walls of one's home, or that one may freely use gas, electric and water services merely because those utilities have sent their property into private homes. Thus, while it may be difficult and certainly undesirable to enforce copyright infringement liability against an individual home taper, this difficulty does not render lawful an otherwise infringing act. C. Current Law Does Not Provide an Although home audio taping constitutes copyright infringement under current law, there is in fact no adequate mechanism to compensate copyright owners whose On the contrary, a works are thereby appropriated. series of legal actions to recover damages from individual home tapers would be both undesirable and impractical. Legal action against manufacturers and distributors of audio recorders and tape would be almost as difficult. Nor is there any assurance that such litigation would result in the creation of a fair, workable and enforceable royalty system for the future. RIAA therefore believes that the home taping problem should be resolved with comprehensive legislation in the Congress, not through piecemeal litigation in by the Court of Appeals in the "Betamax" case, when it indicated that a continuing royalty on the sale of As Professor recording equipment and tape "may very well be an acceptable resolution in this context."26/ Nimmer points out, such a royalty system would negate any concerns with the privacy implications of legal action against individual home tapers, while at the same time protect the interests of copyright owners. (Appendix Seven, at 26-31.) And while noting that such a royalty system could be imposed by judicial decree, he adds that the "far more efficient" approach would be for such a system to be adopted by legislation. (Id. at 30.) Professor Nimmer's conclusion, with which 25/ The courts themselves evidently agree. The District Court in the "Betamax" case stated that: 26/ "[T]he full resolution of these issues Universal City Studios Inc. v. Sony Corp. of America, 659 F.2d at 976. RIAA strongly concurs, is that "[t]he proposed Mathias Amendment No. 1333 and Edwards Bill H.R. 5705 would accomplish exactly such a salutary objective." at 31.) (Id. IV. BASIC CONSTITUTIONAL PRINCIPLES MANDATE The purpose of the home taping legislation introduced by Senator Mathias and Representative Don Edwards is not merely to compensate copyright owners for the economic losses attributable to home audio taping, nor merely to provide an enforceable remedy for the infringement of existing legal rights, important though these purposes are. It also implements certain basic constitutional principles and property rights. The first basic principle served by this legislation is found in the Copyright Clause of the U.S. Constitution. That clause authorizes Congress to establish a copyright system that will reward creators for the use of their works and thereby stimulate the creation of new works for the public benefit. Uncompensated home taping offends that constitutional principle because it denies creators a just reward for the use of their works. And by denying creative artists their just compensation, home taping frustrates the - 37 copyright system and thereby works to diminish the quantity and diversity of new creations that can be offered to the public. The second basic principle served by this legislation is the right to compensation for the taking Home taping involves the invasion of private property. of legally protected property --the exclusive right to reproduce a copyrighted work belonging to the owners of copyrights in sound recordings and musical works. Without any compensation, home taping is nothing more than a "home taking of private property. detail. We next discuss each of these points in more A. The Constitutional Basis of Copyright Protection In considering the issue of home taping, it is important to bear in mind that our American copyright Congress: *To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." 38 The Supreme Court has explained the philosophy underlying the exercise of that power as follows: "The economic philosophy behind the 27 In other words, the purpose of affording copyright protection is both to reward the creator and to encourage the production of literary and artistic works for the public benefit. As the Supreme Court has put it: "The immediate effect of our copyright the labor of authors.28yblic The musical arts in our country have flourished under this system, and as a result, the consumer has enjoyed 27/ Mazer v. Stein, 347 U.S. 201, 219 (1954). 28/ Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). 96-601 0-82-48 |