Untitled Texas Attorney General Opinion

AUSTXN 11. .JrExAs
March 16, 1965
Hon. Charles F. tierring,Chairman
Jurisprudence Committee
State Senate
Austin, Texas .,'
.Qinion 'No. C&4
Re: Constitutionality of Senate
Bill 189, which authorizes
Bear Mr. Herring: TelevisionTranslator Systems.
You haye requested an opinion concerning the constitu-
tionality 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 re-
broadcast commercial television signals and :
~.
further provides that~any individual;.group
of individuals, partnership orecorporation that
voluntarily receives on a television receiver
any signal transmitted by the system~is auto-
matically a member of the system, and the govem-
ing board of the system is given the authority to
provide for a~monthly fee to be paid by all mem-
bers 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 slg-
nal would,.without their consent and without
their agreement, become a member of the system
and liable 'forwhatever charges are imposed."
Subdivision (C) of Section 1 of the proposed bill defines
"Members," to-wit:
"(C) gMembers1 means any individual, group of
individuals, partnership or corporat$on, either
profit or non-profit, that voluntarily receives
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‘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) 'ofSection 2 authorizes the collection offa
fee from said 'Members," to-wit:
w(D) The Governing Body of each System
may, in addition to any other rules and regu-
lations established by It, provide for the pay-
ment to the System of a monthly fee by all mem-
bers of the System, to be used by the System to
'provide for maintenance and operation of the Sys-
tem. 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 pro-
vided by law. In addition to collection of the
debt, the,System may enjoin any member from rek-
ceiving 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. Sears,'Roebuck & Co. v. Stiffel Co.; 376 U.S.
225 (1964).
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,
. . .
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;, . .
. ’
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 afore-
mentioned 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
+- cy found in Art. I, 19 8, Cl. 8 of
federal pol
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 en-
able the originator to accomplish with the left
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. ‘
Hon. Charles F. Herring, page 4 (C-404)
hand of state authority what he was unable to
accomplish with the right hand bearing the au-
thority of the primary federal interest. . . .
Ro state intrusion of the federal field is per-
missible 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 the-
sis 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 copy-
right Act or its exceptions--and here appellees
concede they are not asserting a claim for copy-
not 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 ,theannounced 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 unconsti-
tutional 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 consti-
tutional 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).
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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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