Fortnightly Corporation v. United Artists Television, Inc./Dissent Fortas

by Abe Fortas

United States Supreme Court

392 U.S. 390

Fortnightly Corporation  v.  United Artists Television, Inc.

 Argued: March 13, 1968. --- Decided: June 17, 1968

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 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. ^[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 which must pay, directly or indirectly, for copyright licenses and with which CATV is in increasing competition. ^[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 teachings of precedent, including a precedent of this Court (see Buck v. Jewell-La Salle Realty Corp., 283 U.S. 191, 51 S.Ct. 410, 75 L.Ed. 971 (1931); Society of European Stage Authors and Composers v. New York Hotel Statler Co., D.C., 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. ^[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, ^[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' 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 398-399.

The decision in Buck v. Jewell-LaSalle, must, the Court says today, 'be understood as limited to its own facts.' Ante, at 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. ^[5]

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 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 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.

Notes

1. See B. Kaplan, An Unhurried View of Copyright 105-106, 127 128 (1967).
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.
3. Minner, 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-La Salle 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).
4. See M. Nimmer, Copyright § 107.41 (1968).
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.