejected under both the Copyright Act of 1909, Pub. L. No. 60-349, ch. 320, 35 Stat. 1075, 17 U.S.C. SS 1 et seq. (superseded 1978) ("1909 Act"), and |