(dissenting):

I respectfully dissent.

My disagreement with the majority opinion is that it sanctions relief which I do not believe is available to these appellants. The basis of this disagreement is in differing interpretations as to what is truly in issue. In my view, the appellants are not seeking to protect the copyrights they hold on the musical compositions in controversy. This is not a case, as I see it, where the holders of the copyright are seeking retribution for the uncompensated use of their musical compositions. Rather, this conflict may be seen as an attempt by these copyright holders to preclude forever, Rosner’s appropriation of their recordings of these compositions. The majority opinion’s approval of such a consequence discounts, as I see it, Rosner’s subsequent compliance with the compulsory license provisos. It is to that consequence to which my views, as were those of the district court, are directed.

The legislative history of the recently enacted amendments to the Copyright Act serves as an instructive guide setting forth the limitations of the Act at the time the events in controversy occurred.

In its report on the bill amending the Copyright Act, the House Judiciary Committee observed that because “there [was] no Federal protection of sound recordings, as such,” new legislation was needed. Absent such protection, the Committee noted that if record pirates “satisfy the cla[i]m of the owner of the musical copyright [they] can and do engage in widespread unauthorized reproduction of phonograph records and tapes without violating Federal copyright law.” (emphasis supplied). H.R. 92-487. The view propounded by the House Judiciary Committee was echoed by the Librarian of Congress: “Neither the present Federal copyright statute nor the common law or statutes of the various states are adequate for this purpose. [Controlling unauthorized duplication of phonograph records and tapes]. The best solution, an amendment of the copy *1312 right law to provide limited protection against unauthorized duplication, is that embodied in S. 646 [the bill to amend Title 17 of the United States Code.]” Similarly, the State Department, which has had to deal with international consequences of record piracy, concluded that the pre-amended Act was inadequate: “At present, there is no Federal statute that expressly prohibits commercial traffic in unauthorized duplications of legitimate sound recordings. [The bill to amend Title 17 of the United States Code] would answer that need and would provide a satisfactory means of combating and curbing the unauthorized duplication and piracy of sound recordings.” The Commerce and Justice Departments also attested to the inadequacies of the pre-amended Act. In light of the views expressed by the representatives of the Executive and Legislative Branches, I cannot agree with the essence of the majority opinion that the Copyright Act in its pre-amended state adequately safeguarded the rights of the instant appellants. Accord, Nimmer on Copyright (1970) wherein it is stated:

As demonstrated by a recapitulation of the amendments’ legislative history, the act of record piracy was not prohibited by the pre-amended Act if the compulsory license provisions had been satisfied. I believe the trial court’s interpretation of the statutory provisos and court promulgated rules pertinent to the disposition of Rosner’s recording equipment was entirely consistent with the then governing law. Simply stated, the trial court’s sound application of the rule of ejusdem generis avoids the contradictory result of impounding recording equipment and at the same time affirming that the pre-amended Act permits duplication of recording if the compulsory license provisions are met with compliance:

In so applying the said rule, the trial court ordered that “all property which either embodies a mechanical and/or electronic impression of plaintiff publishers’ copyrighted works or any packaging or promotional devices identifying or referring to same are still subject to impoundment.” Thus, the net result of the court’s confiscation order was to *1313 deny Rosner the fruits of her noneompli-anee with the compulsory license provisions without rendering as meaningless any subsequent compliance.

If this case only concerned a pirate who had not complied with the compulsory license provisions, I would be in complete accord with the majority opinion’s view that duplication was prohibited. Here, Rosner, an acknowledged duplicator, is not such a pirate, because, as noted by the majority opinion, she had “filed a notice of intention to use, declaring her intention to continue the manufacture of tapes by the same duplicating methods used in the past.” Because I believe this to be the very “loophole” the new amendments are intended to close, I cannot concur in the majority opinion’s disposition of the compulsory license issue.

Although Rosner now has complied with the compulsory license provision, she is prohibited by the majority opinion from engaging in the act of duplication. Such a prohibition is not tenable, as I see it, in light of the legislative history of the amendments and the views of Professor Nimmer.

I would affirm the district court.