has shown, "where an owner possesses a full 'bundle' of property rights, the destruction of the one 'strand' of the bundle is not a taking, because the aggregate must be viewed in its entirety. 41/ II. Proposed Exemption Would Not Constitute a Taking for a A. There Are Substantial Public Benefits From VCR Usage and Dangers from Copyright Monopolies. Professor Tribe asserts that the proposed exemption is "open to the serious charge that they take the property of copy tion. 42/ rightholders for purely private reasons, citing "special VCR usage expands the availability of a scarce resource the public air waves. programming, which is frequently relegated to less desirable time slots by television programmers, is made more readily available at convenient times through time-shifting. The broader dissemin ation of information for the benefit of viewers serves the funda mental purposes of both the copyright laws and the First Amend45/ such use of VCR ment.44/ Contrary to Tribe's assertion, technology is productive in the same way that reading a book from the public library is. The VCR consumer is "borrowing" the program for a limited time, and information is thereby disseminated to more people.46/ Contrary to Tribe's assertions that the 44/ The Supreme Court has ruled in cases interpreting the copyright law and the First Amendment's applicability to broadcasting that the interest of the public in receiving information is paramount to the interests of either copyright holders or broadcasters. In Twentieth Century Music Corporation v. Aiken, 422 U.S. 151, 156 (1975), the Court recognized the preeminent interests of the public under the copyright law: "The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. . . . Red Lion Broadcast Company v. Federal Communications Commission, 395 U.S. 367, 390 (1969), the Court emphasized that "it is the right of the viewers and listeners, not of the broadcasters, which is paramount." 45/ 46/ Tribe Memorandum at 37. In The majority of consumers do not retain video cassettes for more than a brief period. Private librarying is not likely to be a major factor in the market because motion pictures taped from television are not the same as the uncut, uninterrupted movies that can be purchased, or rented, for nominal fees. First Amendment may be endangered by the adoption of the proposed exemption,- 47/ the fact is that VCR usage enhances the exercise of First Amendment rights by expanding the availability of a scarce broadcast resource. Moreover, Tribe's assertion is directly contrary to the dangers stemming from copyright monopolies discussed below. Tribe's concern about the benefits to private interests from the adoption of the proposed exemption fails to recognize that copyrights are monopolies established and regulated by Congress for the benefit of the public. As Professor Patterson has observed, "copyright statutes from the time of the Statute of Anne have been trade regulation statutes [and] . . . copyright law itself is a highly specialized law of unfair competition based on statutory grounds rather than common law. Similarly, "the doctrine of fair use . . [is] a doctrine judi 48/ cially developed to mitigate the monopolistic effect of copyright.-49/ (Footnote Continued) Moreover, the cost of blank tapes is such that there are inherent economic limitations on librarying. Tribe does not acknowledge in his Memorandum that copyright protection inherently involves a balancing of competing interests protection of the copyright holder's ability to control distribution of his work and wide dissemination of ideas to the general public. Tribe fails to recognize that excessive pursuit of the copyright holder's interests may severely hinder full and efficient dissemination of information to the public a fundamental goal of the copyright laws. Professor Patterson has cautioned that giving the owners of television facilities the power to use their free access to the public air waves together with "the power to avoid any accountability for the exercise of this power by enabling them to control subsequent public access to this material through the device of copyright . . . is to grant them an unnecessary power of censorship contrary to all traditions of the first amendment..50 Such dangers apply as well to public policy that gives too much weight to the copyright holder's interests. Tribe's failure to acknowledge the damaging monopolistic potential of copyrights suggests a lack of understanding of one of the principal aspects of the copyright law -to enhance First Amendments rights by promoting dissemination of information. This danger of monopolistic abuses is also particularly acute where the holders of copyrights who are seeking to suppress programming alternatives also have an economic interest in competing technologies. In this case a substantial copyright hol der, MCA, Inc., also has an interest in videodisc technology, which is unable to compete successfully on the open market with VCRs. 51/ B. Congress Has Broad Discretion to Determine the Public Purpose of a Governmental Action. Tribe suggests in his Memorandum that Congress may be able to ensure that the proposed exemption would not be found unconstitutional as a private taking by providing compensation to copyright holders. 52/ Tribe's suggestion implies that adoption of the exemption is constitutionally tenuous at best, when in fact the Supreme Court has stated explicitly that when Congress has spoken on the issue of the purpose of a taking, "the public interest has been declared in terms well-nigh conclusive.-53/ Moreover, the "role of the judiciary in determining whether that power [of eminent domain] is being exercised for a public purpose 54/ is an extremely narrow one." Indeed, the Supreme Court has 54/ Berman v. Parker, 348 U.S. 26, 32 (1954). Id. Tribe concedes this point in his book, American Constitutional Law 458 n.10 (1978). |