Copyhype

The exclusive right to publicly perform a copyrighted work ¹17 U.S.C. § 106(4). has been the source of a fair amount of confusion over its history. The Second Circuit’s 2008 decision in Cartoon Network v. CSC Holdings (“Cablevision“) added to this confusion; though, at the same time, it provided “a clear roadmap that other businesses could use to evade their obligations under the public performance right.” ²See Brief for Copyright Alliance as Amicus Curiae in Support of Petitioners, Cable News Network v. CSC Holdings, pg. 24, 129 S.Ct. 2890 (2008) (No. 08-448). Indeed, earlier this month, the Second Circuit all but said outright that, but for its decision in Cablevision, online service Aereo would be liable for publicly performing the television broadcasts it retransmits to paid subscribers. ³WNET v. Aereo, Nos. 12-2786-cv, 12-2807-cv (2nd Cir., 2013). A few weeks prior, a California court not bound by Cablevision’s precedent granted a preliminary injunction against Aereokiller, a service using essentially the same technology as Aereo. ⁴Fox Television Stations v. Barrydriller Content Systems, Civil Minutes, No. CV-12-6921-GW (JCx) (CD Cali Dec. 27, 2013).

And things are just starting to heat up. Aereokiller has appealed its loss to the Ninth Circuit; if the Circuit Court upholds the lower court’s decision, it would create a circuit split that may make a trip to the Supreme Court more likely. Before then, though, TV broadcasters have petitioned the Second Circuit for an en banc rehearing on Aereo.

I’ve written a number of times on both cases, ⁵Aereo, ivi, and the Public Interest in Protecting Copyright, Aereo, Cablevision, and the “Missing Link”, Aereo Takes its Tiny Antennas to Opposite Town, EFF Files Amicus Brief in Aereokiller, You Keep Using that Word: Aereo and “Innovation”. but I have yet to delve into a legal analysis of Cablevision, the case that looms large over these current cases. In my opinion, Cablevision — at least that portion that addressed the public performance issue — was decided incorrectly. The Second Circuit committed a number of logical errors that culminated in a conclusion that doesn’t follow from the plain meaning of the statutory text and stands in opposition to the clear intent of Congress when it drafted the public performance provisions of the 1976 Copyright Act.

But the problems of Cablevision go beyond logical infidelity. The decision drifts away from copyright law’s technology-neutral ideal and elevates form over function. Most importantly, it runs contrary to the public interest. We are, some might argue, in a new golden age of television, with shows that are enjoyed by millions. This is possible in no small part because of the robust marketplace secured through copyright law.

So how exactly did the Cablevision court go astray? Let’s start with a brief discussion of the public performance right in U.S. law.

Public Performance Under the 1976 Copyright Act

Along with exclusive rights to reproduce, distribute, and make derivative works, copyright law secures the exclusive right of a copyright owner to publicly perform her work. The Copyright Act defines performing a work publicly in the following manner:

(1) to perform ⁶“To ‘perform’ a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.” … it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit ⁷“To ‘transmit’ a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.” or otherwise communicate a performance … of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance … receive it in the same place or in separate places and at the same time or at different times.

The first definition is easy to conceive — a band in a concert hall is clearly performing a musical work publicly. The first part of the second definition (transmitting the performance of a work to a public place) is also not difficult to imagine — replace the band with giant television set. It is the last part of the second definition — the “separate places/different times” language — that confused the Cablevision court.

This language was added in the 1976 Copyright Act to cover services like cable television and radio broadcasters — services that perform a work to the general public even if each individual performance is ultimately perceived in a private setting. ⁸On Command Video v. Columbia Pictures, 777 F. Supp. 787, 790 (ND Cali. 1991), citing H.R.Rep. No. 83, 90th Cong., 1st Sess. at 29 (1967). Although such performances were initially considered public under the previous Copyright Act, ⁹See Buck v. Jewell-LaSalle Realty, 283 US 193 (1931). a series of Supreme Court decisions beginning in the late 1960s casually dismantled this interpretation. ¹⁰Twentieth Century Music v. Aiken, 422 US 151 (1975); Teleprompter v. Columbia Broadcasting System, 415 US 394 (1974); Fortnightly v. United Artists Television, 392 US 390 (1968).

The language can no doubt provoke some challenging applications. On the one hand, it is very broad: a public performance includes transmissions by any device or process, in the same place or to separate places, at the same time or at different times. ¹¹As noted in the legislative history: The definition of ‘transmit’ . . . is broad enough to include all conceivable forms and combinations of wires and wireless communications media, including but by no means limited to radio and television broadcasting as we know them. Each and every method by which the images and sounds comprising a performance . . . are picked up and conveyed is a ‘transmission,’ and if the transmission reaches the public in[any] form the case comes within the scope of . . . section 106. H.R. Rep. No. 94-1476, at 64 (1976). But on the other hand, there necessarily must be a limit; if Congress didn’t intend there to be nonpublic performances, it needn’t have bothered limiting the right to only public performances.

The district and circuit court in Cablevision approached this sphinxian language differently. But first, it may be helpful to take a look at how the product involved in the Cablevision decision — the Remote Storage DVR System (“RS-DVR”) — operated.

The RS-DVR

Like any other cable service, Cablevision licenses television programming from broadcasters and cable channers and offers it to paid subscribers. In 2006, Cablevision began offering RS-DVR to its customers. The service operated like any set-top DVR, allowing a TV viewer to record and store programs for later viewing, but the hardware was all located centrally at Cablevision facilities. Cablevision gathers the streams from the various television stations it is licensed to provide into a single signal, which is then split. One stream is routed to customers’ homes in real time (as happens with most cable providers). The second stream is transmitted to the RS-DVR servers, where programs are stored according to subscribers’ requests.

Both these transmissions — one to a customer in real time, one to a customer’s storage for later viewing — are transmissions of public performances. Cablevision had a license for the former; it is unclear whether that license covers the latter. ¹²The Second Circuit notes that plaintiffs argued “Cablevision publicly performs a work when it splits its programming stream and transmits the second stream to the RS-DVR system.” It appears to conclude that this performance is a private one by extension of its general reasoning, but does not indicate whether this transmission, from Cablevision to RS-DVR, is distinct from the transmission from RS-DVR to customer. I would argue that they are distinct. But television broadcasters ¹³Plaintiffs included The Cartoon Network, Cable News Network, Turner Broadcasting System, Turner Network Sales, Turner Classic Movies, Turner Network Television, Twentieth Century Fox Film, Universal City Studios, Paramount Pictures, Disney, CBS, and NBC. argued (among other things) that the performance from the RS-DVR to a customer’s home when she hit “play” was an additional performance, and a public one at that.

Cablevision didn’t contest that this was a separate performance, just that it isn’t liable for it, and advanced several arguments in support.

The district court rejected as flawed Cablevision’s argument that its performances were private since each streaming came from a distinct copy that was unique to each individual customer. ¹⁴Twentieth Century Fox Film v. Cablevision, 478 F.Supp. 2d 607, 622 (SDNY 2007). It said that Cablevision was engaged in public performance under the plain language of the transmit clause. “Cablevision would transmit the same program to members of the public, who may receive the performance at different times, depending on whether they view the program in real time or at a later time as an RS-DVR playback.” The district court also found it relevant that the relationship between Cablevision and its customers was a commercial one, as courts have held that such a relationship has an inherently “public” character. ¹⁵Id. at 623, citing On Command Video Corp. v. Columbia Pictures Indus., 777 F.Supp. 787, 790 (N.D.Cal.1991).

On appeal, the Second Circuit would reverse the district court’s holding on this issue. It began by looking at the “transmit clause” anew. To the Second Circuit, “it is evident that the transmit clause directs us to examine who precisely is ‘capable of receiving’ a particular transmission of a performance.” Under this interpretation, the district court’s suggestion that, “in considering whether a transmission is ‘to the public,’ we consider not the potential audience of a particular transmission, but the potential audience of the underlying work (i.e., “the program”) whose content is being transmitted” is wrong. Instead, says the Circuit Court, “That clause speaks of people capable of receiving a particular ‘transmission’ or ‘performance,’ and not of the potential audience of a particular ‘work.'”

After marching through its argument, the Court says “Because each RS-DVR playback transmission is made to a single subscriber using a single unique copy produced by that subscriber, we conclude that such transmissions are not performances ‘to the public,’ and therefore do not infringe any exclusive right of public performance.”

Several scholars have identified the court’s treatment of the terms “transmission” and “performance” interchangeably as its primary error. ¹⁶See, e.g., 2 Paul Goldstein, Goldstein on Copyright, § 7.7.2.2, at 7:168 (3d ed. 2013); Jeffrey Malkan, The Public Performance Problem In Cartoon Network LP v. CSC Holdings, Inc., 89 Oregon Law Review 505, 536 (2010); Jane C. Ginsburg, Recent Developments in US Copyright Law – Part II, Caselaw: Exclusive Rights on the Ebb? 26 (Colum. Pub. L. & Legal Theory Working Papers, No. 08158, 2008). But they aren’t synonymous; they are each defined separately in the Copyright Act.

This error contributed the most to the Second Circuit’s ultimate conclusion. But its reasoning was riddled with other errors, some of which I’ll look at in more detail below.

An Unexplained Logical Leap

First, look at the court’s response to plaintiff’s argument that “to determine whether a given transmission of a performance is ‘to the public,’ we would consider not only the potential audience of that transmission, but also the potential audience of any transmission of the same underlying ‘original’ performance”:

Like the district court’s interpretation, this view obviates any possibility of a purely private transmission. Furthermore, it makes Cablevision’s liability depend, in part, on the actions of legal strangers. Assume that HBO transmits a copyrighted work to both Cablevision and Comcast. Cablevision merely retransmits the work from one Cablevision facility to another, while Comcast retransmits the program to its subscribers. Under plaintiffs’ interpretation, Cablevision would still be transmitting the performance to the public, solely because Comcast has transmitted the same underlying performance to the public. Similarly, a hapless customer who records a program in his den and later transmits the recording to a television in his bedroom would be liable for publicly performing the work simply because some other party had once transmitted the same underlying performance to the public.

The court doesn’t explain why accepting an interpretation that looks at the potential audience of a work by one performer necessarily means looking at the potential audience of all performers of a work. The fact is that the latter doesn’t follow the former.

The Second Circuit is not entirely at fault for making this unexplained leap. Its analysis is drawn from and mirrors Melville Nimmer’s in his eponymous copyright treatise. Nimmer looks at the definition in question, “which provides that a work is performed ‘publicly’ regardless of ‘whether the members of the public capable of receiving the performance … receive it in the same place or separate places. …'” ¹⁷Nimmer on Copyright, § 8.14[C][3].

That same definition goes on to provide that a work is performed “publicly” regardless of whether such members of the public receive the performance “at the same time or at different times.” The Senate and House Reports offer no explanation of this latter phrase, and it is difficult to believe that it was intended literally. It would mean, for example, that the performance of music on a commercial phonograph record in the privacy of one’s home constitutes a public performance because other members of the public will be playing duplicates of the same recorded performance “at different times.”

Again, it is not clear to me what is happening here. Aggregating performances by other performers doesn’t follow from the text of the definition, and doesn’t make sense from a legal perspective.

For Nimmer, at least, interpreting the transmit clause to look at performances of the same copy of a work rather than performances of the work was intended to avoid the absurd result of private performances turning into public performances based on the unrelated actions of third parties. Yet creating a “same copy” requirement doesn’t directly address this problem — a result that Nimmer himself recognizes:

In the abstract, it may be argued that the practice of renting a given videocassette of a motion picture to various members of the public gives rise to “public” performances of the work, although each such performance of the work on a home television set is received only by an individual or family group. Nevertheless, the same copy gives rise to numerous performances, which are received by the public “at different times.” Therefore, under the wording of the Act, and by reason of the underlying rationale of what constitutes a “public” performance, it may follow that each individual rental performance is a “public” performance.

In other words, Nimmer — and later, the Second Circuit — created a requirement that wasn’t present in the statutory text in order to solve a problem that didn’t logically follow from the requirement’s absence, and the newly created requirement doesn’t even entirely solve that problem.

Two for me, none for you

In a bit of verbal sleight-of-hand, the court next states, “Plaintiffs contend that it is ‘wholly irrelevant, in determining the existence of a public performance, whether `unique’ copies of the same work are used to make the transmissions.’ But plaintiffs cite no authority for this contention.” Did you catch that? The court invented a “unique copies” requirement that does not appear in the statutory text (or legislative history) and then chides plaintiffs for not citing any authority that the statute does not contain such a requirement.

What makes this worse is that plaintiffs had cited authority to this effect. Specifically, they cited a 1967 House Committee report that discussed what would become the definition in question. This report noted that the definition of “to the public” was intended to cover transmissions “capable of reaching different recipients at different times, as in the case of sounds or images stored in an information system and capable of being performed or displayed at the initiative of individual members of the public [Emphasis added].” The House Committee literally described Cablevision’s RS-DVR service nearly four decades before it was released, and said the Copyright Act’s public performance language would cover such a service. In what could only be described as chutzpah, the Second Circuit dismisses outright this on-point bit of legislative history, saying only that “We question how much deference this report deserves.”

A Minor Fallacy

Finally, the Second Circuit rejects the lower court’s argument that the commercial relationship between performer and viewer supported the conclusion that the performance is a public, rather than a private, one. It calls the argument “untenable” and not supported by the statutory language. But then it states, “In addition, this interpretation overlooks, as Congress did not, the possibility that even non-commercial transmissions to the public may diminish the value of a copyright.” The court is saying that if all commercial performances are public performances, then that also means that only commercial performances are public performances. This is an obvious logical error.

Stay Tuned for More

Cablevision‘s reasoning on the public performance issue leaves a lot to be desired. Yet, at the same time, I believe the court could have reached the same result — that Cablevision’s transmission of programming that it licensed from broadcasters from the RS-DVR servers to subscribers would not require additional licensing — without creating a mess of the public performance provisions in the Copyright Act. As the subsequent decision in Aereo shows, the consequences of Cablevision have been wider than the Second Circuit anticipated.

In future posts, I hope to look at how Aereo made things worse by not only extending Cablevision beyond its specific facts, but misapplying it as well. I also hope to take a stab at providing a workable definition of the Copyright Act’s public performance language that is more consistent with the statutory text, Congressional intent, and the goals of copyright law.

Special thanks to Copyhype contributor Devlin Hartline (who blogs at Law Theories) for providing useful feedback in writing this post.