Mr. FRIEDMAN. AS Senator DeConcini said, we already have a situation where the statutory materials are really not available. It is a guess one way or another: Did Congress intend that video recording would be an infringement, or did they intend that the broad, fair use provision, section 107, really protects this?

Both the lower courts were simply guessing at rather broad language in two separate sections. The court of appeals relied on section 106, which gave the copyright owner very broad control of his material. The district court judge relied on section 107, which has a very broad definition of "fair use."

The materials on which to determine what Congress intended are not there. The Supreme Court would just look into the crystal ball, like both other courts have done, and try and guess at what Congress intended. If Congress intends one thing or another, it can tell the Supreme Court, it can tell the Federal court, "Here's what we really had in mind.

Senator D'AMATO. So you reject that contention that we should wait for the Supreme Court to act?

Mr. FRIEDMAN. No, because the Supreme Court is not going to determine a remedy. Congress has to determine a remedy.

Senator D'AMATO. In any event, even if we determine that there is a violation of some copyright law, then comes the matter of enforcement and the rest, as you have spelled out.

Mr. FRIEDMAN. The equipment is simply not there. The statutory materials are simply not there. Congress has to do something, one way or another.

Senator D'AMATO. In your analysis of S. 1758, Professor, did you indicate, or does it appear to you, that the enforcement of S. 1758 would in any way work a hardship on, for example, the authors or the producers?

Mr. FRIEDMAN. Well, it is going to work a hardship on the producers, because they are not going to get a huge windfall.

Senator D'AMATO. But would it work a hardship on them?

Mr. FRIEDMAN. No, I do not see how it would work any hardship on them. They have already made their deals with the television networks, with everyone else, with syndicators, or whatever. This is a total windfall for them, one way or another.

Senator D'AMATO. Does it work a hardship on the writers, the authors, et cetera?

Mr. FRIEDMAN. As I said, there was a strike this summer in which the writers ended up with a very small amount of the total coming in, and mostly I believe from the actual sale of video cassettes over the counter.

Senator D'AMATO. But S. 1758 in itself would not work a hardship on them?

Mr. FRIEDMAN. No, it would not work a hardship on them at all. Senator D'AMATO. Thank you very much, Professor.

I have no further questions, Mr. Chairman.

Senator DECONCINI. Congressman, do you wish to make a statement?

Mr. PARRIS. I have just one very quick question, Senator.

Would you agree with the statement that the adoption of this legislation would render the question of individual use by the Supreme Court, the ninth circuit, or whoever-would render that

moot and that the adoption of this legislation would be, in effect, even an appropriate delinkage of the mechanism of the profoundly more complex issues of payments of royalties, the entertainment fees, and all those questions, as opposed to individual use of this equipment? Would that be an effective way to approach it?

Mr. FRIEDMAN. It would be effective. Let me just, if I can, act professorial for a moment. There is some technical gap in the legislation. The one thing it does not cover is if there is a performance under State law which is not being simultaneously recorded, so that there is no Federal statutory copyright protection. There still may be enforcement under State misappropriation laws.

I think there should be an additional technical amendment to make sure that any home video recording of any kind is neither a violation of copyright nor of any State statutory or common law. That would simply eliminate that issue. The home video recording would simply not be actionable under the laws of either the Federal Government or of any State. Then Congress can come in and make a more appropriate examination of the technologies and determine what it thinks would be desirable over the long run.

Mr. PARRIS. But do you think we should limit it just to the home? How about the priest who wants to watch the Notre Dame replays on Sunday morning during mass? He wants to do that on the next Saturday night in his office, for example.

Mr. FRIEDMAN. There is a definition for public performance in the statute which talks about,

To publicly perform the work is to perform or to display it at a place open to the public or in any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.

I think you can simply plug in that definition. If there is a normal circle of social acquaintances, that is what we are talking about, but that already exists within the statute, and that might be plugged into this situation.

Mr. PARRIS. Thank you.

Senator DECONCINI. Thank you very much, Professor Friedman. We appreciate your enthusiastic analysis of this legislation and Congress' involvement in it. It has been very helpful to us. Mr. FRIEDMAN. Thank you very much.

[Material follows:]

TESTIMONY OF

PROFESSOR LEON FRIEDMAN
HOFSTRA LAW SCHOOL

My name is Leon Friedman and I welcome the opportunity
to testify this afternoon on S.1758, a bill that would over-
rule the recent decision of the Ninth Circuit Court of Ap-
peals in Universal City Studios v. Sony Corp. of America,
659 F.2d 963 (1981.

I am a professor of law at Hofstra Law School in
Hempstead, New York. I teach copyright law and have practiced
in the field for over 20 years. I have also lectured on copy-
right law to federal judges through the auspices of the Federal
Judicial Center. I believe that S.1758 is both an appropriate
remedy for Congress to enact and it is a desirable response
to the court decision.

use.

The Decision

The Universal City Studios decision held that off-the-air
copying of copyrighted television programs by videotape
recorders constituted copyright infringement even if the copy-
ing was done by private persons for their own non-commercial
The Court of Appeals reversed an earlier decision by
Judge Ferguson reported at 480 F.Supp. 429 (C.D. Calif. 1979)
which held that videotape recording by private consumers con-
in
stituted fair use and/any event the manufacturers of such
equipment were not contributory infringers The Court of Ap-
peals, relying on the absence of any language in the copy-
right law or legislative history relating to private home
video recording, concluded that such copying could not be
fair use. It held that the broad grant of monopoly rights
to copyright owners under Section 106 of the law, in particular,
par. 1 which gave such owners the right to "reproduce the copy-
righted work in copies or phonorecords," dictated a finding of

infringement. It viewed the problem differently than the
district court: the question was not whether Congress showed
any intent "to protect copyright holders from certain re-
production of his works,"

Rather the question was whether

"Congress...exhibited the intent to limit the rights of
copyright owners in ways not specified in §§107-118." 659
F.2d at 966. Finding no intent to limit the broad grant of
rights under $106 or any indication that the fair use doctrine
was meant to apply, it found for the plaintiff. It rejected
any analogy in the photocopying area, particularly the Court
of Claims decision in Williams & Wilkens Co. v. United States,
487 F.2d 1345 (Ct.cl. 1973) aff'd by an equally divided court,
420 U.S. 376 (1975) which held that single-copy photocopying
of a copyrighted article for personal use constituted fair

use.

The court remanded the case for fashioning of an ap-
propriate remedy which it recognized would be very difficult.

Congressional Action

It is entirely appropriate for Congress to step into
the matter now and legislate a solution to the problems raised
by the Court of Appeals decision. In the first place, the
entire opinion is based upon statutory construction of the
Copyright Law. The district court thought that Congress in-
tended to allow private home videorecording under the broad
definition of fair use. The Court of Appeals thought the
Congress intended to grant copyright owners protection in this
situation because of the broad grant of protection in Section
106. The Supreme Court can try to interpret or guess what
Congress intended just as the lower courts did, based on the
almost complete lack of statutory materials focusing on the
issue. Or Congress can now tell the courts exactly what it
wants to do about the question now since it apparently never

96-601 0-82-3

focused on the issue when it passed the 1976 revision.

Secondly it is certainly appropriate for Congress to grant broad exemption under the copyright law to certain classes of users of copyrighted material. The copyright law already contains provisions for compulsory licenses and outright exemptions for persons who otherwise would be considered infringers. We have had a compulsary license for making records of copyrighted music for over 70 years, first in Section 1(e) of the 1909 law and now in Section 115 of the new law. Congress established a fee of 2 cents under the old law and 2-3/4 cents under the new law. Section 111 has a compulsary license provision for cable systems. Section 118 provides a special procedure for public broadcasting entities using certain types of literary works.

More to the point, the statute has specific exemptions for certain kinds of uses which would otherwise be considered an infringement. Section 110 begins broadly that "notwithstanding the provisions of section 106 the following are not infringements of copyright:" Then follows outright exemptions for educational uses of certain works, religious uses, uses for charitable solicitation, uses in non-profit agricultural or horticultural fairs, uses directed to blind or handicapped persons and so on. Even though the uses would otherwise violate Section 106 rights, Congress determined that the uses specified in Section 110 should be permitted.

Congress also specified other uses that would not lead

to liability. In Section 504 (c)(2) Congress established certain minimum and maximum levels for statutory damages.

For

$100 minimum for all infringements of one work. But employees of libraries, schools or archives who made photocopies, thinking that it would be considered fair use but