Greenspan, Alan-Continued Prepared statement Reply of the Recording Industry Association of American to the statement of the Electronic Industries Association..... Addendum. Heston, Charlton: Testimony Prepared statement Kretzer, Julius: Testimony. Kummel, Eugene H.: Testimony Prepared statement Ladd, David: Page 920 659 680 522 524 37 626 629 Testimony Prepared statement 356 361 Universal City Studios v. Sony Corp. of America, 659 Federal Reporter, 2d 422 Comparison of selected responses from available VCR studies. 436 437 Comparison of selected responses from available audio taping studies.... 438 Letter from Yutaka Kimura, Deputy Director, Copyright Division, Cultural Affairs Department, Japan Letter to Senator DeConcini, re royalties from three sources. Sills, Beverly: Testimony 75 77 129 441 Prepared statement, with enclosure 451 Valenti, Jack: Testimony 457 Prepared statement 461 Letter from Frito-Lay, Inc. stating it will not pay for viewer ratings that include home taping..... 458 Prepared statement of Donn B. Tatum, chairman, executive committee, 502 Prepared statement of Jud Taylor, president, Directors Guild of America, 508 Prepared statement of Jack L. Copeland, chairman, Copyright Committee, Training Media Distributors Association. 511 Prepared statement of Richard H. Orear, president, National Association of Theatre Owners....... 516 Prepared statement of Gene Allen, International Vice President, International Alliance of Theatrical Stage Employes and Moving Picture Machine Operators of the United States and Canada Comments on the statements of the Recording Industry Association of 520 34, 641 45, 645 956 12 64 160 APPENDIX A Prepared statement of Joseph A. Lagore, president, Sony Consumer Products Page 165 Interoffice communication 174 Answers covering all basic details of Sony's home videocorder. 176 Universal City Studios, Inc. v. Sony Corp. of America, No. CV 76–3520-F. U.S. 191 Universal City Studios v. Sony Corp. of America, Nos. 79-3683, 79-3735, and 79-3762, U.S. Court of Appeals, Ninth Circuit, decided Oct. 19, 1981 Compendium of news articles, editorials, and cartoons in support of consum ers... 266 Complaint for copyright infringement, unfair competition, and declaratory judgment. After the First Sale: The Commercial Resale and Rental of Phonorecords, by Press release of the National Music Council.. Letter to Senator Mathias from John Power, American Video Association. 997 1039 1070 1089 Home VCR & Copyright by the Home Recording Rights Coalition The Case For Home Recording Rights by the Home Recording Rights Coalition...... 1112 1181 1276 Briefs in the Supreme Court of the United States, Sony Corp. of America, et 1373 PREPARED STATEMENTS Alan Strachan, president, CODART, Inc., Santa Rosa, Calif. 1030 1043 1055 1058 F. William Troost, associate professor, Los Angeles Trade-Technical College........ 1061 1062 Frederick Rosa, co-owner, Videotape Industrial Productions, Inc., Madison, 1066 Richard Soukup, owner, Video Station Stores, Madison, Wis... 1068 Ervin Drake, on behalf of the American Guild of Authors and Composers and the Nashville Songwriters' Association, International. 1073 Robert J. McEwen, S. J., on behalf of the Consumer Recording Rights Committee 1081 Pfizer, Inc 1099 Training Media Distributors Association 1107 COPYRIGHT INFRINGEMENTS (Audio and Video Recorders) MONDAY, NOVEMBER 30, 1981 U.S. SENATE, COMMITTEE ON THE JUDICIARY, The committee met, pursuant to notice, at 2:15 p.m., in room 6226, Dirksen Senate Office Building, Hon. Dennis DeConcini (acting chairman of the committee) presiding. Present: Senators DeConcini and Denton. Also present: Senator D'Amato and Congressman Parris. Staff present: Eric Hultman, general counsel; Tim McPike, counsel; and David Van Engelhoven, assistant to minority counsel, Subcommittee on the Constitution. Senator DECONCINI. The full Judiciary Committee will come to order. I welcome the distinguished group of witnesses here, Senator D'Amato and Congressman Parris, who will have statements in just a moment. This is a hearing of the full Judiciary Committee on S. 1758. Senator Strom Thurmond, the chairman of the committee, could not be here right at this time. He is tied up with administration officials and asked that I introduce in the record his statement of introduction in commencing these hearings. [Material follows:] PREPARED Statement of Chairman STROM THURMOND Today, the Judiciary Committee will hear from a wide variety of witnesses on S. 1758, a bill introduced by Senators DeConcini and D'Amato to reverse the decision of the Ninth Circuit Court of Appeals finding off-the-air recording an infringement of the copyright law. I am a cosponsor of S. 1758 and believe that it is sound legislation. As my colleagues are also aware, in 1976 when the Copyright Act was last revised, a number of difficult issues involving copyright protection were raised. In response, the Congress passed a law that contained several provisions to protect copyright owners such as the mechanical royalty for records and a compulsory license for secondary transmission by cable. Some witnesses will advocate the consideration of similar protections for copyright owners where both video and audio recorders are involved. There will probably be suggestions that a royalty fee on blank tape be given consideration by the Committee. Understandably, these are important issues, but I hope they would not impede the ultimate passage of legislation to correct the decision of the Ninth Circuit Court of Appeals. In the meantime, I know the Committee will listen to all sides in this debate and keep an open mind on these important questions. (1) OPENING STATEMENT OF SENATOR DENNIS DeCONCINI Senator DECONCINI. Before turning to the matter at hand and our group of witnesses here, I would like to publicly express my deep appreciation to the distinguished chairman, Strom Thurmond, for holding these hearings today. Jurisdiction over copyright matters lies with the full committee, and the chairman has gone well beyond the demands of conventional courtesy in assuring speedy action on this pressing issue. I should also like to commend his able staff, particularly Eric Hultman, for devoting the time and effort necessary to set up these hearings on such short notice. In 1976, Universal Studios and Walt Disney Productions sued the Sony Corp. of America in Federal district court claiming that video cassette recorders produced by Sony and others infringed upon their copyrighted material. The district court found for the defendants, but the matter was appealed to the Ninth Circuit Court of Appeals by Universal and Walt Disney Studios. At the end of last month the circuit court reversed the district court, remanding the case for the purpose of assessing damages. Without going into all aspects of this complicated case, including the current appeal to the Supreme Court, I would simply like to state that I am convinced that this is clearly an issue for Congress to decide, not the courts. The courts are at a disadvantage. They cannot, or at least should not, make the law. Their function is to interpret what Congress meant to cover and what Congress meant to exempt in the Copyright Act. In point of fact, Congress never did consider specifically the issue of video cassette recorders and, in that context, what the full reach of the Copyright Act should be. This is a field of burgeoning technology which is constantly outdistancing static legal concepts. In agreeing that artistic productions should be protected by copyrights to insure not only the reasonable property rights of the producers, but to stimulate the creative process, Congress did not assess whether such copyright protection should reach into the living rooms of private American citizens. Today, because of the invention and marketing of video cassette recorders, about 3 million American homes have the capability to record television signals on tape for replay at a time of the individual's choosing. The issue which I believe the Congress must now address is whether: (a) the consumer who tapes a television broadcast for replay at a time or times convenient to him or her is violating the Copyright Act, and (b) whether the intent of the act should be extended to reach into individuals' homes by either banning the sale of video cassette recorders or creating a special tax on recorders and blank tapes that would be distributed to copyright holders. In drafting S. 1758, Senator Thurmond, Senator D'Amato, and I have clearly stated our view on the matter. S. 1758 amends the Copyright Act by creating an exemption to the act for individuals taping broadcasts for their personal, noncommercial use. It is our strong belief that Congress never intended to deprive the individual of his or her rights to tape signals legally entering their living room for replay at a more convenient time or times. Indeed, it is this Senator's view that once a signal crosses the threshold of the individual's home, all copyright obligations cease unless the signal is captured for commercial purposes. Representatives of some copyright holders' groups have suggested that our legislation be modified to clarify that the individual using a video cassette recorder is not violating the law but that we simultaneously impose upon the consumer yet another tax or fee, this one redounding to the benefit of copyright holders. I expect that one or more of our witnesses today will be arguing for such a proposal, and I am interested to listen to those proposals, but I have some skepticism if indeed they are what I have made refer ence to. It is not generally my inclination to reject ideas in advance of their formal presentation. But although I am firmly committed to working with the entertainment industry to insure that the wording of our legislation does not go beyond our intent, I am equally opposed to the imposition of a copyright tax on the American consumer. To create such a tax, or whatever euphemism may be used for the tax, concedes that the individual does not have a right to the television signal which legally enters his home. Home video recording does not deprive the entertainment industry of copyright proceeds to which they would be entitled in its absence. But a new copyright tax would add to the coffers of copyright holders hundreds of millions of dollars from individuals sitting in their own living rooms who wish merely to time shift existing programming. It is my view that the individual consumer has already paid for copyrighted material that enters the home, albeit indirectly, but sometimes even directly. Movies and other entertainment features broadcast on free television are paid for, usually quite handsomely, by the networks on the basis of whatever the market will bear. The networks charge advertisers for the privilege of giving their products exposure concurrent with the airing of the entertainment item, and the circle closes when the American consumer purchases merchandise to which has already been added the cost of advertising. Thus, in a roundabout way the American consumer has already paid the copyright fee to the copyright holder. In the case of pay television, the connection is direct. An individual pays a monthly fee for certain events like movies, the proceeds of which are used by the supplying company to pay copyright holders and other costs and, of course, the profit. I would like to make it equally clear, however, that our legislation exempts only individuals who tape programs strictly for their personal, noncommercial use. S. 1758 only addresses one very specific problem area which demands immediate resolution. It does not address the myriad other problems which have been and are being created by the tremendous advances in communications technology. Congress must begin the process of integrating current technology with existing legal concepts such as the copyright laws. The basic issue here today is the right of the consumer versus the right of the copyright holder, although I should note that not all copyright holders have viewed home taping as an infringement. |