Opposition Brief — Teleprompter Corp. v. Columbia Broadcasting System, Inc.

Supreme Court brief1974

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COLUMBIA BROADCASTING SYSTEM, INC, CALVADA

PRODUCTIONS, a yornt venture, JACK CHERTOK TELE-

VISION, INC. anp DENA PICTURES INCORPORATED,

Respondents.

Sypney M. Kaye Royat E. BraKeMan

Pirie MANDELKER Bertranp H. Werpserc

575 Madison Avenue 430 Park Avenue

New York, New York 10022 New York, New York 10022

Harry R. Oxsson, Jr. Attorneys for Respondent Calvada

51 W. 52 Street Productions

New York, New York 10022 Evucene Z. DuBose

Attorneys for Respondent Columbia Ar yeep C. Moran

Broadcasting System, Inc. 120

New York, New York 10005

Attorneys for Respondent Jack

Chertok Television, Inc.

Srymour GravuBaRD

Bernarp BucHHOLz

345 Park Avenue

New York, New York 10022

Attorney for Respondent Dena

Pictures, Incorporated

TABLE OF CONTENTS

PAGE

ate. TNE b. dkk ccs Ge avenge 1

Quustades: Pamtarine 6 ois oes AAA 2

RO ee eet re 3

CIEE aks Gi cline bs ovickacescccuc leu 3

A. Warmington, New Mexico .................. 6

B. Great Palle, Mottams 2. 6.2 503.651 0 A 7

GC. Pe, WOE ooo occ cc cuecee cs 7

TuHere Are No VALip REASONS FOR Gases THE

Waar op Camrnenant ok id SEES 8

i ths Willing of the Cone nails oh

Respect to Distant Signals is Fully in Accord

with the Rule Set Forth by this Court in Fort-

INN ch cogs ccsccasaacteesiacalace 9

Il. Teleprompter’s Ancillary Arguments Do Not

Justify Granting the Writ ................. 14

A. The Decision of the Court Below is Con-

sistent with the Communications Act and

FCC Regulation of Cable Television ...... 14

B. The Decision of the Court Below Does Not

Conflict with Industry Economics ........ 17

C. The Rule of the Court Below Does Not

Threaten the Viability of Cable Television 23

D. The License Implied in Law Argument Has

a Repeatedly and Properly Rejected by ~~

E. Sh. Cavils about the Definition

of “Distant Signals” Developed by the

Court of Appeals Do Not Warrant the

Granting of Its Petition ............... 28

IIIT ons v kak oe vavicsnenecioues nn 30

PAGE

CAasEs:

Aro Mfg. Co. v. Convertible Top Replacement Co.,

Bre aia ee PO OD oho ok who oo hvac aks ck

Cable Vision, Inc. v. KVTV, Inc., 335 F. 2d 348

(9th Cir., 1964), cert. denied, 379 U. S. 989

CRUD scab Ave 0 0ks canedsnai basen. 15

Davis v. E. I. DuPont de Nemours & Co., 249 F.

wpe. cee (S. DON. Y., 1966) ... cincs cs ec. 28

FCC v. Pottsville Broadcasting Co., 309 U. S. 134

Be ee ES a ee 15

Ferris v. Froliman, 223 U. S. 424 (1912) ....... 28

Fortnightly Corp. v. United Artists Television, Inc.,

392 U. S. 390 (1968) ..... 3, 4, 5, 9, 10, 11, 12, 13,

14, 25, 26, 27, 28

King v. Mister Maestro, Inc., 224 F. Supp. 101

oe Ag Se as a ee eae 28

Law v. National Broadcasting Co., 51 F. Supp. 798

ay Sy Weg PO nob 6 oo ako e chase. k 28

: Manners v. Morosco, 252 U. S. 317 (1919) ...... 28

Select Theatres Corp. v. Ronzoni Macaroni Co., 59

U. S. P. Q. 288 (S. D. N. Y., 1943) .......... 13, 28

Shapiro, Bernstein & Co., Inc. v. 4636 S. Vermont

Ave., Inc., 367 F. 2d 236 (9th Cir., 1966) ...... 25

United Artists Television, Inc. v. Fortnightly C. orp.,

337 F. 2d 872 (2d Cir., 1967), rev'd 392 U. S.

Se Pre ane 10, 27

United States v. Southwestern Cable Co., 392 U. S.

RO EE bk os bas ce cca 5, 11, 12, 20

Uproar Co. v. NBC, 8 F. Supp. 348 (D. Mass.,

1934), aff'd, 81 F. 2d 373 (1st Cir.), cert. denied

ee re ee OD 5 5 Chie oe cviv week 28

Woolworth Co. v. Contemporary Arts, 344 U. S.

- EME Sag Gute teks (eacwiuas eos. 25

PAGE

Unitep States ConstiruTIon:

Article 1, Section 8, Clause 8 .................. 15

STATUTES AND RULEs:

Communications Act of 1934:

Wis. SS OR Ree oe Oe ow kkk casdaccne 14,15

* MF OD CBO oak ivvcdicseccsccnee 15

17 U. S. C. $§ 1(c), (d) ....2, 3, 9, 10, 13, 14, 15, 17,

25, 27, 28

Federal Communications Commission Rules

FARE si A a 22

OF CHR SIRO im vine Wes Sion kasd and a 12

RSG ie Hs 6k eck kc ieee 16

Ah te | SRE ae aot 16

REPORTS AND ORDERS OF THE FCC:

"Television Systems, 2 FCC 24708 (IOGy 16

Notice of Proposed Rulemaking and Notice of In-

quiry, in Dkt. No. 18397715 FCC 2d 417 (1968).20, 23

Cable Television Report and Order, 36 FCC 2d 143

(We See 12, 16, 22, 29

Memorandum Opinion and Order on Reconsidera-

tion of the Cable Television Report and Order, 36

te FF a, : BN ete es 12, 29

TEXTs:

Johnson, Dr. Leland, The Future of Cable Television

Ee CA Ss NOUR Gis alk sin chs hs 86 ov 0 26

Nimmer, Copyright Publication, 56 Colum. L. Rev.

SA ROUON og 5 vb y ca Abas bay ode be 8 Svenake 28

Television Factbook, vol. 41 (1971-72) .......... 6

OTHER SourRCEs: ft

Broadcasting, March 12, 1973 .................. 24

Coen MON: BNO 8G LOGS ovis sc cuses dcassces 24

CATV : Newsweekly of Cable Television, March 19,

__ | ERS Sk eae CRs eee he Ree er 24

Comments of Teleprompter Corp., In the Matter of

Various Methods of Transmitting Program Mate-

rial To Hotels and Similar Locations, et al., FCC

Dkt. No. 19671, et al. (May 21, 1973) ......... 21

Comments of the NCTA, In the Matter of Various

Methods of Transmitting Program Material to

Hotels and Similar Locations, FCC Dkt. No.

Ee Be Ry PE oa ohh os Koco ho bccn 17

D. Burch, Letter to Congress, dated August 5,1971 16

Petitioner’s Reply Brief to the Supreme Court in

Fortnightly Corp. v. United Artists Television,

SA, I hale 6 dnd ss Sede oo ik kc

IN THE

Supreme Court of the United States

Octoser Term 1972

No. 72-1628

TELEPROMPTER CORPORATION AND CONLEY

ELEcTRONICS CORPORATION,

Petitioners

CoLcumBIA Broapcastinc System, Inc., CALvADA Pro-

DUCTIONS, a joint venture, Jack CHERTOK TELEVISION,

Inc., and Dena Pictures, INCORPORATED,

Respondents

On PETITION For A WRIT oF CERTIORARI TO THE UNITED

StaTEs Court oF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

TO PETITION NO. 72-1628

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 476

F. 2d 338 (2d Cir., 1973). It is also appended to the Con-

ditional Cross-Petition for a Writ of Certiorari filed in No.

72-1633 by Columbia Broadcasting Systems, Inc., Calyada

Productions, a joint venture, Jack Chertok Television, Inc.,

PTL TNS ESA TI Se

and Dena Pictures, Incorporated (hereinafter “plaintiffs” )

at Appendix A pp. 1a-28a.*

The opinion of the United States District Court for |

the Southern District of New York is reported at 355

F. Supp. 618 (S. D. N. Y., 1972) and is appended to the

Conditional Cross-Petition at Appendix B pp. 1b-26b.

QUESTION PRESENTED

The only question really presented by the Petition for-

Certiorari is:

Do petitioners’ cable television stations which: (1)

deliberately select for importation various television

signals in markets distant from and alien to the cable

communities in which they operate and (2) procure

and import these distant signals into their operating

markets and (3) transmit these signals over their cab

stations, “perform” the copyrighted programs embodied

in such signals under Sections 1(c) and (d) of the

Petitioners Teleprompter Corporation and Conley Elec-

tronics Corporation (hereinafter “Teleprompter”) set

forth three further questions as issues in their petition.

None of these bears any relation to the opinion of the Court

of Appeals below or to the issues posed by this case. See

infra at 14-27.

*Reference is made in this brief to the opinions as printed in the

Conditional Cross-Petition in No. 72-1 (hereinafter cited as

“Cross-Pet.”) and not to those printed in Petition in the present

docket No. 72-1628 (hereinafter cited as “ > Sane pementte

in the present docket inadvertently printed unofficial opinion of

the Court of Appeals below which contained factual errors later cor-

rected in the ial version released by the Second Circuit. The

corrected version was printed in the Conditional Cross-Petition.

References to the record below as certified by the clerk of the

Circuit are denominated “J.A.” for the Joint Appendix

volume and “J.A.E-” for the Joint Exhibit Volume.

ELLY EILEEN ERIN AP IED ELITES PILI BE LIT CI Ee a a EE

STATUTE INVOLVED

The only statutory provisions involved are Sections

l(c) and (d) of the Copyright Act of 1909, 17 U. S. C.

§§ 1(c) and (d), which are set forth in plaintiffs’ Condi-

tional Cross-Petition for a Writ of Certiorari, No. 72-1633,

at 3+.

STATEMENT

Teleprompter is the nation’s largest operator of cable

television stations. At the time of trial, it owned and

operated some 100 cable television stations throughout the

country with more than 500,000 paying subscribers. Its

stations presently serve some 780,000 subscribers (Cross-

Pet. at 4).*

As established by stipulations below, Teleprompter’s

cable television stations performed a number of functions

the copyright implications of which were never previously

before the courts. These included origination and transmis-

sion of substantial programming, sale and transmission of

advertising, interconnection with other cable television

stations. The stipulations also established that the Tele-

prompter stations selected, imported, and retransmitted

programs broadcast in the first instance by television sta-

tions in markets far distant from the communities in which

Teleprompter’s cable television stations operate. These

functions were in addition to a reception service which en-

hanced the ability of subscribers to receive signals broad-

cast by television stations in local and adjacent markets, a

function that was held by this Court in Fortnightly Corp. v.

United Artists Television, Inc., 392 U. S. 390 (1968)

(hereinafter “Fortnightly” ), not to be an infringing per-

*Plaintiffs refer the Court to its Conditional Cross-Petition in

No. 72-1633 for a full statement of plaintiffs’ activities, Teleprompter’s

non-distant signal importation activities and the procedural context in

which the action herein was commenced and tried.

iinieeniinieeiebiieiei ee

formance of the copyrighted programs (Cross-Pet. App. A

at 5a-10a, 15a, 16; App. B at 6b-13b).

Issues were raised below with respect to all of the novel

services provided by Teleprompter (Cross-Pet. at 2-9).

Teleprompter, however, is challenging the Second Circuit’s

decision with respect only to the copyright effects of distant

signal importation.*

Plaintiffs contended below and knowledgeable witnesses’

testified without contradiction that the activities of the Tele-

prompter cable television stations in selecting and importifig

distant signals for retransmission to subscribers were func-

tionally equivalent to the activities of network affiliate sta-

tions in importing network signals originated in distant

markets (J. A. 298a-299a, 373a-374a, 387a-388a, 399a-

400a). Accordingly, it was urged that the Teleprompter

cable station could not consistently with the test laid down

by this Court in Fortnightly be deemed to fall ‘on the

viewer’s side of the line” for purposes of copyright liability.

392 U. S. at 396-399,

The Court of Appeals held that the Teleprompter cable

television stations did infringe the copyrights of those pro-

grams carried on signals which they selected, imported

,.and distributed from distant broadcast stations. Many of

these were located hundreds of miles from the communities

in which the cable stations operated and were clearly beyond

the service areas of the broadcast stations originating the

programs. The Second Circuit held that, to the extent

cable television stations import such “distant” signals, they

are “functionally equivalent to a broadcaster and thus

should be deemed to ‘perform’ the programming distributed

*Plaintiffs are challenging the holding of the Court of Appeals

with respect to certain of the other services provided Teleprompter

and have presented the relevant issues and consid comldeaiient to take

wy Heo ~ 9 r Conditional Cross-Petition for a Writ Certiorari,

0. 72-1633.

to subscribers on these imported signals” within the mean-

ing of Fortnightly and the Copyright Act (Cross-Pet. App.

Aatl8a).

» The court below reached this conclusion with respect to

importation of distant signals in light of a number of

factors. Foremost was the fact that importation and trans-

mission of distant signals was not present in Fortnightly

and that this Court in United States v. Southwestern Cable

Co., 392 U. S. 157, 163-164 (1968), had found that distant

signal importation was a function vastly different than

mere enhancement of local television reception (Cross-

Pet. App. A at 17a-19a). See infra at 9-12.

Further, the court recognized that television stations

have limited effective broadcasting ranges owing to the fact

that television waves travel in straight lines, while the

earth’s surface is curved. This range, as the result of

certain FCC restrictions on power and tower height, except

in unusual circumstances, is only 60-90 miles (J. A. 317a-

318a, 374a, 492a-493a).*

Traditionally only these local signals have been available

to television viewers in any particular community. Copy-

right owners are aware of this fact and license their pro-

grams accordingly.. The record clearly shows~that they

do not intend that the programs they license for broadcast

in one market be distributed in another distant market

without authorization, and this for sound economic reasons

(Cross-Pet. App. A at 3a, n. 2; J. A. 3l1la, 421a=422a,

434a-435a, 443a-444a). The decision of the court below

| appears to recognize the economic reality that a copyright

owner’s ability successfully to market his creation may de-

pend on the revenue to be derived from syndicating the

performance of his creation in areas that did not receive it

in the first instance. Diminution of the copyright owner’s

*T those

ie ne ae en rae supporting

reward, by permitting cable television stations freely to

import and transmit distant signals without payment to the

right laws to stimulate creative effort through rewards to

creators. See infra at 19-20.

Teleprompter cable television stations’ activities in im-

porting distant signals were at the time of trial as follows:

A. Farmington, New Mexico

Teleprompter’s Farmington cable television station was

importing from Los Angeles, some 600 miles away, the

programs of four independent television stations. Tele-

prompter deliberately chose to import the signals of these

stations because of the type of programming they had to

offer (J. A. 568a-570a, cf. J. A. 612a). In selecting these

signals, Teleprompter chose from a virtually unlimited

number of stations. Indeed, in going to Los Angeles for

desirable programming it bypassed some 113 other stations

no farther from or nearer to Farmington.* Having chosen

to import the programming of the Los Angeles stations,

Teleprompter arranged to intercept their signals near Los

Angeles and to retransmit them to Farmington by a com-

plex 21-hop, 1,300 mile microwave system. These programs

were otherwise not receivable in Farmington because of

the distances involved (Cross-Pet. App. A at 7a, 24a-25a;

App. B at 10b-11b; J. A. 117a, 269a-271a).**

*The figures here and infra at 7-8 concerning the number

of stations ee eee ee

import are based on listings in Television Factbook, vol. 41 (1971-72),

a standard industry guide.

**The signal that the court below found to have been

imported into Farmington originated in Durango, Colorado, 43 miles

from Farmington. Its reception in Farmington without microwave

wall.

all. Teleprompter chose to retransmit only particular segments of

ee se oe ne ae Bete aeally fal

Program format it desired to present to its subscription-payi

a ee ee aN

a- ,

saeieteniatiiniaatiatiat ita i ita ti ih tke a

B. Great Falls, Montana

Teleprompter’s Great Falls System was importing the

programming of seven distant television stations located

all over the northwest quadrant of the United States and

Canada. Signals were imported from Salt Lake City, 466

miles away, Spokane, Washington, 286 miles away, Leth-

bridge, Canada, 163 miles away, and Helena, Montana, 71

miles away.* The cable station also carried the signals of

two local television stations (Cross-Pet. App. A at 9a).

The stations whose signals were imported were deliberately

selected in consideration of the type of programming they

offered, the times at which particular programs were broad-

cast and the program arrangement of the stations (J. A.

568a-570a). Only nine of the 52 television stations in the

area, not counting Canadian stations, were selected. One

of the imported stations was retransmitted on only a part-

time basis to accommodate the programming needs of the

cable television station (J. A. 221a). All of the distant

signals were picked up off-the-air at various points near

the originating stations and transmitted by microwave to

a point in Great Falls whence they were distributed to

subscribers. None of the signals imported was available

to Great Falls viewers by any means other than the Tele-

prompter cable station (Cross-Pet. App. A at 9a).

C. Rawlins, Wyoming

Teleprompter’s Rawlins cable television station was

importing and retransmitting the programs of five Denver

*Though Great Falls was 71 miles from KBLL-TV, Helena,

and within what might be considered the normal range of a broad-

cast station, reception of KBLL’s signals directly off-the-air in Great

Falls was impossible and no not a subscriber to the Tele-

ee to ee te ee (J. A. 219a-

). KBLL-TV’s signals were imported by Teleprompter into

255) Falls by a 3-hop microwave system 135 miles long (J. A.

television stations, 184 miles away.* Direct reception of

these stations was impossible in Rawlins because of the

distances involved”(Cross-Pet. App. A at 8a). Two sta-

tions far closer than Denver were bypassed by Tele-

prompter.

MHERE ARE NO VALID REASONS FOR GRANTING

THE WRIT OF CERTIORARI

Petitioners seek to justify the granting of a Writ*of

Certiorari in part on the ground that the plaintiff “CBS has

frankly stated that it seeks a ‘. . . determination of the

issue of copyright liability’” (Pet. at 6), a result which

plaintiffs firmly believe was achieved by the unanimous deci-

sion of the Court of Appeals for the Second Circuit. Tele-

prompter does not mention in its petition its own strong

efforts to prevent such a judicial determination below. Tele-

prompter in fact argued vigorously, both before the District

Court and the Court of Appeals, that the matters at issue in

this case should be left for resolution to Congress and the

Federal Communications Commission.**

at the Casper, Wyoming satin, &? mules distant, dices ottheal

reception of which was not feasible in Rawlins. This station’s broad-

casts, however, were available to Rawlins viewers by means of a

translator, licensed by copyright owners, operating in the area and

so were not considered by the court below as imported distant broad-

ee eee (App. A 8a, see 26a). This

same concl sis With, tiage Gag evighased sane 404 wiles

Albuquerque si which, though originated some iniles

from and-wee microwaved some 30 miles into Farm-

ington by T , were not considered distant because they

-were also available in Farmington by means of a licensed translator

service (Cross-Pet. App. A at 25a-26a).

**If this Court should choose to grant Teleprompter’s petition,

then we respectfully urge that the Court also grant the Conditional

Cross-Petition for Certiorari ‘because that cross-petition presents

the other facts necessary to any further judicial resolution of the

issues of present copyright liability. of cable television stations.

THE HOLDING OF THE COURT OF APPEALS BELOW

WITH RESPECT TO DISTANT SIGNALS IS FULLY IN AC-

CORD WITH THE RULE SET FORTH BY THIS COURT IN

FORTNIGHTLY.

Teleprompter’s primary argument in support of its peti-

tion is that the decision of the Court of Appeals below,

holding importation and distribution of distant signals a

performance under the Copyright Act of 1909, is in direct

conflict with this Court’s holding in Fortnightly (Pet. at 24,

29-34). It is quite clear, however, that not only is the

Court of Appeals’ holding not in any conflict with Fort-

nightly, but is actually necessitated by Fortnightly.

This Court in Fortnightly held that a CATV system

which “no more than enhances the viewer’s capacity to re-

ceive the broadcaster’s signals” “falls on the viewer’s side

of the line” and does not “perform” the programs embodied

by the signals enhanced. 392 U. S. at 399 (emphasis

added). The Court found that the particular CATV sys-

tems before it in Fortnightly were thus non-performers, on

the “viewer’s side of the line.”

Fortnightly involved two small CATV systems consist-

ing essentially of receiving antennas and cable which con-

nected the antennas to the subscribers. Each of the systems

carried only the programs of five television stations located

in communities adjacent to the cable communitiés. The dis-

tances between the cities from which the broadcast signals

originated and the two cable communities varied between

52 and 82 miles, within the normal physical range of the

signals. 392 U. S. at 392. See supra at 5.* If it had

*Counsel for Fortnightly (Teleprompter’s counsel here) advised

this Court in Fortnightly that: “While respondent and some amict

raise the dread specter of CATV systems carrying signals from New

York to Los Angeles . . ., microwave is not involved in this case .

the systems before this Court are within or the Grade B con-

tour and im the service area of the stations whose signals are made

available to subscribers.” Petitioner's Reply/ Brief, dated March 5,

1968, pp. 1-3 (emphasis added).

not been for the hilly terrain in and around the cable com-

munities, these signals could easily have been received by

all residents in the community. 392 U. S. at 391; see United

Artists Television, Inc. v. Fortnightly Corp. 337 F. 2d

872, 875 (2d Cir., 1967). Indeed, some residents actually

did receive the signals in question directly off-the-air;

others received them by means of suitably located coopera-

tive antennas. 392 U. S. at 391-2; 377 F. 2d at 883-4 n. 14.

To provide satisfactory réteption of these nearby sig-

nals, Fortnightly erected antennas on hilltops two and one-

half miles from the centers of each of the two towns. These

antennas picked up the broadcasts inyolved directly off-the-

air. They were then distributed by cable to the subscribers.

Id. at 874-5. The two systems provided nothing more than

a “well-located antenna with an efficient connection to the

viewer’s television set.” 392 U. S. at 399.

Before arriving at its decision with respect to the copy-

right liability of the particular CATV systems before it,

however, the Court in Fortnightly established a test for

that had occurred since the enactment of the Copyright Act

in 1909. Jd. at 395-6. The test was based on analogy to

broadcasters and other traditional performers. The Court

stated that the resolution of the issue of whether or not cable

television systems “performed” depended “upon a deter-

mination of the function that CATV plays in the total pro-

cess of television broadcasting and reception,” id. at 397:

where a CATV considered “in this framework . . . falls on

the viewer’s side of thé line” it does not “perform.” Jd. at

399. The distinction rests upon a determination of whether

the cable system is more akin to an “active performer” or

to a “passive beneficiary.” /bid.

' . A “broadcaster” according to this Court in Fortnightly:

(i) “selects and procures the program to be viewed, [which

he] may produce . . . himself, whether ‘live’ or with film or

tape, or he may obtain . . . from a network or some other

source”’; (ii) converts the images and sounds into electronic

signals and transmits them to the public, unless of course

“the broadcaster obtains his program from a network [in

which case] he receives the electronic signals directly or by

means of telephone lines or microwave.” Jd. at 397; see id.

at 400. Viewers, on the other hand, merely “receive the

broadcaster’s signals.” Jd. at 401. A “broadcaster” ‘is also

engaged in the business of selling its time and facilities to

sponsors and is concerned with program content and ar-

rangement. /d. at 400 n. 28.

Applying this test to the Fortnightly CATVs described

above, the Court found that their activities were merely

reception services, that they were “passive beneficiaries” -

falling on the “viewer’s side of the line.” Jd. at 399. But

this Court made very clear that it was “necessarily” speak-

ing “with reference to the facts of this [Fortnightly]

case.” Jd. at n. 25. The Court of Appeals below acknowl-

edged this and only began its analysis of the Teleprompter

cable television stations from this point (Cross-Pet. App.

A lla-12a).

The court below correctly recognized (Cross-Pet. App.

A at 17a-18a) that the question of importation of distant

signals was not before this Court in Fortnightly, see supra

at 9n., and that in United States v. Southwestern Cable

Co., 392 U. S. 157 (1968),* this Court found that:

“CATV systems perform either or both of two

functions. First, they may supplement broadcasting

by facilitating satisfactory reception of local stations

in adjacent areas in which such reception would not

- otherwise be possible; and second, they may trans-

mit to subscribers the signals of distant stations

*Southwestern was the companion case of Fortnightly and was

referred to by Fortnightly “for a discussion of CATV systems gen-

erally,” 392 U. S. at 391 n. 1.

entirely beyond the range of local antennae.” 392

U. S. at 163 (footnote omitted).*

It was in light of this Court’s explicit recognition that

the importation of programming from distant stations is a

function totally different from that of the Fortnightly sys-

tems that the Second Circuit approached the question of the

applied the Fortnightly.test to those activities.

In importing the programming of distant television

stations, the Teleprompter cable television stations per-

formed all of the functions enumerated as indicia of broad-

casters by this Court in Fortnightly. They ‘selected the

programming to be imported. They procured the pro-

gramming. They thus concerned themselves with the pro-

gram content. See supra at 6-8.** In so doing they acted

in precisely the same role as a broadcast network affiliated

station which imports and distributes network program-

*Teleprompter, while admitting that Fortnightly must be read in

light of Southwestern, inconsistently argues that in Southwestern this

Court made its comments on “distant stations” hinge on a footnote

reference to the changing FCC definition of “distant signals” (Pet.

at 30-31). This Court’s 5 Shard to what at that time was the FCC’s

“distant signal” definition quite obviously was not an adoption of that

definition for copyright purposes.

Although Teleprompter counsel here contend that signals re-

ceived by the Fortnightly systems were “distant” under the then

current definition of the FCC, as counsel for Fortnightly, they ad-

vised this Court that “distant” signals were not there involved. See

supra at 9n. Furthermore, under the current FCC definition as

set forth in Cable Television Report and Order, 36 FCC 2d 143 af

{7 81-85 (1972) and implemented by 47 CFR § 76.54(a), all the

signals received by the Fortnightly systems were local with respect to

those systems, see Appendix B to Memorandum Opinion and Order

on Reconsideration of the Cable Television Report and Order, 36

FCC 2d 326, 378, 460 (1972), while the signals found by the Second

Circuit below to be “distant” with respect to the Teleprompter stations

are also “distant” by current FCC definition, see id. at 422, 428, 463.

**As noted supra at 3 and as discussed more fully in the

Cross-Petition at 6, 15-16, Teleprompter also sold time to adver-

tisers. The record clearly indicates that the additional revenues from

advertising would be used for distant signal importation as well as

for origination of Teleprompter’s own programming (J. A. E-54-55).

ming that is originated in distant broadcasting centers

usually New York or Los Angeles. See supra at 4.

As a television broadcast station selects the network

whose programs it desires to distribute and, thereafter, the

network programs it desires to broadcast—so the Tele-

prompter cable station chooses the television broadcast

stations and programs it desires to distribute. As the net-

work affiliate station broadcasts the bulk of the program

schedule offered by the network with which it has chosen to

affiliate—so the Teleprompter cable station distributes the

bulk of the program schedules of those stations it has chosen

to procure. The very methods used by affiliated stations to

import network signals—cable, microwave, direct off-the-

air reception—are the methods used by the Teleprompter

cable stations to import the programming of distant stations

(J. A. 171a, 316a, 319a-320a, 388a; cf. 392 U. S. at 397).

On the basis of these facts, the Second Circuit found

that in importing the programming of distant stations and

distributing that programming to their subscribers the

Teleprompter cable television stations were “functionally

equivalent to a broadcaster” (Cross-Pet. App. A at 18a.

See also J. A. 298a-299a, 373a-374a, 387a-388a, 399a-

400a ).

Having so found this to be the fact and faced with this

Court’s recognition in Fortnightly that broadcast affiliated

stations which import programming from distant stations

for simultaneous distribution “perform” within the mean-

ing of the Copyright Act,* the Second Circuit held that the

*Fortnightly Corp. v. United Artists Television, Inc., 392 U. Ss.

at 398 n.23, citing Select Theatres Corp. v. Ronzoni Macaroni Co.,

59 U. S. P. Q. 288 (S. D. N. Y., 1943) ; ef. 392 U. S. at 397 n. 19.

Select Theatres held that one who had a signal embodying a copy-

righted work “ ‘piped’ to” him as that signal was being broadcast by

a primary central station and who simultaneously retransmitted the

work to a public not within reach of the primary signal was per-

forming within the meaning of the Copyright Act. 59 U: >. 2. @

at 289 and 291.

(cont’d)

Teleprompter cable stations “perform” the distant program-

ming they import and distribute (Cross-Pet. App. A at

18a). This Court’s decision in Fortnightly gave it no alter-

native but to so hold. See supra at 10-11.

TELEPROMPTER’S ANCILLARY ARGUMENTS DO NOT

JUSTIFY GRANTING THE WRIT.

A. The Decision of the Court Below Is Consistent with

the Communications Act and FCC Regulation of

Cable Television.

Both Teleprompter and the National Cable Television

Association, Inc. (filing as amicus in support of the petition,

hereinafter “NCTA”’) forget that this case is a copyright

case brought under the Copyright Act of 1909. They

prefer to stress other matters. Accordingly, both clutter

their petitions with detailed references to FCC rules and

policies concerning the regulation of broadcasters and cable

television operators, as well as to various policies and pro-

visions of the Federal Communications Act of 1934. They

urge that the unanimous decision of the court below con-

flicts with these policies and provisions and that this Court

should grant certiorari so as to obviate this alleged conflict

by declaring the Copyright Act inoperative (Pet. at 24-27,

35-38, 47-51; NCTA Brief at 7-12).

(cont’d. )

Teleprompter attempts to escape the implications of this case by

some reference to the fact that the affiliated station there was a

broadcaster and so responsible under some FCC policy statement

for all material broadcast through its facilities even if originated

elsewhere (Pet. at 10-11, 32-33). Responsibility under some FCC

statement certainly has no relevance to performance under the Copy-

right Act, nor does it have any logical connection with the extent

to which Teleprompter’s operations in importing distant signals are

functionally equivalent to the operations of a network affiliated station

under the Fortnightly test. See infra at 15-17.

These references to the Communications Act and FCC

regulations are totally misplaced. The issue is whether the

Teleprompter cable stations “perform” plaintiffs’ copy-

righted works within the meaning of the Copyright Act. It

is not whether the Teleprompter cable stations “broadcast”

the copyrighted works within the meaning of the Communi-

cations Act or the rules promulgated by the FCC.

The rights of the copyright holders are based on the

tion 8, clause 8 of the United States Constitution which

grants Congress the power “to promote the progress of

Science and the useful Arts, by securing for limited times to

authors and inventors the exclusive right . . .” to their

works. It was this Act of Congress and this Constitutional

provision with which the Court of Appeals below was con-

cerned. Other acts and agency policies were correctly

ignored as irrelevant.

Teleprompter and the NCTA contend that the Commu-

nications Act and FCC policies and rules amend, limit,

modify, supersede and make exceptions to the Copyright

Act. Yet Section 414 of the Communications Act, 47

U.S. C. § 414, specifically provides that:

“Nothing in this chapter contained shall in any way

vbridge or alter the remedies now existing at com-

mon law or by statute, but the provisions of this

chapter are in addition to such remedies.”*

The FCC has never contended that its rulings or the

provisions of the Communications Act can or should affect

*Basing its decision on Section 414, the Ninth Circuit in Cable

Vision, Inc. v. KUTV, Inc., 335 F. 2d 348, 349, 353 (9th Cir., 1964),

cert. denied, 379 U. S. 989 (1965), held that Congress “had not pre-

empted the adjustment of property rights in the communication field

by pone of the Communications Act.” See FCC v. Pottsville Broad-

casting Co., 309 U. S. 134, 138 (1940) (“The Communications Act

is not designed as a new code for the adjustment of conflicting prop-

erty rights through adjudication”).

sistently stressed that it has never intended by its cable

rules to “affect in any way the pending copyright suits,

involving matters entirely beyond [the FCC’s] jurisdic-

tion.” Indeed, the Commission has bluntly stated that its

rules “affor[d] no defense . . . in a copyright suit.” Second

Report and Order, community Antenna Television Systems,

2 FCC 2d 725 at § 108 (1966).

On February 2, 1972, the FCC adopted a Cable Tele-

vision Report and Order, 36 FCC 2d 143, in which the

Commission imposed certain “exclusivity rules” (47

C. F. R. 76.91-159, set out at 36 FCC 2d at 233-236) and

limited the number of distant signals a cable station may

import (47 C. F. R. 76.51-65, set out at 36 FCC 2d at

220-233) (see Pet. at 26, 37; NCTA Brief at 7-8). But

as FCC Chairman Dean Burch explained in his concurring

statement :

“. .. one of the gut issues of the cable controversy

[is] that cable remains an uneasy outsider with

respect to the programming market. And only when

its right to the use of its basic product is secure and

regularized, only then will its future be unclouded.

It is this issue that the Federal Communications

Commission can neither resolve, nor avoid.” 36

FCC 2d 143, 290 (1972).

“Copyright policy,” as Chairman Burch told Congress in a

letter dated August 5, 1971, “is most appropriately left to

the Congress and the courts. ... In short, we believe that

the two matters—cable regulation and copyright—can be

separately considered.”

In any event, the decision below does not conflict with

FCC regulatory policy with respect to the development of

cable stations. No one seeks to stop the importation of

distant signals by Teleprompter. The Second Circuit

simply stated that cable stations that imported pro-

gramming from distant stations must, like any other user

of copyrighted works, pay royalties for the use of those

programs.* There is no need for this Court to review such

an obvious conclusion. _

B. The Decision of the Court Below Does Not Conflict

with Industry Economics.

Teleprompter argues in support of its petition that the

decision of the Court of Appeals below runs counter to in-

dustry economics (Pet. at 34-42). The court below readily

saw the spurious nature of this argument and rejected it.

Teleprompter seeks to minimize the significance of its

importation of programming into communities far distant

from the market area of the originating television stations

by relying on what it calls the “coverage area” of the tele-

vision stations as purportedly described by the ARB and

Nielsen television rating services and in station coverage

maps prepared by sales representatives of various television

*The NCTA at 10-12 of its Brief expresses concern that the

application of the Copyright Act to require cable stations to obtain

to accomplish by means of cable, objectives which the FCC has also

attempted to implement by means of UHF broadcasting, translator,

and satellite stations. All of these other means by which the FCC

has attempted to implement the same policies are admittedly liable

under the Copyright Act and do in fact obtain copyright licenses

from copyright owners. There is certainly no reason why cable

stations should be treated differently, even ing the FCC had

the power, which it clearly has not, to treat them di *

When the shoe is on the other foot and NCTA feels cable tele-

vision threatened by unequal treatment which puts cable television

at a competitive disadvantage, it remembers the Copyright Act. It

also demands that what it terms the “principle of equal competition”

be applied to its competitors. Comments of the NCTA, In the Matter

of Various Methods of Transmitting Program Material to Hotels

and Similar Locations, FCC Dkt. No. 19671 at § 12, see Jj 2-4, 10

(May 21, 1973) (this docket concerns rulemaking relating to the

impact of various methods of program distribution, not at present

subject to FCC regulation, on broadcast and cable television ).

stations (Pet. at 39-41). Teleprompter maintains that the

descriptions in these materials of station “coverage areas”

are significant because they are used in connection with the

solicitation of advertising, the computation of rates to be

paid affiliates, and the calculation of the cost-per-thousand

of reaching television audiences. It implies that advertisers

are aware of the cable stations’ importation of programs,

are willing to and do pay for the added coverage provided

by cable importation, and this added payment redounds to

the copyright owners in terms of added copyright fees. ~

The economic facts of the television industry upon

which Teleprompter relies in propounding this argument

are incorrect. The record quite clearly shows that these so-

called “coverage area” maps are insignificant in selling ad-

vertising. They are not discussed in meetings between

station representatives and advertising agencies. Advertis-

ing time is never bought and sold on the basis of such cover-

age maps. In dealings with advertising agencies who

represent sponsors, no mention is ever made of the addi-

tional cable station coverage (J. A. 512a-513a).

Further, the supposed desires of advertisers are not

useful in defining a “coverage area” of a station for copy-

right purposes. No advertiser appeared as a witness at

trial. Many advertisers (e.g., regional and local) have

no interest whatsoever in the transmission of sponsored

programs into distant markets (J. A. 515a-518a).* Nor

do national advertisers place much, if any, value on dupli-

cated coverage of commercials by cable stations which im-

port the commercials and duplicate those carried by local

stations. These facts were readily acknowledged by the

court below which felt impelled to recognize them by both

*These facts of advertising life in the television industry were

all testified to by defendants’ own witness, James R. Theiss, a vice

president and director of John Blair & Company, the largest of

broadcast station representative companies (J. A. 508a).

“economics and common sense.” — App. A at

3a,n.2).

Importation of distant signals cngeietahe ties by cable

stations, rather than being of value to copyright owners

and the television industry, is a grave threat to them. Due

to physical and regulatory limitations, see supra at 5,

the markets of television broadcast stations have tradi-

tionally been localized. This fact has long been recog-

nized by the program suppliers, copyright holders and

others involved in the production of television programs.

It has been on the basis of this recognition that copyright

owners, including plaintiffs, have negotiated for the license

of their works and have actually licensed them.

At the time of the initial investment and commitment

of funds in program production, no one knows whether a

particular program will be attractive to advertisers or to

the public. As a result, the license fees that copyright

owners are able to receive from any network for initial

transmission by all of the network’s television stations

throughout the country are limited. The risk of loss lies

with the copyright owners (J. A. 314a).

Upon completion of a network “run”, however, the

to individual television stations around the country for

further broadcast in their respective local markets. These

programs are syndicated several times up to the point where

the programs no longer attract an audience and advertisers.

For each separate syndicated broadcast in a particular tele-

vision market, the copyright owner receives a license fee.

It is from these fees that the copyright owners recoup their

investment and make their profit (J. A. 31la, 313a, 423a-

425a, 428a-429a, 432a-434a, 436a-437a; see J. A. 421a-

425a). These same considerations apply to syndication to

local cable stations for transmission over their local origina-

tion channels.

In light of this situation, copyright owners who license

programs for broadcast in one particular market do not in-

tend that the programs be picked up by a Teleprompter

cable station and retransmited to separate, distant markets

(J. A. 3lla, 42la-422a, 434a-435a, 443-444a). Indeed,

such an intention on the part of the copyright holders would

be self-destructive and would gravely jeopardize the econ-

omic value of their works.

License-free importation of a particular program by a

cable station from one market into another and the distri-

bution of the program in the second market would mate-

rially lessen the ability of the copyright owner to subse-

quently license his program for a “run” in that second

market. And even if it were possible after a cable televi-

sion distribution of the imported program to syndicate the

program in the second market, the copyright owner would

not be able to obtain as great a fee for it as he would if the

program had never previously been shown in that market.

A second “run” fee is smaller than a first “run” fee and,

similarly, a third “run” fee is smaller than that of a sec-

ond “run” (J. A. 31 la, 434a-437a). ©

It was in light of these facts that this Court in South-

western recognized that

“Although CATV may in some circumstances make

possible ‘the realization of some of the [Commis-

sion’s] most important goals,’ First Report and

Order, [38 FCC 683] at 699, its importation of dis-

tant signals into the service areas of local stations

may also ‘destroy or’ seriously degrade the service

offered by a television broadcaster,’ id., at 700, and

thus ultimately deprive the public of the various

benefits of a system of local broadcasting stations.”

392 U. S. at 175 (footnote omitted).

Similarly, in its Notice of Proposed Rulemaking and

Notice of Inquiry in Dkt. No. 18397, 15 FCC 2d 417

(1968), the FCC expressed quite bluntly its concern about

the copyright-free importation of distant signals by cable

television stations and the impact of this inherent “unfair

competition” on broadcasters :

“ . . because CATV presently stands outside the

competitive TV program distribution market (para-

graphs 132-133, Second Report), an anomalous and

completely unfair situation is presented. . . . And,

even more important, both the CATV system and the

broadcast station are large scale operations compet-

ing for audience—yet the one pays for its product

and the other without any payment, brings the same

material into the community by simply importing

the distant signals (para. 135, Second Report).

“...The unfair competition . . . will be a signifi-

cant factor in the development or healthy mainten-

ance of television broadcast service.” Jd. at J] 35-36.*

Teleprompter’s “coverage area” argument, based on ARB

and Nielsen “coverage area” maps and definitions, is a boot-

strap argument. While it is true that ARB reports include

in the “coverage area” of a particular television station those

communities into which cable stations import its signal, it

is only after the cable station starts importing the signal

that the cable community is considered by ARB to be within

the “coverage area.”

*When Teleprompter feels that it is being forced to compete on

unfair terms it does not hesitate to assert its rights under the Copy-

Acceptance of Teleprompter’s argument would lead to

absurd results. For example, if Teleprompter brought New

York television signals into the Tokyo area by communica-

tions satellite, Teleprompter’s logic would require a holding

that T was in the New York “coverage area” and was

.covered bya copyright license granting performance rights

in the New ‘York market simply because the following day

ARB included Tokyo in the “coverage area” of the New

York station,

Tokyo is not in the New York market any more than

Farmington is in the Los Angeles market or Great Falls

in the Salt Lake City market despite the choice and actions

of a Teleprompter cable station, a choice that might change

and actions that might cease at any time. These choices

and actions are made by Teleprompter for the benefit of

Teleprompter without the consent of the copyright owners

and contrary to their intent. Certainly a copyright owner

could not base any royalty negotiations on such a “cover-

age area” which might be enlarged or contracted at any

time, without notice, at any cable station’s whim.

Contrary to Teleprompter’s arguments, the FCC has

found that distinct localized markets do exist in the tele-

vision industry. The Commission has even identified them

in its distant signal importation regulations. 47 C. F. R.

§ 76.51 as set forth in Cable Television Report and Order,

supra, 36 FCC 2d at 220-221. This fact in itself negates

Teleprompter’s “coverage area” argument.*

*By this same token, the granting to a cable station of a :micro-

wave license to retransmit a certain broadcast station’s si is not an

of that television station’s natural market

Indeed, any other a by the Commission would

have flown directly in the face of the Commission’s “long

. do not contemplate that a major television mar-

bot head testes ti eee coe ee

satellite of another major market for television

purposes, since that would thwart the local service

concept of the Communications Act. (See Sections

307(b), 303(h); see legislative history of Section

303(s) ; Second Report, 2 FCC 2d at 770-771). As

stated in the Midwest case (13 FCC 2d at 501), if

such a result were deemed in the public interest, the

Commission would follow the direct approach of

granting increased height and power to stations in

the largest communities and authorizing them to

operate translator and satellite facilities in other

sizable communities.” Notice of Proposed Rule

Making and Notice of Inquiry, 15 FCC 2d 417 at

~*~

sion stations amenable to the Copyright Act for the perfor-

mance of programs they import from distant stations (Pet.

at 27-28, 44; NCTA Brief at 2-8). They talk of potentially

huge damage figures with resultant threats to the “very

existence” of cable stations (NCTA Brief at 4). They

harp on the lack of any “mechanism” by which cable tele-

vision operators can negotiate with program suppliers for

of major television networks exercising their great powers

to drive the cable television stations out of markets (Pet.

at 27-28; NCTA Brief at 6-8). They charge that the effect

of all this will be to deprive the public of access to cable

television and its great benefits (Pet. at 3-4, 28; NCTA

Brief at 11-12).

That the decision of the Court of Appeals sounds the

death knell of cable television is ludicrous.* The decision

below merely recognizes the obligation of cable television

stations to compensate the owners of the copyrights of those

programs on which they base their business. Neither CBS

nor any of the other plaintiffs in this action is desirous of

extracting unreasonable sums from the cable television in-

dustry. Indeed, Teleprompter concedes that CBS has made

it clear that it is not seeking “large damages” (Pet. at 27).

Both Teleprompter’s and the NCTA’s purported fears

are rooted in the erroneous assumption that the statutory

damages of not less than $250 per infringement would

ing of tht Gndaton of thn Cont & Appents beth Tedepectpeer

and CTA released to the press generally self-satisfied and con-

gratulatory statements. Such terms as “particularly pleased” and

encouraging” were used. David Foster, the President of the NCTA,

even said that “we are that the courts have not permitted the

copytight issue to i with the growth of the [cable] industry.”

This is hardly consistent with their present claim that they stand on

the brink of catastrophe. See Cable News, March 12, 1973 at 6;

Broadcasting, March 12, 1973 at 12; CATV: Newsweekly of Cable

Television, March 19, 1973 at 7-8.

automatically be granted (Pet. at 44; NCTA Brief at 5).

This Court, however, has made it clear that in copyright

cases the courts have wide discretion among the remedies of

actual damages, accounting and statutory damages, and

that they are to be governed by the equities of the case and

the policies of the Copyright Act. Woolworth Co. v. Con-

temporary Arts, 344 U. S. 228, 231-232, 234 (1952). One

of the obviously relevant factors is the degree to which

the copyright proprietor has actually been damaged, and

this will vary greatly from case to case depending upon the

particular facts. See, e.g., Shapiro, Bernstein & Co., Inc.

v. 4636 S. Vermont Ave., Inc., 367 F. 2d 236 (9th Cir.,

1966) (where de minimis damages shown, the court denied

the granting of statutory damages) ; Cross-Pet. App. A at

27a (where the court below recognized that no more than

de minimis damages might be involved in certain instances

here). The Copyright Act was not designed to require

that remorseless retribution be exacted in every case of

infringement no matter what the circumstances. The his-

tory of copyright litigation illustrates the fact that copy-

right owners are not interested in destroying their

prospective licensees.* In any event the issue of damages

is not presently before this Court nor was it before the

Court below. The issue was separated out from this first

stage of this case by Pre-Trial Order No. 1 (J. A. 72a,

10la). The Court of Appeal’s remand order specifically

covered the damage issue. If Teleprompter should have

any cause for dissatisfaction with the determination of that

issue in future proceedings, its right to appeal from

such determination and to seek review by this Court will

be intact. At the present time, Teleprompter’s “fears” are

irrelevant and purely hypothetical.

*In light of the fears expressed by Teleprompter and the NCTA,

it is interesting to note that in the over 20 years of CATV Activity,

Oy OOS Se NE He ENE AE Ee ee

ortnightly.

Nor is there any substance to the claim that certiorari

should be granted because there is no “mechanism” to

negotiate for copyright licenses. Teleprompter never made

any effort to negotiate such a license with the plaintiffs or

any other copyright owner and acted on the assumption

that it could enjoy perpetually the fruits of its misappro-

priation. The Court of Appeals has made it clear that the

courts have not granted blanket copyright immunity to an

entire industry. Once it is certain that this decision is final

and no longer subject to review, a “mechanism” will be

found.* °

Finally, the specter of a great television network con-

spiracy to exclude cable television from the program market

is totally irrelevant to the present action. This Court in

Fortnightly was presented with similar arguments, but it

refused to take them into consideration, holding that such

considerations were for Congress and that the Court’s job

was to “take the Copyright Act of 1909 as we find it.”

392 U. S. at 401-402.

Teleprompter raised these defenses in its answers to the

several complaints (J. A. 37a-38a, 63a-65a, 96a). They are

not, however, properly before the Court at the present time,

having been specifically separated out by Pre-Trial Order

No. 1 from the first stage of this action, the only stage

which Teleprompter can now aftempt to bring to the at-

tention of this Court (J. A. 72a, 10la). Accordingly, we

ask the Court to disregard them. In any event, there is

certainly no indication on the record or elsewhere that any

of Teleprompter’s and the NCTA’s dire predictions of

*As Dr. Leland Johnson, an i t expert in the field, has

found in The Future of Cable Television, at p. 17n. (Rand Corp. Re-

port prepared for The Ford Foundation, 1990) «

“*The supposed difficulty of obtaining retransmission consent

strikes me as ing but a red herring. If cable were paying

for retransmission, owners of copyright would think of a

way of selling the rights.’”

Indeed, the fact that such “mechanisms” do exist is clearly exemplified

by the fact that every other class of copyright users has managed to

deal successfully with the copyright proprietors.

exclusionary practices will come to pass. If such conduct

ever does occur, the, government or the aggrieved parties

could quite properly find appropriate relief in the courts.

Distorting the law as it presently exists to, prevent possible

future abuses is not justifiable.

D. The License Implied in Law Argument Has Been

Repeatedly and Properly Rejected by the Courts.

Teleprompter tries once again to escape responsibility

for its actions under a so-called “license implied in law”

(Pet. at 51-53). This argument was twice explicitly re-

jected by the Second Circuit, once in Fortnightly, 377 F.

2d at 881-883 and again in the decision below (Cross-Pet.

App. A at 23a, n.18).

Though this Court never explicitly reached the question

of “license implied in law” in Fortnightly, 392 U. S. at 401

n.32, it implicitly did so. As Teleprompter acknowledged

below and as the Court of Appeals rightly pointed out

(Cross-Pet. App. A at 23a, n.18), the compromise pro-

posed in Fortnightly by the Solicitor General was based on

a “license implied in law.” The compromise was rejected.

This Court refused to distort the Copyright Act by accom-

modating it to allegedly conflicting policies of communica-

tions and antitrust. Rather, this Court insisted that such

a job was for Congress and it merely took “the Copyright

Act of 1909 as we find it.” 392 U. S. at 401-402.

If a license for defendants’ activities is to be implied

here, then it must be implied under the Copyright Act.

Nothing in the Copyright Act implies any such “license”

or limitation on the rights granted. No cases support such

a “license.”’*

*The only authority defendants cite for its “license implied in law”

is Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U, S: 476

(1964). This case is completely inapposite. It concerned an an attempt

by a patentee to limit the of his licensee to use unpatented re-

placement parts by means of restrictions in a license to use the pat-

ented articles. Jd. at 496-500.

Teleprompter attempts to recast this “license implied in

law” argument as a “dedicated to the public” argument.

Ignoring the active-passive dichotomy set down by this

Court in Fortnightly and arguing that the public is entitled

to receive andithat Teleprompter as the chosen instrument

of the public partakes of the public entitlement, Telepromp-

ter maintains that once a copyright work is licensed to any

broadcaster and once it is broadcast by any one broadcast

station anywhere it must be “intended” for the public every-

where and in the public domain (Pet. at 43, 52). This

“dedication to the public” theory, however, has been uni-

versally rejected by a long line of judicial precedents going

back to the early days of the Copyright Act, a line which has

been reaffirmed as recently as this Court’s decision in Fort-

nightly where the copyright liability of network affiliates was

restated. 392 U. S. at 398 n. 23. See supra at 10-11, 13.*

E. Teleprompter’s Cavils about the Definition of “Dis-

tant Signals” Developed by the Court of Appeals Do

Not Warrant the Granting of Its Petition.

Petitioners cavil with the copyright definition of a dis-

en a Appeals

it to the pa ; King v. duit Manta e. 224 F. aan.

101, 105-107 (S. D. N. Y., 1963) ; Uproar Co. v. NBC, 8 F. Supp.

348, 362 (D. Mass., 1934) (the broadcast of a script by radig ‘cannot

be held to be . eens ae La large.”), aff’d.,

81 F. 2d 373 (1st Cir. ), cert. denied, 298 U. S. 670 (19365, Nimmer,

The law is clear that multiple broadcasts of a single program,

though simultaneous, give rise to multiple performances within the

meaning of the Copyright Act. For instance s network show broed-

100 affiliates is performed 100 times. See Law v. National

a Co., 51 F. Supp. 798 (S. D. N. Y., 1943) (network

broadcast on three occasions over 67, 66 and 85 stations give rise to

218 “performances”) ; — v. E. I. DuPont de Nemours & Co.,

249 F. Supp. 329 (S. Y., 1966) ; Selec ct Theatre Corp. v. Ron-

zoni Macaroni Co., 30 U.S P.O. 288 (S. D. N. Y., 1943) specifi-

cally approved by Fortnightl: y, 392 U. S 398 n. 23).

and then applied to the five illustrative systems before the

court (Pet. at 44-47). These frivolous objections do not

justify the granting of the writ. In fact, the Court of Ap-

peals remanded the case to the District Court and petitioners

were afforded the opportunity to present their technical

objections on the District Court level (Cross-Pet. App. A

at 27a-28a). This opportunity was ignored.

Whatever the precise definition of a “distant signal,”

the facts here are quite clear. Because of the nature of tele-

vision signals and FCC regulation, the normal range of

reception of a television station is limited to between 60

and 90 miles. See supra at 5. There is no way that that

range can be extended without the active intervention of a

retransmission entity as, for example, Teleprompter.

There is no dispute that the programs of the Los

Angeles station could not have been received in Farming-

ton, located 600 miles away. Those signals were “distant”

by any definition.* Similarly, it is undisputed that the

Denver stations were unavailable in Rawlins 184 miles

away. Those signals were “distant” by any definition. Nor

were the various signals imported into Great Falls from a

number of cities up to 466 miles away received there other

than by the active intervention of the Teleprompter cable

television station. These signals also were “distant signals”

by any definition. (Supra at 5, 11-12; Pet. at 23-24.)

*With respect to the Durango station, Teleprompter argues that

Durango is “local” to Farmington because Farmington is within

its Grade B contour and as such must be carried by the Farmington

cable station (Pet. at 49-50). As shown supra at 15-16, even if such

is the case it would be irrelevant to the “distance” question considered

from a copyright standpoint. But in fact, the FCC no longer

considers all Grade B signals local. See Cable Television Report

and Order, 36 FCC 2d 143 at 173 and Memorandum Opinion and

Order on Reconsideration of the Cable Television Report and Order,

36 FCC 2d 326, 348. In any event, petitioners aang tem

that the Court of Appeals left the question of Du

rango

remand (Pet. at 49). Yet they quite consciously did not a 7 then-

selves of this opportunity to show the “local” status of the signal.

CONCLUSION

For the reasons set forth above, the petition in No.

72-1628 should be denied.

Respectfully submitted,

AsA D. SoKoLow

SypneEyY M. Kaye

PHILIP MANDELKER

575 Madison Avenue

New York, New York 10022 3

Harry R. OLsson, Jr.

51 W. 52 Street

New York, New York 10019

Attorneys for Respondent Columbia

Broadcasting Systems, Inc.

CuarLes H. MILLER

Royat E, BLAKEMAN

BERTRAND H. WEIDBERG

430 Park Avenue

New York, New York 10022

Attorneys for Respondent Calvada

Productions

EucENnE Z. DuBose

ALFRED C. Moran

120 Broadway

New York, New York 10005

Attorneys for Respondent Jack

Chertok Television, Inc.

SEYMOUR GRAUBARD

BERNARD BUCHHOLZ

345 Park Avenue

New York, New York 10022

Attorneys for Respondent Dena

Pictures, Incorporated

RosENMAN COLIN KayE PETSCHEK

Freunp & EmIL

575 Madison Avenue

New York, New York 10022

MARSHALL, BRATTER, GREENE, ALLISON

& TUCKER

430 Park Avenue

New York, New York 10022

ALEXANDER & GREEN

120 Park Avenue

New York, New York 10005

GrauBARD Moskovitz McGotprick

Dannett & Horowitz

345 Park Avenue

New York, New York 10022

Of Counsel

July 5, 1973

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.