scheme It should be added that, if Congress adopts a royalty - where copyright owners are paid some appropriate fraction of the value of each VTR or blank tape sold to consumers, the odds that one of these bills could withstand constitutional attack are also enhanced because such a scheme burdens those who actually profit from the infringement of-the copyright rather than burdening the public at large. Such a plan would also avoid the need to increase taxes or cut other programs in order to pay for the property Congress has chosen to bestow on a small segment of the public in a period of tight budgets and broad national sacrifice. II. PRIVATE PROPERTY, SEEN AND UNSEEN - Whether or not these two high hurdles could be overcome, those unfamiliar with the legal use of the term "property may argue that a copyright, whatever sort of animal it may be, is not "property" at all, and that Congress thus cannot be required to pay for having taken one or, for that matter, compelled to adduce a public purpose for such a taking. After all, you can't plant corn or put up a house on a copyright; copyrights make unusual Christmas presents. But these doubts begin to fade with a moment's reflection, and they evaporate altogether with a minute's research. There can be no mistaking 21/ that a copyright is property in the strictest legal sense. 21/ See J. Cribbet, Principles of the Law of Property 4 (1962); T. Fields Jr., Intellectual and Industrial Property in a Nutshell, 77 W.Va.L.Rev. 525 (1977); 21 Santa Clara L. Rev. 49, 52 (1981); 8 N.Y.U. Rev.L. & Soc. Change 45, 47 (1978-79). With a copyright comes "the right to dispose of a thing in Property rights in intangibles have been recognized at common law since the both legal and economic counterparts. 22/ - - Black's Law Dictionary 1382 (rev. 4th ed. 1968). See Fox Film Corp. v. Doval, 286 U.S. 123 (1932). 23/ 24/ 24/ Copinger and Skone James on Copyright, 1-12 (11th ed., 1971). H. R. Rep. No. 756, 62nd Cong., 2nd Sess., p.1 Restatement of Property ch. I, Introductory Note (1936). If existing copyrights are either confiscated or rendered substantially less valuable by a sudden change in law, their owners must therefore be compensated.26/ Courts routinely find that an owner's property has been substantially diminished in value, and thus "taken" in the constitutional sense, when it has been physically occupied or consumed by government; physical invasion is a reliable proxy for such substantial, and readily discernible, diminution in value. And if the government had to compensate the owners of property only when it had physically seized or occupied it, it is no doubt true that the administrative costs of identifying and compensating all relevant claimants would be low indeed. But even though all physical invasions may be takings, not all takings are caused by physical invasions. Attempts to define "takings" of property by reference exclusively to the invasion of physical space have proven impossibly ambiguous, 27/ in addition to being too narrow to serve the ends of the takings clause. For the value even of physical property may be dramatically diminished without laying a hand on it, as where a zoning law renders formerly valuable property suddenly worthless. And many vulnerable by a takings rule that covered only tangible seiz ures and literal confiscations. 26/ See Michelman, supra note 6, at 1184 n.37. Id. at 1186-87. 80 the The most basic defining element of "property" right to exclude others from its use without the owner's permission 28/ is perhaps even more essential to a copyright than it is to most other forms of property; for this right is, in essence, the only source of a copyright's economic value. Unlike bricks of gold or acres of land, which may remain valu29/ able even after they have been seized or trespassed upon, a copyright's value is truly lost once the right to exclude others from its unlicensed and unpaid-for enjoyment and exploitation has been eliminated. This is so both because infringers are then free to make copies for themselves (something they cannot do with gold or land), and because the interest of viewers in seeing audiovisual works is limited to at most a few showings, while there is truth in the maxim that gold and land, like diamonds, are a joy forever. Because the legal prerogative to control a film's availability for viewing and copying is thus so central to the value of the underlying copyright, the primary power (and hence the principal value) protected as property by the copyright statute in this context is the legal power to exclude others a power that includes from using the copyrighted property 30/ 28/ See Kaiser Aetna v. United States, 444 U.S. 164, 17980 (1979). 29/ Fox Film Corp. v. Doval, 286 U.S. 123, 127 (1932). 32/ Each the right to sue for damages those who infringe the copyright, 31/ as well as the right to enjoin infringing activities. of these rights is a species of value created by the right to copy; all would be greatly debased if not wholly eliminated by the bills now before Congress; those bills would thus unmistakably work what the Constitution deems a "taking" of private property. III. COMPENSABLE HARMS TO COPYRIGHTHOLDERS' A. THE VALUE OF THE RIGHT TO EXCLUDE More specifically, the bills take from copyright owners, first of all, the exclusive right under Section 106 (1) 33/ to copy their works. The District Court in Universal v. Sony conceded that VTR copying does not merely trespass on this Section 106 (1) right: "Home use recording off-the-air usually involves copying the entire work."34/ No careful line-drawing is called for here, no borderline call about how much of the plaintiffs' rights would be lost if the proposed bills pass, because the entire right to copy is lost if VTR taping is permitted. 31/ See note 3, supra. 32/ 33/ See note 4, supra. Universal City Studios v. Sony Corp. of America, 480 F.Supp. 429 (1979); |