of the millions of private viewers who set their VCR to record a news program of their choice.

In addition to the lack of need in general to amend Copyright law for the sake of video monitors, the focus of S. 1805 on the fair use doctrine of copyright is particularly inapposite. The fair use analysis always proceeds from the facts of a given case. It is useful, therefore, to focus for a moment on recent litigation over video monitoring in which I represented CNN before the U.S. Court of Appeals for the Eleventh Circuit.11 In that case, Video Monitoring Services of America recorded the CNN signal 24 hours per day, 7 days per week, and sold videotape excerpts to the general public for profit, all without any license and notwithstanding CNN's repeated objection. To give an idea of the volume of the operation, in 1988 alone VMS realized revenues of approximately $300,000 attributable solely to its sale of CNN programming; VMS's New York office recorded approximately 2,500 separate sales of CNN's copyrighted

programming. Not a dime of that revenue ever made its way up the pipeline to CNN, the copyright owner that created the various cablecasts that VMS sold to its customers.

Under these circumstances, the fair use doctrine does not even begin to apply. Although a majority of the Supreme Court held in Sony that noncommercial use of a VCR for time-shifting purposes only may qualify as fair use, both the majority and dissent unanimously agreed that commercial use of the VCR falls

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outside the scope of permissible fair use. In addition, Sony acknowledges that it "may be helpful in calibrating the balance" for fair use purposes to determine whether the subject use is "productive" or "unproductive."13

A productive use, as defined

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by the lower court in Sony, is one in which the copier himself is engaged in creating a work of authorship by adding his own original contribution to that which was copied. Not only is the copying engaged in by video monitors unproductive, but it is undertaken purely for profit. Such activity falls far afield of uses that have traditionally been deemed fair.

Nonetheless, the video monitors argue that, even under existing law, the four fair use factors should be construed to immunize their activity. Judicial opinions on the subject are

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uniformly to the contrary.

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The broad lesson to emerge from

this juxtaposition is that the fair use factors are always

subject to argumentation on the facts of any given case and will

never yield a bright-line determination applicable in all

circumstances.

Applying that lesson to S. 1805, given that the bill does not alter any of the four fair use factors, but rather inserts language to the preamble statement of fair use, it is certain that the bill will not forestall future litigation. Though some video monitors may escape sanction under the bill who might have been held liable under existing law, it can be anticipated that other monitors will still be held infringing under the four fair

use factors even after S. 1805 were enacted.

Accordingly, the

bill cannot achieve its stated objective of eliminating a purportedly invidious "chilling effect" on the video monitoring industry.

Even if S. 1805 were accepted and generalized language that "news monitoring" is to be considered presumptively fair were added to the Act, the resulting statutory scheme would by no means eliminate argument as to whether, on a given set of facts, the four fair use factors weigh in favor of or against a holding of fair use. For unless the structure of the four factors themselves are changed

an upheaval that would reverberate

throughout the law of copyright

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we will inevitably be left

with a situation in which parties and courts will differ as to the propriety of video monitoring in given instances.

For instance, a university facility that copies snippets from CNN for distribution to the students in an undergraduate seminar on media coverage of the recent disturbances in Los Angeles presents a radically different posture from a monitoring service that sells 50,000 copies of every newscast repeating "dirty words" out of the reporting of a public scandal. Courts will inevitably approach the two situations differently.

The fair use doctrine in inherently unsuited to accommodate a laundry list of special use exemptions. The doctrine cannot anticipate every scenario in which the factors may apply, as it

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and should not

is a judge-made, malleable, and case-specific rule of decision. Specific use exemptions cannot assure that an entire industry will be let off scot-free from meeting the fair use criteria. Moreover, a categorical exemption of video monitors would rob the doctrine of the flexibility that makes it a meaningful tool in balancing intellectual property protection against the public's right of access.

Despite the fanfare of the bill's proponents, commercial video monitoring is little different from other services that duplicate copyrighted materials and exploit them for commercial purposes. Computerized news retrieval services, such as Nexis, Datatimes, Dow Jones & Co. News Retrieval, Newsnet and Dialog Information Service, which provide instant, on-line access to and full text reproduction of hundreds of different publications, demonstrate that licensing arrangements need not deter robust competition in the news access market. Similarly, commercial photographic archives, such as Associated Press and Bettman Archives, as well as public, non-commercial archives, including the Library of Congress and the National Archives, have been leasing or selling photographic reproductions from news and wire services for many years. These services have spurred the dissemination of information in manageable packages within existing copyright laws. There is no reason to believe that video monitoring cannot fit within the fair use template that has to date successfully accommodated other news and audio-visual archives.

Information access and retrieval technology is undergoing daily, rapid change. Rather than craft legislation that my chill development of new technologies (e.g., interactive, on-line video retrieval), Congress should ensure that existing non-profit, non-commercial uses remain anchored within the fair use exception and that commercial businesses built around the use of materials originated by others continue to be governed by traditional copyright law norms.