protection, the constitutional infirmity of the resulting taking for private use may be all the more easily discerned. By behaving like a court by adjusting the claims as between the particular parties already engaged in litigation Congress would not only act in a manner that courts have for nearly two centuries deemed inherently judicial, but would also open itself to even closer substantive scrutiny of its legal decisions than might otherwise be appropriate. In matters of economic and social policy, judgments made by Congress that its laws benefit the public and do so at reasonable cost are generally and deferentially respected by the courts because it is often beyond the competence and outside the institutional authority of the courts to review such matters of degree. But courts are ideally and constitutionally equipped to review questions of law. Once Congress tries its hand at the interpretation of statutes, the defects in the District Court's analysis of fair use take on constitutional significance. That court's analysis failed to uncover any productive or derivative uses to be served by a home VTR exemption. By exposing for scrutiny the exclusively private uses of home VTR recordings, the District Courts' failed reasoning highlights the unconstitutionality of the same taking if committed by Act of Congress. If Congress makes a judgment that the copyright laws have always exempted VTR recording of copyrighted works a judgment that, on the merits, is simply and egregiously incorrect the courts may quite properly be tempted to use the transparent falsity of Congress' "finding" to impeach Congress' claim that what it is doing is "interpreting" the copyright law. Rather, Congress will, in all likelihood, be found to have taken property not only without compensation, but without exercising constitutionally appropriate authority. In judgments of law, unlike choices of social policy, Congress has nothing even approaching an unreviewable right to be wrong. C. PRIVACY AND PUBLICITY, FREE SPEECH AND A final category of argument might be invoked to claim that copyrightholders never really possessed a right to control this copying of their works. That argument would be based on a misunderstanding of the First Amendment and of Congress' relation to it. Copyrightholders' works, the argument goes, were lost to the "public domain" once they were broadcast on 116/ the public airwaves and into private homes. In fact, the argument continues, the First Amendment may actually require that the public be able to record televised works, and it aț least permits Congress to promote the public's right to listen by allowing VTR owners freely to record these works and VTR manufacturers freely to profit from the desire of consumers to do so. 117/ 117/ Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). This argument simply will not wash. Resort to the "public domain," electronic or otherwise, in no sense invites 118/ power over navigable waters permits any such subordination of 118/ See Kaiser Aetna v. United States, 444 U.S. 163 (1979). 119/ See United States v. Loew's, Inc., 371 U.S. 38, 48 96-601 0-82--9 to use the transparent falsity of Congress' "finding" to impeach Congress' claim that what it is doing is "interpreting" the copyright law. Rather, Congress will, in all likelihood, be found to have taken property not only without compensation, but without exercising constitutionally appropriate authority. In judgments of law, unlike choices of social policy, Congress has nothing even approaching an unreviewable right to be wrong. C. PRIVACY AND PUBLICITY, FREE SPEECH AND A final category of argument might be invoked to claim that copyrightholders never really possessed a right to control this copying of their works. That argument would be based on a misunderstanding of the First Amendment and of Congress' relation to it. Copyrightholders' works, the argument goes, were lost to the "public domain" once they were broadcast on the public airwaves and into private homes.116/ In fact, the argument continues, the First Amendment may actually require that the public be able to record televised works, and it at least permits Congress to promote the public's right to listen by allowing VTR owners freely to record these works and VTR manufacturers freely to profit from the desire of consumers to do so. 116/ 117/ (1969). 117/ See, e.g., 480 F.Supp. at 453. Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 This argument simply will not wash. 118/ Resort to the "public domain," electronic or otherwise, in no sense invites Congress to permit piracy -- any more than Congress' plenary power over navigable waters permits any such subordination of the private rights of some to the greed or enjoyment of others. Indeed, the claim that, because the public "owns" the airwaves and has a right to hear as well as to speak, Congress may not secure copyrights that conflict with these First Amendment rights and is thus compelled to allow VTR taping, has been routinely, and rightly, rejected by the courts.119/ The Constitution commands Congress not to abridge freedom of speech, See Kaiser Aetna v. United States, 444 U.S. 163 (1979). 118/ 119/ ."). 96-601 0-82--9 |