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 My name is Leon Friedman and I welcome the opportunity I am a professor of law at Hofstra Law School in use. The Decision The Universal City Studios decision held that off-the-air infringement. It viewed the problem differently than the Rather the question was whether "Congress...exhibited the intent to limit the rights of use. The court remanded the case for fashioning of an ap- Congressional Action It is entirely appropriate for Congress to step into 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 |