The opinion of the court was delivered by: WEBER
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 617 F. Supp.]
AND NOW this 24th day of September, 1985, in accord with the accompanying Opinion IT IS ORDERED that:
1. Plaintiffs' Motion for Summary Judgment is GRANTED as to liability of Defendant;
2. A trial on damages and other relief will be held on Monday, December 9th, 1985 at 9 a.m. WEBER, D.J.
Summary judgment would be available in a copyright infringement action where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Sailor Music v. The Gap Stores, Inc., 516 F. Supp. 923 (S.D.N.Y. 1981), aff'd 668 F.2d 84 (2d Cir. 1981), cert. denied 456 U.S. 945, 72 L. Ed. 2d 468, 102 S. Ct. 2012 (1982). We believe that there is no genuine issue of fact as to liability in this action, and that defendant is liable as a matter of law. The following discussion indicates the basis for our decision to grant in part plaintiffs' motion for summary judgment.
There is no material issue regarding the fact that defendant Eighty Four performed the musical compositions listed in plaintiffs' complaints by transmitting the radio broadcasts over multiple speakers in the five stores specified. Plaintiffs have produced affidavits in support of these facts which are undisputed by defendant.
Rather, defendant's brief narrows its arguments against imposition of liability to two issues: (1) that Eighty Four's performances are exempt under 17 U.S.C. § 110(5), and (2) that the provisions of the Copyright Act of 1976 are beyond the constitutional grant to Congress.
We first consider defendant's exemption argument.
17 U.S.C. § 110 lists and describes certain performances that are exempt and do not constitute a copyright infringement. Subsection (5) describes one of these exemptions as:
. . . communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless -
(A) a direct charge is made to see or hear the transmission; or
(B) the transmission thus received is further transmitted ...