# Fortnightly Corporation v. United Artists Television, Inc.

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## Dissenting Opinion

    Fortas
United States Supreme Court
392 U.S. 390
Fortnightly Corp. v. United Artists Television, Inc.
Certiorari to the United States Court of Appeals for the Second Circuit
No. 618. Argued: March 13, 1968. --- Decided: June 17, 1968.
Petitioner operates community antenna television (CATV) systems which receive, amplify, and modulate signals from five television stations, convert them to different frequencies, and transmit them to their subscribers' television sets. Petitioner does not edit the programs or originate any programs of its own. Respondent, which owns copyrights on several motion pictures, had licensed the five television stations to broadcast certain of these films. The licenses did not authorize carriage of the broadcasts by CATV, and in some instances specifically prohibited such carriage. Respondent sued petitioner, which had no copyright license from either respondent or the television stations, for copyright infringement, claiming violation of its exclusive rights under §§ 1 (c) and (d) of the Copyright Act of 1909, to "perform... in public for profit" (nondramatic literary works) and to "perform... publicly" (dramatic works). Petitioner maintained that it did not "perform" the copyrighted works at all. The District Court ruled for respondent on the infringement issue, which was tried separately, and the Court of Appeals affirmed.
Held: Judicial construction of the Copyright Act, in the light of drastic technological changes, has treated broadcasters as exhibitors, who "perform," and viewers as members of the audience, who do not "perform," and since petitioner's CATV systems basically do no more than enhance the viewers' capacity to receive the broadcast signals, the CATV systems fall within the category of viewers, and petitioner does not "perform" the programs that its systems receive and carry. Pp. 395-402.
377 F. 2d 872, reversed.
Robert C. Barnard argued the cause for petitioner. With him on the briers were R. Michael Duncan and E. Stratford Smith.
Louis Nizer argued the cause for respondent. With him on the brief were Gerald Meyer, Gerald F. Phillips, and Lawrence S. Lesser.
Solicitor General Griswold filed a memorandum for the United States, as amicus curiae.
Bruce E. Lovett filed a brief for the National Cable Television Association, Inc., as amicus curiae, urging reversal.
Briefs of amici curiae, urging affirmance, were filed by Warner W. Gardner, William H. Dempsey, Jr., and Douglas A. Anello for the National Association of Broadcasters; by Ambrose Doskow for Broadcast Music, Inc.; by Michael Finkelstein for the All-Channel Television Society; by Irwin Karp for the Authors League of America, Inc.; by Herman Finkelstein, Simon H. Rifkind, Jay H. Topkis, and Paul S. Adler for the American Society of Composers, Authors and Publishers; by Paul P. Selvin and William Berger for the Writers Guild of America et al., and by Leonard Zissu and Abraham Marcus for the Screen Composers Association of the United States.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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