Petitioner operates community antenna television (CATV) systems
which receive, amplify, and modulate signals from five television
stations, convert them to different frequencies, and transmit them
to their subscribers' television sets. Petitioner does not edit the
programs or originate any programs of its own. Respondent, which
owns copyrights on several motion pictures, had licensed the five
television stations to broadcast certain of these films. The
licenses did not authorize carriage of the broadcasts by CATV, and
in some instances specifically prohibited such carriage. Respondent
sued petitioner, which had no copyright license from either
respondent or the television stations, for copyright infringement,
claiming violation of its exclusive rights under §§ 1(c) and (d) of
the Copyright Act of 1909, to "perform . . . in public for profit"
(nondramatic literary works) and to "perform . . . publicly"
(dramatic works). Petitioner maintained that it did not "perform"
the copyrighted works at all. The District Court ruled for
respondent on the infringement issue, which was tried separately,
and the Court of Appeals affirmed.
Held. Judicial construction of the Copyright Act, in
the light of drastic technological changes, has treated
broadcasters as exhibitors, who "perform," and viewers as members
of the audience, who do not "perform," and, since petitioner's CATV
systems basically do no more than enhance the viewers' capacity to
receive the broadcast signals, the CATV systems fall within the
category of viewers, and petitioner does not "perform" the programs
that its systems receive and carry. Pp.
392 U. S.
395-402.
377 F.2d 872, reversed.
Page 392 U. S. 391
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner, Fortnightly Corporation, owns and operates
community antenna television (CATV) systems in Clarksburg and
Fairmont, West Virginia. [
Footnote
1] There were no local television broadcasting stations in that
immediate area until 1957. Now there are two, but, because of hilly
terrain, most residents of the area cannot receive the broadcasts
of any additional stations by ordinary rooftop antennas. Some of
the residents have joined in
Page 392 U. S. 392
erecting larger cooperative antennas in order to receive more
distant stations, but a majority of the householders in both
communities have solved the problem by becoming customers of the
petitioner's CATV service. [
Footnote 2]
The petitioner's systems consist of antennas located on hills
above each city, with connecting coaxial cables, strung on utility
poles, to carry the signals received by the antennas to the home
television sets of individual subscribers. The systems contain
equipment to amplify and modulate the signals received, and to
convert them to different frequencies, in order to transmit the
signals efficiently while maintaining and improving their strength.
[
Footnote 3]
During 1960, when this proceeding began, the petitioner's
systems provided customers with signals of five television
broadcasting stations, three located in Pittsburgh, Pennsylvania;
one in Steubenville, Ohio, and one in Wheeling, West Virginia.
[
Footnote 4] The distance
between those cities and Clarksburg and Fairmont ranges from 52 to
82 miles. [
Footnote 5] The
systems carried all the programming of each of the five stations,
and a customer could choose any of the five programs he wished to
view by simply turning the knob on his own television set. The
petitioner neither edited the programs received nor originated any
programs of its own. [
Footnote
6] The petitioner's customers
Page 392 U. S. 393
were charged a flat monthly rate regardless of the amount of
time that their television sets were in use. [
Footnote 7]
The respondent, United Artists Television, Inc., holds
copyrights on several motion pictures. During the period in suit,
the respondent (or its predecessor) granted various licenses to
each of the five television stations in question to broadcast
certain of these copyrighted motion pictures. Broadcasts made under
these licenses were received by the petitioner's Clarksburg and
Fairmont CATV systems and carried to its customers. At no time did
the petitioner (or its predecessors) obtain a license under the
copyrights from the respondent or from any of the five television
stations. The licenses granted by the respondent to the five
stations did not authorize carriage of the broadcasts by CATV
systems, and, in several instances, the licenses specifically
prohibited such carriage.
The respondent sued the petitioner for copyright infringement in
a federal court, asking damages and injunctive relief. The issue of
infringement was separately tried, and the court ruled in favor of
the respondent.
255 F.
Supp. 177. On interlocutory appeal under 28 U.S.C. § 1292(b),
the Court of Appeals for the Second Circuit affirmed. 377 F.2d 872.
We granted certiorari, 389 U.S. 969, to consider an important
question under the Copyright Act of 1909, 35 Stat. 1075, as
amended, 17 U.S.C. 1
et seq.
The Copyright Act does not give a copyright holder control over
all uses of his copyrighted work. [
Footnote 8] Instead,
Page 392 U. S. 394
§ 1 of the Act enumerates several "rights" that are made
"exclusive" to the holder of the copyright. [
Footnote 9] If a person, without authorization
from the copyright holder, puts a
Page 392 U. S. 395
copyrighted work to a use within the scope of one of these
"exclusive rights," he infringes the copyright. If he puts the work
to a use not enumerated in § 1, he does not infringe. [
Footnote 10] The respondent's
contention is that the petitioner's CATV systems infringed the
respondent's § 1(c) exclusive right to "perform . . . in public for
profit" (nondramatic literary works) [
Footnote 11] and its § 1(d) exclusive right to "perform .
. . publicly" (dramatic works). [
Footnote 12] The petitioner maintains that its CATV
systems did not "perform" the copyrighted works at all. [
Footnote 13]
At the outset, it is clear that the petitioner's systems did not
"perform" the respondent's copyrighted works in any conventional
sense of that term, [
Footnote
14] or in any manner envisaged by the Congress that enacted the
law in 1909. [
Footnote 15]
But our inquiry cannot be limited to ordinary meaning and
legislative history, for this is a statute that was drafted long
before the development of the electronic phenomena with which we
deal here. [
Footnote 16] In
1909, radio
Page 392 U. S. 396
itself was in its infancy, and television had not been invented.
We must read the statutory language of 60 years ago in the light of
drastic technological change. [
Footnote 17] The Court of Appeals thought that the
controlling question in deciding whether the petitioner's CATV
systems "performed" the copyrighted works was: "[H]ow much did the
[petitioner] do to bring about the viewing and hearing of a
copyrighted work?" 377 F.2d at 877. Applying this test, the court
found that the petitioner did "perform" the programs carried by its
systems. [
Footnote 18]
But
Page 392 U. S. 397
mere quantitative contribution cannot be the proper test to
determine copyright liability in the context of television
broadcasting. If it were, many people who make large contributions
to television viewing might find themselves liable for copyright
infringement -- not only the apartment house owner who erects a
common antenna for his tenants, but the shopkeeper who sells or
rents television sets, and, indeed, every television set
manufacturer. Rather, resolution of the issue before us depends
upon a determination of the function that CATV plays in the total
process of television broadcasting and reception.
Television viewing results from combined activity by
broadcasters and viewers. Both play active and indispensable roles
in the process; neither is wholly passive. The broadcaster selects
and procures the program to be viewed. He may produce it himself,
whether "live" or with film or tape, or he may obtain it from a
network or some other source. He then converts the visible images
and audible sounds of the program into electronic signals,
[
Footnote 19] and broadcasts
the signals at radio frequency for public reception. [
Footnote 20] Members of the public,
by means of television sets and antennas that they themselves
provide, receive the broadcaster's signals and reconvert
Page 392 U. S. 398
them into the visible images and audible sounds of the program.
The effective range of the broadcast is determined by the combined
contribution of the equipment employed by the broadcaster and that
supplied by the viewer. [
Footnote 21]
The television broadcaster in one sense does less than the
exhibitor of a motion picture or stage play; he supplies his
audience not with visible images, but only with electronic signals.
The viewer, conversely, does more than a member of a theater
audience; he provides the equipment to convert electronic signals
into audible sound and visible images. Despite these deviations
from the conventional situation contemplated by the framers of the
Copyright Act, [
Footnote 22]
broadcasters have been judicially treated as exhibitors, and
viewers as members of a theater audience. Broadcasters perform.
[
Footnote 23] Viewers do not
perform. [
Footnote 24] Thus,
while both broadcaster and viewer play crucial roles in the total
television process, a line is drawn
Page 392 U. S. 399
between them. One is treated as active performer; the other, as
passive beneficiary.
When CATV is considered in this framework, we conclude that it
falls on the viewer's side of the line. [
Footnote 25] Essentially, a CATV system no more than
enhances the viewer's capacity to receive the broadcaster's
signals; it provides a well located antenna with an efficient
connection to the viewer's television set. [
Footnote 26] It is true that a CATV system plays
an "active" role in making reception possible in a given area, but
so do ordinary television sets and antennas. CATV equipment is
powerful and sophisticated, but the basic function the equipment
serves is little different from that served by the equipment
generally furnished by a television viewer. [
Footnote 27]
Page 392 U. S. 400
If an individual erected an antenna on a hill, strung a cable to
his house, and installed the necessary amplifying equipment, he
would not be "performing" the programs he received on his
television set. The result would be no different if several people
combined to erect a cooperative antenna for the same purpose. The
only difference in the case of CATV is that the antenna system is
erected and owned not by its users, but by an entrepreneur.
The function of CATV systems has little in common with the
function of broadcasters. [
Footnote 28] CATV systems do not, in fact, broadcast or
rebroadcast. [
Footnote 29]
Broadcasters select the programs to be viewed; CATV systems simply
carry, without editing, whatever programs they receive.
Broadcasters procure programs and propagate them to the public;
CATV systems receive programs that have been released to the public
and carry them by private channels to additional viewers. We hold
that CATV
Page 392 U. S. 401
operators, like viewers and unlike broadcasters, do not perform
the programs that they receive and carry. [
Footnote 30]
We have been invited by the Solicitor General in an
amicus
curiae brief to render a compromise decision in this case that
would, it is said, accommodate various competing considerations of
copyright, communications, and antitrust policy. [
Footnote 31] We decline the invitation.
[
Footnote 32] That job is
for Congress. [
Footnote 33]
We take the Copyright Act of 1909
Page 392 U. S. 402
as we find it. With due regard to changing technology, we hold
that the petitioner did not, under that law, "perform" the
respondent's copyrighted works.
The judgment of the Court of Appeals is Reversed
MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL took no part in the
consideration or decision of this case.
MR. JUSTICE HARLAN took no part in the decision of this
case.
[
Footnote 1]
For a discussion of CATV systems generally,
see United
States v. Southwestern Cable Co., ante at
392 U. S.
161-164.
[
Footnote 2]
In 1960, out of 11,442 occupied housing units in the Clarksburg
area, about 7,900 subscribed to the petitioner's CATV service; out
of 9,079 units in Fairmont, about 5,100 subscribed.
[
Footnote 3]
The petitioner's systems utilized modulating equipment only
during the period 1958-1964.
[
Footnote 4]
Since 1960, some changes have been made in the stations carried
by each of the petitioner's systems. As of May 1, 1964, the
Clarksburg system was carrying the two local stations and three of
the more distant stations, and the Fairmont system was carrying one
local station and four of the more distant stations.
[
Footnote 5]
Clarksburg and Fairmont are 18 miles apart.
[
Footnote 6]
Some CATV systems, about 10%, originate some of their own
programs. We do not deal with such systems in this opinion.
[
Footnote 7]
The monthly rate ranged from $3.75 to $5, and customers were
also charged an installation fee. Increased charges were levied for
additional television sets and for commercial establishments.
[
Footnote 8]
See, e.g., Fawcett Publications v. Elliot Publishing
Co., 46 F. Supp.
717;
Hayden v. Chalfant Press, Inc., 281 F.2d 543,
547-548.
"The fundamental [is] that 'use' is not the same thing as
'infringement,' that use short of infringement is to be encouraged.
. . ."
B. Kaplan, An Unhurried View of Copyright 57 (1967).
[
Footnote 9]
"Any person entitled thereto, upon complying with the provisions
of this title, shall have the exclusive right: "
"(a) To print, reprint, publish, copy, and vend the copyrighted
work;"
"(b) To translate the copyrighted work into other languages or
dialects, or make any other version thereof, if it be a literary
work; to dramatize it if it be a nondramatic work; to convert it
into a novel or other nondramatic work if it be a drama; to arrange
or adapt it if it be a musical work; to complete, execute, and
finish it if it be a model or design for a work of art;"
"(c) To deliver, authorize the delivery of, read, or present the
copyrighted work in public for profit if it be a lecture, sermon,
address or similar production, or other nondramatic literary work;
to make or procure the making of any transcription or record
thereof by or from which, in whole or in part, it may in any manner
or by any method be exhibited, delivered, presented, produced, or
reproduced, and to play or perform it in public for profit, and to
exhibit, represent, produce, or reproduce it in any manner or by
any method whatsoever. The damages for the infringement by
broadcast of any work referred to in this subsection shall not
exceed the sum of $100 where the infringing broadcaster shows that
he was not aware that he was infringing and that such infringement
could not have been reasonably foreseen; and"
"(d) To perform or represent the copyrighted work publicly if it
be a drama or, if it be a dramatic work and not reproduced in
copies for sale, to vend any manuscript or any record whatsoever
thereof; to make or to procure the making of any transcription or
record thereof by or from which, in whole or in part, it may in any
manner or by any method be exhibited, performed, represented,
produced, or reproduced, and to exhibit, perform, represent,
produce, or reproduce it in any manner or by any method whatsoever;
and"
"(e) To perform the copyrighted work publicly for profit if it
be a musical composition, and for the purpose of public performance
for profit, and for the purposes set forth in subsection (a)
hereof, to make any arrangement or setting of it or of the melody
of it in any system of notation or any form of record in which the
thought of an author may be recorded and from which it may be read
or reproduced. . . ."
17 U.S.C. § 1.
[
Footnote 10]
The Copyright Act does not contain a definition of infringement
as such. Rather, infringement is delineated in a negative fashion
by the § 1 enumeration of rights exclusive to the copyright holder.
See M. Nimmer, Copyright § 100 (1968).
[
Footnote 11]
See n 9,
supra. We do not reach the petitioner's claim that the
respondent's animated cartoons are not "literary works."
[
Footnote 12]
See n 9,
supra.
[
Footnote 13]
The petitioner also contends that, if it did "perform" the
copyrighted works, it did not do so "in public."
[
Footnote 14]
Cf. White-Smith Music Co. v. Apollo Co., 209 U. S.
1.
[
Footnote 15]
The legislative history shows that the attention of Congress was
directed to the situation where the dialogue of a play is
transcribed by a member of the audience, and thereafter the play is
produced by another party with the aid of the transcript. H.R.Rep.
No. 2222, 60th Cong., 2d Sess., 4 (1909).
[
Footnote 16]
"While statutes should not be stretched to apply to new
situations not fairly within their scope, they should not be so
narrowly construed as to permit their evasion because of changing
habits due to new inventions and discoveries."
Jerome H. Remic & Co. v. American Automobile Accessories
Co., 5 F.2d 411.
[
Footnote 17]
A revision of the 1909 Act was begun in 1955, when Congress
authorized a program of studies by the Copyright Office. Progress
has not been rapid. The Copyright Office issued its report in 1961.
Register of Copyrights, Report on the General Revision of the U.S.
Copyright Law, House Judiciary Committee Print, 87th Cong., 1st
Sess. (1961). Revision bills were introduced in the House in the
Eighty-eighth Congress and in both the House and the Senate in the
Eighty-ninth Congress.
See H.R. 11947, 88th Cong., 2d
Sess.; Hearings on H.R. 4347, 5680, 6831, 6835 before Subcommittee
No. 3 of the House Judiciary Committee, 89th Cong., 1st Sess.
(1965); Hearings on S. 1006 before the Subcommittee on Patents,
Trademarks, and Copyrights of the Senate Judiciary Committee, 89th
Cong., 2d Sess. (1966). H.R. 4347 was reported favorably by the
House Judiciary Committee, H.R.Rep. No. 2237, 89th Cong., 2d Sess.
(1966), but not enacted. In the Ninetieth Congress, revision bills
were again introduced in both the House (H.R. 2512) and the Senate
(S. 597). The House bill was again reported favorably, H.R.Rep. No.
83, 90th Cong., 1st Sess. (1967), and this time, after amendment,
passed by the full House. 113 Cong.Rec. 9021. The bill as reported
contained a provision dealing with CATV, but the provision was
struck from the bill on the House floor prior to enactment.
See n 33,
infra. The House and Senate bills are currently pending
before the Senate Subcommittee on Patents, Trademarks, and
Copyrights.
[
Footnote 18]
The court formulated and applied this test in the light of this
Court's decision in
Buck v. Jewell-LaSalle Realty Co.,
283 U. S. 191.
See also Society of European Stage Authors Composers v. New
York Hotel Statler Co., 19 F. Supp.
1. But, in
Jewell-LaSalle, a hotel received on a
master radio set an unauthorized broadcast of a copyrighted work
and transmitted that broadcast to all the public and private rooms
of the hotel by means of speakers installed by the hotel in each
room. The Court held the hotel liable for infringement, but noted
that the result might have differed if, as in this case, the
original broadcast had been authorized by the copyright holder. 283
U.S. at
283 U. S. 199,
n. 5. The
Jewell-LaSalle decision must be understood as
limited to its own facts.
See n 30,
infra.
[
Footnote 19]
If the broadcaster obtains his program from a network, he
receives the electronic signals directly by means of telephone
lines or microwave.
[
Footnote 20]
Broadcasting is defined under the Communications Act of 1934 as
"the dissemination of radio communications intended to be received
by the public. . . ." 47 U.S.C. § 153 (o).
[
Footnote 21]
See Hearings on H.R. 4347, 5680, 6831, 6835 before
Subcommittee No. 3 of the House Judiciary Committee, 89th Cong.,
1st Sess., at 1312-1318 (1965).
[
Footnote 22]
See n 15,
supra.
[
Footnote 23]
Jerome H. Remick & Co. v. American Automobile
Accessories Co., 5 F.2d 411 (radio broadcast);
Associated
Music Publishers v. Debs Memorial Radio Fund, 141 F.2d 852
(radio broadcast of recorded program);
Select Theatres Corp. v.
Ronzoni Macaroni Co., 59 U.S.P.Q. 288 (D.C.S.D.N.Y.) (radio
broadcast of program received from network). Congress in effect
validated these decisions in 1952 when it added to § 1(c) a special
damages provision for "infringement by broadcast." 66 Stat.
752.
[
Footnote 24]
"One who manually or by human agency merely actuates electrical
instrumentalities, whereby inaudible elements that are omnipresent
in the air are made audible to persons who are within hearing, does
not 'perform' within the meaning of the Copyright Law."
Buck v. Debaum, 40 F.2d
734, 735.
"[T]hose who listen do not perform. . . ."
Jerome H. Remick & Co. v. General Electric
Co., 16 F.2d
829.
[
Footnote 25]
While we speak in this opinion generally of CATV, we necessarily
do so with reference to the facts of this case.
[
Footnote 26]
Cf. Lilly v. United States, 238 F.2d 584, 587:
"[T]his community antenna service was a mere adjunct of the
television receiving sets with which it was connected. . . ."
[
Footnote 27]
The District Court's decision was based in large part upon its
analysis of the technical aspects of the petitioner's systems. The
systems have contained at one time or another sophisticated
equipment to amplify, modulate, and convert to different
frequencies the signals received -- operations which all require
the introduction of local energy into the system. The court
concluded that the signal delivered to subscribers was not the same
signal as that initially received off the air. 255 F. Supp. at
190-195. The Court of Appeals refused to attach significance to the
particular technology of the petitioner's systems, 377 F.2d at 879,
and we agree. The electronic operations performed by the
petitioner's systems are those necessary to transmit the received
signal the length of the cable efficiently and deliver a signal of
adequate strength. Most of the same operations are performed by
individual television sets and antennas.
See Hearings on
H.R. 4347 before Subcommittee No. 3 of the House Judiciary
Committee,
supra, at 1312-1318. Whether or not the signals
received and delivered are the "same," the entire process is
virtually instantaneous, and electronic "information" received and
delivered is identical. 255 F. Supp. at 192.
[
Footnote 28]
Cf. Intermountain Broadcasting & Television Corp. v.
Idaho Microwave, Inc., 196 F.
Supp. 315, 325:
"[Broadcasters] and [CATV systems] are not engaged in the same
kind of business. They operate in different ways for different
purposes."
"[Broadcasters] are in the business of selling their
broadcasting time and facilities to the sponsors to whom they look
for their profits. They do not and cannot charge the public for
their broadcasts, which are beamed directly, indiscriminately, and
without charge through the air to any and all reception sets of the
public as may be equipped to receive them."
"[CATV systems], on the other hand, have nothing to do with
sponsors, program content or arrangement. They sell community
antenna service to a segment of the public for which
[broadcasters'] programs were intended but which is not able,
because of location or topographical condition, to receive them
without rebroadcast or other relay service by community antennae. .
. ."
[
Footnote 29]
Cable Vision, Inc. v. KUTV, Inc., 211 F. Supp.
47,
vacated on other grounds, 335 F.2d 348;
Report
and Order on CATV and TV Repeater Services, 26 F.C.C. 403,
429-430.
[
Footnote 30]
It is said in dissent that
"Our major object . . . should be to do as little damage as
possible to traditional copyright principles and to business
relationships, until the Congress legislates. . . ."
Post at
392 U. S. 404.
But existing "business relationships" would hardly be preserved by
extending a questionable 35-year-old decision that, in actual
practice, has not been applied outside its own factual context,
post at
392 U. S. 405,
n. 3, so as retroactively to impose copyright liability where it
has never been acknowledged to exist before.
See n 18,
supra.
[
Footnote 31]
Compare, e.g., Note, CATV and Copyright Liability, 80
Harv.L.Rev. 1514 (1967); Note, CATV and Copyright Liability: On a
Clear Day You Can See Forever, 52 Va.L.Rev. 1505 (1966); B. Kaplan,
An Unhurried View of Copyright 104-106 (1967); Statement of then
Acting Assistant Attorney General (Antitrust Division) Zimmerman,
Hearings on S. 1006 before the Subcommittee on Patents, Trademarks,
and Copyrights of the Senate Judiciary Committee, 89th Cong., 2d
Sess., at 211-219 (1966).
[
Footnote 32]
The Solicitor General would have us hold that CATV systems do
perform the programs they carry, but he would have us "imply" a
license for the CATV "performances." This "implied in law" license
would not cover all CATV activity but only those instances in which
a CATV system operates within the "Grade B Contour" of the
broadcasting station whose signal it carries. The Grade B contour
is a theoretical FCC concept defined as the outer line along which
reception of acceptable quality can be expected at least 90% of the
time at the best 50% of locations. Sixth Report and Order, 17
Fed.Reg. 3905, 3915. Since we hold that the petitioner's systems
did not perform copyrighted works, we do not reach the question of
implied license.
[
Footnote 33]
The copyright revision bill recently passed by the House,
see n 17,
supra, originally contained a detailed and somewhat
complex provision covering CATV. H.R. 2512, 90th Cong., 1st Sess.,
§ 111. Congressman Poff described the bill in terms of its effect
on the District Court's decision in the present case:
"By, in effect, repealing the court decision which would impose
full copyright liability on all CATV's in all situations, the
committee recommends H.R. 2512, which would exempt them in some
situations, make them fully liable in some, and provide limited
liability in others."
113 Cong.Rec. 8588.
See H.R.Rep. No. 83, 90th Cong.,
1st Sess., 6-7, 48-59 (1967). On the House floor, the CATV
provision was deleted in order to refer the matter to the
Interstate and Foreign Commerce Committee, which has jurisdiction
over communications. 113 Cong. 8598-8601, 8611-8613, 8618-8622,
8990-8992. In urging deletion of the CATV provision, Congressman
Moore said:
"[W]hat we seek to do in this legislation is control CATV by
copyright. I say that is wrong. I feel if there is to be
supervision of this fast-growing area of news media and
communications media, it should legitimately come to this body from
the legislative committee that has direct jurisdiction over the
same."
". . . This bill and the devices used to effect communications
policy are not proper functions of copyright. . . ."
113 Cong.Rec. 8599.
MR. JUSTICE FORTAS, dissenting.
This case calls not for the judgment of Solomon, but for the
dexterity of Houdini. We are here asked to consider whether and how
a technical, complex, and specific Act of Congress, the Copyright
Act, which was enacted in 1909, applies to one of the recent
products of scientific
Page 392 U. S. 403
and promotional genius, CATV. The operations of CATV systems are
based upon the use of other people's property. The issue here is
whether, for this use, the owner of copyrighted material should be
compensated. From a technical standpoint, the question -- or at
least one important question -- is whether the use constitutes a
"performance" of the copyrighted material within the meaning of §
1(c) of the Copyright Act, 17 U.S.C. § 1(c). But it is an
understatement to say that the Copyright Act, including the concept
of a "performance," was not created with the development of CATV in
mind. The novelty of the use, incident to the novelty of the new
technology, results in a baffling problem. Applying the normal
jurisprudential tools -- the words of the Act, legislative history,
and precedent -- to the facts of the case is like trying to repair
a television set with a mallet. And no aid may be derived from the
recent attempts of Congress to formulate special copyright rules
for CATV -- for Congress has vacillated in its approach. [
Footnote 2/1]
At the same time, the implications of any decision we may reach
as to the copyright liability of CATV are very great. On the one
hand, it is darkly predicted that the imposition of full liability
upon all CATV operations could result in the demise of this new,
important instrument of mass communications, or in its becoming a
tool of the powerful networks which hold a substantial number of
copyrights on materials used in the television industry. On the
other hand, it is foreseen that a decision to the effect that CATV
systems never infringe the copyrights of the programs they carry
would permit such systems to overpower local broadcasting
stations
Page 392 U. S. 404
which must pay, directly or indirectly, for copyright licenses,
and with which CATV is in increasing competition. [
Footnote 2/2]
The vastness of the competing considerations, the complexity of
any conceivable equitable solution to the problems posed, and the
obvious desirability of ultimately leaving the solution to Congress
induced the Solicitor General, in a memorandum filed prior to oral
argument in this case, to recommend
"that the Court should stay its hand because, in our view, the
matter is not susceptible of definitive resolution in judicial
proceedings, and plenary consideration here is likely to delay and
prejudice the ultimate legislative solution."
That is a splendid thought, but, unhappily, it will not do. I
agree with the majority that we must pass on the instant case. An
important legal issue is involved. Important economic values are at
stake, and it would be hazardous to assume that Congress will act
promptly, comprehensively, and retroactively. But the fact that the
Copyright Act was written in a different day, for different factual
situations, should lead us to tread cautiously here. Our major
object, I suggest, should be to do as little damage as possible to
traditional copyright principles and to business relationships,
until the Congress legislates and relieves the embarrassment which
we and the interested parties face.
The opinion of the majority, in my judgment, does not heed this
admonition. In an attempt to foster the development of CATV, the
Court today abandons the
Page 392 U. S. 405
teachings of precedent, including a precedent of this Court
(
see Buck v. Jewell-LaSalle Realty Corp., 283 U.
S. 191 (1931);
Society of European Stage Authors and
Composers v. New York Hotel Statler Co., 19 F. Supp.
1 (1937)), as to the meaning of the term "perform" in the
Copyright Act. It is not our general practice to reverse ourselves,
without compelling reasons to do so, on matters of statutory
construction, especially on a construction of many years' standing
under which an entire industry has operated. [
Footnote 2/3] Yet today's decision might not be
objectionable if the majority replaced what it considers an
outmoded interpretation of the term "perform" with a new, equally
clear, and workable interpretation. It does not, however, do this.
It removes from copyright law an interpretation which, though
perhaps not altogether satisfactory as an analytical matter,
[
Footnote 2/4] has at least been
settled for nearly 40 years, and it substitutes for that discarded
interpretation a rule which I do not believe is an intelligible
guide for the construction of the Copyright Act. Moreover, the new
rule may well have disruptive consequences outside the area of
CATV.
The approach manifested in the opinion of the Court is
disarmingly simple. The Court merely identifies two groups in the
general field of television, one of which it believes may clearly
be liable, and the other clearly not liable, for copyright
infringement on a "performance"
Page 392 U. S. 406
theory: "Broadcasters perform. Viewers do not perform." From
this premise, the Court goes on to hold that CATV
"falls on the viewer's side of the line. Essentially, a CATV
system no more than enhances the viewer's capacity to receive the
broadcaster's signals; it provides a well located antenna with an
efficient connection to the viewer's set. . . . CATV equipment is
powerful and sophisticated, but the basic function the equipment
serves is little different from that served by the equipment
generally furnished by a television viewer."
Ante at
392 U. S.
398-399.
The decision in
Buck v. Jewell-LaSalle must, the Court
says today, "be understood as limited to its own facts."
Ante at
392 U. S. 397,
n. 18. In
Buck, the Court, speaking unanimously through
Mr. Justice Brandeis, held that a hotel which received a broadcast
on a master radio set and piped the broadcast to all public and
private rooms of the hotel had "performed" the material that had
been broadcast. As I understand the case, the holding was that the
use of mechanical equipment to extend a broadcast to a
significantly wider public than the broadcast would otherwise enjoy
constitutes a "performance" of the material originally broadcast. I
believe this decision stands squarely in the path of the route
which the majority today traverses. If a CATV system performs a
function "little different from that served by the equipment
generally furnished by a television viewer," and if that is to be
the test, then it seems to me that a master radio set attached by
wire to numerous other sets in various rooms of a hotel cannot be
distinguished. [
Footnote 2/5]
Page 392 U. S. 407
The vague "functional" test of the meaning of the term "perform"
is, moreover, unsatisfactory. Just as a CATV system performs (on
the majority's analysis) the same function as the antenna of the
individual viewer, so a television camera recording a live drama
performs the same function as the eye of a spectator who is present
in the theater. Both the CATV and the television camera "receive
programs that have been released to the public and carry them by
private channels to additional viewers."
Ante at
392 U. S. 400.
Moreover, the Court has indulged in an oversimplification of the
"function" of CATV. It may be, indeed, that, insofar as CATV
operations are limited to the geographical area which the licensed
broadcaster (whose signals the CATV has picked up and carried) has
the power to cover, a CATV is little more than a "cooperative
antenna" employed in order to ameliorate the image on television
screens at home or to bring the image to homes which, because of
obstacles other than mere distance, could not receive them. But
such a description will not suffice for the case in which a CATV
has picked up the signals of a licensed broadcaster and carried
them beyond the area -- however that area be defined -- which the
broadcaster normally serves. In such a case, the CATV is performing
a function different from a simple antenna, for, by hypothesis, the
antenna could not pick up the signals of the licensed broadcaster
and enable CATV patrons to receive them in their homes.
Buck v. Jewell-LaSalle may not be an altogether ideal
gloss on the word "perform," but it has at least the merit of being
settled law. I would not overrule that decision
Page 392 U. S. 408
in order to take care of this case or the needs of CATV. This
Court may be wrong. The task of caring for CATV is one for the
Congress. Our ax, being a rule of law, must cut straight, sharp,
and deep, and perhaps this is a situation that calls for the
compromise of theory and for the architectural improvisation which
only legislation can accomplish.
I see no alternative to following
Buck and to holding
that a CATV system does "perform" the material it picks up and
carries. I would, accordingly, affirm the decision below.
[
Footnote 2/1]
See B. Kaplan, An Unhurried View of Copyright 105-106,
127-128 (1967).
[
Footnote 2/2]
The Solicitor General, in his brief on the merits, recommends
that we adopt a compromise approach -- finding a license implied in
law with respect to some CATV operations, but not with respect to
others. Regardless of the advisability of such an approach from the
standpoint of communications, antitrust, and other relevant
policies, I do not believe it is open to us, in construing the
Copyright Act, to accept the Solicitor General's proposal.
[
Footnote 2/3]
Nimmer, a leading authority in the copyright field, states that,
although
"the two major performing right societies, ASCAP and BMI, do not
choose to enforce the
Jewell-LaSalle doctrine to its
logical extreme, in that they do not demand performing licenses
from commercial establishments such as bars and restaurants which
operate radio or television sets for the amusement of their
customers, . . . such demands are made of hotels which operate in
the manner of the LaSalle Hotel."
M. Nimmer, Copyright § 107.41, n. 204 (1968).
[
Footnote 2/4]
See M. Nimmer, Copyright § 107.41 (1968).
[
Footnote 2/5]
The majority attempts to diminish the compelling authority of
Buck v. Jewell-LaSalle by referring to a vague footnote in
that opinion to the effect that the Court might not have found a
"performance" if the original broadcast, which was picked up by the
hotel and brought to its various rooms, had been authorized by the
copyright holder -- as it was not. I cannot understand the point.
Whatever might be the case in a contributory infringement action
(which this is not), the interpretation of the term "perform"
cannot logically turn on the question whether the material that is
used is licensed or not licensed.