Fortnightly Corp. v. United Artists

In the early years of the cable television industry, a number of broadcast stations and program suppliers had attempted to impose copyright liability on cable systems on grounds that they were carrying ("performing") their copyrighted works without permission.   Some had attempted to enforce the issue in court; however, the courts were divided because the then-current law — the Copyright Act of 1909 — did not address the issue.

This issue made its way to the United States Supreme Court in 1968.   In the case at hand, United Artists Television, as owner of the copyright on several motion pictures, had sued Fortnightly Corporation, a cable television operator, alleging that Fortnightly had "performed" several of United Artists' motion pictures without permission.

United Artists won the first round in District Court.   Fortnightly appealed; United Artists won again in the Court of Appeals.   Finally, Fortnightly appealed to the Supreme Court; in a divided opinion, the Supreme Court reversed the Court of Appeals and ruled for Fortnightly.

But the Court made it clear that is was not ruling on the merits of the case.   Instead, it was merely refusing to write new laws.  Justice Potter Stewart delivered the opinion of the Court as follows:

"We have been invited ... to render a compromise decision in this case that would, it is said, accommodate various competing considerations of copyright, communications, and antitrust policy.   We decline the invitation.   That job is for Congress.   We take the Copyright Act of 1909 as we find it.   With due regard to changing technology, we hold that the petitioner did not under that law `perform' the respondent's copyrighted works.   The judgment of the Court of Appeals is reversed."

The Court's decision was far from unanimous: five Justices voted for reversal, three abstained, and one dissented.   The lone dissenter, Justice Abe Fortas, noted that the Court was not only reversing two lower courts; it was also reversing a precedent which it itself had set 40 years earlier in the case of a hotel which distributed radio signals by wire to its guests:

"... the Court, speaking unanimously through Mr. Justice Brandeis, held that a hotel which received a broadcast on a master radio set and piped the broadcast to all public and private rooms of the hotel had 'performed' the material that had been broadcast.   As I understand the case, the holding was that the use of mechanical equipment to extend a broadcast to a significantly wider public than the broadcast would otherwise enjoy constitutes a 'performance' of the material originally broadcast.   I believe this decision stands squarely in the path of the route which the majority today traverses.   If a CATV system performs a function 'little different from that served by the equipment generally furnished by a television viewer,' and if that is to be the test, then it seems to me that a master radio set attached by wire to numerous other sets in various rooms of a hotel cannot be distinguished."

Source: Fortnightly Corp. v. United Artists, 392 U.S. 390 (1968).  The complete text of this decision can be found here.

―Neal McLain, May 1998.   Originally publication: "The Fortnightly Case."
Madison: SBE Chapter 24 Newsletter, May 1998. Sidebar, p.5.

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