must distinguish between "time-delay" uses of VTR's, which may increase audience size, and permanent copying uses, which obviously contract it.64/ The Supreme Court drew a similar distinction in Zacchini v. Scripps Howard Broadcasting Corp.: "It is possible . . . that respondent's news broadcast increased the value of plaintiff's performance by stimulating the public's interest in seeing the act live. But petitioner has alleged that the broadcast injured him . . . and State should be allowed to authorize compensation of this injury if proved. 65/ In sum, regulatory changes bearing on a property interest's use that substantially undercut a separately identifiable component of the property's economic worth without corresponding reciprocal gain to the owner changes such as those - - proposed here clearly constitute compensable takings. Understanding of this principle and of its application in this context may be deepened by observing that departures from the principle, absent grave emergency, have been countenanced only where the disputed use of the property (in this case, the copyright) the conduct whose regulation diminishes the property's value 64/ - is properly See Note, The Betamax Case: Accommodating Public Access and Economic Incentive in Copyright Law, 31 Stan. L. Rev. 243, 245-46 n.15 (1979). But see note 40, supra. - deemed, in context, to be a public nuisance, or at least an offense to some paramount norm of acceptable public behavior. In contrast, whenever a distinctive element of the bundle of rights and powers defining a private property interest is treated by a challenged regulation not as a nuisance but as a gold mine not as a source of harm to others to be halted but as a source of benefit for others to be harnessed longsettled constitutional doctrine leaves no escape from the conclusion that the regulation must be deemed a "taking" and that "just compensation" -- a fair measure of the value lost to the owner -- must be provided if the taking is for public benefit, and the taking set aside altogether if it is for private benefit. If a film were to transgress constitutionally valid limits on what may be distributed to the public -- because the film meets appliable criteria of hard-core obscenity, perhaps, or because it contains properly classified nuclear weapons design information then regulatory action to halt the film's further commercial exploitation might be defended as a non-taking, giving rise to no public duty to compensate investors' losses. But regulatory action to compel the owner of a copyright in a lawful film to admit viewers and copiers free of charge whenever they have purchased a costly piece of equipment from a third party - say, the Sony Corporation - - plainly stands at the opposite pole, virtually defining the "taking" end of the "regulation-to-taking" spectrum. The difference is as elementary and axiomatic as that between an Act of Congress forbidding further manufacture and sale of burglar's tools arguably a non-taking even as against the investor in the production of such tools and an Act of Congress suddenly legalizing the profitable sale and subsequent use of such burglar's tools, without payment of rent or royalty by their producer and seller, for raiding a law-abiding citizen's pre-existing inventory of valuable properties, tangible or intangible a taking by anybody's definition regardless of how private the setting in which, or personal and innocent the reasons for which, those tools might ultimately be turned by their buyers to this confiscatory use. (See Part IV-C, infra.) Such congressional action is either (1) a constitutionally void taking of the inventory owner's property for the private benefit of the manufacturer and seller of the equipment that makes possible the theft that Congress has chosen to legalize; or (2) a taking of such property for public benefit, subject to a constitutional command of just compensation. On no defensible view of relevant constitutional principles, however, is such congressional action valid in the absence of fair compensation compensation measured by market value lost to the owner - made available by public law either from public revenues or, perhaps more fairly, from a royalty pool collected from those who profit by the manufacture and sale of the equipment in question. IV. END RUNS AROUND THE COPYRIGHTHOLDER'S Against the claim that copyrightholders would be deprived of vested and valuable property rights by congressional cancellation of pre-existing copyright privilege or by congressional creation (and application to existing works) of an additional fair use exemption to the copyright laws, VTR manufacturers argue that copyrightholders never really had an exclusive right to control the copying of their productions. The arguments that lead to this view can be grouped under three headings: (A) Copyrights were created by Congress; what Congress itself created, it may destroy. (B) There has always been a fair use exception to the copyright laws for noncommercial, in-home recording, an exception correctly perceived by the District Court, misunderstood by the Court of Appeals, and simply set straight by the proposed bills. (C) Copyrightholders' works were always in the "public domain" once they were broadcast on the public airwaves and into private homes; the First Amendment may require that the public have access to televised works, and it at least permits Congress to promote the public's right to listen by allowing free recording. These three,arguments are linked by a shared misunderstanding of the right to speak, to listen, and to legislate. Those who claim that Congress may eliminate copyright protection because Congress has created it have forgotten that all property is a creation of the state. - Without enforceable trespass laws, even the central right to exclude intruders, much less the power to bring to court transgressors of all sorts -- trespassers, shoplifters, contract breachers, copyright infringers would be a mere assertion.66/ But if no property can be securely enjoyed without the assistance of the state, it can be argued that the state has created all property and so, as some claim Congress may do with the copyright species of property, the state may take the property it has created without compensating its owners. And the advocates of this position could add that no one's expectations would be unfairly disappointed if such a thing came to pass because every owner knew that the state might change the rules of 67/ the property game at any timethe invisible fine print But if at the bottom of every deed, contract or copyright. that were the case, then neither the takings clause nor the clause forbidding the state to impair contracts would have any 66/ See Board of Regents v. Roth, 403 U.S. 564 (1972); Perry v. Sinderman, 408 U.S. 593 (1972); Fuentes v. Shevin, 407 U.S. 67 (1972). 67/ See discussion of Home Building & Loan Association v. Blaisdell, text at notes 73-75, infra. |