AUSTXN 11. .JrExAs 

March 16, 1965 

Hon. Charles F. tierring, Chairman 

Jurisprudence Committee 

State Senate 

Austin, Texas .,' 

.Qinion 'No. C&4 

Bear Mr. Herring: 

Re: Constitutionality of Senate 

Bill 189, which authorizes 

TelevisionTranslator Systems. 

You haye requested an opinion concerning the constitutionality of Senate Bill 189, which authorizes Television 

Translator Systems; Your request refers speCifIcally to the 

following: 

n : . . . The bill in effect provides that 

a system may,be,established to amplify and rebroadcast commercial television signals and : 

~. further provides that~ any individual;.group 

of individuals, partnership ore corporation that 

voluntarily receives on a television receiver 

any signal transmitted by the system~is automatically a member of the system, and the goveming board of the system is given the authority to 

provide for a~monthly fee to be paid by all members and such fee shall constitute a debt. 

YThere has been a,question raised that to 

make members of the public, without their consent, 

liable for a fee would violate the constitution. 

Under the operation of the system as proposed, 

anyone who had a set that would pick up the slgnal would,.without their consent and without 

their agreement, become a member of the system 

and liable 'for whatever charges are imposed." 

Subdivision (C) of Section 1 of the proposed bill defines 

"Members," to-wit: 

"(C) gMembers 1 means any individual, group of 

individuals, partnership or corporat$on, either 

profit or non-profit, that voluntarily receives 

-1911- 
‘Hon. Charles F. Herring, page 2 (C-404) 

and displays on a television receiver any 

signal transmitted by the System. Members 

may, depending upon the organization of the 

System have a right to participate in the 

operation of the System." 

Subdivision (D) 'of Section 2 authorizes the collection off a 

fee from said 'Members," to-wit: 

w(D) The Governing Body of each System 

may, in addition to any other rules and regulations established by It, provide for the payment to the System of a monthly fee by all members of the System, to be used by the System to 

'provide for maintenance and operation of the System. When such a fee is established it shall 

constitute a debt by the member to the System 

and shall be collectible by the,System as provided by law. In addition to collection of the 

debt, the, System may enjoin any member from rekceiving the signals of the System if the member .-" 

is in default in the payment of the fee." 

.Radio freauencles, as a matter of law, are in the 

public domain. Albubuerque-Broadcasting Co. V.-Regents of 

New Mexico A&X, 70 F.Supp. 198, affirmed 158 F.2d 900 (1947). 

Radio communication' includes television. Allen B. Dumont 

Laboratories v. Carroll, 184 F.2d 153, cert.den. 340 U.S. 

929 ($931) The public domain consists of'that~ which is either 

not copyrighted, not copyrightable or on which the copyright 

has expired. 

225 (1964). 

Sears,'Roebuck & Co. v. Stiffel Co.; 376 U.S. 

The Constitution of the United States states that 

only the creators of an original work are entitled to the 

protection of a copyright. Article I, Section 8, Clause 8, 

states: 

"To promote the Progress of Science and' 

Useful Arts, by securing for limited Times to 

Authors and Inventors the exclusive Right to 

their respective Writings and Discoveries." 

Section 8 of Title 17, United States Code Annotated 

states as follows: 

"No copyright shall subsist in the original 

text zf any work which is in the public domain, 

. . . 

-1912- 
;, . . 

. ’ 

Hon. Charles F. Herring, page 3 (C-404) 

The Supreme Court of the United States has recently 

ruled as follows: 

"Today we have held in Sears, Roebuck & 

Co. v. Stiffel co., 376 U.S. 225, 64 S.Ct. 784, 

,that when an article is unprotected by a patent 

or a copyright, state law may not forbid others 

to copy that article. To forbid copying would 

interfere with the federal policy, found in Art. 

I, % 8, cl. 8, of the Constitution and in the 

implementing federal statutes, of allowing free 

access to copy whatever the federal patent and 

copy laws leave in the public domain." 

Corp. v. Day-Brite Lighting, Inc., 376 u!i?i$4 

rehearing denied 377 U.S. 913 (1964). (Emphasis'added). 

Senate Bill 189 creates a new protectible interest 

in an area where the only protectible interest is the federal 

law pertaining to copyrights. Said'Bill would allow .Television 

Translator Systems to freely intercept the public domain. i.e., 

television frequencies, and then in turn treat them as if they 

were a vested property right of said Systems. Under the aforementioned provisos of this Bill, the Systems are empowered to 

unilaterally set and charge a fee to anyone who exercisers 

his right of access.to the public domain. 

In Cable Vision, Inc. v. 'KUTV, Inc., 335 F.2d 348, 

rehearing denied, appeal pending (19641, involving the 

interception of one television station's programs by a 

community antenna cable system, the court held: 

'In Co co the court emphasized that the 

federal pol +- cy found in Art. I, 19 8, Cl. 8 of 

the Constitution and in the implementing federal 

statutes is to allow. I. . i free access to copy 

whatever the federal patent and copyright laws 

leave in the ublic domain.' 376 U.S. at 237, 

84 S.Ct. at 7 1 2. The public domain was broadly 

delineated in Sears: that which is either not 

copyrighted, not copyrightable or on which the 

co yright has expired is in the public domain. 

37% U.S. at 231, 84 S.Ct. 784. See also Flamingo 

Telefilm Sales, Inc. v. United Artists Corp., 32 

U.S. I,. Week 2579 (May 12, 1964). Thus when an 

article is unprotected by a patent or copyright, 

state law may not forbid a person not the 

originator to merely copy and commercially 

exploit that article, for such a law would enable the originator to accomplish with the left 

-1913- 
. ‘ 

Hon. Charles F. Herring, page 4 (C-404) 

hand of state authority what he was unable to 

accomplish with the right hand bearing the authority of the primary federal interest. . . . 

Ro state intrusion of the federal field is permissible unless the law of the state meshes in 

purpose and effect with the announced objectives 

of federal copyright law. 

11 . . . 

"Applying Sears and Compco's composite thesis to the case at hand, we view it as dispositive 

of appelleesl two grounds for relief. Save for 

the limited protection accorded the creation of 

literary and intellectual works under the copyright Act or its exceptions--and here appellees 

concede they are not asserting a claim for copynot steal good will, or, perhaps more accurately 

stated, deceive others in thinking the creations 

represent hisown work." (Emphasis added). 

Senate Bill 189 clearly does not "mesh in purpose and 

effect with ,the announced objectives of federal copyright law." 

It Interferes with, and seeks to regulate the right of free 

access to the public domain. Therefore, said Bill is unconstitutional as it constitutes an infringement upon and interference 

with the supreme law of the land, to-wit: 

"Pursuant to this Constitutional authority, 

Congress in 1790 enacted the first federal patent 

and copyright law, 1,Stat. 109, and ever since that 

time has fixed the conditions upon which patents 

and copyrights shall be granted, see 17 U.S.C. %% 

1-216; 35 U.S.C. %%,l-293. These laws, like other 

laws of the United States enacted nursuant to constitutional authority, are the supreme law of the land. 

See Sperry v. Florida, 373 U.S.,379, 83 S.Ct. 1322 

10 L.Ed.2d 428 (1963). When state law touches Upoi 

the area of these federal statutes, It is 'familiar 

doctrine' that the federal policy 'may not be set 

at naught, or its benefits denied' by the state law. 

Sola Elec. Co. v. Jefferson Elec. Co., 317 U.S. 172, 

UT; ;;";A: ",;t,o;;:i 173, 87 L*Ed. 165 (1942). 

even if the state law is 

enacted in tie exercise'of otherwise undoubted 

state power." Sears, Roebuck & Co. v. Stiffel Co., 

supra. (Emphasis added). 

-1914- 
Hon. Charles F. Herring, page 5 (C-404) 

Senate Bill 189 is seemingly untenable on various 

other grounds, but since it is in opposition to the supreme 

law of the land, it is not necessary to discuss said other 

grounds. 

SUMMARY 

Senate Bill 189 is unconstitutional as 

it constitutes an interference with the 

supreme law of the land. Said Bill on its 

'face attempts to regulate the free access to 

television frequencies which constitute a part 

of the public domain. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

By R&J!?&&'* 

Assistant 

RBJ:sj 

APPROVED: 

OPINION COMWITTEE 

W. V. Geppert, Chairman 

Pat Bailey 

Frank Booth 

J. C. Davis 

John Banks 

APPROVED FOR THE ATTORNEY GENERAL 

BY: Stanton Stone 

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