Teleprompter Corp. v. Columbia Broadcasting, 415 U.S. 394 (1974)

MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE concurs, dissenting.

The Court today makes an extraordinary excursion into the legislative field. In Fortnightly Corp. v. United Artists Television, 392 U.S. 390, the lower courts had found infringement of the copyright, but this Court reversed, holding that the CATV systems in Fortnightly were merely a "reception service," and were "on the viewer’s side of the line," id. at 399, and therefore did not infringe the Copyright Act. They functioned by cable, reaching into towns which could not receive a TV signal due, say, to surrounding mountains, and expanded the reach of the TV signal beyond the confines of the area which a broadcaster’s telecast reached.

Whatever one thinks of Fortnightly, we should not take the next step necessary to give immunity to the present CATV organizations. Unlike those involved in Fortnightly, the present CATV’s are functionally equivalent to a regular broadcaster. TV waves travel in straight lines, thus reaching a limited area on the earth’s curved surface. This scientific fact has created, for regulatory purposes, separate television markets.{1} Those whose telecast covers one market or geographic area are, under Fortnightly, estopped from saying that one who through CATV reaches by cable remote hidden valleys in that area, infringes the broadcaster’s copyright. But the CATV’s in the present cases go hundreds of miles, erect receiving stations or towers that pick up the programs of distant broadcasters, and carry them by cable into a wholly different area.

In any realistic practical sense, the importation of these remote programs into the new and different market is performing a broadcast function by the cable device. Respondents in No. 72-1628 exercised their copyright privileges and licensed performance of their works to particular broadcasters for telecast in the distant market. Petitioners in that case (hereafter petitioners) were not among those licensees. Yet they are granted use of the copyrighted material without payment of any fees.

The Copyright Act, 17 U.S.C. §§ 1(C) and (d), gives the owner of a copyright "the exclusive right" to present the creation "in public for profit" and to control the manner or method by which it is "reproduced." A CATV that builds an antenna to pick up telecasts in Area B and then transmits it by cable to Area A is reproducing the copyrighted work not pursuant to a license from the owner of the copyright, but by theft. That is not "`"encouragement to the production of literary [or artistic] works of lasting benefit to the world"’" that we extolled in Mazer v. Stein, 347 U.S. 201, 219. Today’s decision is at war with what Mr. Chief Justice Hughes, speaking for the Court in Fox Film Corp. v. Doyal, 286 U.S. 123, 130, described as the aim of Congress:

Copyright is a right exercised by the owner during the term at his pleasure and exclusively for his own profit, and forms the basis for extensive and profitable business enterprises. The advantage to the public is gained merely from the carrying out of the general policy in making such grants, and not from any direct interest which the Government has in the use of the property which is the subject of the grants.

The CATV system involved in the present cases performs somewhat like a network-affiliated broadcast station which imports network programs originated in distant telecast centers by microwave, off-the-air cable, precisely as petitioners do here.{2} Petitioners, in picking up these distant signals, are not managing a simple antenna reception service. They go hundreds of miles from the community they desire to serve, erect a receiving station, and then select the programs from TV and radio stations in that distant area which they desire to distribute in their own distant market. If "function" is the key test, as Fortnightly says, then, functionally speaking, petitioners are broadcasters, and their acts of piracy are flagrant violations of the Copyright Act. The original broadcaster is the licensor of his copyright, and it is by virtue of that license that, say, a Los Angeles station is enabled lawfully to make its broadcasts. Petitioners receive today a license-free importation of programs from the Los Angeles market into Farmington, New Mexico, a distant second market. Petitioners not only rebroadcast the pirated copyrighted programs, they themselves -- unlike those in Fortnightly -- originate programs and finance their original programs{3} and their pirated programs by sales of time to advertisers. That is the way the owner of these copyrighted programs receives value for his copyrights. CATV does the same thing, but it makes its fortune through advertising rates based in part upon pirated copyrighted programs. The Court says this is "a fact of no direct concern under the Copyright Act"; but the statement is itself the refutation of its truth. Rechanneling by CATV of the pirated programs robs the copyright owner of his chance for monetary rewards through advertising rates{4} on rebroadcasts in the distant area and gives those monetary rewards to the group that has pirated the program.

We are advised by an amicus brief of the Motion Picture Association that films from TV telecasts are being imported by CATV into their own markets in competition with the same pictures licensed to TV stations in the area into which the CATV -- a nonpaying pirate of the films -- imports them. It would be difficult to imagine a more flagrant violation of the Copyright Act. Since the Copyright Act is our only guide to law and justice in this case, it is difficult to see why CATV systems are free of copyright license fees when they import programs from distant stations and transmit them to their paying customers in a distant market. That result reads the Copyright Act out of existence for CATV. That may or may not be desirable public policy. But it is a legislative decision that not even a rampant judicial activism should entertain.

There is nothing in the Communications Act that qualifies, limits, modifies, or makes exception to the Copyright Act.

Nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but provisions of this chapter are in addition to such remedies.

4 U.S.C. § 414. Moreover, the Federal Communications Commission has realized that it can "neither resolve, nor avoid" the problem under the Copyright Act, when it comes to CATV.{5}

On January 14, 1974, the Cabinet Committee on Cable Communications, headed by Clay T. Whitehead, made its Report to the President. That Report emphasizes the need for the free flow of information in a society that honors "freedom of expression," and it emphasizes that CATV is a means to that end, and that CATV is so closely

linked to . . . electronic data processing, telephone, television and radio broadcasting, the motion picture and music industries, and communications satellites,

id. at 14, as to require "a consistent and coherent national policy." Ibid. The Report rejects the regulatory framework of the Federal Communications Commission because it creates "the constant danger of unwarranted governmental influence or control over what people see and hear on television broadcast programming," id. at 20. The Report opts for a limitation of

the number of channels over which the cable operator has control of program content and to require that the bulk of channels be leased to others.

Ibid.

The Report recognizes that "copyright liability" is an important phase of the new regulatory program the Committee envisages, id. at 39. The pirating of programs sanctioned by today’s decision is anathema to the philosophy of this Report:

Both equity and the incentives necessary for the free and competitive supply of programs require a system in which program retailers using cable channels negotiate and pay for the right to use programs and other copyrighted information. Individual or industry-wide negotiations for a license, or right, to use copyrighted material are the rule in all the other media, and should be the rule in the cable industry.

As a matter of communications policy, rather than copyright policy, the program retailer who distributes television broadcast signals in addition to those provided by the cable operator should be subject to full copyright liability for such retransmissions. However, given the reasonable expectations created by current regulatory policy, the cable operator should be entitled to a non-negotiated, blanket license, conferred by statute, to cover his own retransmission of broadcast signals.

Ibid.

The Whitehead Commission Report has, of course, no technical, legal bearing on the issue before us. But it strongly indicates how important to legislation is the sanctity of the copyright and how opposed to ethical business systems is the pirating of copyrighted materials. The Court can reach the result it achieves today only by "legislating" important features of the Copyright Act out of existence. As stated by THE CHIEF JUSTICE in United States v. Midwest Video Corp., 406 U.S. 649, 676,

[t]he almost explosive development of CATV suggests the need of a comprehensive reexamination of the statutory scheme as it relates to this new development, so that the basic policies are considered by Congress, and not left entirely to the Commission and the courts.

That counsel means that, if we do not override Fortnightly, we should limit it to its precise facts and leave any extension or modification to the Congress.

1. The Communications Act of 1934 empowered the FCC to "assign frequencies for each individual station," "determine the power which each station shall use," "[d]etermine the location of . . . individual stations," and "[h]ave authority to establish areas or zones to be served by any station." 47 U.S.C. §§ 303(c), (d), and (h). Pursuant to these powers and others granted it by the Communications Act, the FCC has supervised the establishment and maintenance of a nationwide system of local radio and television broadcasting stations, each with primary responsibility to a particular community.

2. Farmington, New Mexico, into which petitioners pipe programs stolen from Los Angeles, is 600 miles away, and petitioners developed an intricate hookup "via twenty-three steps over a roundabout, 1300-mile route to [establish the link]." See 355 F.Supp. 618, 622.

3. 476 F.2d 338, 346-347; CATV -- First Report and Order, 20 F.C.C.2d 201; United States v. Midwest Video Corp., 406 U.S. 649. See also Cable Television Report and Order, 36 F.C.C.2d 143, 148, 290; Rules re Microwave Served CATV, 38 F.C.C. 683; Radio Signals, Importation by Cable Television, 36 F.C.C.2d 630.

4. We sustained the Commission’s authority to require CATV to originate programs in a 5-4 decision in 1972. United States . Midwest Video Corp., supra.

5. The Solicitor General, in his memorandum in the Fortnightly case, urged that the cable transmission of other stations’ programs into distant markets be subject to copyright protection:

[M]uch of the advertising which accompanies the performance of copyrighted works, such as motion pictures, is directed solely at potential viewers who are within the station’s normal service area -- "local" advertising and "national spot" advertising both fall within that category. Such advertisers do not necessarily derive any significant commercial benefit from CATV carriage of the sponsored programs outside of the market ordinarily served by the particular station, and accordingly may be unwilling to pay additional amounts for such expanded coverage.

Memorandum for the United States as amicus curiae in No. 618, O.T. 1967, p. 10.