source: Caselaw Access Project

author: Me. Justice Stewaet Mr. Justice Blackmun, Mr. Chief Justice Burger,

license: Public Domain

text:
    TWENTIETH CENTURY MUSIC CORP. et al. v. AIKEN
    No. 74-452.
    Argued April 21, 1975 —
    Decided June 17, 1975

      Simon H. Rifkind argued the cause for petitioners. With him on the briefs were Herman Finkelstein, Jay H. Topkis, and Bernard Korman.

      Harold David Cohen argued the cause for respondent. With him on the brief were Thomas N. Dowd and William S. D’Amico.

        Irwin Karp filed a brief for the Authors League of America, Inc., as amicus curiae urging reversal.

   Me. Justice Stewaet

delivered the opinion of the Court.

The question presented by this case is whether the reception of a radio broadcast of a copyrighted musical composition can constitute copyright infringement, when the copyright owner has licensed the broadcaster to perform the composition publicly for profit.

I

The respondent George Aiken owns and operates a small fast-service food shop in downtown Pittsburgh, Pa., known as “George Aiken's Chicken.” Some customers carry out the food they purchase, while others remain and eat at counters or booths. Usually the “carry-out” customers are in the restaurant for less than five minutes, and those who eat there seldom remain longer than 10 or 15 minutes.

A radio with outlets to four speakers in the ceiling receives broadcasts of music and other normal radio programing at the restaurant. Aiken usually turns on the radio each morning at the start of business. Music, news, entertainment, and commercial advertising broadcast by radio stations are thus heard by Aiken, his employees, and his customers during the hours that the establishment is open for business.

On March 11, 1972, broadcasts of two copyrighted musical compositions were received on the radio from a local station while several customers were in Aiken’s establishment. Petitioner Twentieth Century Music Corp. owns the copyright on one of these songs, “The More I See You”; petitioner Mary Bourne the copyright on the other, “Me and My Shadow.” Petitioners are members of the American Society of Composers, Authors and Publishers (ASCAP), an association that licenses the performing rights of its members to their copyrighted works. The station that broadcast the petitioners’ songs was licensed' by ASCAP to broadcast them. Aiken, however, did not hold a license from ASCAP.

The petitioners sued Aiken in the United States District Court for the Western District of Pennsylvania to recover for copyright infringement. Their complaint alleged that the radio reception in Aiken’s restaurant of the licensed broadcasts infringed their exclusive rights to “perform” their copyrighted works in public for profit. The District Judge agreed, and granted statutory monetary awards for each infringement. 356 F. Supp. 271. The United States Court of Appeals for the Third Circuit reversed that judgment, 500 F. 2d 127, holding that the petitioners’ claims against the respondent were foreclosed by this Court’s decisions in Fortnightly Corp. v. United Artists, 392 U. S. 390, and Teleprompter Corp. v. CBS, 415 U. S. 394. We granted certiorari. 419 U. S. 1067.

II

The Copyright Act of 1909, 35 Stat. 1075, as amended, 17 U. S. C. § 1 et seq., gives to a copyright holder a monopoly limited to specified “exclusive” rights in his copyrighted works. As the Court explained in Fortnightly Corp. v. United Artists, supra:

“The Copyright Act does not give a copyright holder control over all uses of his copyrighted work. Instead, § 1 of the Act enumerates several ‘rights’ that are made ‘exclusive’ to the holder of the copyright. If a person, without authorization from the copyright holder, puts a copyrighted work to a use within the scope of one of these ‘exclusive rights,’ he infringes the copyright. If he puts the work to a use not enumerated in § 1, he does not infringe.” 392 U. S., at 393-395.

Accordingly, if an unlicensed use of a copyrighted work does not conflict with an “exclusive” right conferred by the statute, it is no infringement of the holder’s rights. No license is required by the Copyright Act, for example, to sing a copyrighted lyric in the shower.

The limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an “author’s” creative labor; But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. “The sole interest of the United States and the primary object in conferring the monopoly,” this Court has said, “lie in the general benefits derived by the public from the labors of authors.” Fox Film Corp. v. Doyal, 286 U. S. 123, 127. See Kendall v. Winsor, 21 How. 322, 327-328; Grant v. Raymond, 6 Pet. 218, 241-242. When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose.

The precise statutory issue in the present case is whether Aiken infringed upon the petitioners’ exclusive right, under the Copyright Act of 1909, 17 U. S. C. § 1 (e), “[t]o perform the copyrighted work publicly for profit.” We may assume that the radio reception of the musical compositions in Aiken’s restaurant occurred “publicly for profit.” See Herbert v. Shanley Co., 242 U. S. 591. The dispositive question, therefore, is whether this radio reception constituted a “performance” of the copyrighted works.

When this statutory provision was enacted in 1909, its purpose was to prohibit unauthorized performances of copyrighted musical compositions in such public places as concert halls, theaters, restaurants, and cabarets. See H. R. Rep. No. 2222, 60th Cong., 2d Sess. (1909). An orchestra or individual instrumentalist or singer who performs a copyrighted musical composition in such a public place without a license is thus clearly an infringer under the statute. The entrepreneur who sponsors such a public performance for profit is also an infringer— direct or contributory. See generally 1 & 2 M. Nimmer, Copyright §§ 102, 134 (1974). But it was never contemplated that the members of the audience who heard the composition would themselves also be simultaneously “performing,” and thus also guilty of infringement. This much is common ground.

With the advent of commercial radio, a broadcast musical composition could be heard instantaneously by an enormous audience of distant and separate persons operating their radio receiving sets to reconvert the broadcast to audible form. Although Congress did not revise the statutory language, copyright law was quick to adapt to prevent the exploitation of protected works through the new electronic technology. In short, it was soon established in the federal courts that the broadcast of a copyrighted musical composition by a commercial radio station was a public performance of that composition for profit — and thus an infringement of the copyright if not licensed. In one of the earliest cases so holding, the Court of Appeals for the Sixth Circuit said:

“While the fact that the radio was not developed at the time the Copyright Act . . . was enacted may raise some question as to whether it properly comes within the purview of the statute, it is not by that fact alone excluded from the statute. In other words, the statute may be applied to new situations not anticipated by Congress, if, fairly construed, such situations come within its intent and meaning. . . . While statutes should not be stretched to apply to new situations not fairly within their scope, they should not be so narrowly construed as to permit their evasion because of changing habits due to new inventions and discoveries.
“A performance, in our judgment, is no less public because the listeners are unable to communicate with one another, or are not assembled within an inclosure, or gathered together in some open stadium or park or other public place. Nor can a performance, in our judgment, be deemed private because each listener may enjoy it alone in the privacy of his home. Radio broadcasting is intended to, and in fact does, reach a very much larger number of the public at the moment of the rendition than any other medium of performance. The artist is consciously addressing a great, though unseen and widely scattered, audience, and is therefore participating in a public performance.” Jerome H. Remick & Co. v. American Automobile Accessories Co., 5 F. 2d 411, 411-412.

See also M. Witmark & Sons v. L. Bamberger & Co., 291 F. 776 (NJ); Jerome H. Remick & Co. v. General Electric Co., 4 F. 2d 160 (SDNY); Jerome H. Remick & Co. v. General Electric Co., 16 F. 2d 829 (SDNY); Associated Music Publishers, Inc. v. Debs Memorial Radio Fund, 141 F. 2d 852 (CA2). Cf. Chappell & Co., Ltd. v. Associated Radio Co. of Australia, Ltd., [1925] Vict. L. R. 350; Messager v. British Broadcasting Co., Ltd., [1927] 2 K. B. 543, rev’d on other grounds, [1928] 1 K. B. 660, aff’d, [1929] A. C. 151. See generally Caldwell, The Broadcasting of Copyrighted Works, 1 J. Air L. 584 (1930); Note, 75 U. Pa. L. Rev. 549 (1927); Note, 39 Harv. L. Rev. 269 (1925).

If, by analogy to a live performance in a concert hall or cabaret, a radio station “performs” a musical composition when it broadcasts it, the same analogy would seem to require the conclusion that those who listen to the broadcast through the use of radio receivers do not perform the composition. And that is exactly what the early federal cases held. “Certainly those who listen do not perform, and therefore do not infringe.” Jerome H. Remick & Co. v. General Electric Co., supra, at 829. “One who manually or by human agency merely actuates electrical instrumentalities, whereby inaudible elements that are omnipresent in the air are made audible to persons who are within hearing, does not 'perform’ within the meaning of the Copyright Law.” Buck v. Debaum, 40 F. 2d 734, 735 (SD Cal. 1929).

Such was the state of the law when this Court in 1931 decided Buck v. Jewell-LaSalle Realty Co., 283 U. S. 191. In that case the Court was called upon to answer the following question certified by the Court of Appeals for the Eighth Circuit: “Do the acts of a hotel proprietor, in making available to his guests, through the instrumentality of a radio receiving set and loud speakers installed in his hotel and under his control and for the entertainment of his guests, the hearing of a copyrighted musical composition which has been broadcast from a radio transmitting station, constitute a performance of such composition within the meaning of 17 USC Sec. 1 (e) ?” The Court answered the certified question in the affirmative. In stating the facts of the case, however, the Court’s opinion made clear that the broadcaster of the musical composition was not licensed to perform it, and at least twice in the course of its opinion the Court indicated that the answer to the certified question might have been different if the broadcast itself had been authorized by the copyright holder.

We may assume for present purposes that the JewelLaSalle decision retains authoritative force in a factual situation like that in which it arose. But, as the Court of Appeals in this case perceived, this Court has in two recent decisions explicitly disavowed the view that the reception of an electronic broadcast can constitute a performance, when the broadcaster himself is licensed to perform the copyrighted material that he broadcasts. Fortnightly Corp. v. United Artists, 392 U. S. 390; Teleprompter Corp. v. CBS, 415 U. S. 394.

The language of the Court’s opinion in the Fortnightly case could hardly be more explicitly dispositive of the question now before us:

“The television broadcaster in one sense does less than the exhibitor of a motion picture or stage play; he supplies his audience not with visible images but only with electronic signals. The viewer conversely does more than a member of a theater audience; he provides the equipment to convert electronic signals into audible sound and visible images. Despite these deviations from the conventional situation contemplated by the framers of the Copyright Act, broadcasters have been judicially treated as exhibitors, and viewers as members of a theater audience. Broadcasters perform. Viewers do not perform. Thus, while both broadcaster and viewer play crucial roles in the total television process, a line is drawn between them. One is treated as active performer; the other, as passive beneficiary.” 392 U. S., at 398-399 (footnotes omitted).

The Fortnightly and Teleprompter cases, to be sure, involved television, not radio, and the copyrighted materials there in issue were literary and dramatic works, not musical compositions. But, as the Court of Appeals correctly observed: “[I]f Fortnightly, with its elaborate CATV plant and Teleprompter with its even more sophisticated and extended technological and programming facilities were not ‘performing,’ then logic dictates that no ‘performance’ resulted when the [respondent] merely activated his restaurant radio.” 500 F. 2d, at 137.

To hold in this case that the respondent Aiken “performed” the petitioners’ copyrighted works would thus require us to overrule two very recent decisions of this Court. But such a holding would more than offend the principles of stare decisis; it would result in a regime of copyright law that would be both wholly unenforceable and highly inequitable.

The practical unenforceability of a ruling that all of those in Aiken’s position are copyright infringers is self-evident. One has only to consider the countless business establishments in this country with radio or television sets on their premises — bars, beauty shops, cafeterias, car washes, dentists’ offices, and drive-ins — to realize the total futility of any evenhanded effort on the part of copyright holders to license even a substantial percentage of them.

And a ruling that a radio listener “performs” every broadcast that he receives would be highly inequitable for two distinct reasons. First, a person in Aiken’s position would have no sure way of protecting himself from liability for copyright infringement except by keeping his radio set turned off. For even if he secured a license from ASCAP, he would have no way of either foreseeing or controlling the broadcast of compositions whose copyright was held by someone else. Secondly, to hold that all in Aiken’s position “performed” these musical compositions would be to authorize the sale of an untold number of licenses for what is basically a single public rendition of a copyrighted work. The exaction of such multiple tribute would go far beyond what is required for the economic protection of copyright owners, and would be wholly at odds with the balanced congressional purpose behind 17 U. S. C. § 1 (e):

“The main object to be desired in expanding copyright protection accorded to music has been to give to the composer an adequate return for the value of his composition, and it has been a serious and a difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests.” H. R. Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909).

For the reasons stated in this opinion, the judgment of the Court of Appeals is affirmed.

It is so ordered.

Mr. Justice Blackmun,

concurring in the result.

My discomfort, now decisionally outdated to be sure, with the Court’s opinion and judgment is threefold:

1. My first discomfort is factual. Respondent Aiken hardly was an innocent “listener,” as the Court seems to characterize him throughout its opinion and particularly ante, at 162. In one sense, of course, he was a listener, for as he operated his small food shop and served his customers, he heard the broadcasts himself. Perhaps his work was made more enjoyable by the soothing and entertaining effects of the music. With this aspect I would have no difficulty.

But respondent Aiken installed four loudspeakers in his small shop. This, obviously, was not done for his personal use and contentment so that he might hear the broadcast, in any corner he might be, above the noise of commercial transactions. It was done for the entertainment and edification of his customers. It was part of what Mr. Aiken offered his trade, and it added, in his estimation, to the atmosphere and attraction of his establishment. Viewed in this light, respondent is something more than a mere listener and is not so simply to be categorized.

2. My second discomfort is precedential. Forty-four years ago, in a unanimous opinion written by Mr. Justice Brandéis, this Court held that a hotel proprietor’s use of a radio receiving set and loudspeakers for the entertainment of hotel guests constituted a performance within the meaning of § 1 of the Copyright Act, 17 U. S. C. § 1. Buck v. Jewell-LaSalle Realty Co., 283 U. S. 191 (1931). For more than 35 years the rule in Jewell-LaSalle was a benchmark in copyright law and was the foundation of a significant portion of the rather elaborate licensing agreements that evolved with the developing media technology. Seven years ago the Court, by a 5-1 vote, and with three Justices not participating, held that a community antenna television (CATV) station that transmitted copyrighted works to home subscribers was not performing the works, within the meaning of § 1 of the Copyright Act. Fortnightly Corp. v. United Artists, 392 U. S. 390 (1968). The divided Court only briefly noted the relevance of Jewell-LaSalle and announced that that decision “must be understood as limited to its own facts.” Id., at 396-397, n. 18. I have already indicated my disagreement with the reasoning of Fortnightly and my conviction that it, rather than Jewell-LaSalle, is the case that should be limited to its facts. Teleprompter Corp. v. CBS, 415 U. S. 394, 415 (1974) (dissenting opinion.) I was there concerned about the Court’s simplistic view of television’s complications, a view perhaps encouraged by the obvious inadequacies of an ancient copyright Act for today’s technology. A majority of the Court, however, felt otherwise and extended the simplistic analysis rejected in Jewell-LaSalle, but embraced in Fortnightly, to even more complex arrangements in the CATV industry. Teleprompter Corp. v. CBS, supra.

I had hoped, secondarily, that the reasoning of Fortnightly and Teleprompter would be limited to CATV. At least in that context the two decisions had the arguably desirable effect of protecting an infant industry from a premature death. Today, however, the Court extends Fortnightly and Teleprompter into radio broadcasting, effectively overrules Jewell-LaSalle, and thereby abrogates more than 40 years of established business practices. I would limit the application of Teleprompter and Fortnightly to the peculiar industry that spawned them. Parenthetically, it is of interest to note that this is precisely the result that would be achieved by virtually all versions of proposed revisions of the Copyright Act. See, e. g., § 101 of S. 1361, 93d Cong., 2d Sess., which sought to amend 17 U. S. C. § 110 (5). See also §§48 (5) and (6) of the British Copyright Act of 1956, 4 & 5 Eliz. 2, c. 74, which distinguishes between the use of a radio in a public place and “the causing of a work or other subject-matter to be transmitted to subscribers to a diffusion service.”

Resolution of these difficult problems and the fashioning of a more modern statute are to be expected from the Congress. In any event, for now, the Court seems content to continue with its simplistic approach and to accompany it with a pragmatic reliance on the “practical unenforceability,” ante, at 162, of the copyright law against persons such as George Aiken.

3. My third discomfort is tactical. I cannot understand why the Court is so reluctant to do directly what it obviously is doing indirectly, namely, to overrule Jewell-LaSalle. Of course, in my view, that decision was correct at the time it was decided, and I would regard it as good law today under the identical statute and with identical broadcasting. But, as I have noted, the Court in Fortnightly limited Jewell-LaSalle “to its own facts,” and in Teleprompter ignored its existence completely by refusing even to cite it. This means, it seems to me, that the Court did not want to overrule it, but nevertheless did not agree with it and felt, hopefully, that perhaps it would not bother us anymore anyway. Today the Court does much the same thing again by extracting and discovering great significance in the fact that the broadcaster in Jewell-LaSalle was not licensed to perform the composition. I cannot join the Court’s intimation, ante, at 160 — surely stretched to the breaking point — that Mr. Justice Brandéis and the unanimous Court for which he spoke would have reached a contrary conclusion in Jewell-LaSalle in 1931 had that broadcaster been licensed. The Court dances around Jewell-LaSalle, as indeed it must, for it is potent opposing precedent for the present case and stands stalwart against respondent Aiken’s position. I think we should be realistic and forthright and, if Jewell-LaSalle is in the way, overrule it.

Although I dissented in Teleprompter, that case and Fortnightly, before it, have been decided. With the Court insisting on adhering to the rationale of those cases, the result reached by the Court of Appeals and by this Court is compelled. Accepting the precedent of those cases, I concur in the result.

Mr. Chief Justice Burger,

with whom Mr. Justice Douglas joins, dissenting.

In Fortnightly Corp. v. United Artists, 392 U. S. 390, 402 (1968), Mr. Justice Fortas observed that cases such as this call “not for the judgment of Solomon but for the dexterity of Houdini.” There can be no really satisfactory solution to the problem presented here, until Congress acts in response to longstanding proposals. My primary purpose in writing is not merely to express disagreement with the Court but to underscore what has repeatedly been stated by others as to the need for legislative action. Radio today is certainly a more commonplace and universally understood technological innovation than CATV, for example, yet we are, basically, in essentially the same awkward situation as in the past when confronted with these problems. We must attempt to apply a statute designed for another era to a situation in which Congress has never affirmatively manifested its view concerning the competing policy considerations involved.

Yet, the issue presented can only be resolved appropriately by the Congress; perhaps it will find the result which the Court reaches today a practical and equitable resolution, or perhaps it will find this “functional analysis” too simplistic an approach, cf. Teleprompter Corp. v. CBS, 415 U. S. 394, 415 (1974) (Blackmun, J., dissenting), and opt for another solution.

The result reached by the Court is not compelled by the language of the statute; it is contrary to the applicable case law and, even assuming the correctness and relevance of the CATV cases, Fortnightly, supra, and Teleprompter, supra, it is not analytically dictated by those cases. In such a situation, I suggest, “the fact that the Copyright Act was written in a different day, for different factual situations, should lead us to tread cautiously here. Our major object . . . should be to do as little damage as possible to traditional copyright principles and to business relationships, until the Congress legislates and relieves the embarrassment which we and the interested parties face.” Fortnightly, supra, at 404 (Fortas, J., dissenting).

As the Court’s opinion notes, ante, at 160, in Buck v. Jewell-LaSalle Realty Co., 283 U. S. 191 (1931), answering a precisely phrased certified question, the Court construed the Copyright Act in a manner which squarely conflicts with what is held today. Congress, despite many opportunities, has never legislatively overruled Buck, supra. It was not overruled in Fortnightly but treated “as limited to its own facts.” 392 U. S., at 396-397, n. 18. Even assuming the correctness of this dubious process of limitation, see Fortnightly, supra, at 405 (Fortas, J., dissenting); Teleprompter, supra, at 415 (Blackmun, J., dissenting), Buck is squarely relevant here since the license at issue expressly negated any right on the part of the broadcaster to further license performances by those who commercially receive and distribute broadcast music. Moreover, even accepting, arguendo, the restrictive reading given to Buck by the Court today, and assuming the correctness of Fortnightly and Teleprompter in the CATV field, it is not at all clear that the analysis of these latter cases supports the result here. Respondent was more than a “passive beneficiary.” Fortnightly, supra, at 399. He took the transmission and used that transmission for commercial entertainment in his own profit enterprise, through a multispeaker audio system specifically designed for his business purposes. In short, this case does not call for what the Court describes as “a ruling that a radio listener ‘performs’ every broadcast that he receives . ..,” ante, at 162. Here, respondent received the transmission and then put it to an independent commercial use. His conduct seems to me controlled by Buck’s unequivocal holding that:

“One who hires an orchestra for a public performance for profit is not relieved from a charge of infringement merely because he does not select the particular program to be played. Similarly, when he tunes in on a broadcasting station, for his own commercial purposes, he necessarily assumes the risk that in so doing he may infringe the performing rights of another.” 283 U. S., at 198-199.

See also Herbert v. Shanley Co., 242 U. S. 591 (1917).

In short, as Mr. Justice Douglas observed in the Teleprompter case: “The Court can read the result it achieves today only by ‘legislating’ important features of the Copyright Act out of existence.” 415 U. S., at 421. In my view, we should bear in mind that “[o]ur ax, being a rule of law, must cut straight, sharp, and deep; and perhaps this is a situation that calls for the compromise of theory and for the architectural improvisation which only legislation can accomplish.” Fortnightly, supra, at 408 (Fortas, J., dissenting).

       For a discussion of ASCAP, see K-91, Inc. v. Gershwin Publishing Corp., 372 F. 2d 1 (CA9).
      ASCAP’s license agreement with the Pittsburgh broadcasting station contained, as is customary, the following provision:
      “Nothing herein contained shall be construed as authorizing LICENSEE [WKJF-FM] to grant to others any right to reproduce or perform publicly for profit by any means, method or process whatsoever, any of the musical compositions licensed hereunder or as authorizing any receiver of any radio broadcast to perform publicly or reproduce the same for profit, by any means, method or process whatsoever.”

       The Constitution gives 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.” U. S. Const., Art. I, § 8, cl. 8. See, e. g., Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 58; Trade-Mark Cases, 100 U. S. 82, 94.

       Title 17 TJ. S. C. § 1 provides in part:
      “Any person entitled thereto, upon complying with the provisions of this title, shall have the exclusive right:
      “(a) To print, reprint, publish, copy, and vend the copyrighted work;
      “(b) To translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work; to dramatize it if it be a nondramatic work; to convert it into a novel or other nondramatic work if it be a drama; to arrange or adapt it if it be a musical work; to complete, execute, and finish it if it be a model or design for a work of art;
      “(c) To deliver, authorize the delivery of, read, or present the copyrighted work in public for profit if it be a lecture, sermon, address or similar production, or other nondramatic literary work; to make or procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, delivered, presented, produced, or reproduced; and to play or perform it in public for profit, and to exhibit, represent, produce, or reproduce it in any manner or by any method whatsoever. The damages for the infringement by broadcast of any work referred to in this subsection shall not exceed the sum of $100 where the infringing broadcaster shows that he was not

        aware that he was infringing and that such infringement could not have been reasonably foreseen; and
      “(d) To perform or represent the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce or reproduce it in any manner or by any method whatsoever; and
      "(e) To perform the copyrighted work publicly for profit if it be a musical composition; and for the purpose of public performance for profit, and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced . . . .”

       Cf. Wall v. Taylor, 11 Q. B. D. 102, 106-107 (1883) (Brett, M. R.): “Singing for one’s own gratification without intending thereby to represent anything, or to amuse any one else, would not, I think, be either a representation or performance, according to the ordinary meaning of those terms, nor would the fact of some other person being in the room at the time of such singing make it so ....”

       See 1 M. Nimmer, Copyright §5 (1974).

       Lord Mansfield’s statement of the problem almost 200 years ago in Sayre v. Moore, quoted in a footnote to Cary v. Longman, 1 East *358, 362 n. (b), 102 Eng. Rep. 138, 140 n. (b) (1801), bears repeating:
      “[W]e must take care to guard against two extremes equally prejudicial; the one, that men of ability, who have employed their time for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour; the other, that the world may not be deprived of improvements, nor the progress of the arts be retarded.”

       In Fortnightly Corp. v. United Artists, 392 U. S. 390, the Court stated:
      “[0]ur inquiry cannot be limited to ordinary meaning and legislative history, for this is a statute that was drafted long before the development of the electronic phenomena with which we deal here. In 1909 radio itself was in its infancy, and television had not been invented. We must read the statutory language of 60 years ago in the light of drastic technological change.” Id., at 395-396 (footnotes omitted).

       See n. 3, supra.

       Station KDKA, established in Pittsburgh in 1920, is said to have been the first commercial radio broadcasting station in the world. See Buck v. Jewell-LaSalle Realty Co., 283 U. S. 191, 196 n. 2.

      “[W]e have no occasion to determine under what circumstances a broadcaster will be held to be a performer, or the effect upon others of his paying a license fee.” 283 U. S., at 198 (emphasis added). See also id., at 199 n. 5.

       The decision in J ewell-LaSalle might be supported by a concept akin to that of contributory infringement, even though there was no relationship between the broadcaster and the hotel company and, therefore, technically no question of actual contributory infringement in that case. Id., at 197 n. 4.

       The Court of Appeals observed that ASCAP now has license agreements with some 5,150 business establishments in the whole country, 500 F. 2d 127, 129, noting that these include “firms which employ on premises sources for music such as tape recorders and live entertainment.” Id., at 129 n. 4. As a matter of so-called “policy” or “practice,” we are told, ASCAP has not even tried to exact licensing agreements from commercial establishments whose radios have only a single speaker.

       This inequity, in the context of the decision in Buck v. Jewell

        LaSalle Realty Co., 283 U. S. 191, was pointed out by Professor Zechariah Chafee, Jr., 30 years ago:
      “A rule which is very hard for laymen to apply so as to keep clear of litigation was established by the La Salle Hotel case. The hotel was heavily liable if it rebroadcast unlicensed music, but how could it protect itself? Must it maintain a monitor always on the job to sit with a list before him pages long showing what pieces are licensed and turn off the master set the instant an unlicensed piece comes from the broadcasting station? The dilemma thus created by the Copyright Act was mitigated for a time by the machinery of ASCAP, which was a device entirely outside the statute. The hotel could obtain a blanket license from ASCAP and thus be pretty sure of safety about all the music which came through its master set. . . . [But if] any composer outside of ASCAP has his music broadcast, what is the hotel to do ? Besides getting an ASCAP license, must the hotel bargain separately with every independent composer on the chance that his music may come through to the hotel patrons?
      “Such divergences from the ideal . . . are likely to be corrected . . . .” Reflections on the Law of Copyright: I, 45 Col. L. Rev. 503, 528-529.

       The petitioners have not demonstrated that they cannot receive from a broadcaster adequate royalties based upon the total size of the broadcaster’s audience. On the contrary, the respondent points out that generally copyright holders can and do receive royalties in proportion to advertising revenues of licensed broadcasters, and a broadcaster’s advertising revenues reflect the total number of its listeners, including those who listen to the broadcasts in public business establishments.

       “Broadcasters perform. Viewers do not perform.” Fortnightly Corp. v. United Artists, 392 U. S. 390, 398 (1968) (footnotes omitted).

       Recent congressional proposals have treated the present problem distinctly from CATV questions. See, e. g., S. 1361, 93d Cong., 2d Sess. (1974). See also British Copyright Act of 1956, §§48 (5), (6), 4 & 5 Eliz. 2, c. 74.

       Indeed, in its consideration of S. 1361, the Senate Committee on the Judiciary undertook to distinguish use of “ordinary radios” from situations “where broadcasts are transmitted to substantial audiences by means of loudspeakers covering a wide area.” S. Rep. No. 93-983, p. 130 (1974). The value of this distinction, without drawing a line on the number of outlets that would be exempt is at best dubious; this version leaves the obvious gap in the statute to be filled in by the courts.


author: Mr. Justice Marshall Mr. Chief Justice Burger, Mr. Justice Douglas, Mr. Justice White,

text:
    UNITED STATES v. HALE
    No. 74-364.
    Argued April 14, 1975 —
    Decided June 23, 1975

      Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor General Bork, Acting Assistant Attorney General Keeney, Jerome M. Feit, and Ivan Michael Schaeffer.

      Larry J. Ritchie, by appointment of the Court, 421 U. S. 928, argued the cause and filed a brief for respondent.

        Frank G. Carrington, Fred E. Inbau, and Wayne W. Schmidt filed a brief for Americans for Effective Law Enforcement, Inc., as amicus curiae urging reversal.

   Mr. Justice Marshall

delivered the opinion of the Court.

Respondent was tried and convicted of robbery in the District Court for the District of Columbia. During cross-examination at trial the prosecutor asked respondent why he had not given the police his alibi when he was questioned shortly after his arrest. The trial court instructed the jury to disregard the colloquy but refused to declare a mistrial. The Court of Appeals for the District of Columbia Circuit reversed, holding that inquiry into respondent’s prior silence impermissibly prejudiced his defense and infringed upon his right to remain silent under Miranda v. Arizona, 384 U. S. 436, 468 n. 37 (1966). We granted certiorari, 419 U. S. 1045, because of a conflict among the Courts of Appeals over whether a defendant can be cross-examined about his silence during police interrogation, and because of the importance of this question to the administration of justice.

We find that the probative value of respondent’s pretrial silence in this case was outweighed by the prejudicial impact of admitting it into evidence. Affirming the judgment on this ground, we have no occasion to reach the broader constitutional question that supplied an alternative basis for the decision below.

I

On June 1, 1971, Lonnie Arrington reported to police that he had been attacked and robbed by a group of five men. Initially, he claimed that $65 had been stolen, but he later changed the amount to $96 after consulting with his wife. As the police were preparing to accompany Arrington through the neighborhood in search of the attackers, he observed two men and identified one of them as one of his assailants. When the police gave chase, the two men fled but one was immediately captured. The victim identified respondent Hale as one of the robbers.

Respondent was then arrested, taken to the police station, and advised of his right to remain silent. He was searched and found to be in possession of $158 in cash. An officer then asked: “Where did you get the money?” Hale made no response.

At trial respondent took the witness stand in his own defense. He acknowledged having met Arrington in a shoe store on the day in question. Hale stated that, after the meeting, he was approached by three men who inquired whether Arrington had any money, to which Hale replied he “didn’t know.” From there respondent claimed he went to a narcotics treatment center, where he remained until after the time of the robbery. According to his testimony he left the center with a friend who subsequently purchased narcotics. Shortly after the transaction they were approached by the police. Hale testified that he fled because he feared being found in the presence of a person carrying narcotics. He also insisted that his estranged wife had received her welfare check on that day and had given him approximately $150 to purchase some money orders for her as he had done on several prior occasions.

In an effort to impeach Hale’s explanation of his possession of the money, the prosecutor caused Hale to admit on cross-examination that he had not offered the exculpatory information to the police at the time of his arrest:

“Q. Did you in any way indicate [to the police] where that money came from?
“A. No, I didn’t.
“Q. Why not?
“A. I didn’t feel that it was necessary at the time.”

The Government takes the position that since the respondent chose to testify in his own behalf, it was permissible to impeach his credibility by proving that he had chosen to remain silent at the time of his arrest. For this proposition the Government relies heavily on this Court’s decision in Raffel v. United States, 271 U. S. 494 (1926). There, a second trial was required when the first jury failed to reach a verdict. In reliance on his privilege against compulsory self-incrimination, the accused declined to testify at his first trial. At the second trial, however, he took the stand in an effort to refute the testimony of a Government witness. Over objection, Raffel admitted that he had remained silent in the face of the same testimony at the earlier proceeding. Under these circumstances the Court concluded that Raffel’s silence at the first trial was inconsistent with his testimony at the second, and that his silence could be used to impeach the credibility of his later representations. The Government argues that silence during police interrogation is similarly probative and should therefore be admissible for impeachment purposes.

We cannot agree. The assumption of inconsistency underlying Raffel is absent here. Rather, we find the circumstances of this case closely parallel to those in Grunewald v. United States, 353 U. S. 391 (1957), and we conclude that the principles of that decision compel affirmance here.

II

A basic rule of evidence provides that prior inconsistent statements may be used to impeach the credibility of a witness. As a preliminary matter, however, the court must be persuaded that the statements are indeed inconsistent. 3A J. Wigmore, Evidence § 1040 (J. Chadbourn rev. 1970) (hereafter Wigmore). If the Government fails to establish a threshold inconsistency between silence at the police station and later exculpatory testimony at trial, proof of silence lacks any significant probative value and must therefore be excluded.

In most circumstances silence is so ambiguous that it is of little probative force. For example, silence is commonly thought to lack probative value on the question of whether a person has expressed tacit agreement or disagreement with contemporaneous statements of others. See 4 Wigmore § 1071. Silence gains more probative weight where it persists in the face of accusation, since it is assumed in such circumstances that the accused would be more likely than not to dispute an untrue accusation. Failure to contest an assertion, however, is considered evidence of acquiescence only if it would have been natural under the circumstances to object to the assertion in question. 3A iVigmore § 1042. The Raffel Court found that the circumstances of the earlier confrontation naturally called for a reply. Accordingly, the Court held that evidence of the prior silence of the accused was admissible. But the situation of an arrestee is very different, for he is under no duty to speak and, as in this case, has ordinarily been advised by government authorities only moments earlier that he has a right to remain silent, and that anything he does say can and will be used against him in court.

At the time of arrest and during custodial interrogation, innocent and guilty alike — perhaps particularly the innocent — may find the situation so intimidating that they may choose to stand mute. A variety of reasons may influence that decision. In these often emotional and confusing circumstances, a suspect may not have heard or fully understood the question, or may have felt there was no need to reply. See Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U. Chi. L. Rev. 657, 676 (1966). He may have maintained silence out of fear or unwillingness to incriminate another. Or the arrestee may simply react with silence in response to the hostile and perhaps unfamiliar atmosphere surrounding his detention. In sum, the inherent pressures of in-custody interrogation exceed those of questioning before a grand jury and compound the difficulty of identifying the reason for silence.

Respondent, for example, had just been given the Miranda warnings and was particularly aware of his right to remain silent and the fact that anything he said could be used against him. Under these circumstances, his failure to offer an explanation during the custodial interrogation can as easily be taken to indicate reliance on the right to remain silent as to support an inference that the explanatory testimony was a later fabrication. There is simply nothing to indicate which interpretation is more probably correct.

Ill

Our analysis of the probative value of silence before police interrogators is similar to that employed in Grunewald v. United States, supra. In that case a witness before a grand jury investigating corruption in the Internal Revenue Service declined to answer a series of questions on the ground that the answers might tend to incriminate him. The witness, Max Halperin, was later indicted for conspiracy to defraud the United States. At trial he took the stand to testify in his own defense, and there responded to the same questions in a manner consistent with innocence. On cross-examination the prosecutor elicited, for purposes of impeachment, testimony concerning the defendant’s .earlier invocation of the Fifth Amendment on the same subject matter. The Court framed the issue of Halperin’s prior silence as an evidentiary problem and concluded that the circumstances surrounding Halperin’s appearance before the grand jury justified his reliance on the Fifth Amendment, imposed no mandate to speak, and presented valid reasons, other than culpability, for deferring comment. The Court ruled that Halperin’s prior silence was not so clearly inconsistent with his later testimony as to justify admission of evidence of such silence as evidence of a prior inconsistent “statement.”

In Grünewald the Court identified three factors relevant to determining whether silence was inconsistent with later exculpatory testimony: (1) repeated assertions of innocence before the grand jury; (2) the secretive nature of the tribunal in which the initial questioning occurred; and (3) the focus on petitioner as potential defendant at the time of the arrest, making it “natural for him to fear that he was being asked questions for the very purpose of providing evidence against himself.” 353 U. S., at 423.

Applying these factors here, it appears that this case is an even stronger one for exclusion of the evidence than Grünewald. First, the record reveals respondent’s repeated assertions of innocence during the proceedings; there is nothing in the record of respondent’s testimony inconsistent with his claim of innocence. Second, the forum in which the questioning of Hale took place was secretive and in addition lacked such minimal safeguards as the presence of public arbiters and a reporter, which were present in Grünewald. Even more than Halperin, respondent may well have been intimidated by the setting, or at the very least, he may have preferred to make any statements in more hospitable surroundings, in the presence of an attorney, or in open court. Third, Hale’s status as a “potential defendant” was even clearer than Halperin’s since Hale had been the subject of eyewitness identification and had been arrested on suspicion of having committed the offense.

The Government nonetheless contends that respondent’s silence at the time of his arrest is probative of the falsity of his explanation later proffered at trial because the incentive of immediate release and the opportunity for independent corroboration would have prompted an innocent suspect to explain away the incriminating circumstances. On the facts of this case, we cannot agree. Petitioner here had no reason to think that any explanation he might make would hasten his release. On the contrary, he had substantial indication that nothing he said would influence the police decision to retain him in custody. At the time of his arrest petitioner knew that the case against him was built on seemingly strong evidence — on an identification by the complainant, his flight at that time, and his possession of $158. In these circumstances he could not have expected the police to release him merely on the strength of his explanation. Hale’s prior contacts with the police and his participation in a narcotics rehabilitation program further diminished the likelihood of his release, irrespective of what he might say. In light of the many alternative explanations for his pretrial silence, we do not think it sufficiently probative of an inconsistency with his in-court testimony to warrant admission of evidence thereof.

IV

Not only is evidence of silence at the time of arrest generally not very probative of a defendant’s credibility, but it also has a significant potential for prejudice. The danger is that the jury is likely to assign much more weight to the defendant’s previous silence than is warranted. And permitting the defendant to explain the reasons for his silence is unlikely to overcome the strong negative inference that the jury is likely to draw from the fact that the defendant remained silent at the time of his arrest.

As we have stated before: “When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.” Shepard v. United States, 290 U. S. 96, 104 (1933). We now conclude that the respondent’s silence during police interrogation lacked significant probative value and that any reference to his silence under such circumstances carried with it an intolerably prejudicial impact.

Accordingly, we hold that under the circumstances of this case it was prejudicial error for the trial court to permit cross-examination of respondent concerning his silence during police interrogation, and we conclude, in the exercise of our supervisory authority over the lower federal courts, that Hale is entitled to a new trial.

The judgment below is

Affirmed.

Mr. Justice Blackmun concurs in the result.

Mr. Chief Justice Burger,

concurring in the judgment.

I cannot escape the conclusion that this case is something of a tempest in a saucer, and the Court rightly avoids placing the result on constitutional grounds. A dubious aspect of the Court’s opinion is to renew the dictum of Grunewald v. United States, 353 U. S. 391 (1957), see ante, at 178, and n. 6. There the Court casually elevated a fallacy into a general proposition in terms that the innocent “are more likely to [remain silent] in secret proceedings . . . than in open court proceedings . . . .” To begin with, there is not a scintilla of empirical data to support the first generalization nor is it something generally accepted as validated by ordinary human experience. It is no more accurate than to say, for example, that the innocent rather than the guilty, are the first to protest their innocence. There is simply no basis for declaring a generalized probability one way or the other. Second, the Grünewald suggestion that people are more likely to speak out “in open court proceedings . . .” has no basis in human experience. A confident, assured person will likely speak out in either place; a timid, insecure person may be more overwhelmed by the formality of “open court proceedings” than by a police station. Moreover, if an accused is in “open court,” there is a constitutional option to remain totally silent, but if an accused takes the stand all admissible questions must be answered. A nonparty witness has less option than the accused and must take the stand if called. We ought to be wary of casual generalizations that read well but “do not wash.”

Mr. Justice Douglas,

concurring in the judgment.

I agree with the Court that the judgment below should be affirmed, but “I do not, like the Court, rest my conclusion on the special circumstances of this case. I can think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it.” Grunewald v. United States, 353 U. S. 391, 425 (1957) (concurring opinion). My view of this case is therefore controlled by Miranda v. Arizona, 384 U. S. 436 (1966). I do not accept the idea that Miranda loses its force in the context of impeaching the testimony of a witness. See Harris v. New York, 401 U. S. 222 (1971). In my opinion Miranda should be given full effect.

I also believe, as does my Brother White, that given the existence of Miranda due process is violated when the prosecution calls attention to the silence of the accused at the time of arrest.

Mr. Justice White,

concurring in the judgment.

I am no more enthusiastic about Miranda v. Arizona, 384 U. S. 436 (1966), now than I was when that decision was announced. But when a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony. Cf. Johnson v. United States, 318 U. S. 189, 196-199 (1943). Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case. I would affirm on this ground.

       Respondent was tried in Federal District Court prior to the effective date for the transfer of jurisdiction over D. C. Code offenses under the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L. 91-358, 84 Stat. 473.

       Compare United States v. Semensohn, 421 F. 2d 1206, 1209, (CA2 1970); United States v. Brinson, 411 F. 2d 1057, 1060 (CA6 1969); Fowle v. United States, 410 F. 2d 48 (CA9 1969); and Johnson v. Patterson, 475 F. 2d 1066 (CA10), cert. denied, 414 U. S. 878 (1973), with United States ex rel. Burt v. New Jersey, 475 F. 2d 234 (CA3), cert. denied, 414 U. S. 938 (1973); and United States v. Ramirez, 441 F. 2d 950, 954 (CA5), cert. denied, 404 U. S. 869 (1971).

       Immediately following the exchange, the court cautioned the jury that the questioning was improper and that they were to disregard it. The Court of Appeals held that the error was not cured by this instruction, and the Government does not contend in this Court that the error was harmless.

       Since we do not reach the constitutional claim raised today, we need not decide whether the Raffel decision has survived Johnson v. United States, 318 U. S. 189 (1943), and Griffin v. California, 380 U. S. 609 (1965). See Grunewald v. United States, 353 U. S. 391, 425-426 (1957) (Black, J., concurring).

       See Kamisar, Kauper’s “Judicial Examination of the Accused” Forty Years Later — Some Comments on a Remarkable Article, 73 Mich. L. Rev. 15, 34 n. 70 (1974).

       “Innocent men are more likely to [remain silent] in secret proceedings, where they testify without advice of counsel and without opportunity for cross-examination, than in open court proceedings, where cross-examination and judicially supervised procedure provide safeguards for the establishing of the whole, as against the possibility of merely partial, truth.” Grunewald v. United States, 353 U. S., at 422-423.

       We recognize that the question whether evidence is sufficiently inconsistent to be sent to the jury on the issue of credibility is ordinarily in the discretion of the trial court. “But where such evidentiary matter has grave constitutional overtones ... we feel justified in exercising this Court's supervisory control.” Grunewald v. United States, 353 U. S., at 423-424.


author: Mr. Justice Blackmun

text:
    UNITED STATES v. ALASKA
    No. 73-1888.
    Argued April 16, 1975 —
    Decided June 23, 1975

      Deputy Solicitor General Randolph argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Johnson, Gerald P. Norton, Bruce C. Rashkow, and Edward F. Bradley.

      Charles K. Cranston and Thomas M. Phillips argued the cause and filed a brief for respondent.
   Mr. Justice Blackmun

delivered the opinion of the Court.

The issue here is whether the body of water known as Cook Inlet is a historic bay. The inlet extends northeastward well over 150 miles into the Alaskan land mass, with Kenai Peninsula to the southeast and the Chigmit Mountains to the northwest. The city of Anchorage is near the head of the inlet. The upper, or inner portion, of the inlet is not in dispute, for that part is conceded to be inland waters subject to Alaska’s sovereignty.

If the inlet is a historic bay, the State of Alaska possesses sovereignty over the land beneath the waters of the lower, or seaward, portion of the inlet. If the inlet is not a historic bay, the United States, as against the State, has paramount rights to the subsurface lands in question.

I

In early 1967 the State of Alaska offered 2,500 acres of submerged lands in lower Cook Inlet for a competitive oil and gas lease sale. The tract in question is more •than three geographical miles from the shore of the inlet and is seaward more than three miles from a line across the inlet at Kalgin Island, where the headlands are about 24 miles apart, as contrasted with 47 miles at the natural entrance at Cape Douglas. In the view of the United States, the Kalgin Island line marks the limit of the portion of the inlet that qualifies as inland waters. The United States, contending that the lower inlet constitutes high seas, brought suit in the United States District Court for the District of Alaska to quiet title and for injunctive relief against the State.' Alaska defended on the ground that the inlet, in its entirety, was within the accepted definition of a “historic bay” and thus constituted inland waters properly subject to state sovereignty. Alaska prevailed in the District Court. 352 F. Supp. 815 (1972). The United States Court of Appeals for the Ninth Circuit affirmed with a per curiam opinion. 497 F. 2d 1155 (1974). We granted certiorari because of the importance of the litigation and because the case presented a substantial question concerning the proof necessary to establish a body of water as a historic bay. 419 U. S. 1045 (1974).

II

State sovereignty over submerged lands rests on the Submerged Lands Act of 1953, 67 Stat. 29, 43 U. S. C. §§ 1301-1315. By this Act, Congress effectively confirmed to the States the ownership of submerged lands within three miles of their coastlines. See United States v. Maine, 420 U. S. 515 (1975). “Coast line” was defined in terms not only of land but, as well, of “the seaward limit of inland waters.” The term “inland waters” was left undefined.

In United States v. California, 381 U. S. 139, 161-167 (1965), the Court concluded that the definitions provided in the Convention on the Territorial Sea and the Contiguous Zone, [1964] 2 U. S. T. 1606, T. I. A. S. No. 5639, should be adopted for purposes of the Submerged Lands Act. See also United States v. Louisiana (Louisiana Boundary Case), 394 U. S. 11, 35 (1969). Under Art. 7 of the Convention, and particularly ¶¶ 5 and 6 thereof, a bay with natural entrance points separated by more than 24 miles is considered as inland water only if it is a “historic” bay. Since the distance between the natural entrance points to Cook Inlet is greatly in excess of 24 miles, the parties agree that Alaska must demonstrate that the inlet is a historic bay in order successfully to claim sovereignty over its lower waters and the land beneath those waters.

The term “historic bay” is not defined in the Convention. The Court, however, has stated that in order to establish that a body of water is a historic bay, a coastal nation must have “traditionally asserted and maintained dominion with the acquiescence of foreign nations.” United States v. California, 381 U. S., at 172. Furthermore, the Court appears to have accepted the general view that at least three factors are significant in the determination of historic bay status: (1) the claiming nation must have exercised authority over the area; (2) that exercise must have been continuous; and (3) foreign states must have acquiesced in the exercise of authority. Louisiana Boundary Case, 394 U. S., at 75 and 23-24, n. 27. These were the general guidelines for the District Court and for the Court of Appeals in the present case.

Ill

The District Court divided its findings on the exercise of authority over lower Cook Inlet into three time periods, namely, that of Russian sovereignty, that of United States sovereignty, and that of Alaskan statehood. We discuss these in turn.

A

The evidence that Russia exercised authority over lower Cook Inlet as inland waters is understandably sparse. The District Court, nonetheless, concluded that “Russia exercised sovereignty over the disputed area of Cook Inlet.” The court based this conclusion on three findings. First, by the early 1800’s there were four Russian settlements on the shores of Cook Inlet. Second, about 1786, an attempt by an English vessel to enter the inlet drew a volley of cannon fire from a Russian fur trader in the vicinity of Port Graham. Third, in 1821, Tsar Alexander I issued a ukase that purported to exclude all foreign vessels from the waters within 100 miles of the Alaska coast. S. Exec. Doc. No. 106, 50th Cong., 2d Sess., 204-205 (1889).

We feel that none of these facts, as found by the District Court, demonstrate the exercise of authority essential to the establishment of a historic bay. The presence of early Russian settlements on the shores of Cook Inlet certainly demonstrates the existence of a claim to the land, but it gives little indication of the authority Russia may have exerted over the vast expanse of waters that constitutes the inlet. The incident of the fur trader’s firing on an English vessel near Port Graham might be some evidence of a claim of sovereignty over the waters involved, but the act appears to be that of a private citizen rather than of a government official. In the absence of some evidence that the trader was acting with governmental authority, the incident is entitled to little legal significance. Moreover, under the then-common Cannon Shot Rule, the firing of cannon from shore was wholly consistent with the present position of the United States that the inland waters of Alaska near Port Graham are to be measured by the three-mile limit. Finally, the imperial ukase of 1821 is clearly inadequate as a demonstration of Russian authority over the waters of Cook Inlet because shortly after it had been issued the ukase was unequivocally withdrawn in the face of vigorous protests from the United States and England.

B

In reviewing the period of United States sovereignty over the, Territory of Alaska, the District Court found that there had been five separate instances in which the Federal Government had exercised authority over all the waters of Cook Inlet. Pet. for Cert. 26a-37a.

1. Revised Statutes § 1956 (1878). Soon after Alaska was ceded to the United States, Congress prohibited the killing of sea otter and other fur-bearing animals “within the limits of said territory, or in the waters thereof.” Act of July 27, 1868, 15 Stat. 241, codified as Rev. Stat. § 1956 (1878). By itself, the statutory language does not indicate whether the waters of lower Cook Inlet were encompassed within the limits of Alaska “territory, or in the waters thereof.” The District Court, however, found that in 1892 and 1893 five American vessels were boarded more than three miles from shore in the lower inlet by United States revenue officials investigating possible violations of § 1956. From these boardings the District Court concluded that the statutory prohibition was enforced throughout Cook Inlet.

2. The Alien Fishing Act of 1906. This Act, 34 Stat. 263, prohibited noncitizens of the United States from fishing by commercial methods “in any of the waters of Alaska under the jurisdiction of the United States.” Once again, the bare language of the statute fails to reveal the extent to which the prohibition applied to the waters of lower Cook Inlet. There is no evidence in the record and no findings by the District Court of any instance in which the Alien Fishing Act was enforced in the waters of Cook Inlet.

3. Executive Order No. 3752. In 1922 President Harding issued an Executive Order creating the Southwesterly Alaska Fisheries Reservation. Exec. Order No. 3752 (Nov. 3, 1922); 2 App. 676. The Order subjected all commercial fishing within the reservation to substantial regulation. See Regulations for the Administration of the Southwestern Alaska Fisheries Reservation, Department of Commerce Circular No. 251, pp. 8-9 (9th ed., Jan. 9, 1923); 2 App. 678-679. The reservation was described in the Order by a series of straight baselines to encompass a substantial expanse of waters, and the regulations promulgated pursuant to the Order by Secretary of Commerce Hoover referred to and embraced “all the shores and waters of Cook Inlet.”

4. The White Act. In 1924 Congress passed “An Act For the protection of the fisheries of Alaska, and for other purposes,” otherwise known as the White Act. C. 272,43 Stat. 464. This authorized the Secretary of Commerce to “set apart and reserve fishing areas in any of the waters of Alaska over which the United States has jurisdiction.” Ibid. The Act subjected commercial fishing within the reserved waters to such regulations as the Secretary might issue. From that time until Alaska statehood, the regulations of the Secretary defined the waters set aside pursuant to the Act to include all the waters of Cook Inlet. The District Court found that there had been several instances of enforcement of fishing regulations against American vessels more than three miles from shore in lower Cook Inlet.

5. The Gharrett-Scudder line. In 1957 representatives of Canada and of the United States met to discuss the possibility of prohibiting citizens of the two countries from fishing with nets for salmon in international waters in the North Pacific. The delegates generally agreed that the line used by the United States for enforcing fishing regulations under the White Act and related statutes would be used to delimit “offshore waters” for purposes of the joint salmon fishing limitations. Since the Canadian delegates felt that the description of the closing lines connecting headlands in the Alaska fishery regulations were not definitive, they requested a map showing the American line with greater precision. Two United States Bureau of Fisheries employees, John T. Gharrett and Henry Clay Scudder, prepared a chart of the Alaska coast with a line reflecting the boundaries in the then-current United States fishery regulations. This so-called Gharrett-Scudder line enclosed all the waters of Cook Inlet. Charts reflecting the line were transmitted to the Canadian delegates. It is undisputed that the exact location of the Gharrett-Scudder line was determined primarily with reference to the needs of fishery management. The maps were forwarded by the Bureau of Fisheries to the State Department for transmittal to the Canadian delegates with express disclaimers that the line was intended to bear any relationship to the territorial waters of the United States in a legal sense.

Based on the facts summarized above, the District Court concluded that the United States had exercised authority over the waters of lower Cook Inlet continuously from the Treaty of Cession in 1867 until Alaska statehood. The District Court, of course, was clearly correct insofar as it found that the United States had exercised jurisdiction over lower Cook Inlet during the territorial period for the purpose of fish and wildlife management. It is far from clear, however, that the District Court was correct in concluding that the fact of enforcement of fish and wildlife regulations was legally sufficient to demonstrate the type of authority that must be exercised to establish title to a historic bay.

In determining whether the enforcement of fish and wildlife management regulations in Cook Inlet was an exercise of authority sufficient to establish title to that body of water as a historic bay, it is necessary to recall the threefold division of the sea recognized in international law. As the Court stated in the Louisiana Boundary Case:

“Under generally accepted principles of international law, the navigable sea is divided into three zones, distinguished by the nature of the control which the contiguous nation can exercise over them. Nearest to the nation's shores are its inland, or internal waters. These are subject to the complete sovereignty of the nation, as much as if they were a part of its land territory, and the coastal nation has the privilege even to exclude foreign vessels altogether. Beyond the inland waters, and measured from their seaward edge, is a belt known as the marginal, or territorial, sea. Within it the coastal nation may exercise extensive control but cannot deny the right of innocent passage to foreign nations. Outside the territorial sea are the high seas, which are international waters not subject to the dominion of any single nation.” 394 TJ. S., at 22-23 (footnotes omitted).

We also recognized in the Louisiana Boundary Case that the exercise of authority necessary to establish historic title must be commensurate in scope with the nature of the title claimed. There the State of Louisiana argued that the exercise of jurisdiction over certain coastal waters for purposes of regulating navigation had given rise to historic title over the waters in question as inland waters. Since the navigation rules in question had allowed the innocent passage of foreign vessels, a characteristic of territorial seas rather than of inland waters, the Court concluded that the exercise of authority was not sufficient in scope to establish historic title over the area as inland waters. Id., at 24-26.

As has been noted, and as the parties agree, Alaska, in order to prevail in this case, must establish historic title to Cook Inlet as inland waters. For this showing, the exercise of sovereignty must have been, historically, an assertion of power to exclude all foreign vessels and navigation. The enforcement of fish and wildlife regulations, as found and relied upon by the District Court, was patently insufficient in scope to establish historic title to Cook Inlet as inland waters.

Only one of the fishing regulations relied upon by the court, the Alien Fishing Act, treated foreign vessels any differently than it did American vessels. That Act, however, did not purport to apply beyond the three-mile limit in Cook Inlet. It simply applied to “the waters of Alaska under the jurisdiction of the United States.” 34 Stat. 263. The meaning of that general statutory phrase, as applied to Cook Inlet, can only be surmised, since there was not a single instance of enforcement to suggest that the Act was applicable to foreign vessels in the waters beyond the three-mile limit in lower Cook Inlet. The remainder of the fish and wildlife regulations relied upon by the District Court clearly were enforced throughout lower Cook Inlet for at least much of the territorial period, but these regulations were not commensurate in scope with the claim of exclusive dominion essential to historic title over inland waters. Each afforded foreign vessels the same rights as were enjoyed by American ships. To be sure, there were instances of enforcement in the lower inlet, but in each case the vessels involved were American. These incidents prove very little, for the United States can and does enforce fish and wildlife regulations against its own nationals, even on the high seas. See, e. g., 38 Stat. 692, 16 U. S. C. § 781 (taking commercial sponges in the Gulf of Mexico or the Straits of Florida); 80 Stat. 1091, 16 U. S. C. § 1151 (taking fur seals in the North Pacific Ocean); 86 Stat. 1032, as amended, 16 U. S. C. § 1372 (1970 ed., Supp. Ill) (taking marine mammals on the high seas). See also Skiriotes v. Florida, 313 U. S. 69 (1941).

Our conclusion that the fact of enforcement of game and fish regulations in Cook Inlet is inadequate, as a matter of law, to establish historic title to the inlet as inland waters is not based on mere technicality. The assertion of national jurisdiction over coastal waters for purposes of fisheries management frequently differs in geographic extent from the boundaries claimed as inland or even territorial waters. See, e. g., Presidential Proclamation No. 2668, 59 Stat. 885 (1945). This limited circumscription of the traditional freedom of fishing on the high seas is based, in part, on a recognition of the special interest that a coastal state has in the preservation of the living resources in the high seas adjacent to its territorial sea. Convention on Fishing and Conservation of the Living Resources of the High Seas, Art. 6, H 1, [1966] 1 U. S. T. 138, 141, T. I. A. S. 5969.

Even a casual examination of the facts relied upon by the District Court in this case reveals that the geographic scope of the fish and wildlife enforcement efforts was determined primarily, if not exclusively, by the needs of effective management of the fish and game population involved. Thus, for example, the Gharrett-Scudder line, which the District Court considered “a classic demonstration of the assertion by the United States government of its claim to sovereignty over the whole of Cook Inlet,” Pet. for Cert. 37a, was drawn almost solely with reference to the needs of the coastal salmon net fisheries and was never intended to depict the boundaries of the territorial waters of the United States. Indeed, the very method of drawing the fishery boundaries by use of straight baselines conflicted with this country’s traditional policy of measuring its territorial waters by the sinuosity of the coast. See United States v. California, 381 U. S., at 167-169.

Even if we could agree that the boundaries selected for purposes of enforcing fish and wildlife regulations coincided with an intended assertion of territorial sovereignty over Cook Inlet as inland waters, we still would disagree with the District Court’s conclusion that historic title was established in the territorial period. The court found that the third essential element of historic title, acquiescence by foreign nations, was satisfied by the failure of any foreign nation to protest. Scholarly comment is divided over whether the mere absence of opposition suffices to establish title. See Juridical Regime of Historic Waters, Including Historic Bays, 2 Yearbook of the International Law Commission, 1962, pp. 1, 16-19 (U. N. Doc. A/CN.4/143). The Court previously has noted this division but has taken no position in the debate. See Louisiana Boundary Case, 394 U. S., at 23-24, n. 27. In this case, we feel that something more than the mere failure to object must be shown. The failure of other countries to protest is meaningless unless it is shown that the governments of those countries knew or reasonably should have known of the authority being asserted. Many assertions of authority are such clear expressions of exclusive sovereignty that they cannot be mistaken by other governments. Other assertions of authority, however, may not be so clear. One scholar notes: “Thus, the placing of lights or beacons may sometimes appear to be an act of sovereignty, while in other circumstances it may have no such significance.” Juridical Regime of Historic Waters, supra, at 14. We believe that the routine enforcement of domestic game and fish regulations in Cook Inlet in the territorial period failed to inform foreign governments of any claim of dominion. In the absence of any awareness on the part of foreign governments of a claimed territorial sovereignty over lower Cook Inlet, the failure of those governments to protest is inadequate proof of the acquiescence essential to historic title.

C

The District Court stressed two facts as evidence that Alaska had exercised sovereignty over all the waters of Cook Inlet in the recent period of Alaska statehood. First, the court found that since statehood Alaska had enforced fishing regulations in basically the same fashion as had the United States during the territorial period. Second, the court found that in 1962 Alaska had arrested two vessels of a Japanese fishing fleet in the Shelikof Strait. Since we have concluded that the general enforcement of fishing regulations by the United States in the territorial period was insufficient to demonstrate sovereignty over Cook Inlet as inland waters, we also must conclude that Alaska’s following the same basic pattern of enforcement is insufficient to give rise to the historic title now claimed. The Shelikof Strait incident, however, deserves scrutiny because the seizure of a foreign vessel more than three miles from shore manifests an assertion of sovereignty to exclude^ foreign vessels altogether.

The facts of the incident, for the most part, are undisputed. In early 1962 a private commercial fishing enterprise in Japan, Eastern Pacific Fisheries Company, publicly announced its intention to send a fishing fleet into the waters of Cook Inlet and the Shelikof Strait. Alaska officials learned of the plan through newspaper accounts and requested action by the Federal Government to prevent entry of the fleet into the inlet and the strait. The Federal Government, although thus forewarned of the intrusion, significantly took no action. In March 1962, the mothership Banshu Maru 81 and five other vessels arrived at the Kodiak fishing grounds. On April 5, the six vessels sailed north of the Barren Islands into the lower portion of Cook Inlet. The vessels left the inlet the next day without incident and sailed southwest into the Shelikof Strait. The vessels fished in the strait for approximately 10 days undisturbed. Then, on April 15, Alaska law enforcement officials boarded two of the vessels in the Shelikof Strait. At the time, at least one of the ships was more than three miles from shore. The officials arrested three of the fleet’s captains and charged them with violating the state fishing regulations applicable to the strait. On April 19, Eastern Pacific Fisheries Company and the State of Alaska entered into an agreement whereby the State released the company’s employees and ships in return for a promise from the company that it would not fish in the inlet or in the strait pending judicial resolution of the State’s jurisdiction to enforce fishing regulations therein. 2 App. 1186-1188. The Japanese Government did not participate in, or approve of, the agreement between the company and Alaska. Instead, shortly after the agreement was executed, Japan formally protested to the United States Government. Our Government declined to take an official position on the matter pending completion of the judicial proceedings. Ultimately, the judicial proceedings were dismissed without reaching any conclusion on the extent of Alaskan jurisdiction over the strait. The Federal Government took no formal position on the issue after the dismissal of the proceedings.

To the extent that the Shelikof Strait incident reveals a determination on the part of Alaska to exclude all foreign vessels, it must be viewed, to be sure, as an exercise of authority over the waters in question as inland waters. Nevertheless, for several reasons, we find the incident inadequate to establish historic title to Cook Inlet as inland waters. First, the incident was an exercise of sovereignty, if at all, only over the waters of Shelikof Strait. The vessels were boarded in the strait, some 75.miles southwest from the nearest portion of the inlet. Although Alaska officials knew of the fleet’s earlier entry into Cook Inlet, no action was taken to force the vessels to leave the inlet, and no charges were filed for the intrusion into those waters. Second, even if the events in Shelikof Strait could constitute an assertion of authority over the waters of Cook Inlet as well as those of the strait, we are not satisfied that the exercise of authority was sufficiently unambiguous to serve as the basis of historic title to inland waters. The adequacy of a claim to historic title, even in a dispute between a State and the United States, is measured primarily as an international, rather than a purely domestic, claim. See United States v. California, 381 U. S., at 168; Louisiana Boundary Case, 394 U. S., at 77. Viewed from the standpoint of the Japanese Government, the import of the incident in the strait is far from clear. Alaska clearly claimed the waters in question as inland waters, but the United States neither supported nor disclaimed the State’s position. Given the ambiguity of the Federal Government’s position, we cannot agree that the assertion of sovereignty possessed the clarity essential to a claim of historic title over inland waters. Finally, regardless of how one views the Shelikof Strait incident, it is impossible to conclude that the exercise of sovereignty was acquiesced in by the Japanese Government. Japan immediately protested the incident and has never acceded to the position taken by Alaska. Admittedly, the Eastern Pacific Fisheries Company formally and tentatively agreed to respect the jurisdiction claimed by Alaska but, as we have already noted, the acts of a private citizen cannot be considered representative of a government’s position in the absence of some official license or other governmental authority.

In sum, we hold that the District Court’s conclusion that Cook Inlet is a historic bay was based on an erroneous assessment of the legal significance of the facts it had found. The judgment of the Court of Appeals, accordingly, is reversed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Me. Justice Douglas took no part in the consideration or decision of this case.

Mr. Justice Stewart and Mr. Justice Rehnquist would affirm the judgment, believing that the findings of fact made by the District Court and adopted by the Court of Appeals were not clearly erroneous, and that both of those courts applied the correct legal criteria in ruling that Cook Inlet is a historic bay.

       Cook Inlet is larger than Great Salt Lake and Lake Ontario. It is about the same size as Lake Erie. It dwarfs Chesapeake Bay, Delaware Bay, and Long Island Sound, all of which the United States has claimed as historic bays.

       It would appear that the case qualifies, under Art. Ill, § 2, cl. 2, of the Constitution, for our original jurisdiction. United States v. West Virginia, 295 U. S. 463, 470 (1935). We are not enlightened as to why the United States chose not to bring an original action in this Court.

       Section 6 (m) of the Alaska Statehood Act of July 7, 1958, provides that the Submerged Lands Act “shall be applicable to the State of Alaska and the said State shall have the same rights as do existing States thereunder.” 72 Stat. 343, note following 48 U. S. C. c. 2. Section 2 of the Act provides: “The State of Alaska shall consist of all the territory, together with the territorial waters appurtenant thereto, now included in the Territory of Alaska.” 72 Stat. 339, note following 48 U. S. C. c. 2.

         Section 3 (a) of the Submerged Lands Act, 43 U. S. C. § 1311 (a), provides:
      “It is determined and declared to be in the public interest that (1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States . . . .”
      Section 2 (b), 43 U. S. C. § 1301 (b), defines a State’s boundaries: “The term ‘boundaries’ includes the seaward boundaries of a State ... as they existed at the time such State became a member of the Union . . . but in no event shall the term ‘boundaries’ or the term ‘lands beneath navigable waters’ be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean . . . .”

       Section 2 (c) of the Act, 43 U. S. C. § 1301 (c), reads:
      "The term ‘coast line’ means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.”

       The full text of Art. 7 is as follows:
      "1. This article relates only to bays the coasts of which belong to a single State.
      “2. For the purposes of these articles, a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation.
      "3. For the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water marks of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation shall be included as if they were part of the water areas of the indentation.
      “4. If the distance between the low-water marks of the natural entrance points of a bay does not exceed twenty-four miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shah be considered as internal waters.
      “5. Where the distance between the low-water marks of the natural entrance points of a bay exceeds twenty-four miles, a straight baseline of twenty-four miles shall be drawn within the bay in such

        a manner as to enclose the maximum area of water that is possible with a line of that length.
      “6. The foregoing provisions shall not apply to so-called 'historic’ bays, or in any case where the straight baseline system provided for in article 4 is applied.”

       Brief for Respondent 1; Brief for United States 2, 32.

       Some disagreement exists as to whether there must be formal acquiescence on the part of foreign states, or whether the mere absence of opposition is sufficient. United States v. Louisiana (Louisiana Boundary Case) 394 U. S. 11, 23-24, n. 27 (1969).

       Pet. for Cert. 25a. In addition to its reported opinion, 352 F. Supp. 815 (Alaska 1972), the District Court made detailed written findings and conclusions that are not published. These are reproduced in the Petition for Certiorari 21a-55a. The reported opinion of the District Court did not discuss the exercise of sovereignty prior to 1906, but the unreported findings indicate that the court relied on assertions of authority dating from Russian territorial times as well as the early American period.

       As with many colonial enterprises of the day, the governance of Alaska in the Russian period, for the most part, was exercised through semiprivate corporations. See generally H. Chevigny, Russian America: The Great Alaska Venture, 1741-1867 (1965). The most important of these corporations, the Russian-American Company, was chartered in 1799, several years after the incident near Port Graham. Id., at 75 The record and findings are silent on the relationship between the fur trader and the interests asserted. Thus, we have no occasion to consider whether the acts of a semiprivate colonial corporation are to be given the same weight as the direct acts of a national government for purposes of establishing a claim to historic Waters.

       The Cannon Shot Rule was to the effect that a coastal state possessed sovereignty over the waters within range of cannon shot from its shore. Many modern scholars believe that the present 3-mile limit is derived from the traditional range of 18th century cannon. Kent, The Historical Origins of the Three-Mile Limit, 48 Am. J. Int’l L. 537 (1954); Walker, Territorial Waters: The Cannon Shot Rule, 22 Brit. Y. B. Int’l L. 210 (1945). The actual range of the cannon fired by the fur trader is, of course, now irrelevant. The significant fact is that the incident can be viewed as an assertion of jurisdiction only over those waters in Cook Inlet that were within range of cannon shot from shore.

       For a discussion of the events surrounding the issuance and withdrawal of the ukase, see Chevigny, supra, n. 10, at 174-188.

       By the Treaty of Cession in 1867 Russia ceded to the United States “all the territory and dominion now possessed [by Russia] on the continent of America and in the adjacent islands.” 15 Stat. 539. The cession was effectively a quitclaim. It is undisputed that the United States thereby acquired whatever dominion Russia had possessed immediately prior to cession.

       In June 1892 a United States revenue cutter, the Mohican, entered Cook Inlet to enforce Rev. Stat. § 1956. The Mohican arrested three American vessels in the lower inlet on charges of violating the statute. The prosecutions ultimately were dismissed on the ground that the vessels merely had been purchasing pelts from natives who were authorized by § 1956 to hunt sea otter for commercial sale. See The Kodiak, 53 F. 126 (Alaska 1892). In 1893 two other American vessels were stopped in the lower inlet by a revenue cutter. Since these vessels, like the Kodiak, were carrying only native hunting parties, they were allowed to proceed without further incident. The District Court made no findings about the enforcement of § 1956 after June 1893.

       The District Court acknowledged that no foreign vessels had ever been arrested in Cook Inlet on charges of violating the Alien Fishing Act. The court sought to explain this fact on the ground that foreign vessels entered the inlet infrequently. The court relied on statements of certain former wildlife officials that “they would have taken affirmative action” against foreign vessels if they had seen any in the inlet. 352 F. Supp., at 819-820. In the absence of any actual enforcement or official announcement of intentions to enforce the Alien Fishing Act in lower Cook Inlet, the private intentions of witnesses are largely irrelevant.

       The testimony of John T. Gharrett, who was called as a witness by the State of Alaska, is indicative of the predominance of fish and wildlife concerns in the preparation of the Gharrett-Scudder line:
      On direct examination:
      “Q What was your role in the preparation of that line?
      “A My role was to decide where the line goes.
      “Q Did you have assistance from anyone?

        “A Mr. Clay Scutter [sic].
      “Q Has the line since been given any kind of name?
      “A Oh, I don’t know since. At the time we drew it, rather than to say 'a line beyond which we proposed,’ et cetera, et cetera, we called it the Gharrett-Scutter [sic] line for short.
      “Q In your preparation of the line what criteria did you use for placing the line on the chart?
      “A We used two basic criteria: 1) we wanted to encompass within the line existing salmon net fisheries along the Coast of Alaska, and 2) we wanted in some areas to allow for a modest, perhaps, expansion of existing fisheries, salmon net fisheries.” 1 App. 292-293.
      On cross-examination by counsel for the United States:
      “Q Did the lines you drew enclose areas in which you knew foreigners had previously fished?
      “A Yes.
      “Q By drawing these lines did you intend to stop those fisheries?
      “A No.
      “Q Was the line you drew with Mr. Scutter [sic] intended to represent the outer limit of the territorial sea?
      “A No.
      “Q Was the line you drew with Mr. Scutter [sic] intended to represent the base line from which the territorial sea was to be measured?

        “A No.
      “Q Were the lines you drew with Mr. Scutter [sic] used for law enforcement purposes while you were in Alaska?
      “A No.” 1 App. 294.

       The United States has argued that historic title to Cook Inlet is defeated by several United States disclaimers of sovereignty over the waters of lower Cook Inlet. The Court previously has discussed the importance of governmental disclaimers in weighing claims to historic title in actions of this kind. Louisiana Boundary Case, 394 U. S., at 76-78; United States v. California, 381 U. S. 139, 175 (1965). The District Court rejected the disclaimers on the grounds that they were ill-advised and, perhaps, self-serving. 352 F. Supp., at 818-819. Inasmuch as we have concluded that none of the facts relied upon by the District Court suffice to establish historic title, we have no occasion to consider whether the disclaimers of the United States could have defeated otherwise sufficient facts.