                         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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