On Tuesday, a Ninth Circuit panel heard oral arguments in a case brought by television broadcasters against internet retransmission service FilmOn X (née Aereokiller). You can listen to audio of the hearing. The appeal arose over a preliminary injunction against FilmOn that was granted late last year by district court judge George Wu, who held that there was a likelihood that FilmOn X infringed the broadcasters’ public performance rights through its operation of a subscription based service that retransmits broadcast television over the internet.
On appeal, FilmOn X argues, essentially, that the Ninth Circuit should reverse the lower court’s decision and instead follow the lead of the Second Circuit, which, earlier this year, affirmed similar service Aereo as not infringing the public performance right. That decision followed the Circuit court’s Cablevision precedent, which adopted a non-statutory “unique copy” element to distinguish between non-infringing private performances and infringing public performances.
An interesting exchange occurred toward the end of the arguments (37:11), when Judge Brian Cogan asked FilmOn X attorney Ryan Baker the following:
What we’re really talking about is the definition of “to the public” in the Transmit Clause, and we know that “to the public” includes receipt of the performance at different times and at different places. I understand your point is “this is one antenna per person.” But let me give you two hypotheticals and ask you if they come out differently. One is the antenna goes to a house full of people, friends, alright, so it’s kind of public, it seems to me. And the other is it goes to a bar, which charges admission for everybody to come in and watch your signal from that one antenna to the bar. Are you still okay in that, even though the ultimate recipients of your retransmitted signal may not be? When I say “are you okay”, I mean are you violating the statute at that point, because you’re sending something to, in my extreme example, a commercial establishment, which is then selling it to the public?
Baker begins by correctly pointing out that the bar would be liable for publicly performing the broadcast, but then speculates that the worst FilmOn X could face is secondary liability, depending on its level of awareness of the bar’s activities and whatever specific facts are present.
Baker is wrong on this second point. FilmOn X would be liable for publicly performing works under Judge Cogan’s hypothetical. What’s more, it would be liable even under the Cablevision/Aereo “unique copy” interpretation of the Copyright Act’s public performance provisions that FilmOn X is relying on to escape liability. This is just one more reason why the Ninth Circuit should reject the argument.
A public performance includes each link in the transmission chain
Prior to the 1976 Copyright Act, the Supreme Court had held that CATV services, which picked up broadcast television signals and retransmitted them to subscribers, did not implicate the broadcasters’ public performance rights.1 Congress changed this with the new Act, bringing retransmissions within the scope of public performance (subject to several limitations and exceptions). Since then, courts have consistently held that this covers every intermediary that retransmits a performance.
The earliest and leading case comes from the Seventh Circuit. In WGN Continental Broadcasting v. United Video, the court began its analysis of the dispute by disposing of a threshold argument: whether United Video, a satellite common carrier, could be liable for publicly performing television superstation WGN’s works even though it was only an intermediary retransmitting the signal to other cable providers.2 The court said it could, in part because the Copyright Act contained a passive carrier exemption that would be rendered superfluous if all intermediary carriers were exempt from liability as a matter of rule. WGN ultimately held that a service “cannot be immune just because [it] does not retransmit [a] signal directly to the public” but instead transmits the signal to an actor who, in turn, publicly performs the broadcast.
Within two years, WGN would be favorably cited outside the Seventh Circuit. In Hubbard Broadcasting v. Southern Satellite Systems,3 later affirmed by the Eighth Circuit,4 the court adopted the reasoning of WGN and held that “a transmission is a public performance whether made directly or indirectly to the public and whether the transmitter originates, concludes or simply carries the signal. There is simply no practical basis for excluding certain transmitters from copyright liability based solely on their position in the distribution chain.”
The Second Circuit came to the same conclusion in NFL v. PrimeTime 24 Joint Venture.5 There, it said that “the most logical interpretation of the Copyright Act is to hold that a public performance or display includes ‘each step in the process by which a protected work wends its way to its audience.’”6
That gives us three circuits (and at least one additional district court in a separate circuit7 who have considered the issue and come to the same conclusion.
But what about the Ninth Circuit, whose holdings are binding on the FilmOn X litigation? The Circuit does not appear to have weighed in on the topic. Unless you ask the Second Circuit.
In PrimeTime 24 Joint Venture, after discussing the various decisions above that stood for the proposition that any retransmission of a public performance is itself a public performance, the Second Circuit said, “The Court of Appeals for the Ninth Circuit has suggested a different result.” It cited to Allarcom Pay Television v. General Instrument,8 noted that the decision received a good deal of “non-judicial criticism”, and ultimately gave “the decision little weight largely because it contains no analysis of the Copyright Act.”
But the Second Circuit read Allarcom wrong. According to the Second Circuit, when Allarcom was considering whether the Copyright Act preempted the state law at issue, the court said that “copyright infringement does not occur until the signal is received by the viewing public.” That’s not what Allarcom said. Allarcom actually said that the Copyright Act does not preempt extraterritorial acts of infringement. And under Ninth Circuit precedent, an act of infringement that does not occur entirely within the United States is considered extraterritorial. In other words, Allarcom didn’t say the retransmission was not infringing because it was not a public performance, it said it was not infringing because it was not received within the United States. Luckily, the Ninth Circuit is not bound to follow the Second Circuit’s interpretations of its own precedent.
Ditch the “Rube Goldberg” public performance interpretation
What this means for FilmOn X (and, by extension, Aereo) is that it would be liable for publicly performing, even under its own interpretation of the public performance provisions. If we go all the way back to Cablevision,9 the origin of the public performance interpretation that FilmOn X and Aereo are relying on, we find support for this conclusion. In Cablevision, the Second Circuit stated
[U]nder the transmit clause, we must examine the potential audience of a given transmission by an alleged infringer to determine whether that transmission is “to the public.” And because the RS-DVR system, as designed, only makes transmissions to one subscriber using a copy made by that subscriber, we believe that the universe of people capable of receiving an RS-DVR transmission is the single subscriber whose self-made copy is used to create that transmission.
Cablevision assumes that the single subscriber equals a single person, making the transmission a private performance. But as Judge Cogan noted in the above quote, that single subscriber could be a bar full of people from the general public — and under WGN, Hubbard, and PrimeTime 24, that makes Cablevision, Aereo, and FilmOn X’s performances public ones.
So FilmOn X cannot escape liability for public performances even under the convoluted, inexplicably narrow interpretation of the public performance provisions that it wants the Ninth Circuit to accept. This provides only all the more reason for the court to instead rely on the plain meaning of the Copyright Act.
Neither Aereo nor FilmOn X can control whether their transmissions end up in a public place because they exert no control over who signs up for their service. The services are offered to anyone and everyone in exchange for a fee — the performances are transmitted, in other words, to the general public. This seems to me a far simpler and sensical interpretation of the public performance provisions than the dense thicket that Aereo has led us into.10 And it still leaves room for private performances to exist. A transmission to oneself is a private performance (something that is becoming increasingly more common with devices such as the Slingbox) as is a transmission to one’s family or immediate social group. But once one goes outside that intimate circle and starts transmitting to anyone, come one come all, it becomes very difficult to say with a straight face that that performance is not “to the public.”
- Fortnightly v. United Artists Television, 392 U.S. 390, (1968);Teleprompter v. Columbia Broadcasting System, 415 U.S. 394 (1974). [↩]
- 693 F.2d 622 (7th Cir. 1982). [↩]
- 593 F.Supp. 808 (D. Minn. 1984). [↩]
- 777 F.2d 393 (8th Cir. 1985). [↩]
- 211 F.3d 10 (2nd Cir. 2000). [↩]
- Quoting David v. Showtime/The Movie Channel, 697 F.Supp. 752, 759 (S.D.N.Y.1988). [↩]
- National Cable Television v. Broadcast Music, Inc., 772 F.Supp. 614, 651 (D.DC 1991). [↩]
- 69 F.3d 381 (9th Cir. 1995). [↩]
- Cartoon Network v. CSC Holdings, 536 F.3d 121 (2nd Cir. 2008). [↩]
- Cf., WNET v. Aereo, 712 F.3d 676, 698 (2nd Cir. 2013) (J. Chin, dissent), “Giving the undefined term ‘the public’ its ordinary meaning, a transmission to anyone other than oneself or an intimate relation is a communication to a ‘member of the public,’ because it is not in any sense ‘private’”; Jane Ginsburg, WNET v. Aereo: The Second Circuit Persists in Poor (Cable)Vision, The Media Institute (April 23, 2012), “when a transmission service, be it radio, cable, or Internet streaming, is offered to the public, every individual recipient is a ‘member of the public’”; Report on Copyright Law Revision, H.R.Rep. No. 94-1476, at 64-65 (1976), “a performance made available by transmission to the public at large is ‘public’ even though the recipients are not gathered in a single place …. The same principles apply whenever the potential recipients of the transmission represent a limited segment of the public, such as the occupants of hotel rooms or the subscribers of a cable television service.” [↩]