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:

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. . .The bill in effectprovides that a systemmay,be,established to amplify and rebroadcast commercial television signals and :
~. furtherprovides that~any individual;.group of individuals,partnership orecorporation that voluntarily receives on a television receiver any signal transmittedby the system~is automatically a member of the system, and the govemingboard of the system is given the authority to provide for a~monthly fee to be paid by all members and such fee shall constitutea debt. YTherehas 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 thatwould 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

1means any individual, group of individuals,partnership or corporat$on, either profit or non-profit, that voluntarily receives
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and displays on a televisionreceiver any signal transmittedby the System. Members may, depending upon the organization of the System have a right to participate in the operation of the System." Subdivision (D) 'ofSection 2 authorizes the collection off a fee from said 'Members,"to-wit:

w(D)The GoverningBody of each System may, in addition to any other rules and regulations establishedby 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 'provideformaintenance and operation of the System. When such a fee is established it shall constitutea debt by themember to the System and shallbe collectibleby the,System as providedby law. In addition to collection of the debt, the,

Systemmay enjoin any member from rekceiving the signals of the System if the member .-" is in default in the payment of the fee." .Radiofreauencles,as a matter of law, are in the public domain. Albubuerque-BroadcastingCo. V.-Regents of New MexicoA&X, 70 F.Supp. 198, affirmed 158 F.2d 900 (1947). Radio communication' includes television. Allen B. Dumont Laboratoriesv. 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 Constitutionof the United States states that only the creators of an originalwork are entitled to the protection of a copyright. Article I, Section 8, Clause 8, states:
"Topromote the Progress of Science and' UsefulArts, by securing for limited Times to Authors and Inventors the exclusiveRight to their respectiveWritings and Discoveries." Section 8 of Title 17,United States CodeAnnotated statesas follows:

"No copyright shall subsist in the original text zf any work which is in the public domain,

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

The Supreme Court of the United States has recently ruled as follows:

"Todaywe have held in Sears, Roebuck & Co. v. Stiffel co., 376 U.S. 225, 64 S.Ct. 784, ,thatwhen an article is unprotectedby a patent or a copyright, state law may not forbid others to copy that article. To forbid copyingwould interferewith the federalpolicy, found in Art. I, % 8, cl. 8, of the Constitution and in the implementing federal statutes, of allowing free access to copywhatever the federalpatent 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 lawpertaining to copyrights. Said'Billwould 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 toanyone 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'sprograms by a communityantenna cable system, the court held:

'In Co co the court emphasized that the federalpol cy found in Art. I, 198, Cl. 8 of

+- the Constitutionand in the implementing federal statutes is to allow.I.
. i freeaccess to copy whatever the federalpatent and copyright laws leave in the ublic domain.' 376 U.S. at 237, 84 S.Ct. at 7 2.

1 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. UnitedArtists Corp., 32 U.S. I,.

Week 2579 (May 12, 1964). Thus when an article is unprotectedby 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

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

hand of state authoritywhat he was unable to accomplishwith the right hand bearing the authority of the primary federal interest.

. . . Ro state intrusionof the federal field is permissible unless the law of the statemeshes in purpose and effectwith the announced objectives of federal copyright law. 11

. . . "ApplyingSears and Compco's composite thesis to the case at hand, we view it as dispositive of appelleesl two grounds for relief. Save for the limitedprotectionaccorded the creation of literaryand intellectualworks under the copyrightAct or its exceptions--andhere appellees concede they are not asserting a claim for copynot steal good will, or,perhaps more accurately stated,deceive others in thinking the creations representhisown work." (Emphasisadded).
Senate Bill 189 clearly does not "mesh in purpose and effectwith ,theannounced objectivesof federal copyright law." It Interfereswith, and seeks to regulate the right offree access to the public domain. Therefore, said Bill is unconstitutional as it constitutesan infringementupon and interference with the supreme law of the land, to-wit:

"Pursuantto this Constitutionalauthority, Congress in 1790 enacted the first federalpatent and copyright law, 1,Stat. 109, and ever since that timehas fixed the conditionsupon which patents and copyrights shallbe 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 constitutionalauthority,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 touchesUpoi the area of these federal statutes, It is 'familiar doctrine' that the federalpolicy 'maynot be set at naught, or itsbenefits 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 otherwiseundoubted statepower." Sears, Roebuck & Co. v. Stiffel Co., supra. (Emphasisadded). -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 unconstitutionalas it constitutesan interferencewith the supreme law of the land. Said Bill on its 'faceattempts to regulate the free access to television frequencieswhich 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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