U.S. Supreme Court Goldstein v. California, 412
U.S. 546 (1973) Goldstein v.
California No. 71-1192 Argued December 13,
1972 Decided June 18, 1973 412
U.S. 546 CERTIORARI TO THE APPELLATE
DEPARTMENT, SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS
ANGELES Syllabus Petitioners, convicted for committing acts of "record piracy" or
"tape piracy" in 1970-1971, challenge the California statute
proscribing such practices, as violative of the "Copyright Clause,"
Art. I, § 8, cl. 8, of the Constitution, and the federal statutes
enacted thereunder. The state appellate court upheld the validity
of the statute. Held: 1. Article I, § 8, cl. 8, does not expressly or by inference
vest all power to grant copyright protection exclusively in the
Federal Government. Pp. 412 U. S.
552 -561.

															(a) Although the objective of the Copyright Clause was to
facilitate the granting of rights national in scope, it does not
indicate that all "Writings" are of national interest or that
protective state legislation is, in all cases, unnecessary or
precluded. Pp. 412 U. S.
555 -558.

															(b) No substantially prejudicial interstate conflicts result
where some States grant copyright protection within their own
jurisdictions, while other States do not. Pp. 412 U. S.
558 -559.

															(c) Conflicts will not necessarily arise between state
enactments and congressional policy when States grant copyright
protection. P. 412 U. S.
559 .

															(d) Unless Congress determines that the national interest
requires federal protection or freedom from restraint as to a
particular category of "Writings," state protection of that
category is not precluded. P. 412 U. S.
559 .

															(e) The durational limitation imposed by the Copyright Clause on
Congress does not invalidate state laws, like the one here, that
have no such limitation. Pp. 412 U. S.
560 -561.

															2. The California statute does not violate the Supremacy Clause
by conflicting with federal copyright law. Pp. 412 U. S.
561 -570.

															(a) Congress did not, in passing the Copyright Act of 1909,
determine that recordings, as original writings, were unworthy of
all copyright protection. Pp. 412 U. S.
563 -566.

															(b) Nor did Congress in 17 U.S.C. § 4, which provides that "the
works for which copyrights may be secured under this Act shall
include all writings of an author," or in § 5, preempt state
control over all works to which the term "writings" might
apply. Page 412 U. S. 547 Sears, Roebuck & Co. v. Stiffel Co., 376 U.
S. 225 ; Compco Corp. v. Day-Brite Lighting, 376 U. S. 234 ,
distinguished. Pp. 412 U. S.
567 -569.

															3. Although, in 1971, the federal copyright statutes were
amended to allow federal protection of recordings, such statutory
protection was not intended to alter the legal relationships
governing recordings "fixed" prior to February 15, 1972. Until and
unless Congress takes further action with respect to recordings
fixed prior to February 15, 1972, California remains free to
proscribe acts of record or tape piracy such as those involved
here. Pp. 412 U. S.
570 -571. Affirmed. BURGER, C.J., delivered the opinion of the Court, in which
STEWART, WHITE, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., post, p. 412 U. S. 572 ,
and MARSHALL, J., post, p. 412 U. S. 576 ,
filed dissenting opinions, in which BRENNAN and BLACKMUN, JJ.,
joined. Page 412 U. S. 548 MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

															We granted certiorari to review petitioners' conviction under a
California statute making it a criminal offense to "pirate"
recordings produced by others.

															In 1971, an information was filed by the State of California,
charging petitioners in 140 counts with violating § 653h of the
California Penal Code. The information charged that, between April,
1970, and March, 1971, petitioners had copied several musical
performances from commercially sold recordings without the
permission of the owner of the master record or tape. [ Footnote 1 ] Petitioners moved to
dismiss the complaint on the grounds that § 653h was in conflict
with Art. I, § 8, cl. 8, of the Constitution, [ Footnote 2 ] Page 412 U. S. 549 the "Copyright Clause," and the federal statutes enacted
thereunder. Upon denial of their motion, petitioners entered pleas
of nolo contendere to 10 of the 140 counts; the remaining
counts were dismissed. On appeal, the Appellate Department of the
California Superior Court sustained the validity of the statute.
After exhausting other state appellate remedies, petitioners sought
review in this Court. I Petitioners were engaged in what has commonly been called
"record piracy" or "tape piracy" -- the unauthorized duplication of
recordings of performances by major musical artists. [ Footnote 3 ] Petitioners would purchase from a
retail distributor a single tape or phonograph recording of the
popular performances they wished to duplicate. The original
recordings were produced and marketed by recording companies with
which petitioners had no contractual relationship. At petitioners'
plant, the recording was reproduced on blank tapes, which could in
turn be used to replay the music on a tape player. The tape was
then wound on a cartridge. A label was attached, stating the title
of the recorded performance -- the same title as had appeared on
the original recording, and the name of the performing artists.
[ Footnote 4 ] After final
packaging, Page 412 U. S. 550 the tapes were distributed to retail outlets for sale to the
public, in competition with those petitioners had copied.

															Petitioners made no payments to the artists whose performances
they reproduced and sold, or to the various trust funds established
for their benefit; no payments were made to the producer,
technicians, or other staff personnel responsible for producing the
original recording and paying the large expenses incurred in
production. [ Footnote 5 ] No
payments were made for the use of the artists' names or the album
title.

															The challenged California statute forbids petitioners to
transfer any performance fixed on a tape or record onto other
records or tapes with the intention of selling the duplicates
unless they have first received permission from those who, under
state law, are the owners of the master recording. Although the
protection afforded to each master recording is substantial,
lasting for an unlimited time, the scope of the proscribed
activities is narrow. No limitation is placed on the use of the
music, lyrics, or arrangement employed in making the master
recording. Petitioners are not precluded from hiring their own
musicians and artists and recording an exact imitation of the
performance embodied on the master recording. Petitioners are even
free to hire the same artists who made the initial recording in
order to Page 412 U. S. 551 duplicate the performance. In essence, the statute thus provides
copyright protection solely for the specific expressions which
compose the master record or tape.

															Petitioners' attack on the constitutionality of § 653h has many
facets. First, they contend that the statute establishes a state
copyright of unlimited duration, and thus conflicts with Art. I, §
8, cl. 8, of the Constitution. Second, petitioners claim that the
state statute interferes with the implementation of federal
policies inherent in the federal copyright statutes. 17 U.S.C. § 1 et seq. According to petitioners, it was the intention of
Congress, as interpreted by this Court in Sears, Roebuck &
Co. v. Stiffel Co., 376 U. S. 225 (1964), and Compco Corp. v. Day-Brite Lighting, 376 U. S. 234 (1964), to establish a uniform law throughout the United States to
protect original writings. As part of the federal scheme, it is
urged that Congress intended to allow individuals to copy any work
which was not protected by a federal copyright. Since § 653h
effectively prohibits the copying of works which are not entitled
to federal protection, petitioners contend that it conflicts
directly with congressional policy, and must fall under the
Supremacy Clause of the Constitution. Finally, petitioners argue
that 17 U.S.C. § 2, which allows States to protect unpublished
writings, [ Footnote 6 ] does not
authorize the challenged state provision; since the records which
petitioners copied had previously been released to the public,
petitioners contend that they had, under federal law, been
published.

															We note at the outset that the federal copyright statutes to
which petitioners refer were amended by Congress Page 412 U. S. 552 while their case was pending in the state courts. In 1971,
Pub.L. 92-140, 85 Stat. 391, 17 U.S.C. §§ 1(f), 5 (n), 19, 20, 26,
101(e), was passed to allow federal copyright protection of
recordings. However, § 3 of the amendment specifically provides
that such protection is to be available only to sound recordings
"fixed, published, and copyrighted" on and after February 15, 1972,
and before January 1, 1975, and that nothing in Title 17, as
amended is to "be applied retroactively or [to] be construed as
affecting in any way any rights with respect to sound recordings
fixed before" February 15, 1972. The recordings which petitioners
copied were all "fixed" prior to February 15, 1972. Since,
according to the language of § 3 of the amendment, Congress did not
intend to alter the legal relationships which govern these
recordings, the amendments have no application in petitioners'
case. [ Footnote 7 ] II Petitioners' first argument rests on the premise that the state
statute under which they were convicted lies beyond the powers
which the States reserved in our federal system. If this is
correct, petitioners must prevail, since the States cannot exercise
a sovereign power which, under the Constitution, they have
relinquished to the Federal Government for its exclusive
exercise. A The principles which the Court has followed in construing state
power were stated by Alexander Hamilton in Number 32 of The
Federalist:

															"An entire consolidation of the States into one complete
national sovereignty would imply an entire subordination of the
parts; and whatever powers might remain in them, would be
altogether dependent Page 412 U. S. 553 on the general will. But as the plan of the [Constitutional]
convention aims only at a partial union or consolidation, the State
governments would clearly retain all the rights of sovereignty
which they before had, and which were not, by that act, exclusively
delegated to the United States. This exclusive delegation, or
rather this alienation, of State sovereignty, would only exist in
three cases: where the Constitution in express terms granted an
exclusive authority to the Union; where it granted in one instance
an authority to the Union, and in another prohibited the States
from exercising the like authority; and where it granted an
authority to the Union to which a similar authority in the States
would be absolutely and totally contradictory and repugnant. [ Footnote
8 ]"

															The first two instances mentioned present no barrier to a
State's enactment of copyright statutes. The clause of the
Constitution granting to Congress the power to issue copyrights
does not provide that such power shall vest exclusively in the
Federal Government. Nor does the Constitution expressly provide
that such power shall not be exercised by the States.

															In applying the third phase of the test, we must examine the
manner in which the power to grant copyrights may operate in our
federal system. The objectives of our inquiry were recognized in Cooley v. Board of
Wardens , 12 How. 299 (1852), when, in determining
whether the power granted to Congress to regulate commerce
[ Footnote 9 ] was "compatible
with the existence of a similar power in the States," the Court
noted:

															"Whatever subjects of this power are in their nature Page 412 U. S. 554 national, or admit only of one uniform system, or plan of
regulation, may justly be said to be of such a nature as to require
exclusive legislation by Congress." Id. at 53 U. S. 319 .
The Court's determination that Congress alone may legislate over
matters which are necessarily national in import reflects
the basic principle of federalism. Mr. Chief Justice Marshall
said,

															"The genius and character of the [federal] government seem to be
that its action is to be applied to all the external concerns of
the nation, and to those internal concerns which affect the States
generally, but not to those which are completely within a
particular State, which do not affect other States, and with which
it is not necessary to interfere for the purpose of executing some
of the general powers of the government." Gibbons v.
Ogden , 9 Wheat. 1, 22 U. S. 195 (1824).

															The question whether exclusive federal power must be inferred is
not a simple one, for the powers recognized in the Constitution are
broad, and the nature of their application varied. The warning
sounded by the Court in Cooley may equally be applicable to the
Copyright Clause:

															"Either absolutely to affirm, or deny that the nature of [the
federal power over commerce] requires exclusive legislation by
Congress, is to lose sight of the nature of the subjects of this
power and to assert concerning all of them what is really
applicable but to a part."

															12 How. at 53 U. S. 319 .
We must also be careful to distinguish those situations in which
the concurrent exercise of a power by the Federal Government and
the States or by the States alone may possibly lead to
conflicts and those situations where conflicts will
necessarily arise.

															"It is not . . . a Page 412 U. S. 555 mere possibility of inconvenience in the exercise of powers, but
an immediate constitutional repugnancy, that can by implication
alienate and extinguish a preexisting right of [state]
sovereignty."

															The Federalist No. 32, p. 243 (B. Wright ed.1961).

															Article I, § 8, cl. 8, of the Constitution gives to Congress the
power --

															"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. . . ."

															The clause thus describes both the objective which Congress may
seek and the means to achieve it. The objective is to promote the
progress of science and the arts. As employed, the terms "to
promote" are synonymous with the words "to stimulate," "to
encourage," or "to induce." [ Footnote 10 ] To accomplish its purpose, Congress may
grant to authors the exclusive right to the fruits of their
respective works. An author who possesses an unlimited copyright
may preclude others from copying his creation for commercial
purposes without permission. In other words, to encourage people to
devote themselves to intellectual and artistic creation, Congress
may guarantee to authors and inventors a reward in the form of
control over the sale or commercial use of copies of their
works.

															The objective of the Copyright Clause was clearly to facilitate
the granting of rights national in scope. While the debates on the
clause at the Constitutional Convention were extremely limited, its
purpose was described by James Madison in the Federalist:

															"The utility of this power will scarcely be questioned. The
copyright of authors has been solemnly Page 412 U. S. 556 adjudged, in Great Britain, to be a right of common law. The
right to useful inventions seems with equal reason to belong to the
inventors. The public good fully coincides in both cases with the
claims of individuals. The States cannot separately make effectual
provision for either of the cases, and most of them have
anticipated the decision of this point, by laws passed at the
instance of Congress. [ Footnote
11 ]"

															The difficulty noted by Madison relates to the burden placed on
an author or inventor who wishes to achieve protection in all
States when no federal system of protection is available. To do so,
a separate application is required to each state government; the
right which, in turn, may be granted has effect only within the
granting State's borders. [ Footnote 12 ] The national system which Madison supported
eliminates the need for multiple applications and the expense and
difficulty involved. In effect, it allows Congress to provide a
reward greater in scope than any particular State may grant to
promote progress in those fields which Congress determines are
worthy of national action.

															Although the Copyright Clause thus recognizes the potential
benefits of a national system, it does not indicate Page 412 U. S. 557 that all writings are of national interest or that state
legislation is, in all cases, unnecessary or precluded. The patents
granted by the States in the 18th century show, to the contrary, a
willingness on the part of the States to promote those portions of
science and the arts which were of local importance. [ Footnote 13 ] Whatever the diversity
of people's backgrounds, origins, and interests, and whatever the
variety of business and industry in the 13 Colonies, the range of
diversity is obviously far greater today in a country of 210
million people in 50 States. In view of that enormous diversity, it
is unlikely that all citizens in all parts of the country place the
same importance on Page 412 U. S. 558 works relating to all subjects. Since the subject matter to
which the Copyright Clause is addressed may thus be of purely local
importance, and not worthy of national attention or protection, we
cannot discern such an unyielding national interest as to require
an inference that state power to grant copyrights has been
relinquished to exclusive federal control.

															The question to which we next turn is whether, in actual
operation, the exercise of the power to grant copyrights by some
States will prejudice the interests of other States. As we have
noted, a copyright granted by a particular State has effect only
within its boundaries. If one State grants such protection, the
interests of States which do not are not prejudiced, since their
citizens remain free to copy within their borders those works which
may be protected elsewhere. The interests of a State which grants
copyright protection may, however, be adversely affected by other
States that do not; individuals who wish to purchase a copy of a
work protected in their own State will be able to buy unauthorized
copies in other States where no protection exists. However, this
conflict is neither so inevitable nor so severe as to compel the
conclusion, that state power has been relinquished to the exclusive
jurisdiction of the Congress. Obviously when some States do not
grant copyright protection -- and most do not -- that circumstance
reduces the economic value of a state copyright, but it will hardly
render the copyright worthless. The situation is no different from
that which may arise in regard to other state monopolies such as a
state lottery, or a food concession in a limited enclosure like a
state park; in each case, citizens may escape the effect of one
State's monopoly by making purchases in another area or another
State. Similarly, in the case of state copyrights, except as to
individuals willing to travel across state lines in order to
purchase records or other writings protected in their own State,
each State's Page 412 U. S. 559 copyrights will still serve to induce new artistic creations
within that State -- the very objective of the grant of protection.
We do not see here the type of prejudicial conflicts which would
arise, for example, if each State exercised a sovereign power to
impose imposts and tariffs; [ Footnote 14 ] nor can we discern a need for uniformity
such as that which may apply to the regulation of interstate
shipments. [ Footnote 15 ]

															Similarly, it is difficult to see how the concurrent exercise of
the power to grant copyrights by Congress and the States will
necessarily and inevitably lead to difficulty. At any time Congress
determines that a particular category of "writing" is worthy of
national protection and the incidental expenses of federal
administration, federal copyright protection may be authorized.
Where the need for free and unrestricted distribution of a writing
is thought to be required by the national interest, the Copyright
Clause and the Commerce Clause would allow Congress to eschew all
protection. In such cases, a conflict would develop if a State
attempted to protect that which Congress intended to be free from
restraint or to free that which Congress had protected. However,
where Congress determines that neither federal protection nor
freedom from restraint is required by the national interest, it is
at liberty to stay its hand entirely. [ Footnote 16 ] Since state protection would not then
conflict with federal action, total relinquishment of the States'
power to grant copyright protection cannot be inferred. Page 412 U. S. 560 As we have seen, the language of the Constitution neither
explicitly precludes the States from granting copyrights nor grants
such authority exclusively to the Federal Government. The subject
matter to which the Copyright Clause is addressed may, at times, be
of purely local concern. No conflict will necessarily arise from a
lack of uniform state regulation, nor will the interest of one
State be significantly prejudiced by the actions of another. No
reason exists why Congress must take affirmative action either to
authorize protection of all categories of writings or to free them
from all restraint. We therefore conclude that, under the
Constitution, the States have not relinquished all power to grant
to authors "the exclusive Right to their respective Writings." B Petitioners base an additional argument on the language of the
Constitution. The California statute forbids individuals to
appropriate recordings at any time after release. From this,
petitioners argue that the State has created a copyright of unlimited duration, in violation of that portion of Art.
I, § 8, cl. 8, which provides that copyrights may only be granted
"for limited Times." Read literally, the text of Art. I does not
support petitioners' position. Section 8 enumerates those powers
which have been granted to Congress; whatever limitations have been
appended to such powers can only be understood as a limit on
congressional, and not state, action. Moreover, it is not clear
that the dangers to which this limitation was addressed apply with
equal force to both the Federal Government and the States. When
Congress grants an exclusive right or monopoly, its effects are
pervasive; no citizen or State may escape its reach. As we have
noted, however, the exclusive right granted by a State is confined
to its Page 412 U. S. 561 borders. Consequently, even when the right is unlimited in
duration, any tendency to inhibit further progress in science or
the arts is narrowly circumscribed. The challenged statute cannot
be voided for lack of a durational limitation. III Our conclusion that California did not surrender its power to
issue copyrights does not end the inquiry. We must proceed to
determine whether the challenged state statute is void under the
Supremacy Clause. No simple formula can capture the complexities of
this determination; the conflicts which may develop between state
and federal action are as varied as the fields to which
congressional action may apply.

															"Our primary function is to determine whether, under the
circumstances of this particular case, [the state] law stands as an
obstacle to the accomplishment and execution of the full purposes
and objectives of Congress." Hines v. Davidowitz, 312 U. S. 52 , 312 U. S. 67 (1941). We turn, then, to federal copyright law to determine what
objectives Congress intended to fulfill.

															By Art. I, § 8, cl. 8, of the Constitution, the States granted
to Congress the power to protect the "Writings" of "Authors." These
terms have not been construed in their narrow literal sense, but
rather with the reach necessary to reflect the broad scope of
constitutional principles. While an "author" may be viewed as an
individual who writes an original composition, the term, in its
constitutional sense, has been construed to mean an "originator,"
"he to whom anything owes its origin." Burrow-Giles
Lithographic Co. v. Sarony, 111 U. S. 53 , 111 U. S. 58 (1884). Similarly, although the word "writings" might be limited to
script or printed material, it may be interpreted to include any
physical rendering of the fruits of creative intellectual or
aesthetic labor. Page 412 U. S. 562 Ibid.; Trade-Mark Cases, 100 U. S.
82 , 100 U. S. 94 (1879). Thus, recordings of artistic performances may be within the
reach of Clause 8.

															While the area in which Congress may act is broad, the enabling
provision of Clause 8 does not require that Congress act in regard
to all categories of materials which meet the constitutional
definitions. Rather, whether any specific category of "Writings" is
to be brought within the purview of the federal statutory scheme is
left to the discretion of the Congress. The history of federal
copyright statutes indicates that the congressional determination
to consider specific classes of writings is dependent not only on
the character of the writing, but also on the commercial importance
of the product to the national economy. As our technology has
expanded the means available for creative activity and has provided
economical means for reproducing manifestations of such activity,
new areas of federal protection have been initiated. [ Footnote 17 ] Page 412 U. S. 563 Petitioners contend that the actions taken by Congress in
establishing federal copyright protection preclude the States from
granting similar protection to recordings of musical performances.
According to petitioners, Congress addressed the question of
whether recordings of performances should be granted protection in
1909; Congress determined that any individual who was entitled to a
copyright on an original musical composition should have the right
to control to a limited extent the use of that composition on
recordings, but that the record itself, and the performance which
it was capable of reproducing, were not worthy of such protection.
[ Footnote 18 ] In Page 412 U. S. 564 support of their claim, petitioners cite the House Report on the
1909 Act, which states:

															"It is not the intention of the committee to extend the right of
copyright to the mechanical reproductions themselves, but only to
give the composer or copyright proprietor the control, in
accordance with the provisions of the bill, of the manufacture and
use of such devices."

															H.R.Rep. No. 2222, 60th Cong., 2d Sess., 9 (1909).

															To interpret accurately Congress' intended purpose in passing
the 1909 Act and the meaning of the House Report petitioners cite,
we must remember that our modern technology differs greatly from
that which existed in 1909. The Act and the report should not be
read as if they were written today, for to do so would inevitably
distort their intended meaning; rather, we must read them against
the background of 1909, in which they were written.

															In 1831, Congress first extended federal copyright protection to
original musical compositions. An individual who possessed such a
copyright had the exclusive authority to sell copies of the musical
score; individuals who purchased such a copy did so, for the most
part, to play the composition at home on a piano or other
instrument. Between 1831 and 1909, numerous machines were invented
which allowed the composition to be reproduced mechanically. For
example, one had only to insert a piano roll or disc with
perforations in appropriate places into a player piano to achieve
almost the same results which previously required someone capable
of playing the instrument. The mounting sales of such devices
detracted from the value of the copyright granted for the musical
composition. Individuals who had use of a piano roll and an
appropriate instrument had little, if any, need for a copy of the
sheet Page 412 U. S. 565 music. [ Footnote 19 ] The
problems which arose eventually reached this Court in 1908 in the
case of White-Smith Music Publishing Co. v. Apollo Co., 209 U. S. 1 . There,
the Apollo Company had manufactured piano rolls capable of
reproducing mechanically compositions covered by a copyright owned
by appellant. Appellant contended that the piano rolls constituted
"copies" of the copyrighted composition, and that their sale,
without permission, constituted an infringement of the copyright.
The Court held that piano rolls, as well as records, were not
"copies" of the copyrighted composition, in terms of the federal
copyright statutes, but were merely component parts of a machine
which executed the composition. [ Footnote 20 ] Despite the fact that the piano rolls
employed the creative work of the composer, all protection was
denied.

															It is against this background that Congress passed the 1909
statute. After pointedly waiting for the Court's decision in White-Smith Music Publishing Co., [ Footnote 21 ] Congress determined that the
copyright statutes should be amended to insure that composers of original musical works received
adequate protection to encourage further artistic and creative
effort. Henceforth, under § 1(e), Page 412 U. S. 566 records and piano rolls were to be considered as "copies" of the
original composition they were capable of reproducing, and could
not be manufactured unless payment was made to the proprietor
of the composition copyright. The section of the House Report
cited by petitioners was intended only to establish the limits of
the composer's right; composers were to have no control over the
recordings themselves. Nowhere does the report indicate that
Congress considered records as anything but a component part of a
machine, capable of reproducing an original composition [ Footnote 22 ] or that Congress
intended records, as renderings of original artistic
performance, to be free from state control. [ Footnote 23 ] Page 412 U. S. 567 Petitioners' argument does not rest entirely on the belief that
Congress intended specifically to exempt recordings of performances
from state control. Assuming that no such intention may be found,
they argue that Congress so occupied the field of copyright
protection as to preempt all comparable state action. Rice v.
Santa Fe Elevator Corp., 331 U. S. 218 (1947). This assertion is based on the language of 17 U.S.C. §§ 4
and 5, and on this Court's opinions in Sears, Roebuck & Co.
v. Stiffel Co., 376 U. S. 225 (1964), and Compco Corp. v. Day-Brite Lighting, 376 U. S. 234 (1964).

															Section 4 of the federal copyright laws provides:

															"The works for which copyright may be secured under this title
shall include all the writings of an author."

															17 U.S.C. § 4.

															Section 5, which lists specific categories of protected works,
adds:

															"The above specifications shall not be held to limit the subject
matter of copyright as defined in section 4 of this title. . .
."

															17 U.S.C. § 5. Since § 4 employs the constitutional term
"writings," [ Footnote 24 ] it
may be argued that Congress intended to exercise its authority over
all works to which the constitutional provision might apply.
However, in the more than 60 years which have elapsed since
enactment of this provision, neither the Copyright Office, the
courts, nor the Congress has so interpreted it. The Register of
Copyrights, Page 412 U. S. 568 who is charged with administration of the statute, has
consistently ruled that "claims to exclusive rights in mechanical
recordings . . . or in the performances they reproduce" are not
entitled to protection under § 4. 37 CFR § 202.8(b) (1972).
[ Footnote 25 ] With one early
exception, [ Footnote 26 ]
American courts have agreed with this interpretation; [ Footnote 27 ] and, in 1971, prior to
passage of the statute which extended federal protection to
recordings fixed on or after February 15, 1972, Congress
acknowledged the validity of that interpretation. Both the House
and Senate Reports on the proposed legislation recognized that
recordings qualified as "writings" within the meaning of the
Constitution, but had not previously been protected under the
federal copyright statute. H.R.Rep. No. 92-487, pp. 2, 5 (1971);
S.Rep. No. 92-72, p. 4 (1971). In light of this consistent
interpretation by the courts, the agency empowered to administer
the copyright statutes, Page 412 U. S. 569 and Congress itself, we cannot agree that §§ 4 and 5 have the
broad scope petitioners claim. Sears and Compco, on which petitioners rely,
do not support their position. In those cases, the question was
whether a State could, under principles of a state unfair
competition law, preclude the copying of mechanical configurations
which did not possess the qualities required for the granting of a
federal design or mechanical patent. The Court stated:

															"[T]he patent system is one in which uniform federal standards
are carefully used to promote invention while, at the same time,
preserving free competition. Obviously a State could not,
consistently with the Supremacy Clause of the Constitution, extend
the life of a patent beyond its expiration date or give a patent on
an article which lacked the level of invention required for federal
patents. To do either would run counter to the policy of Congress
of granting patents only to true inventions, and then only for a
limited time. Just as a State cannot encroach upon the federal
patent laws directly, it cannot, under some other law, such as that
forbidding unfair competition, give protection of a kind that
clashes with the objectives of the federal patent laws." Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. at 376 U. S.
230 -231 (footnotes omitted).

															In regard to mechanical configurations, Congress had balanced
the need to encourage innovation and originality of invention
against the need to insure competition in the sale of identical or
substantially identical products. The standards established for
granting federal patent protection to machines thus indicated not
only which articles in this particular category Congress wished to
protect, but which configurations it wished to remain free. The
application of state law in these cases to prevent Page 412 U. S. 570 the copying of articles which did not meet the requirements for
federal protection disturbed the careful balance which Congress had
drawn, and thereby necessarily gave way under the Supremacy Clause
of the Constitution. No comparable conflict between state law and
federal law arises in the case of recordings of musical
performances. In regard to this category of "Writings," Congress
has drawn no balance; rather, it has left the area unattended, and
no reason exists why the State should not be free to act. [ Footnote 28 ] IV More than 50 years ago, Mr. Justice Brandeis observed in dissent
in International News Service v. Associated Press: "The general rule of law is, that the noblest of human
productions -- knowledge, truths ascertained, conceptions, and
ideas -- become, after voluntary communication to others, free as
the air to common use." 248 U.S.
215 , 248 U. S. 250 (1918).

															But there is no fixed, immutable line to tell us which "human
productions" are private property and which are so general as to
become "free as the air." In earlier times, a performing artist's
work was largely restricted to the stage; once performed, it
remained "recorded" only in the memory of those who had seen or
heard it. Today, we can record that performance in precise
detail Page 412 U. S. 571 and reproduce it again and again with utmost fidelity. The
California statutory scheme evidences a legislative policy to
prohibit "tape piracy" and "record piracy," conduct that may
adversely affect the continued production of new recordings, a
large industry in California. Accordingly, the State has, by
statute, given to recordings the attributes of property. No
restraint has been placed on the use of an idea or concept; rather,
petitioners and other individuals remain free to record the same
compositions in precisely the same manner and with the same
personnel as appeared on the original recording.

															In sum, we have shown that § 653h does not conflict with the
federal copyright statute enacted by Congress in 109. Similarly, no
conflict exists between the federal copyright statute passed in
1971 and the present application of § 653h, since California
charged petitioners only with copying recordings fixed prior to
February 15, 1972. [ Footnote
29 ] Finally, we have concluded that our decisions in Sears and Compco, which we reaffirm today, have
no application in the present case, since Congress has indicated
neither that it wishes to protect, nor to free from protection,
recordings of musical performances fixed prior to February 15,
1972

															We conclude that the State of California has exercised a power
which it retained under the Constitution, and that the challenged
statute, as applied in this case, does not intrude into an area
which Congress has, up to now, preempted. Until and unless Congress
takes further action with respect to recordings fixed prior to
February 15, 1972, the California statute may be enforced against
acts of piracy such as those which occurred in the present
case. Affirmed. Page 412 U. S. 572 [ Footnote 1 ]

															In pertinent part, the California statute provides:

															"(a) Every person is guilty of a misdemeanor who: "

															"(1) Knowingly and willfully transfers or causes to be
transferred any sounds recorded on a phonograph record, . . . tape,
. . . or other article on which sounds are recorded, with intent to
sell or cause to be sold, . . . such article on which such sounds
are so transferred, without the consent of the owner."

															"(2) . . ."

															" * * * *" "(b) As used in this section, 'person' means any individual,
partnership, corporation or association; and 'owner' means the
person who owns the master phonograph record, . . . master tape, .
. . or other device used for reproducing recorded sounds on
phonograph records, . . . tapes, . . . or other articles on which
sound is recorded, and from which the transferred recorded sounds
are directly or indirectly derived."

															Specifically, each count of the information alleged that, in
regard to a particular recording, petitioners had,

															"at and in the City of Los Angeles, in the County of Los
Angeles, State of California . . . willfully, unlawfully and
knowingly transferred and caused to be transferred sounds recorded
on a tape with the intent to sell and cause to be sold, such tape
on which such sounds [were] so transferred. . . ."

															[ Footnote 2 ]

															Article I, § 8, cl. 8, provides that Congress shall have the
power

															"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. . . ."

															[ Footnote 3 ]

															Since petitioners did not proceed to trial, the factual record
before the Court is sparse. However, both parties indicate that a
complete description of petitioners' method of operation may be
found in the record of Tape Industries Assn. of America v.
Younger, 316 F.
Supp. 340 (CD Cal.1970), appeal dismissed for lack of
jurisdiction, 401 U.S. 902 (1971), appeal pending United
States Court of Appeals, CA9, No. 26,628.

															[ Footnote 4 ]

															An additional label was attached to each cartridge by
petitioners, stating that no relationship existed between
petitioners and the producer of the original recording or the
individuals whose performances had been recorded. Consequently, no
claim is made that petitioners misrepresented the source of the
original recordings or the manufacturer of the tapes.

															[ Footnote 5 ]

															The costs of producing a single original long-playing record of
a musical performance may exceed $50,000 or $100,000. Tape
Industries Assn. of America v. Younger, supra, at 344;
Hearings on S. 646 and H.R. 6927 before Subcommittee No. 3 of the
House Committee on the Judiciary, 92d Cong., 1st Sess., 27-28
(1971). For the performance recorded on this record, petitioners
would pay only the retail cost of a single long-playing record or a
single tape.

															[ Footnote 6 ]

															Title 17 U.S.C. § 2 provides:

															"Nothing in this title shall be construed to annul or limit the
right of the author or proprietor of an unpublished work, at common
law or in equity, to prevent the copying, publication, or use of
such unpublished work without his consent, and to obtain damages
therefor."

															[ Footnote 7 ]

															No question is raised in the present case as to the power of the
States to protect recordings fixed after February 15, 1972.

															[ Footnote 8 ]

															The Federalist No. 32, p. 241 (B. Wright ed.1961); See Cooley v. Board of
Wardens , 12 How. 299, 53 U. S.
318 -319 (1851).

															[ Footnote 9 ]

															Art. I, § 8, cl. 3.

															[ Footnote 10 ] See Kendall v.
Winsor , 21 How. 322, 62 U. S. 328 (1859); Mitchell v.
Tilghman , 19 Wall. 287, 86 U. S. 418 (1874); Bauer v. O'Donnell, 229 U. S.
1 , 229 U. S. 10 (1913).

															[ Footnote 11 ]

															The Federalist No. 43, p. 309 (B. Wright ed.1961). ___,

															[ Footnote 12 ]

															Numerous examples may be found in our early history of the
difficulties which the creators of items of national import had in
securing protection of their creations in all States. For example,
Noah Webster, in his effort to obtain protection for his book, A
Grammatical Institute of the English Language, brought his claim
before the legislatures of at least six States, and perhaps as many
as 12. See B. Bugbee, The Genesis of American Patent and
Copyright Law 108-110, 120-124 (Wash., D.C.1967); H.R.Rep. No.
2222, 60th Cong., 2d Sess., 2 (1909). Similar difficulties were
experienced by John Fitch and other inventors who desired to
protect their efforts to perfect a steamboat. See Federico, State Patents, 13 J. Pat.Off.Soc. 166, 170-176
(1931).

															[ Footnote 13 ]

															As early as 1751, Massachusetts granted to Benjamin Crabb the
exclusive right to employ a specific process for the manufacture of
candles out of whale oil. It is not clear whether Crabb invented
the process. The Acts and Resolves, Public and Private, of the
Province of the Massachusetts Bay, Vol. 3, Session of Jan. 10,
1751, c.19, pp. 546-547 ( 1878). In 1780, Pennsylvania granted a
patent to Henry Guest for the processing of tanning oil and
blubber, noting specifically that the patent was "a reward for his
discovery and for the purpose of promoting useful manufactories in
this state." The Statutes at Large of Pennsylvania from 1682 to
1801, Vol. 10, p. 132 (J. Mitchell & H. Flanders eds.1904).
Similarly, South Carolina granted protection to Peter Belin in 1786
for newly designed waterworks which aided in the production of
rice, a staple of South Carolina agriculture, and other products.
Another patent relating to the processing of rice was granted by
South Carolina in 1788. The Statutes at Large of South Carolina,
Vol. 4, p. 755 (T. Cooper ed. 1838); id. Vol. 5, p. 69
(1839). In 1787, Maryland granted a patent on a spinning and
carding machine "to encourage useful inventions, as well as promote
the manufacture of cotton and wool within this state. . . ." The
Laws of Maryland, Vol. 2, Session of Nov. 6, 1786-Jan. 20, 1787, c.
23 (W. Kilty ed. 1800). In the same year, Pennsylvania patented
certain devices relating to flour mills, noting that these devices
would "tend to simplify and render cheap the manufacture of flour
which is one of the principal staples of this commonwealth. . . ."
The Statutes at Large of Pennsylvania from 1682 to 1801, Vol. 12,
pp. 483-484 (J. Mitchell & H. Flanders eds.1906).

															[ Footnote 14 ]

															The Federalist No. 42, p. 305 (B. Wright ed.1961).

															[ Footnote 15 ] Cf. Morgan v. Virginia, 328 U.
S. 373 (1946); Bibb v. Navajo Freight Lines, 359 U. S. 520 (1959); Southern Pacific Co. v. Arizona, 325 U.
S. 761 (1945); Pennsylvania v. West Virginia, 262 U. S. 553 (1923).

															[ Footnote 16 ]

															For example, Congress has allowed writings which may eventually
be the subject of a federal copyright, to be protected under state
law prior to publication. 17 U.S.C. § 2.

															[ Footnote 17 ]

															The first congressional copyright statute, passed in 1790,
governed only maps, charts, and books. Act of May 31, 1790, c. 15,
1 Stat. 124. In 1802, the Act was amended in order to grant
protection to any person "who shall invent and design, engrave,
etch or work . . . any historical or other print or prints. . . ."
Act of Apr. 29, 1802, c. 36, 2 Stat. 171. Protection was extended
to musical compositions when the copyright laws were revised in
1831. Act of Feb. 3, 1831, c. 16, 4 Stat. 436. In 1865, at the time
when Mathew Brady's pictures of the Civil War were attaining fame,
photographs and photographic negatives were expressly added to the
list of protected works. Act of Mar. 3, 1865, c. 126, 13 Stat. 540.
Again in 1870, the list was augmented to cover paintings, drawings,
chromos, statuettes, statuary, and models or designs of fine art.
Act of July 8, 1870, c. 230, 16 Stat. 198.

															In 1909, Congress agreed to a major consolidation and amendment
of all federal copyright statutes. A list of 11 categories of
protected works was provided. The relevant sections of the Act are
discussed in the text of our opinion. The House Report on the
proposed bill specifically noted that amendment was required
because "the reproduction of various things which are the subject
of copyright has enormously increased," and that the President has
specifically recommended revision, among other reasons, because the
prior laws "omit[ted] provision for many articles which, under
modern reproductive processes, are entitled to protection."
H.R.Rep. No. 2222, supra, n 12, at 1 (quoting Samuel J. Elder and President
Theodore Roosevelt).

															Since 1909, two additional amendments have been added. In 1912,
the list of categories in § 5 was expanded specifically to include
motion pictures. The House Report on the amendment noted:

															"The occasion for this proposed amendment is the fact that the
production of motion picture photoplays and motion pictures other
than photoplays has become a business of vast proportions. The
money invested therein is so great and the property rights so
valuable that the committee is of the opinion that the copyright
law ought to be so amended as to give to them distinct and definite
recognition and protection."

															H.R.Rep. No. 756, 62d Cong., 2d Sess., 1 (1912).

															Finally, in 1971, § 5 was amended to include "sound recordings."
Congress was spurred to action by the growth of record piracy,
which was, in turn, due partly to technological advances. See Hearings on S. 646 and H.R. 6927, supra, n 5, at 4-5, 11 (1971). It must
be remembered that the "record piracy" charged against petitioners
related to recordings fixed by the original producer prior to Feb.
15, 1972, the effective date of the 1971 Act. See supra at 412 U. S.
551 -552.

															[ Footnote 18 ]

															17 U.S.C. § 1(e)

															[ Footnote 19 ]

															H.R.Rep. No. 7083, 59th Cong., 2d Sess., pt.. 2, p. 2 (1907)
(Minority Report).

															[ Footnote 20 ]

															"After all, what is the perforated roll? The fact is clearly
established in the testimony in this case that even those skilled
in the making of these rolls are unable to read them as musical
compositions, as those in staff notation are read by the performer.
. . ."

															"These perforated rolls are parts of a machine which, when duly
applied and properly operated in connection with the mechanism to
which they are adapted, produce musical tones in harmonious
combination. But we cannot think that they are copies within the
meaning of the copyright act." White-Smith Music Publishing Co. v. Apollo Co., 209 U. S. 1 , 209 U. S. 18 (1908).

															[ Footnote 21 ]

															H.R.Rep. No. 7083, supra, n 19, pt.. 1, at 10; pt.. 2, at 3.

															[ Footnote 22 ]

															This is especially clear from the comment made by the Committee
on Patents in regard to a foreign statute which, to some extent,
protected performances. The committee stated that the foreign
statute

															"in no way affects the reproduction of such music by
phonographs, graphophones, or the ordinary piano-playing
instruments, for, in these instruments, the reproduction is purely
mechanical."

															H.R.Rep. No. 2222, supra, n 12, at 5.

															[ Footnote 23 ]

															Petitioners do not argue that § 653h conflicts with that portion
of 17 U.S.C. § 1(e) which provides:

															"[W]henever the owner of a musical copyright has used or
permitted or knowingly acquiesced in the use of the copyrighted
work upon the parts of instruments serving to reproduce
mechanically the musical work, any other person may make similar
use of the copyrighted work upon the payment to the copyright
proprietor of a royalty of 2 cents on each such part manufactured.
. . ."

															Assuming, arguendo, that petitioners' use of the
composition they duplicated constitutes a "similar use," the
challenged state statute might be claimed to diminish the return
which is due the composer by lessening the number of copies
produced, and thus to conflict with § 1(e). However, as we have
noted above, the means presently available for reproducing
recordings were not in existence in 1909, when 17 U.S.C. § 1(e) was
passed. We see no indication that the challenged state statute
detracts from royalties which Congress intended the composer to
receive. Furthermore, many state statutes may diminish the number
of copies produced. Taxing statutes, for example, may raise the
cost of producing or selling records and thereby lessen the number
of records which may be sold or inhibit new companies from entering
this field of commerce. We do not see in these statutes the direct
conflict necessary to render a state statute invalid.

															[ Footnote 24 ]

															H.R.Rep. No. 2222, supra, n 12, at 10.

															[ Footnote 25 ]

															The registration of records under the provisions of the 1909 Act
would give rise to numerous administrative difficulties. It is
difficult to discern how an individual who wished to copyright a
record could comply with the notice and deposit provisions of the
statute. 17 U.S.C. §§ 12, 13, 19, 20. Nor is it clear to whom the
copyright could rightfully be issued or what constituted
publication. Finally, the administrative and economic burden of
classifying and maintaining copies of records would have been
considerable. See Chafee, Reflections on the Law of
Copyright; II, 45 Col.L.Rev. 719, 735 (1945); Ringer, The
Unauthorized Duplication of Sound Recordings, Studies Prepared for
the Subcommittee on Patents, Trademarks, and Copyrights of the
Senate Committee on the Judiciary, 86th Cong., 2d Sess., 2 (comm.
print 1961); Hearings on S. 646 and H.R. 6927, supra, n 5, at 11, 14.

															[ Footnote 26 ] Fonotipia, Ltd. v. Bradley, 171 F. 951, 963 (EDNY
1909).

															[ Footnote 27 ] Aeolian Co. v. Royal Music Roll Co., 196 F. 926, 927
(WDNY 1912); Waring v. WDAS Broadcasting Station, 327 Pa.
433, 437-438, 194 A. 631, 633-634 (1937); Capitol Records, Inc.
v. Mercury Records Corp., 221 F.2d 657, 661-662 (CA2 1955); Jerome v. Twentieth Century Fox-Film Corp., 67 F. Supp.
736 , 742 (SDNY 1946).

															[ Footnote 28 ]

															Petitioners place great stress on their belief that the records
or tapes which they copied had been "published." We have no need to
determine whether, under state law, these recordings had been
published or what legal consequences such publication might have.
For purposes of federal law, "publication" serves only as a term of
the art which defines the legal relationships which Congress has
adopted under the federal copyright statutes. As to categories of
writings which Congress has not brought within the scope of the
federal statute, the term has no application.

															[ Footnote 29 ] Supra at 412 U. S.
551 -552.

															MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE BLACKMUN concur, dissenting.

															Article I, § 8, cl. 8, of the Constitution provides:

															"The Congress shall have Power . . . [t]o 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."

															Madison made a brief comment on this provision governing both
patents and copyrights:

															"The States cannot separately make effectual provision for
either of the cases, and most of them have anticipated the decision
of this point, by laws passed at the instance of Congress.
[ Footnote 2/1 ]"

															We have been faithful to that admonition. In Sears Roebuck
& Co. v. Stiffel Co., 376 U. S. 225 , 376 U. S.
230 -231, we said:

															"Thus, the patent system is one in which uniform federal
standards are carefully used to promote invention while, at the
same time, preserving free competition. Obviously a State could
not, consistently with the Supremacy Clause of the Constitution,
extend the life of a patent beyond its expiration date or give a
patent on an article which lacked the level of invention required
for federal patents. To do either would run counter to the policy
of Congress of granting patents only to true inventions, and then
only for a limited time. Just as a State cannot encroach upon the
federal patent laws directly, it cannot, under some other law, such
as that forbidding unfair competition, give protection of a
kind Page 412 U. S. 573 that clashes with the objectives of the federal patent
laws."

															An unpatentable article is "in the public domain, and may be
made and sold by whoever chooses to do so." Id. at 376 U. S. 231 .
In that case, we did not allow a State to use its unfair
competition law to prevent copying of an article which lacked such
novelty that it could not be patented. In a companion case, Compco Corp. v. Day-Brite Lighting, 376 U.
S. 234 , 376 U. S. 237 ,
where an unfair competition charge was made under state law, we
made the same ruling, stating:

															"Today we have held in Sears, Roebuck & Co. v. Stiffel
Co., supra, 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 copyright laws leave in the public
domain."

															Prior to February 25, 1972, copyright protection was not
extended to sound recordings. Sears and Compco make clear that the federal policy expressed in Art. I, § 8, cl. 8,
is to have "national uniformity in patent and copyright laws," 376
U.S. at 376 U. S. 231 n. 7, a policy bolstered by Acts of Congress which vest

															"exclusive jurisdiction to hear patent and copyright cases in
federal courts . . . and that section of the Copyright Act which
expressly saves state protection of unpublished writings, but does
not include published writings." Ibid. Prior to February 15, 1972, [ Footnote 2/2 ] sound recordings had no Page 412 U. S. 574 copyright protection. And, even under that Act, the copyright
would be effective

															"only to sound recordings fixed, published, and copyrighted on
and after the effective date of this Act [Feb. 15, 1972] and before
January 1, 1975. [ Footnote
2/3 ]"

															California's law promotes monopoly; the federal policy promotes
monopoly only when a copyright is issued, and it fosters
competition in all other instances. Moreover, federal law limits
its monopoly to 28 years plus a like renewal period, [ Footnote 2/4 ] while California extends her
monopoly into perpetuity.

															Cases like Sears were surcharged with "unfair
competition," and the present one with "pirated recordings." But
free access to products on the market is the consumer interest
protected by the failure of Congress to extend patents or
copyrights into various areas. The drive for monopoly protection is
strong, as is evident from a reading of the committee reports on
the 1971 Act. [ Footnote 2/5 ] Yet
Congress took but a short step, setting up a trial period to
consider the new monopoly approach. It was told that state laws,
such as we have in this case, were being challenged on the ground
that the Federal Constitution had preempted the field, even in
absence of a provision for making it possible to obtain a copyright
for sound recordings. But the House Committee made only the
following comment:

															"While the committee expresses no opinion concerning this legal
question, it is clear that the extension of copyright protection to
sound recordings would resolve many of the problems which have
arisen in Page 412 U. S. 575 connection with the efforts to combat piracy in State courts.
[ Footnote 2/6 ]"

															The Department of Justice, in commenting on the proposals that
resulted in the 1971 Act told the House:

															"We believe that extending copyright to reproduction of sound
recordings is the soundest, and, in our interpretation of Sears and Compco, the only, way in which sound
recordings should be protected. Copyright protection is narrowly
defined and limited in duration, whereas state remedies, whose
validity is still in doubt, frequently create broad and unwarranted
perpetual monopolies. Moreover, there is an immediate and urgent
need for this protection. [ Footnote
2/7 ]"

															The need for uniformity was stated by Judge Learned Hand in a
dissent in Capitol Records, Inc. v. Mercury Records Corp., 221 F.2d 657. That case involved the duplication of uncopyrighted
sound recordings, the court holding that state law prevailed where
there was no federal copyright provision. Judge Hand emphasized in
his dissent that "uniformity" was one of the principal purposes of
the Patent and Copyright Clause, and that uniformity could be
obtained only by preemption. He said:

															"If, for example, in the case at bar, the defendant is forbidden
to make and sell these records in New York, that will not prevent
it from making and selling them in any other state which may regard
the plaintiff's sales as a 'publication;' and it will be
practically impossible to prevent their importation into New York.
That is exactly the kind of evil at which the clause is
directed." Id. at 667.

															I would reverse the judgment below. Page 412 U. S. 576 [ Footnote 2/1 ]

															The Federalist No. 43, p. 309 (B. Wright ed.1961).

															[ Footnote 2/2 ]

															The effective date of Pub.L. 92-140, 85 Stat. 392.

															[ Footnote 2/3 ] Id., § 3.

															[ Footnote 2/4 ]

															17 U.S.C. § 24.

															[ Footnote 2/5 ]

															H.R. Rep. No. 92-487; S.Rep. No. 92-72.

															[ Footnote 2/6 ]

															H.R.Rep. supra, 412
U.S. 546 fn2/5|>n. 5, at 3.

															[ Footnote 2/7 ] Id. at 13.

															MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE BLACKMUN join, dissenting.

															The argument of the Court, as I understand it, is this: Art. I,
§ 8, cl. 8, of the Constitution gives Congress the power

															"[t]o 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."

															The Framers recognized that individual States might have
peculiarly local interests that Congress might not consider worthy
of attention. Thus, the constitutional provision does not, of its
own force, bar States from promoting those local interests.
However, as the Court noted in Sears, Roebuck & Co. v.
Stiffel Co., 376 U. S. 225 (1964), with respect to every particular item within general
classes enumerated in the relevant statutes, Congress had balanced
the need to promote invention against the desire to preserve free
competition, and had concluded that it was in the national interest
to preserve competition as to every item that could not be
patented. That is, the fact that some item could not be patented
demonstrated that, in the judgment of Congress, it was best to let
competition in the production of that item go unrestricted. The
situation with regard to copyrights is said to be similar. There,
Congress enumerated certain classes of works for which a copyright
may be secured. 17 U.S.C. § 5. Its silence as to other classes does
not reflect a considered judgment about the relative importance of
competition and promotion of "Science and useful Arts." Thus, the
Court says, the States remain free to protect as they will
"writings" not in the enumerated classes, until Congress acts.
Since sound recordings fixed prior to February 15, 1972, were not
enumerated by Congress as subject to copyrighting, [ Footnote 3/1 ] the States may protect such
recordings. Page 412 U. S. 577 With respect, I cannot accept the final step of this argument.
In my view, Congress has demonstrated its desire to exercise the
full grant of constitutional power. Title 17 U.S.C. § 4, states:
"The works for which copyright may be secured under this title
shall include all the writings of an author " (emphasis
added). The use of the constitutional terms "writings" and "author"
rather strongly suggests that Congress intended to follow the
constitutional grant. It could exercise the power given it by the
Constitution in two ways: either by protecting all writings, or by
protecting all writings within designated classes, and leaving open
to competition all writings in other classes. Section 5 shows that
the latter course was chosen, for it enumerates various classes of
works that may be registered. [ Footnote
3/2 ] Ordinarily, the failure to enumerate "sound recordings" in
§ 5 would not be taken as an expression of Congress' desire to let
free competition reign in the reproduction of such recordings, for,
because of the realities of the legislative process, it is
generally difficult to infer from a failure to act any affirmative
conclusions. Cf. Cleveland v. United States, 329 U. S.
14 , 329 U. S. 22 (1946) (Rutledge, J., concurring). But in Sears and its
companion case, Compco Corp. v. Day-Brite Lighting, 376 U. S. 234 (1964), the Court determined that, with respect to patents and
copyrights, the ordinary practice was not to prevail. In view of
the importance of not imposing unnecessary restraints on
competition, the Court adopted in those cases a rule of
construction that, unless the failure to provide patent Page 412 U. S. 578 or copyright protection for some class of works could clearly be
shown to reflect a judgment that state regulation was permitted,
the silence of Congress would be taken to reflect a judgment that
free competition should prevail. I do not find in Sears and Compco a limitation on that rule of construction to
general classes that Congress has enumerated although, of course,
on the facts of those cases, only items in such classes were
involved; rather, the broadest language was used in those cases.
[ Footnote 3/3 ] Nor can I find in
the course of legislation sufficient evidence to convince me that
Congress determined to permit state regulation of the reproduction
of sound recordings. For whenever technological advances made
extension of copyright protection seem wise, Congress has acted
promptly. See ante at 412 U. S.
562 -563, n. 17. [ Footnote
3/4 ] This seems to me to reflect the same judgment that the
Court found in Page 412 U. S. 579 Sears and Compco: Congress has decided that
free competition should be the general rule until it is convinced
that the failure to provide copyright or patent protection is
hindering "the Progress of Science and useful Arts."

															The business of record piracy is not an attractive one; persons
in the business capitalize on the talents of others without needing
to assess independently the prospect of public acceptance of a
performance. But the same might be said of persons who copy
"mechanical configurations." Such people do provide low-cost
reproductions that may well benefit the public. In light of the
presumption of Sears and Compco that
congressional silence betokens a determination that the benefits of
competition outweigh the impediments placed on creativity by the
lack of copyright protection, and in the absence of a congressional
determination that the opposite is true, we should not let our
distaste for "pirates" interfere with our interpretation of the
copyright laws. I would therefore hold that, as to sound recordings
fixed before February 15, 1972, the States may not enforce laws
limiting reproduction.

															[ Footnote 3/1 ]

															Sound recordings fixed after that date may be copyrighted.
Pub.L. 92-140, 85 Stat. 391, 17 U.S.C. § 5(n) (1970 ed., Supp.
I).

															[ Footnote 3/2 ]

															From the language of § 4 and the proviso of § 5, it could be
rather strongly argued that Congress had intended to afford
protection to every writing. I agree with the Court, however, that
the consistent administrative interpretation of those sections, in
conjunction with the practical difficulty of applying to novel
cases certain statutory requirements, like that requiring placement
of the notice of copyright on every copy, 17 U.S.C. § 10, precludes
such an argument.

															[ Footnote 3/3 ]

															It bears noting that, in Sears, Roebuck & Co. v. Stiffel
Co., 376 U. S. 225 (1964), the Court repeatedly referred to the patent and copyright
statutes as if the same rules of interpretation applied to both. See, e.g., id. at 376 U. S. 228 , 376 U. S. 231 n. 7; Compco Corp. v. Day-Brite Lighting, 376 U.
S. 234 , 376 U. S. 237 (1964).

															[ Footnote 3/4 ]

															Between 1909 and 1951, Congress' attention was repeatedly drawn
to problems of copyrighting sound recordings. Many bills to provide
copyright protection for such recordings were introduced, but none
was enacted. See Ringer, The Unauthorized Duplication of
Sound Recordings, Studies Prepared for the Subcommittee on Patents,
Trademarks, and Copyrights of the Senate Committee on the
Judiciary, 86th Cong., 2d Sess., 21-37 (Comm.Print 1961).
Respondent argues that Congress failed to enact these bills
primarily out of uncertainty about the relationship between federal
law and international copyright conventions, and was comforted in
the knowledge that protection was available under state law. See Brief for Respondent 28-32. However, it is enough that
Congress was aware of the problem, and could have acted, as it did
when other technological innovations presented new problems, rather
expeditiously. The problems that Congress confronted in 1971 did
not spring up in 1970, but had existed, and Congress had not acted,
for many years before.

Summary: The Supreme Court upheld a California statute prohibiting "record piracy" or "tape piracy," finding that the Copyright Clause of the US Constitution does not vest exclusive power to grant copyright protection to the federal government. While the objective of the Copyright Clause is to facilitate national rights, it does not prevent states from granting copyright protection within their jurisdictions. The Court also held that the California statute does not conflict with federal copyright law, as Congress had not determined that recordings were unworthy of copyright protection.