# Petition — Heilman v. Bell

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 440 U.S. 959

## Text

la Wp > = t, U. i
t riLbeEe

99 1978

—_———
wICHAFL _JR., CLERK
IN THE a

SUPREME COURT of the UNITED STATES.

OCTOBER TERM, 1978

a Ses cocahaes y A BP eS
(8-1004
DAVID L. HEILMAN and E-C TAPE
SERVICE, INC., a Wisconsin Corporation,
Petitioners,

US.

GRIFFIN B. BELL, Attorney General of the United States

of America, his agents, servants, emplovees, attorneys,

successors and all those persons in active concert. or
participation with them,

Respondents.

Petition for Writ of Certiorari
to the
United States Court of Appeals
for the Seventh Circuit

RICHARD L. CATES
BRUCE F. EHLKE
LAWTON & CATES
110 East Main Street
Madison, Wisconsin 53703
Attorneys for Petitioners

GUILD PRINTING «5a MADISON WIS

INDEX

Oprnions DELIVERED IN Courts BELOW .............

EE ee

QuesTIONs PRESENTED FOR REVIEW ........00.0005.

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED. .

Se ae

I Tee eee

Eee

Reasons For ALLOWANCE OF THE Writ ..........0

EE

“THE RICH GET RICHER ...” (THE EF-
FECT OF THE CIRCUIT COURT DECI-
SION IN QUESTION IS TO CREATE THE
CONDITIONS FOR AN ILLEGAL TYING
ARRANGEMENT AND TO DEPRIVE THE
PUBLIC OF FREE ACCESS TO THE RE-
CORDINGS OF DECEASED OR NO LONGER
I MUMMIES sys 5s. s eee e see.

A. The ruling of the Circuit Court of Appeals
in this case was illogical and would tend to
deprive the public of free access to the re-
Goremeams a ttschoice...................

9

9

10

B. The ruling of the Court of Appeals created
the conditions for illegal tying arrange-
ments that conflict with the purposes of
ne

I]. “... AND THE POOR GET POORER” (THE
DECISION OF THE SEVENTH CIRCUIT
COURT OF APPEALS IN THIS CASE SUB-
JECTS DAVID HEILMAN TO THE TENDER
MERCIES OF A CRIMINAL PROSECUTION
FOR ACTS NOT DECLARED TO BE CRIMI-
NAL BY THE CONGRESS UNTIL AFTER
Op sy |)

EES cary ov aA carla ek ene coelns
ETS Cte te ta aco t's-acie vawroaaars «ols
Autuoriries Crrep
CASES

Capitol Records v. Mercury Records Corp., 221 F.2d
Pr CG ROT sv eke weep kn

Duchess Music Corp. v. Stern, 458 F.2d 1305 (9th
Cir. 1972), cert. denied, 409 U.S. 847 (1972). ...

Edward B. Marks Music Corp. v. Colorado Magne-
tics, Inc., 497 F.2d 285, aff'd on rehearing en
bane, 497 F.2d 292 (10th Cir. 1974), cert. denied,
i RE Lk | BD dr ae eee

9

9

iii
Fame Publishing Co. v. Alabama Custom Tape,
Inc., 507 F.2d 667 (5th Cir. 1975), cert. denied,
al ES, 2 5 ReaNeng ty areata meena cg ee y

Federal Maritime Commission v. Seatrain Lines,
ie. ae a7 FE CG alceelea eek fee e 8s 13

Goldstein v. California, 412 U.S. 546 (1973)... 7. 12. 15

Heilman v. Levi, 391 F. Supp. 1106 (E.D. Wis.
PUG Ao lak Vanier eben nehi kek s S408 4

Heilman v. Bell, Case No. 77-1968 (7th Cir. Sept.
6, 1978), aff'g 434 F.Supp. 564 (E.D. Wis. 1977)... 2. 4

Jondora Music Publishing Co. v. Melody Record-

ings, Inc., 506 F.2d 392 (3rd Cir. 1975), cert. de-
ee, SEE ake: PRCT vce cs Faken wees )

Northern Pacific Railway v. United States, 356
CE RN eo eb this OVO Le ve wk reas 14

United States v. Campos-Serrano, 404 U.S. 293
Pd | TRUER reigns Pa ay Ee eee 15

United States v. Heilman, Case No. 77-CR-323
YR PO Rp Oe, SR > ig ¢ 4.8

United States v. Isaacs, 493 F.2d 1124 (7th Cir.
og ESRANIIS i: Papakea aaeraaa nGy aie «rr ae nn oe 15

United States v. Massini, 565 F.2d 1297 (Sth Cir.
UN Me ee ge Na re ee re 15

Vv

iv
United States v. McClain, 545 F.2d 988 (5th Cir. H.R. Rep. No. 94-1476, 94th Cong., 2nd Sess. (1976)
B97)... cs ewdaa Uc cn eee gee 1 cece 8, 9. 14
CONSTITUTIONAL PROVISIONS Hearings on H.R. 2223 Before the Subcomm. on
Courts, Civil Liberties, and the Administration
AND STATUTES of Justice of the House Comm. on the Judiciary,
94th Cong., Ist Sess., ser. 36, pt. 3(1975)....... 13
U.S. Consr. art. I, see. & 2.6... Si i
1 M. Nimmer. Nimmer on Copyricut (1976). ........ 12
U.S. Consr. amend. Vo... occu nb cans ene
B. Rincer. The Unauthorized Duplication of Sound
1S U.S.C. see. 1... .0dkasdeee ee 13 Recordings, in 1 Stuptes oN Copyricut 119 (1957) 12

17 U.S.C. see. Me) (as amended Oct. 15, 1971)

\9eeeoe ge eoeueee eee OB 6H 68S 2S Se Oe

Ne USC. see. 7 os... cnce cen cee ee 6
17 U.S.C. sec, 1OMe). ....kis 55 5n ck eee 3. 4. 22
17 U.S.C. sec. 104.000... eee whascge eae 3. 4.22
28 U.S.C. see. 1QSGUOR . od Sie ee 2

Pub. L. 92-140, 85 Stat. 391 (Oct. 15, 1971). ..6. 7. 9. 18
Pub. L. 94-553, 90 Stat. 2541 (Oct. 19, 1976)... .. 7.9
OTHER AUTHORITIES
H.R. Rep. No. 2222, 60th Cong., 2nd Sess. (1909 . . 12

H.R. Rep. No. 92-487, 92nd Cong., Ist Sess. (1971) 7. 9. 15

IN THE

SUPREME COURT of the UNITED STATES

OCTOBER TERM, 1978

+’ 2 eee

DAVID L. HEILMAN and E-C TAPE
SERVICE, INC., a Wisconsin Corporation,
Petitioners,

US,
GRIFFIN B. BELL, Attorney General of the United States
of America, his agents, servants, employees, attorneys,
successors and all those persons in active concert) or
participation with them,

Respondents.

Petition for Writ of Certiorari
to the
United States Court of Appeals
for the Seventh Circuit

To the Honorable the Chief Justice of the Supreme
Court of the United States and the Associate Justices of
the Supreme Court of the United States:

2

This is the petition of David L. Heilman and E-C Tape
Service, Inc. for a writ of certiorari to review the judgment
of the United States Court of Appeals for the Seventh Cir-
cuit in the above-entitled case.

Opinions DELIVERED IN Courts BeLow

The opinion of the United States District Court for the
Eastern District of Wisconsin is reported at 434 F. Supp.
964 (E.D. Wis. 1977); it also is printed in the appendix to
this petition at App. 122. The opinion of the United States
Court of Appeals for the Seventh Circuit has not yet been
reported; it is printed in the appendix to this petition at
App. 131. The order of the Court of Appeals denying a
Petition for Rehearing En Banc is printed at App. 141.

JURISDICTIONAL STATEMENT

The opinion, order and judgment of the Seventh Circuit
Court of Appeals sought to be reviewed were dated and
entered September 6, 1978. (App. 140.) The petition of
David L. Heilman and E-C Tape Service, Inc. for a rehear-
ing of said opinion, order and judgment was filed with the
Court of Appeals September 20, 1978; the order denying
said petition was dated and entered October 5, 1978.
(App. 141.) The judgment of the Court of Appeals in this
case is a final judgment. The statutory provision believed
to confer jurisdiction on this Supreme Court to review this
case is 28 U.S.C. 1254(1).

Questions PresenrepD FOR Review

Did the copyright law, and in particular 17 U.S.C. sec.
l(c), prior to its amendment by Congress in 1971, extend a
copyright protection to sound recordings by way of grant
ing control over such recordings to the owners of composi-
tion copyrights?

Did the copyright law, and in particular 17 U.S.C. sees,
l(e) and 10 1(e), prior to their amendment by Congress in
1976, effective as of 1978, make the unauthorized dupli-
cation of sound recordings made before February 15,
1972, a crime?

CONSTITUTIONAL. PROVISIONS AND SttrareTres INVOLVED

This case concerns the interpretation and application of
17 U.S.C. sees. He), LO 1e) and 104 (as amended Oct. 15,
1971). The ruling of the Circuit Court of Appeals below,
as it relates to the criminal prosecution of David Heilman,
involves the prohibition against ex post facto laws and
constitutionally secured due process of law, U.S. Const
art. I, sec. 9 and amend. V. These statutory and consti-
tutional provisions are printed in the Addendum to this
Petition for Writ of Certiorari.

4
STATEMENT OF THE Case

A. Nature of This Case.

This is a copyright case. David L. Heilman and E-C
Tape Service, Inc., the corporation of which he was presi-
dent, were engaged in the business of producing and
marketing anthologies of selections from popular musical
recordings made before February 15, 1972.

Prior to commencement of the litigation at hand the
Attorney General threatened to prosecute Heilman and
E-C Tape for willful infringement of copyrights in viola-
tion of 17 U.S.C. secs. I(e), 10 1(e) and 104. Heilman and
E-C Tape sought a declaratory judgment that their activities
did not constitute a violation of the copyright laws, and
injunctive relief against the Attorney General.

Initially, the District Court denied Heilman and E-C
Tape’s motion for a temporary restraining order, pre-
liminary injunction and three-judge court. Heilman v.
Levi, 391 F. Supp. 1106 (E.D. Wis. 1975). Both parties
then made motions for summary judgment. While these
motions were pending, the Attorney General instituted
criminal proceedings against Heilman in the Northern
District of Illinois. United States v. Heilman, Case No.
77-CR-323 (N.D. Ill, filed Mar. 31, 1977). Thereafter,
the District Court for the Eastern District of Wisconsin
denied Heilman and E-C Tape’s motion, granted the
Attorney General's motion and dismissed the action on
its merits. Heilman v. Bell, 434 F. Supp. 564 (E.D. Wis.
1977). The Court of Appeals for the Seventh Circuit
affirmed this ruling. Case No. 77-1968 (7th Cir. Sept. 6,
1978).

B. Statement of the Facts.

The facts of the case, as set forth in the Affidavits of
David L. Heilman (App. 110-113, 116-121), are not dis-
puted. David Heilman is a businessman and was president
of E-C Tape Service, Inc., until April, 1976.

The recording industry in which he was involved is con-
trolled principally by large record companies. (App. 112,
119.) Each large recording company owns one or more
publishing companies. These publishing companies in
turn own the copyrights on numerous compositions. In
addition, the recording companies own contracts with
recording artists. Typically these contracts provide that
all the costs of record production, except for the cost of
record pressing (32 to 37 cents per album), are charged
against the royalties payable to the artists. In addition,
the unrecovered costs of one record can be, and frequently
are, charged against the royalties of any subsequent
record. These contracts typically last for seven years.
(App. 112-113.) By these methods the major recording
companies have gained control over 80% of the major
copyrights of musical compositions. (App. 118-119.)

E-C Tape was engaged in the business of producing and
marketing original anthologies of recorded music. In pro-
ducing these anthologies only music that was recorded or
“fixed” prior to February 15, 1972, was utilized. These
recordings were based on compositions protected by the
copyright laws. With respect to all such copyrights Heilman
and E-C Tape tendered the two cents per copy royalty in
compliance with 17 U.S.C. sec. l(e). Some 27 copyright
holders accepted the royalty payments; 127 others refused
to accept the payments. (App. 11 1-112, 116-117.)

6

The anthologies were produced and marketed on the
basis of the appeal generated by their original and unique
themes and formats. A theme was conceived for which
there was an adequate market. Records and tapes con-
taining the desired selections were obtained. The selections
were duplicated and recorded in the new format, sequence
and combination, The anthologies produced in this manner
were subject to the copyrights owned by E-C Tape pur-
suant to 17 U.S.C. sec. 7. The anthologies were then
marketed as reel-to-reel tapes, cassettes, 8-track tapes and
records, at prices about equal to that of the original re-
cordings. The anthologies often presented selections in a
medium, such as 8-track tape recording, in which they
were not otherwise available; some were not available in
any other form. (App. 111, 117.)

Prior to entering into this business activity Heilman
sought the advice of counsel concerning its legality. All of
the attorneys he consulted advised him that, if he paid or
tendered payment of the compulsory license fee or rovalty
provided for at 17 U.S.C. see, Me), to the composition
copyright owner, his duplication of musical recordings
would not be in violation of the copyright law. (App. 117.)

Thereafter, in October, 1971, Congress amended the
copyright law and for the first time created a copyright
interest in the sound recordings themselves. This amend-
ment was ctfective as of February 15, 1972. Pub L. 92-140,
85 Stat. 391 (Oct. 15, 1971). In addition and at the same
time, Congress made the unauthorized duplication of
copyrighted recordings fixed after February 15, 1972, a
crime, and, further, made “criminal sanction immediately
available to prevent piracy of already existing recordings
of copyrighted musical works where the pirate does not

7

pay the statutory royalty to the holder of the musical copy-
right”. H.R. Rep. No. 92-487, 92nd Cong., Ist Sess. 9
(1971) (emphasis added),

After passage of Pub, L. 92-140 Heilman again sought
the advice of legal counsel, who advised him that sound
recordings made or “fixed” prior to February 15, 1972,
had not been afforded copyright protection by Pub. L.
92-140, and that, provided the statutory royalty was paid
or tendered, the duplication of such recordings was not
unlawful. The Criminal Division of the United States Jus-
tice Department was of the same opinion, publishing in
April, 1973, a pamphlet entitled “Copyright Protection of
Sound Recordings’, in which it declared that the unau-
thorized duplication of sound recordings “fixed” prior to
February 15, 1972, was not unlawful. (App. 117-118.)

At about the same time this United States Supreme Court
reviewed 17 U.S.C. sec. le), as amended, to determine
whether or not Congress had pre-empted state legislation
granting copyright protection to sound recordings fixed
prior to February 15, 1972. The Court concluded there
was no federal copyright protection for such recordings
and, therefore, the state law in question was proper. Gold-
stein v. California, 412 U.S. 546, 568, 571 (1973). In
reaching this conclusion the Court discussed the extent of
the composition copyright interest and determined that
“composers were to have no control over the recordings
themselves”. Id. at 566 (emphasis added).

Subsequently, on September 3, 1976, Congress, once
again amending 17 U.S.C. sec. He), Pub. L. 94-553, 90
Stat. 2541 (Oct. 19, 1976), for the first time expressed an
understanding that the unauthorized duplication of sound

8

recordings “fixed” prior to February 15, 1972, might not
have been lawful. Stating that its 1976 amendments dealt
with “three doubtful questions under the present law”, it
went on to. y as follows:

“The basic intent of this sentence is to make clear that a person is
not entitled to a compulsory license of copyrighted musical works
for the purpose of making an unauthorized duplication of a musi-
cal sound recording originally developed and produced by another.
It is the view of the Committee that such was the original intent
of the Congress in enacting the 1909 Copyright Act, and it has
been so construed by the 3rd, 5th, 9th and LOth Circuits
H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 107-108 (1976)
(emphasis added).

This clarification came too late for David Heilman.

On March 31, 1977, a criminal indictment was filed
age ast him in the Northern District of Illinois. This in-
dictment alleged that when David Heilman, two years
earlier, on May 15, 1975, duplicated certain sound record-
ings that had been fixed prior to February 15, 1972, he
had committed a criminal act, notwithstanding that he
had paid or tendered payment of the compulsory royalty
or license fee provided for at 17 U.S.C. sec. le). This
prosecution presently is pending in the United States
District Court for the Northern District of [linois. United
States v. Heilman, Case No. 77-CR-323.

9
Reasons FOR ALLOWANCE OF THE Writ
INTRODUCTION

In 1971 Congress amended 17 U.S.C. sec. l(e), effective
as of February i5, 1972. With this amendment copyright
protection, for the first time, was extended to sound re-
cordings themselves. At the same time, the duplication of
recordings in violation of the copyright law, that is, those
“fixed” after February 15, 1972, H.R. Rep. No. 92-487 at
9, was made a crime. Pub. L. 92-140.

In 1976 Congress again amended 17 U.S.C. sec. I(e).
This time, effective as of January 1, 1978 dealing with
“three doubtful questions under the present law”, Congress
made “clear” that an “unauthorized duplication of a
musical sound recording originally developed and_ pro-
duced by another’, regardless of when the recording was
fixed, H.R. Rep. No. 94-1476, is unlawful. Pub. L. 94-553.

Poor Congress! All of its effort was unnecessary. Four
Circuit Courts of Appeal, now joined by the Court of
Appeals for the Seventh Circuit in the case at hand, already
had effected these changes in the copyright law. Fame
Publishing Co. v. Alabama Custom Tape, Inc., 507 F.2d
667 (Sth Cir. 1975), cert denied, 423 U.S. 841 (1975);
Jondora Music Publishing Co. v. Melody Recordings, Inc.,
506 F.2d 392 (3rd Cir. 1975), cert. denied, 421 U.S. 1012
(1975); Edward B. Marks Music Corp. v. Colorado Mag-
netics, Inc., 497 F.2d 285, aff'd on rehearing en banc, 497
F.2d 292 (10th Cir. 1974), cert. denied, 419 U.S. 1120
(1975); Duchess Music Corp. v. Stern, 458 F.2d 1305 (9th
Cir. 1972), cert. denied, 409 U.S. 847 (1972).

10

I. “THE RICH GET RICHER .. .” (THE EFFECT OF
THE CIRCUIT COURT DECISION IN QUESTION
IS TO CREATE THE CONDITIONS FOR AN IL-
LEGAL TYING ARRANGEMENT AND TO DEPRIVE
THE PUBLIC OF FREE ACCESS TO THE RE-
CORDINGS OF DECEASED OR NO LONGER
“POPULAR” ARTISTS).

A. The ruling of the Circuit Court of Appeals in this
case was illogical and would tend to deprive the
public of free access to the recordings of its choice.

Notwithstanding the lack of any statutory basis for it,
the Courts in these cases ruled that the duplication of a
recording of an original licensee is not a “similar use” of
the underlying musical composition, as that term is used
relative to the compulsory license provisions of 17 U.S.C.
sec. I(e), Accordingly, such a duplication of the original
recording, if done without the permission of the composi-
tion copyright holder, would be an unauthorized use of
the composition. The result, of course, was a copyright
control over sound recordings, granted to the composition
copyright owner!

A total of 24 district court and court of appeals judges
now have passed on this issue. Nine have dissented from
the conclusion reached by the majority, and with good
reason.

Given the majority ruling in these cases, any copyright
holder who allowed the recording of a performance of his
musical idea could not prevent subsequent recordings
using his composition and was obliged to accept. the
statutory royalty. After the original recording, the com-

position was available at the price of two cents per tape or
record. The copyright holder's interest in the recording,
however, was not so limited.

It was not subject to the compulsory license provision
and the copyright holder could withhold the right to use
the recording until an acceptable price was tendered. The
copyrighted musical creation which the copyright holder
either composed or purchased, could be used merely by
paving the copyright holder two cents per copy, but the
recording produced and performed by the copyright
holder's licensee could not be used without first paving
that holder of the composition copyright for the release
of the cause of action created by the Circuit Court deci-
sions in question, Although the copyright holder may have
had no involvement in the expense or artistic contribution
involved in producing, performing or engineering a re-
cording, it is he who had a cause of action against anvone
using the recording without his permission,

The absurdity of this is most apparent when the record-
ings of performances by deceased artists are considered.
Suppose a party wished to reissue or duplicate a recording
of a deceased artist, sav Bing Crosby or Judy Garland,
that had been fixed before February 15, 1972. The record-
ing company, in its own right, could not prevent the
reissue, because its interest in the recording could have no
copyright protection. The holder of the composition copyright
relating to the music utilized in the recording, however,
could prevent the reissuance, because the reissuance only
could be achieved by duplicating the original recording.
The copyright holder could, of course, release his rights
for whatever consideration he chose te demand. The

12

copyright holder thus was permitted to appropriate to
himself whatever contribution may have been made by
the recording company in arranging the recording by the
since deceased artist. The recording company had no pro-
tection, no rights enforceable against the composer, except
for such contractual rights as it may have negotiated with
him.'

The Seventh Circuit Court of Appeals recognized this
anomaly. But it justified its holding nonetheless, rationaliz-
ing that it at least “‘continues to avoid complete composer
control over who may record” (emphasis added). (App.
135.) However, this Supreme Court held that under 17
U.S.C. l(e) “composers were to have no control over the
recordings”. Goldstein v. California, 412 U.S. at 566.

The rationale and ruling of the Circuit Court majority
below ‘is inconsistent in the determination of this Court.
That ruling also is inconsistent with Congress’ intent as
indicated in the legislative history. H.R. Rep. 2222, 60th
Cong., 2d Sess. 6-7, 9 (1909). See Capitol Records v.
Mercury Records Corp., 221 F. 2d 657, 660-661 (2nd Cir.
1955); 1 M. Nimmer. Nimmer on Copyricut 430-434 (1976);
B. Rincer, The Unauthorized Duplication of Sound Re-
cordings, in | Srupies ON Copyricut 119 (1957).

In addition to being illogical, the ruling of the Circuit
Court below is against the public interest. The recording
industry is dominated by a few major companies that con-
trol access to recordings and recording artists. (App. 112-

The general acceptance in the recording industry of this state of affairs created
by the Court of Appeals’ decisions was a natural consequence of the fact that the re-
cording companies own the publishing companies, which in turn own the composition
copyrights. (App. 112-113.)

13

113, 118-119.) The result? “There is a large body of ma-
terial there that is pretty well kept out of the public’s
access." Hearings on H.R. 2223. Before the Subcomm.
on Courts, Civil Liberties, and the Administration of Jus-
tice of the House Committee on the the Judiciary, 94th
Cong. Ist Sess., ser 36, pt. 3, at 1906 (1975) (testimony
of Barbara Ringer, Register of Copyrights). By granting
control of recordings to the composition copyright owners,
which in turn are controlled by the large recording com-
panies (App. 112-113), the ruling below tends to vet
further deprive the public of free access to the recordings
of deceased artists or those no longer “popular”.

B. The ruling of the Court of Appeals created the
conditions for illegal tving arrangements that con-
flict with the purposes of the Sherman Act.

Every copyright is a small monopoly and an exemption
from the anti-trust laws. Such exemptions must be narrow-
ly construed and not implied bevond the letter of the law.
Federal Maritime Commission v. Seatrain Lines, Inc., 411
U.S. 726, 733 (1973).

The ruling of the Circuit Court created the conditions
for classic tving arrangements contrary to the purposes of
the Sherman Act. 15 U.S.C. sec. 1. It would permit, almost
invite, the large recording companies and their publishing
companies and their publishing houses to tie the use of
the uncopyrighted product, the recording, to the copy-
righted product, the composition. The tying arrangement
would be the obvious device to attempt to extend the
limited monopoly granted by Congress to other markets.
Such arrangements were originally declared illegal under
the patent laws and now are held to be per se violations of

14

the anti-trust laws. See., e.g., Northern Pacific Railway v.
United States, 356 U.S. 1, 5-6 (1958).

Il. “...AND THE POOR GET POORER” (THE DECI-
SION OF THE SEVENTH CIRCUIT COURT OF
APPEALS IN THIS CASE SUBJECTS DAVID HEIL-
MAN TO THE TENDER MERCIES OF A CRIMINAL
PROSECUTION FOR ACTS NOT DECLARED TO
BE CRIMINAL BY THE CONGRESS UNTIL AFTER
HE HAD DONE THEM).

As it concerns the criminal law, the usual practice is
that a legislative body adopts legislation creating a crime,
following which the courts strictly construe and apply
that law. Indeed, under our system, it is axiomatic that
it is the legislature and not the courts that has the power
to make acts criminal. E.g., United States v. MeClain.
545 F.2d 988, 995-996 (5th Cir. 1977). In the case at
hand, however, the usual practice has been turned on its
head.

Here, relying on ad hoe judicial interpretations of the
civil provisions of the copyright law, the legislature has
amended that law, including its criminal application, to
“make clear” that the courts’ construction was correct.
Thus the definition of a crime is based on judicial appli-
cation in a civil context of the term, “similar use”.

The result is the criminal prosecution of David Heilman
for acts which when they were done had not been declared
by Congress to be a crime. Indeed, at best, Congress
considered the issue to be “doubtful... under the present
law’. H.R. Rep. No. 94-1476 at 107-108.

15

In the process, basic rules regarding the construction of
criminal statutes — that they are to be strictly construed,
e.g., United States v. Campos-Serrano, 404 U.S. 293, 297
(1971), that any ambiguity concerning their ambit should
be resolved in favor of lenity, e.g., United States v. Massini,
565 F. 2d 1297, 1306-1307 (5th Cir. 1978); United States
v. Isaacs, 493 F.2d 1124, 1147 (7th Cir. 1974), have been
ignored, Under our system, a man is not supposed to have
to guess, at his peril, which interpretation of a criminal
statute is the correct one. To require him to do so, as
happened here, has the same effect as an ex post facto
law and constitutes a denial of due process of law. in
violation of U.S. Coxsr art. 1. sec. 9 and amend. V.

Under these circumstances, where Congress itself did
not “make clear” its intent regarding a “doubtful” ques-
tion of copyright law until after David Heilman had done
the acts which now are alleged to justify a criminal pro-
secution, he should not be required to endure a criminal
trial in order to prove his lack of criminal intent. In this
case, where even the Criminal Division of the Justice De-
partment at one time agreed with his reading of the law
(App. 117-118), judicial interpretations of statutory lan-
guage ina civil setting should not be grafted onto a crimi-
nal statute to make criminal acts which at the time they
were done were not considered by Congress to be criminal.

CONCLUSION

The ruling of the Court of Appeals for the Seventh
Circuit in this case, as it concerns sound recordings fixed
prior to February 15, 1972, is inconsistent with the legis-
lative history, H.R. Rep. No, 92-487 at 9, contrary to this
Court's determination in Goldstein v. California, 412 U.S.
at 566, that composition copyright holders were to have

16

“no control” over the recordings themselves, and is bad
public policy because it entrenches the large recording
companies in their dominant market position and deprives
the public of free access to music of its own choosing.

More importantly, as it concerns David Heilman the
individual, that ruling requires him to face a criminal
prosecution for acts that were not considered criminal
at the time they were done. For these reasons it is asked
that the Supreme Court of the United States grant this
petition for writ of certiorari.

Respecthully Submitted,
LAWTON & CATES

RICHARD L. CATES
BRUCE F. EHLKE

Attorneys For Petitioner

17
ADDENDUM
Unirep Sstates Constitution
ARTICLE I. SECTION 9, CLAUSE 3

No Bilt of Atiainder or ex post facto Law shall be passed.

AMENDMENT V

No person shall be held to answer for a capital, or otherwise infa-
mous crime, unless on a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger; nor shall
any person be subject for the same offence to be twice put in jeop-
ardy of life or limb; nor shell be compelled in any criminal ease to
be a witness against himself, nor be deprived of life, liberty, or
property, without duo process of law; nor shall private property be
taken for public use, without just commensation.

18

Public Law 92-140
92nd Congress, S. 646
October 15, 1971

An Act

®

_ 65 STAT.

19

other than those accompanying a motion picture are fixed by any
method now known or later developed, and from which the sounds
can be perceived, revroduced, or otherwise communicated, either
directly or with the aid of a machine or device, and include the ‘parts

85 STAT. 392

391 of instruments serving to reproduce mechanically the musical work’,

Teo amend title 17 of the United Staten Code to provide for the creation of a
limited copyright in sound recordings for tbe purpose of protecting agelnst
noauthurized duplication and piracy of sound recording, and for other
purposes.

Re it enacted by the Senate and House af Representatives of the
United States of America in Congress assembled, That title 17 of the
United States Code is amended in the following respects:

(a) In section 1, title 17, of the United States 6, add a subsec-
tion (f) to read:

“To reproduce and distribute to the public by sale or other transfer
of ownership, or by rental, lease, or lending, reproductions of the
copyrighted work if it be a sound recording: Provided, That the
exclusive right of the owner of a copyright in a sound recording to
reproduce it is limited to the right to duplicate the sound recording
in a tangible form that directly or indirectly recaptures the actual
sounds fixed in the recording: Provided further. That this right does
not extend to the making or duplication of another sound recording
that is an independent Lantion of other sounds, even though such
sounds imitate or simulate those in the copymghted sound recording;
or to reproductions made by transmitting organizations exclusively
for their own use.”

(b) In section 5, title 17, of the United States Code, add a subsection
(n) to read:

“Sound recordings.”

(c) In section 19, title 17, of the United States Code, add the follow-
ing at the end of the section: “In the case of reproductions of works
specified in subsection (n) of section 5 of this title, the notice shall
consist of the symbol ® (the letter P in a circle), the year of first puo-
lication of the sound recording, and the name of the owner of copy-
right in the sound recording, or an abbreviation by which the name
can be recognized, or a generally known alternative designation of the
owner: Provided, That if the producer of the sound recording is named
on the labels or containers of the reproduction, and if no other name
appears in conjunction with the notice, his name shall be considered
w part of the notice.”

(d) In section 20, title 17, of the United States Code, amend the
first sentence to read: “The notice of copyright shall be applied, in the
cuse of a book or other printed publication, upon its title page or the
page immediately following, or if @ periodical either upon the title
page or upon the first page of text of each separate numver or under
the title heading, or if a musical work either upon its title pon or the
first page of music, or if a sound recording on the surface of reproduc-
tions thereof or on the label or container in such manner and Jocation
as to give reasonable notice of the claim of copyright.”

(e) In section 26, title 17, of the United States Code, add the fol-
lowing at the end of the section: “For the purposes of this section and
sections 10, 11, 13, 14, 21, 101, 106, 109, 209, 215, but not for any other

vurpose, a reproduction of a work described in subsection 5(m) shall

«© considered to be a copy thereof. ‘Sound recordings’ are works that
result from the fixation of a series of musical, spoken, or other sounds,
but not including the sounds accompanying a motion picture. ‘Repro
ductions of sound recordings’ are materia) objects in which sounds

‘mechanical reproductions’, and ‘interchangeable parts, such as discs
or tapes for use in mechanical music-producing machines’ referred to
in sections 1(e) and 101(e) of thistitle.”

_ Sec. 2. That title 17 of the United States Code is furiiier amended
in the following respect :

In section 101, title 17 of the United States Code, delete subsection
(e) inits entirety and substitute the following:

“(e) IntercHanoranie Parts ror Use is Mreowanican Mrar
Propveine Macuines.—Interchangeable parts, such as discs or tapes
for use in mechanical music- producing machines adapted to reproduce
copyrighted musical works, shall be considered copies of the copy-
righted musical works which they serve to reproduce mechanically for
the purposes of this section 101 and sections 106 and 109 of this title,
and the unauthorized manufacture, use, or sale of such interchange-
able parts shall constitute an infringement of the copyrighted work
rendering the infringer liable in accordance with all provisions of this
title dealing with infringements of copyright and, in a case of willful
infringement for profit, to criminal prosecution pursuant to section
104 of this title. Whesever any person, in the absence of a license
agreement, intends to use a copyrighted musical composition upon the
parts of instruments serving to reproduce mechanically the musical
work, relying upon the compulsory license provision of this title, he
shall serve notice of such intention, by registered mail, upon the copy-
right proprietor at his last address disclosed by the records of the
pe 2 a office, sending to the copyright office a duplicate of sucly
notice.

Src. 3. This Act shall take effect four months after its enactment
except that section 2 of this Act shall take effect immediately upon its
enactinent. The provisions of title 17, United States Code, as amended
by section 1 of this Act, shall apply only to sound recordings fixed,
published, and copyrighted on and after the effective date of this Act
and before January 1, 1975, and nothing in title 17, United States
Code, as amended by section 1 of this Ket, shall be applied retro-
actively or be construed as affecting in any way any rights with respect
to sound recordings fixed before the effective date of this Act.

61 Stat. 652,
17 USC 1.
Infra,
Copyrighted
music, un=
authorized
use.

61 Stat. 661,

Sound reocrm-
ings.
Copyright.
Limitations,
61 Stat. 6523
66 Stat. 752.

Notice,

Copy right
notice, form,
68 Stat. 1032.

Effective dates,

Approved October 15, 1971.
Notioe,
location,
®
Definitions.
LEGISLATIVE HISTORY:
Supra. HOUSE REPORT gNo, 92=487 (Camm. on the Judiciary).

SENATE REPORT No, 92-72 (Comm, on the Judiciary).
CONGRESS IONAL RECORD, Vol. 117 (1971):

Apr. 29, considered and passed Senate,
Oot. 4, considered and passed House, amended,
Oot. 6, Senate agreed to House amendments,

20

Tiree 17 Unrrep Sratres Cope
CopyriGHts
(AS AMENDED OCTOBER 15. L971)

§ 1. Exctusive Rios vs To Corrricnutep Worns.—Any person en-
titled thereto, upon complying with the provisions of this title, shall
have the exclusive right:

(a) Toprint, 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
drumatize 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 copy-
righted 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 dam-
ayes 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

(ad) To perform or represent the copyrighted work publicly if it be
n 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
inake or to procure the making of any transcription or record thereof
by or from which, in whole or im 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

(ce) 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 itor of the melody of it in any system of
notation or any form of record in whieh the thought of an author may
be recorded and from whieh it may be read or reproduced: Provided.
That the provisions of this title, so far as they secure copyright con
trolling the parts of instruments serving to reproduce mechanically

21

the musical work, shall include only compositions published and copy-
righted after July 1.1909, and shall not include the works of a foreign
author or composer unless the foreign state or nation of which such
author or composer is a citizen or subject grants, either by treaty, con-
vention, agreement, or law, to citizens of the United States similar
rights, And as a condition of extending the copyright control to such
mechanical reproductions, that whenever the owner of a musical copy-
right has used or permitted or knowingly acquiesced in the use of the
copyrighted work upon the parts of instruments serving to reproduce
mechanically the musical work, any other person may make similar
use of the copyrighted work upon the payment to the copyright pro-
prietor of a royalty of 2 cents on each such part manufactured, to be
paid by the manufacturer thereof; and the copyright proprietor may
require, and if so the manufacturer shall furnish, a report. under oath
onthe 20th day of each month on the number of parts of instruments
manufactured during the previous month serving to reproduce me-
chanically said musical work, and royalties shall be due on the parts
manufactured during any month upon the 20th of the next succeeding
month. The payment of the royalty provided for by this section shall
free the articles or devices for which such royalty has been paid from
further contribution to the copyright except in ease of public per-
formance for profit. It shail be the duty of the copyright owner, if he
uses the musical composition himself for the manufacture of parts of
instruments serving to reproduce mechanically the musical work, or
licenses others to do so, to file notice thereof, accompanied by a record-
ing fee, in the copyright office, and any failure to file such notice shall
he a complete defense to any suit, action, or proceeding for any in-
fringement of such copyright.

In case of failure of such manufacturer to pay to the copyright pro-
prictor within thirty days after demand in writing the full sum of
royalties due at said rate at the date of such demand, the court may
award taxable costs to the plaintiff and a reasonable cotinsel fee, and
the court may, in its diseretion, enter judgment therein for any sum
in addition over the amount found to be due as royalty in accordance
with the terms of this title, not exceeding three times such amount.

The reproduction or rendition of a musical composition by or upon
coin-operated machines shal! not be deemed a public performance for
profit unless a fee is charged for admission to the place where such
reproduction or rendition occurs.

(f) To reproduce and distribute to the public by sale or other
transfer of ownership, or by rental, lease, or lending, reproductions
of the copyrighted work if it be a sound recording: Provided, That
the exclusive right of the owner of a copyright in a sound recording to
reproduce it is limited to the right to duplicate the sound recording

22

in a tangible form that directly or indirectly recaptures the actual
sounds fixed in the recording: Prorided further, That this right does
not extend to the making or duplication of another sound recording
that is an independent fixation of other sounds, even though such
sounds imitate or simulate those in the copyrighted sound recording;
or to reproductions made by transmitting organizations exclusively for
their own use.

(e) INtreecuancranne Parrs por Use in Mecuanican Musie-
Propveing Macuines.—Interchangeable parts, such as discs or tapes
for use In mechanical music-producing machines adapted to reproduce
copyrighted musical works, shall be considered copies of the copy-
righted musical works which they serve to reproduce mechanically
for the purposes of this section LOL and sections 106 and 109 of this
title, and the unauthorized manufacture. use, or sale of sneh inter-
changeable parts shall coustitute an infringement of the copyrighted
work rendering the infringer liable in accordance with all provisions
of this tithe dealing with infringements of copyright and, in a ease of
willful infringement for profit, to criminal proseention pursuant to
section 104 of this title. Whenever any person, in the absence of a
license agreement, intends to use a copyrighted musical composition
upon the parts of instruments serving to reproduce mechanically the
musical work, relying upon the compulsory leense provision of this
title, he shall serve notice of such intention, by registered mail, upon
the copyright proprictor at his last address disclosed by the records of
the copyright office, sending to the copyright office a duphente of such
notice.

§ 104. Willful infringement for profit

Any person who willfully and for profit shall infringe any copy-
right secured by this title, or who shall knowingly and willfully aid

or abet such infringement, shall be deemed guilty of a misdemeanor,
and upon conviction thereof shall be punished by imprisonment for
not exceeding one year or by a fine of not less than $100 nor more
than $1,000, or both, in the discretion of the court: Provided, however,
That nothing in this title shall be so construed as to prevent the
performance of religious or secular works such as oratorios, can-
tatas, masses, or octavo choruses by public schools, church choirs,
or vocal societies, rented, borrowed, or obtained from some public
library, public school, church choir, school choir, or vocal society,
provided the performance is given for charitable or educationa! pur-
poses and not for profit. July 30, 1947, c. 391, § 1, 61 Stat. 652.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2249%3A1. Public record. Not legal advice.