(dissenting). Tele-Pac, Inc. and Video-Cinema Films, Inc. entered into an agreement in 1964 for the distribution of 26 motion pictures which had already been released in the theatres between 1943 and 1953. This agreement provided in pertinent part: "The Producer does hereby grant to the Distributor a license to distribute the said pictures set forth on Schedule A, in perpetuity, from the date hereof, for broadcasting by television or any other similar device now known or hereafter to be made known. This shall include, but not limit the said license to pay television, home television, theatrical television, etc., throughout the Territories.”
The majority finds that this language precludes consideration of videocassettes and videodiscs as a "similar” device visá-vis television and would therefore reverse the order of the IAS court. I disagree and would affirm. Not only the exact language of this one clause, but the intent of the parties at the time the agreement was entered into and the extremely broad and completely unambiguous language of the entire *21agreement leads inescapably to the conclusion that the agreement may fairly be read as including later developed media such as videocassettes. (See, Platinum Record Co. v Lucasfilm, Ltd., 566 F Supp 226, 227.)
The majority disagrees with the reasoning of the IAS court that since broadcasting is "the act of transmitting sounds or images by radio or television” (Webster’s New Collegiate Dictionary 138 [1979 ed]), that substitution of this definition in the clause of paragraph 1 above leads to the conclusion reached by IAS that: "[t]his language * * * includes transmitting sound or images contained in a videocassette or videodisc via a VCR and a television set. It is not necessary that the transmission be over the air from a point geographically removed from the viewer; nothing in the 1964 grant clause requires that. In this context, the transmission from a videocassette through a VCR connected to the viewer’s television is no different from a closed circuit transmission via cable from a point outside the viewer’s home to his television set. I find that the 1964 grant to Video-Cinema must have included closed circuit cable transmissions of the motion pictures (although those explicit words are not used in the grant) and it does not matter whether that transmission travels many miles from a cable service company or only a few feet from a VCR to its reception on the viewer’s television screen.” (146 Misc 2d 1088, 1091.)
Certainly, as the majority insists with a number of quotations from Cohen v Paramount Pictures Corp. (845 F2d 851 [9th Cir 1988]) there are differences between the technology used by a T.V. station and that used in a VCR, but all new uses will have such variations. With due respect to the Ninth Circuit court, to acknowledge this is not to end the discussion but only to begin it. The "preferred” approach when dealing with a new use which lies within an "ambiguous penumbra”, is to hold that "the licensee may properly pursue any uses which may reasonably be said to fall within the medium as described in the license. This would include uses within the ambiguous penumbra since, if whether or not a given use falls within the description of the medium as ambiguous it must, by definition mean that it is within the medium in a reasonable sense” (3 Nimmer, Copyright § 10.10 [B], at 10-86; see also, Bartsch v Metro-Goldwyn-Mayer, Inc., 391 F2d 150, 155 [2d Cir 1968]).
Further, Cohen (supra), relied on by the majority, dealt with different facts. In that case, the agreement contained language *22of limitation and reservation of rights not present in the 1964 agreement before us. The Cohen court emphasized that the composer-licensor carefully limited his grant of performing rights, explicitly reserving all rights not granted. In addition, that court emphasized that both Platinum Record Co. v Lucasfilm, Ltd. (supra) and Rooney v Columbia Pictures Indus. (538 F Supp 211), which it distinguished, contained "sweeping language” (Cohen v Paramount Pictures Corp., supra, at 855) granting the right to exhibit films by any means then known or unknown, which language more closely approximates that before us.
Finally, I note that for some 25 years the parties to the 1964 agreement acted as if the agreement included a grant of videocassette and videodisc rights. The principal of Tele-Pac never attempted to exercise any videocassette or videodisc rights. In fact, the record shows she admitted to a third party in 1985 that she had granted such rights to Video-Cinema in 1964. In 1987 this principal of Tele-Pac, while making over the quitclaim to defendant, refused to and specifically did not warrant or represent that Tele-Pac owned the videocassette or videodisc rights any longer, simply granting defendant all rights to the films "with exception of the rights granted heretofore to Video-Cinema Films, Inc.”. This consistent course of conduct over the years and consistent acquiescence by Tele-Pac in Video-Cinema’s interpretation is the best and indeed conclusive evidence of the intent of the parties at the time the contract was entered into. (See, Filmvideo Releasing Corp. v Hastings, 446 F Supp 725, 728-729, affd 594 F2d 852 [2d Cir 1978].)
Rosenberger, Ross and Smith, JJ., concur with Sullivan, J. P.; Asch J., dissents in a separate opinion.
Order, Supreme Court, New York County, entered on or about March 12, 1990, is reversed, on the law, without costs or disbursements, plaintiff's motion for summary judgment dismissing the counterclaim denied, and partial summary judgment granted in favor of defendant to the extent of declaring that videocassette and videodisc rights in and to the subject films passed to Rohauer under the 1987 agreement between him and Tele-Pac.