Cross-posted on the Law Theories blog.

Now that the Supreme Court has agreed to hear the Aereo appeal, I want to offer a simple explanation of the central legal issue before the Court. Much has been written about Aereo, but surprisingly little of it discusses the actual question the Court will decide. There is no doubt that Aereo is performing works as it retransmits them to its customers—that’s the very service that Aereo provides. The fundamental legal point the Court will determine is whether those performances are public or private. If public, they’re infringing, and if private, they’re not. Don’t let the argle-bargle being tossed out by bloggers and commentators distract you from this simple point.

Lots of arguments being offered by copyright critics are simply wrong. This case isn’t about the future of cloud computing companies—those services are protected by the DMCA. It isn’t about the length of any cord—no matter how long the cord is, the legal question is the same. Nor is it about Aereo simply doing something that a customer could do himself—the fact is that the customer isn’t doing it himself since Aereo is helping him do it. And it certainly isn’t about thwarting the progress of innovation—Aereo’s design is rather ridiculous, and it’s only “innovative” in that it retransmits broadcasts without paying any fees.

The Copyright Act gives copyright owners the exclusive right “to perform the copyrighted work publicly.” 117 U.S.C.A. § 106(4) (West 2014). A work can be performed publicly in one of three ways. The first is by performing the work at a place open to the public or at a place where people outside of one’s family and friends congregate. 2See 17 U.S.C.A. § 101 (West 2014) (“To perform . . . a work ‘publicly’ means . . . to perform . . . 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.”). An example of this would be putting on a play at a theater where tickets are available to the general public. The second is by transmitting a performance of the work to a place open to the public or to a place where people outside of one’s family and friends congregate. 3See 17 U.S.C.A. § 101 (West 2014) (“To perform . . . a work ‘publicly’ means . . . to transmit or otherwise communicate a performance . . . of the work to a place specified by clause (1),” i.e. “a place open to the public or . . . any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”). An example of this would be an opera house that transmits a performance to a movie theater where tickets are available to the general public.

The final way a work can be performed publicly is by transmitting a performance of the work to the public, by whatever means, whether the transmission of the performance can be received in one place or in many places and at one time or at many times. An example of this would be a broadcaster that transmits a television show to the general public over the airwaves. This last way of performing a work publicly is the one that’s at issue here with Aereo, and the operable statutory text comes from the last section of what is called the “Transmit Clause” in Section 101 of the Copyright Act. The outcome of the Aereo appeal will turn on how the Supreme Court parses this section of the Transmit Clause, which provides:

To perform . . . a work “publicly” means . . . to transmit or otherwise communicate a performance . . . of the work . . . 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. 417 U.S.C.A. § 101 (West 2014).

Note how this opens up four possibilities, all of which are public performances of a work. The transmission of a performance of a work to the public is a public performance if it is capable of being received: (1) in the same place and at the same time, (2) in separate places and at the same time, (3) in the same place and at different times, and (4) in separate places and at different times. These various possibilities are very important here with Aereo because they show that the same public performance of a work can occur via multiple asynchronous transmissions to the public. An example of this would be a work streamed from YouTube—a distinct transmission occurs whenever a member of the general public initiates playback, and despite the asynchronous transmissions, YouTube is publicly performing the work.

The Transmit Clause tells us that several distinct transmissions of a performance to the public, capable of being received in separate places and at different times, can be aggregated together as constituting one single public performance. The tricky part is figuring out when to aggregate multiple transmissions of a performance. And this gets us to the crux of the arguments in the Aereo appeal. The petitioners argue that Aereo’s distinct transmissions to its customers should be aggregated together as constituting part of the same performance, and this would mean the performance is public. Aereo, on the other hand, argues that its distinct transmissions to its customers should not be aggregated, and this would mean that there are several performances which are all private.

The reason Aereo argues that its distinct transmissions of a performance to its customers should not be aggregated is because they are made from unique copies of the underlying work. If YouTube uses only one source copy of a work to make multiple transmissions of a performance to the public, the case law tells us that those distinct transmissions should be aggregated together as constituting part of the same public performance. But Aereo argues that when each distinct transmission of a performance arises from a unique copy, this one-to-one relationship between the source copy and the customer means that multiple transmissions should not be aggregated. Whether there is any legal difference between using one source copy or multiple source copies for these transmissions of a performance forms the key question to be decided by the Supreme Court.

The notion that the private-public performance divide turns on whether the source of the transmissions comes from one copy or from multiple copies can be traced back to the influential Nimmer on Copyright treatise. In the famous Cablevision case, 5See Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008). the Second Circuit adopted Nimmer’s view that a one-to-one relationship between the source copy and the customer means that multiple transmissions of a performance to the public should not be aggregated, thus making them separate private performances. According to the Cablevision court, when a unique copy is used to transmit a performance of a work to a customer, the only transmission that counts is that particular transmission—other transmissions made to other customers from other copies of the work are irrelevant.

But, as the petitioners in the Aereo appeal point out, this one source copy theory has no textual basis in the Transmit Clause. The Transmit Clause defines what it means to perform a work publicly, and the fact that the same public performance of a work can be received by the public in separate places and at different times tells us that multiple transmissions of a performance can constitute the same public performance. The Transmit Clause says nothing about the number of source copies used to make these multiple transmissions—the words “copy” or “copies” do not appear in the Transmit Clause. What matters is whether the public is capable of receiving the same performance of a work; the number of source copies used to transmit this performance is irrelevant.

The fault with the Second Circuit’s reasoning in Cablevision, and its subsequent application in Aereo, 6See WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013), petition for rehearing en banc denied, WNET, Thirteen v. Aereo, Inc., 722 F.3d 500 (2d Cir. 2013). is in how it misinterprets the word “performance” in the following section of the Transmit Clause: “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 Second Circuit replaced the word “performance” with the word “transmission,” and under this construction, the focus is on the audience of a particular transmission. But while a transmission of a performance is itself a performance, the words “transmission” and “performance” are not synonymous and interchangeable.

Thus, under the Second Circuit’s reading of the Transmit Clause, what matters is the potential audience of each distinct transmission. But the Transmit Clause tells us that the proper focus is on the audience of a performance, not the audience of any particular transmission of a performance. The problem with focusing on who is capable of receiving a particular transmission of a performance is that it reads the “different times” language out of the Transmit Clause. The Second Circuit realized as much, and that’s why it read into the Transmit Clause a distinction between one source copy and multiple source copies. 7See Aereo, 712 F.3d at 688 n.11 (“The Cablevision court’s focus on the potential audience of each particular transmission would essentially read out the ‘different times’ language, since individuals will not typically receive the same transmission at different times. But Nimmer’s solution—aggregating private transmissions when those transmissions are generated from the same copy—provides a way to reconcile the ‘different times’ language of the Clause.”).

Given the fact that the Transmit Clause makes no reference to the number of source copies used to generate multiple transmissions of a performance, and given the fact that the Transmit Clause by its very terms says to focus on who is capable of receiving a performance of a work—and not any particular transmission of a performance of a work—I think the Supreme Court should reverse the Second Circuit’s misapplication of the Transmit Clause in Aereo—and, by extension, in Cablevision. What matters is the fact that Aereo’s customers are capable of receiving the same performance of a work, despite the fact that this performance is comprised of distinct transmissions made from distinct copies.

Follow me on Twitter: @devlinhartline

References   [ + ]

1. 17 U.S.C.A. § 106(4) (West 2014).
2. See 17 U.S.C.A. § 101 (West 2014) (“To perform . . . a work ‘publicly’ means . . . to perform . . . 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.”).
3. See 17 U.S.C.A. § 101 (West 2014) (“To perform . . . a work ‘publicly’ means . . . to transmit or otherwise communicate a performance . . . of the work to a place specified by clause (1),” i.e. “a place open to the public or . . . any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”).
4. 17 U.S.C.A. § 101 (West 2014).
5. See Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008).
6. See WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013), petition for rehearing en banc denied, WNET, Thirteen v. Aereo, Inc., 722 F.3d 500 (2d Cir. 2013).
7. See Aereo, 712 F.3d at 688 n.11 (“The Cablevision court’s focus on the potential audience of each particular transmission would essentially read out the ‘different times’ language, since individuals will not typically receive the same transmission at different times. But Nimmer’s solution—aggregating private transmissions when those transmissions are generated from the same copy—provides a way to reconcile the ‘different times’ language of the Clause.”).

About the author: Devlin Hartline

Devlin is a husband, father, and law geek (JD & LLM). He is currently an SJD candidate at Tulane Law in New Orleans, Louisiana, where he is writing his dissertation on copyright law. He is also a Mark Twain Copyright Fellow at the Center for the Protection of Intellectual Property at George Mason Law in Arlington, Virginia.

31 Comments

  1. Michael Slonecker

    “What matters is whether the public is capable of receiving the same performance of a work…”

    Perhaps I misunderstand, but it seems to me that “same” should modify “work”.

    • Devlin Hartline

      Perhaps I misunderstand, but it seems to me that “same” should modify “work”.

      Great point, and I appreciate you raising it. If I understand the petitioners’ argument correctly (and it’s certainly possible that I don’t), they claim this: If Aereo transmits to Customer A a performance of Work M from Copy X, and if Aereo then transmits to Customer B a performance of Work M from Copy Y, then one and only one public performance has occurred. Their argument is that the number of source copies doesn’t matter since the issue is whether the discrete transmissions are of the same performance of the same underlying work by the same transmitter. If so, then they comprise one public performance.

      I think the Second Circuit’s opinion in Aereo confirms this understanding:

      Plaintiffs argue that discrete transmissions should be aggregated to determine whether they are public performances. This argument has two aspects. Plaintiffs first argue that because Aereo’s discrete transmissions enable members of the public to receive “the same performance (i.e., Aereo’s retransmission of a program)” they are transmissions made “to the public.” Br. of Pls.-Appellants Am. Broad. Cos., et al. at 19. *** Plaintiffs also argue that the Copyright Act requires that all of Aereo’s discrete transmissions “be aggregated and viewed collectively as constituting a public performance.” Br. of Pls.-Appellants WNET, Thirteen, et al. at 34. This is not contrary to Cablevision, they argue, because Cablevision only held that transmissions of the same performance or work made by different entities should not be aggregated. On their view, discrete transmissions of the same performance or work made by the same entity should be aggregated to determine whether a public performance has occurred.

      WNET, Thirteen v. Aereo, Inc., 712 F.3d 676, 690-91 (2d Cir. 2013) (emphasis added).

      Thinking it over, I wonder if this is really the proper approach. Terry Hart has a new post in the works where he delves into the “to the public” language from the Transmit Clause and argues that what matters is the relationship between the transmitter and the transmittee. If those two transmissions are considered to be part of the same performance, then I would think a copyright owner who sues Aereo for violating its public performance right for transmitting a performance of Work M to Customer A would be precluded thereafter from suing Aereo for its transmission of a performance of Work M to Customer B under res judicata. I’m not sure if this is the right result.

      If the focus instead is on whether each transmission is itself an individual public performance, which would turn on the relationship between the transmitter and the transmittee as I believe Terry will be arguing, then there may be no reason to say that all transmissions of Work M by Aereo (or anyone else for that matter) are part of the same infringement. This might also solve the issue that the Cablevision court and the Aereo court brought up about there being seemingly no limitation to who is an infringer if all transmissions of a performance are to be aggregated. I’m still mulling this over, but I think you and Terry are perhaps onto something important.

      • It would be amusing if it weren’t so absurd that you are 1) questioning the central premise of your argument that the Second Circuit erred in how it interpreted “performance,” and 2) in this particular comment, quoting the Second Circuit’s summary of plaintiffs’ argument as if it were the Second Circuit’s own conclusion — and specifically editing the excerpt to remove their rejection of Plaintiffs’ interpretation!

        The fact is, the Second Circuit correctly concluded (and explained!) in _Cablevision_ that to interpret “performance” as you (and plaintiffs) propose would result in eviscerating the notion that there is any such thing as a private performance under the transmit clause. Why you ignore this altogether is a puzzle.

        Furthermore, your offhand dismissal of “arguments being offered by copyright critics” is without foundation. Most significantly, DMCA does not protect cloud computing companies with respect to what’s at issue in this case, because this is not about protecting cloud computing providers where they are unaware of what content users are storing, and haven’t received a takedown notice. Rather, it’s about cloud computing providers enabling users to store and stream content, because to do so is as much within their rights as storing and playing it from a device of their own, and it’s about being able to provide that service _even if the copyright owner complains about it_. Amazon and Apple provide personal cloud storage for music, for example, usually knowing full well that the music being stored is copyrighted. They are able to do this precisely because of the conclusion per _Cablevision_ that users can legally store and stream that copyrighted music, for their own personal use. If the holding in _Cablevision_ were eviscerated, and Amazon and Apple had to rely only on DMCA safe harbor provisions, they would not be able to offer those cloud storage services. The assertion that DMCA already addresses this issue is simply false.

        Most importantly, the determination in this case is not about finding the “best” way (i.e., the way with the least collateral damage) to reach a pre-ordained conclusion that Aereo is infringing — which, whether subconciously or intentionally, really seems to be the tack you’ve taken in looking at this case.

        It is a perfectly acceptable result for the courts to conclude that Aereo does not infringe, even if we believe that what they are doing runs afoul of some sense of moral rights or Congress’s clear intention back in 1976. It is not the role of the courts to ensure that outcomes are optimized. It is their role to interpret the law as actually written.

        It should not be particularly surprising if, despite Congress’s best efforts to future-proof the 1976 Copyright Act, some four decades later we find that the combination of new technologies and careful design has allowed somebody smart to find their way around Congress’s intent. To the degree such is deemed a problem, it is not a problem for the courts to fix. It is a problem for Congress to fix, if Congress so chooses (and just as they chose to fix a prior problem of cable companies not needing to license retransmission of broadcast signals by enacting the 1976 Copyright Act, in the first place).

        • Devlin Hartline

          I appreciate the substantive feedback. Thank you.

          It would be amusing if it weren’t so absurd that you are 1) questioning the central premise of your argument that the Second Circuit erred in how it interpreted “performance,” and 2) in this particular comment, quoting the Second Circuit’s summary of plaintiffs’ argument as if it were the Second Circuit’s own conclusion — and specifically editing the excerpt to remove their rejection of Plaintiffs’ interpretation!

          I was quoting the Second Circuit’s explication of the petitioners’ argument to show that I think I’m accurately presenting the petitioners’ argument as to it being the same performance—and not just the same work, as Mr. Slonecker had asked me. I understand the Second Circuit rejected this argument. I don’t believe I indicated otherwise. And I do question the whole one source copy/multiple source copy approach. That approach has become fairly entrenched in the doctrine ever since Professor Melville Nimmer basically made it up decades ago, but I have doubts about it being the proper way to frame the issue.

          The fact is, the Second Circuit correctly concluded (and explained!) in _Cablevision_ that to interpret “performance” as you (and plaintiffs) propose would result in eviscerating the notion that there is any such thing as a private performance under the transmit clause. Why you ignore this altogether is a puzzle.

          I don’t think that’s true. Whether it’s public or private turns on who is transmitting what to whom. If it’s to the public, that is, to people outside of one’s family and friends, then it’s public. I think the relationship between Cablevision/Aereo and its customers makes it a public performance. I’ve been working on a follow-up post where I explore the idea that the whole one source copy/multiple source copies thing is a red herring. As the Transmit Clause says, what matters is whether a performance of a work is transmitted to the public. I think that whether that performance comes from one copy, many copies, or no copy at all is irrelevant.

          Furthermore, your offhand dismissal of “arguments being offered by copyright critics” is without foundation. Most significantly, DMCA does not protect cloud computing companies with respect to what’s at issue in this case, because this is not about protecting cloud computing providers where they are unaware of what content users are storing, and haven’t received a takedown notice. Rather, it’s about cloud computing providers enabling users to store and stream content, because to do so is as much within their rights as storing and playing it from a device of their own, and it’s about being able to provide that service _even if the copyright owner complains about it_. Amazon and Apple provide personal cloud storage for music, for example, usually knowing full well that the music being stored is copyrighted. They are able to do this precisely because of the conclusion per _Cablevision_ that users can legally store and stream that copyrighted music, for their own personal use. If the holding in _Cablevision_ were eviscerated, and Amazon and Apple had to rely only on DMCA safe harbor provisions, they would not be able to offer those cloud storage services. The assertion that DMCA already addresses this issue is simply false.

          I think that Google and Amazon started their cloud computing services under the belief that they were protected by 512(c). IIRC, Apple did not. But then later, Amazon worked out licenses: http://news.cnet.com/8301-1023_3-57453873-93/amazons-music-cloud-is-licensed-by-all-top-labels/ As far as I know, Google has not. I think whether they need licenses depends on what features the services offer.

          But my comment was aimed at an argument I’ve seen floating around that the future of cloud computing turns on the Aereo appeal. My response that the DMCA protects such services was based on what the district court said in MP3tunes:

          Apart from the fact that MP3tunes does not employ a “master copy” storage system, EMI’s reliance on Cartoon Network is inapposite. There, the cable-provider defendant was not an internet service provider and thus was ineligible for DMCA safe harbor protection. Cartoon Network, 536 F.3d at 138. In contrast, MP3tunes’ online storage system utilizes automatic and passive software to play back content stored at the direction of users. That is precisely the type of system routinely protected by the DMCA safe harbor. See, e.g., Viacom, 718 F.Supp.2d at 523 (“[F]acilitating user access to material on its website do[es] not cost the service provider its safe harbor.”).

          Capitol Records, Inc. v. MP3tunes, LLC, 821 F.Supp.2d 627, 650 (S.D.N.Y. 2011).

          Again, though, I think the extent to which the DMCA protects cloud computing services depends on the features that the services provide. I also think there’s other doctrines that could be at play that could limit the liability of such services, such as the volitional conduct test, which looks at proximate causation, and fair use. I think there’s a fundamental difference between a service that merely rebroadcasts over-the-air transmissions, such as Cablevision or Aereo, and a service that is a true file locker. In the former, the service itself provides the content. In the latter, the customer does.

          Most importantly, the determination in this case is not about finding the “best” way (i.e., the way with the least collateral damage) to reach a pre-ordained conclusion that Aereo is infringing — which, whether subconciously or intentionally, really seems to be the tack you’ve taken in looking at this case.

          I agree that it’s not about finding the best way to reach a preordained conclusion, but I disagree that I’m working backwards. I think the Cablevision and Aereo courts are simply wrong to focus on the audience for a particular transmission when the Transmit Clause says to look at whether the work is being transmitted to the public. Add to that the confusion over whether the number of source copies matters, and I think the opinions are a mess.

          It is a perfectly acceptable result for the courts to conclude that Aereo does not infringe, even if we believe that what they are doing runs afoul of some sense of moral rights or Congress’s clear intention back in 1976. It is not the role of the courts to ensure that outcomes are optimized. It is their role to interpret the law as actually written.

          I agree that the court should apply the law as actually written, which is why I think the Supreme Court should reverse.

          It should not be particularly surprising if, despite Congress’s best efforts to future-proof the 1976 Copyright Act, some four decades later we find that the combination of new technologies and careful design has allowed somebody smart to find their way around Congress’s intent. To the degree such is deemed a problem, it is not a problem for the courts to fix. It is a problem for Congress to fix, if Congress so chooses (and just as they chose to fix a prior problem of cable companies not needing to license retransmission of broadcast signals by enacting the 1976 Copyright Act, in the first place).

          And whether the Supreme Court affirms or reverses, Congress may very well overrule that holding legislatively.

          • Too difficult to manage continued responses on many issues within a comment thread, so I’ll confine this to just the core point. For the record, I think the Second Circuit provides a compelling argument in _Cablevision_ that each of plaintiffs’ proposed interpretations of “performance” (which you seem to endorse) would eviscerate the notion of a private performance under the transmit clause. (I don’t see much value in repeating it here.)

            You want to define the status of public or private based on the relationship of the transmitter to the receiver. But isn’t that what the Second Circuit did? They concluded that the transmitter _is_ the user, and the transmitter and receiver are, therefore, one and the same. Result: it’s a private performance.

            You clearly want to challenge the conclusion that the transmitter is the user. The problem is, one can construct a series of steps to go from a user transmitting to themselves using equipment that they own (so that there’s no debate that they are the transmitter, and it’s a private performance) to an Aereo or Cablevision system, and at no point is there a principled line that can be drawn (and certainly not one based on the statute) to say that on one side the user is the transmitter, but on the other side somebody else is. Any distinction to separate those two cases is going to be arbitrary (and a new construct). Creating such a distinction falls within the domain of Congress, not the courts.

            For the record, I think it’s unlikely that Congress will intervene if Aereo loses — unless the Court does adopt a sweeping decision that has wide implications for services such as cloud storage providers. On the other hand, I think that Congress is very likely to intervene if Aereo prevails. (And personally, I would hope that when they do such, they take the opportunity to fix the broken retransmission consent regime.)

          • You want to define the status of public or private based on the relationship of the transmitter to the receiver. But isn’t that what the Second Circuit did? They concluded that the transmitter _is_ the user, and the transmitter and receiver are, therefore, one and the same. Result: it’s a private performance.

            On the contrary, the Second Circuit explicitly declined to decide the issue of who is causing the transmission of the performance:

            Accordingly, we ask whether these facts satisfy the second, “transmit clause” of the public performance definition: Does Cablevision “transmit … a performance … of the work … to the public”? Id. No one disputes that the RS–DVR playback results in the transmission of a performance of a work—the transmission from the Arroyo Server to the customer’s television set. Cablevision contends that (1) the RS–DVR customer, rather than Cablevision, does the transmitting and thus the performing and (2) the transmission is not “to the public” under the transmit clause.

            As to Cablevision’s first argument, we note that our conclusion in Part II that the customer, not Cablevision, “does” the copying does not dictate a parallel conclusion that the customer, and not Cablevision, “performs” the copyrighted work. The definitions that delineate the contours of the reproduction and public performance rights vary in significant ways. For example, the statute defines the verb “perform” and the noun “copies,” but not the verbs “reproduce” or “copy.” Id. We need not address Cablevision’s first argument further because, even if we assume that Cablevision makes the transmission when an RS–DVR playback occurs, we find that the RS–DVR playback, as described here, does not involve the transmission of a performance “to the public.”

            Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 134 (2d Cir. 2008).

            I don’t think your reading is tenable since the Second Circuit assumed arguendo that Cablevision was the transmitter and found that it was still a private performance. Nowhere did the court say that the user is the transmitter that I’m aware of.

            You clearly want to challenge the conclusion that the transmitter is the user.

            I don’t see where the court in Cablevision or Aereo even made that conclusion in the first place.

            The problem is, one can construct a series of steps to go from a user transmitting to themselves using equipment that they own (so that there’s no debate that they are the transmitter, and it’s a private performance) to an Aereo or Cablevision system, and at no point is there a principled line that can be drawn (and certainly not one based on the statute) to say that on one side the user is the transmitter, but on the other side somebody else is. Any distinction to separate those two cases is going to be arbitrary (and a new construct). Creating such a distinction falls within the domain of Congress, not the courts.

            The line that distinguishes them is the line drawn in the Transmit Clause, which requires that the transmission of the performance be to the public. Other lines that can be drawn around who is liable, if anyone, for those transmissions include (1) the DMCA safe harbors, which weren’t applicable in Cablevision but which would be applicable in certain cloud-computing situations, (2) the volitional conduct test, which looks at proximate causation, and (3) fair use. I don’t think the parade of horribles implied by the argument that if Aereo is publicly performing then everyone is publicly performing makes much sense.

          • You’re right, my error. The Second Circuit did indeed rule it a private transmission, and then concluded that they didn’t need to determine who was actually the transmitter, because of that. (And I actually agree with them on that.) It’s strictly my own conclusion that the transmitter is actually the user, and so even with a transmitter/receiver relationship test, the same result would be reached. (That’s what I get for vamping. 😉

            “To the public” doesn’t distinguish the two cases, unless you start with an assumption that one is “to the public” and the other isn’t — and of course, that’s not a valid assumption. In both cases the same party (Cablevision) owns and operates the storage for recordings, and the system to playback the recordings. In both cases, only the user who initiates a recording is able to playback the recording, and playback can only occur within their home. If playback in one case is “to the public,” I fail to see how the other could NOT be “to the public.” Only by introducing arbitrary criteria — for example, based on where the storage is located — can one distinguish between those two instances. There’s no basis in the statute for any such distinction, and the courts should not fabricate one, in order to “solve” a perceived problem. It’s Congress’s domain to create any such arbitrary distinction.

            (Note that, as mentioned previously, the way “transmit” is defined, there may be some in-home playback scenarios that don’t constitute transmissions under the statute. But there are definitely some real-world scenarios that do, and in any case, that’s a separate issue from the question of public or private status.)

          • Devlin Hartline

            You’re right, my error. The Second Circuit did indeed rule it a private transmission, and then concluded that they didn’t need to determine who was actually the transmitter, because of that. (And I actually agree with them on that.) It’s strictly my own conclusion that the transmitter is actually the user, and so even with a transmitter/receiver relationship test, the same result would be reached. (That’s what I get for vamping.

            No worries! I think the argument that a service isn’t performing a work because the user initiates the playback goes nowhere. The analysis that applies to the reproduction right doesn’t translate to the public performance right, where you have the multiple performance doctrine and a broad definition of transmit and publicly perform. Besides, if the service doesn’t perform a work because the user initiates the playback, you’d think that YouTube would have made that argument instead of the argument that it did make which is that 512(c) gives it safe harbor from such public performances. I think the better view is that the service performs the work when the user initiates playback, and this a public performance even if the particular transmission can only be received by that one user, and the user privately performs the work as he watches it on his television or computer at home.

            “To the public” doesn’t distinguish the two cases, unless you start with an assumption that one is “to the public” and the other isn’t — and of course, that’s not a valid assumption. In both cases the same party (Cablevision) owns and operates the storage for recordings, and the system to playback the recordings. In both cases, only the user who initiates a recording is able to playback the recording, and playback can only occur within their home. If playback in one case is “to the public,” I fail to see how the other could NOT be “to the public.”

            I rent a whole-home DVR from Cox, and I have my own HTPC whole-home DVR that I built myself. I think with either DVR, when I transmit from my den to my bedroom, I am not publicly performing the works for the simple reason that I’m not transmitting them to the public. The fact that Cox owns one of my DVRs but not the other doesn’t matter. What matters is whether I’m transmitting the performance to the public—which I am not. Once the DVR is moved to the cloud, the analysis changes because then it’s the service provider performing the works, and that performance is public because it’s to the public. I think the mistake is to look at the audience for each individual transmission. YouTube makes individual transmissions that can only be received by one person, but no one (I think!) argues that YouTube is not engaging in public performances. The argument that distinguishes YouTube from Aereo turns on the number of source copies to make those transmissions, but as I mentioned in the post, there is no textual basis for making this distinction. I think Professor Nimmer made it up and it got injected into the doctrine, but I’m not sure that it makes any sense—especially considering that public performances can be transmitted even if there’s no source copy.

            Only by introducing arbitrary criteria — for example, based on where the storage is located — can one distinguish between those two instances. There’s no basis in the statute for any such distinction, and the courts should not fabricate one, in order to “solve” a perceived problem. It’s Congress’s domain to create any such arbitrary distinction.

            Where we disagree, I think, is in how we view that distinction as arbitrary. The Transmit Clause focuses on whether the transmitter transmits a performance to the public. It says nothing about where the source of that transmission comes from.

            Thanks for the chat! You’ve been invaluable in helping me hone my views for my follow-up post on Aereo.

          • Devlin, I’m not sure why it’s not as obvious to you as it is to me. You have a basic problem in your argument that there’s a principled distinction between in-home systems and cloud (head-end) hosted systems. You simply assert that one is private and the other is public. But that is the question. You can’t answer it by merely asserting the conclusion. All you have done to this point is to say that, by definition (yours), one is public and the other is private.

            You need to answer something very basic. What distinguishes a piece of equipment that you rent from Cox (or Cablevision, or Aereo, or whomever) and which is located within your home from one that you rent but is hosted at their facilities. (To simplify the discussion, assume it is the exact same piece of equipment, just with the proverbial “long cord” when it is located at their facilities.)

            You can’t reasonably answer this by simply asserting that one is transmitting to the public, and one is transmitting privately. You need to identify a basis for distinguishing the two cases in some legally significant fashion, that then forms the basis for arguing that in one case it’s a public transmission, while in another it’s a private transmission.

            Furthermore — and perhaps this is the key to the disconnect here — I believe that you cannot reasonably view the home DVR as an isolated system, simply because it is co-located at the customers home. Rather, I believe you need to compare the systems on an apples-to-apples basis. That is, when a cable company has a million home DVR customers, that is simply a distributed architecture system to deliver DVR service to customers, where some of the equipment is co-located in the customers’ homes. This should then be compared to a (hypothetical) million customer RS-DVR system — which is also a distributed architecture system to deliver DVR service to customers, where some of the equipment is co-located in customer homes (just with a little less equipment — namely the disks — in the customer homes). In BOTH cases, the cable company owns and has the same level of control over the system — there’s no difference at all in the division of what the cable company controls vs. what the customer controls. In industry parlance, we would say that the demarc (demarcation point of control between the cable provider and the customer) is at the television connector outputs of the set-top box, in both cases.

            When you look at it that way, as opposed to artificially (and I’d argue, arbitrarily) isolating the home DVR simply because it is located within a customer premises, I don’t believe the two instances can be distinguished other than by creating a new arbitrary criteria, not based in the statute. (And I’d argue that a criteria based on location within the home would both be arbitrary, and also would break under any reasonable analysis, as we start constructing placeshifting scenarios.)

          • Devlin, I’m not sure why it’s not as obvious to you as it is to me. You have a basic problem in your argument that there’s a principled distinction between in-home systems and cloud (head-end) hosted systems. You simply assert that one is private and the other is public. But that is the question. You can’t answer it by merely asserting the conclusion. All you have done to this point is to say that, by definition (yours), one is public and the other is private.

            You need to answer something very basic. What distinguishes a piece of equipment that you rent from Cox (or Cablevision, or Aereo, or whomever) and which is located within your home from one that you rent but is hosted at their facilities. (To simplify the discussion, assume it is the exact same piece of equipment, just with the proverbial “long cord” when it is located at their facilities.)

            You can’t reasonably answer this by simply asserting that one is transmitting to the public, and one is transmitting privately. You need to identify a basis for distinguishing the two cases in some legally significant fashion, that then forms the basis for arguing that in one case it’s a public transmission, while in another it’s a private transmission.

            When the equipment is located in my home, and I use it to transmit from my den to my bedroom, I am not transmitting it to the public. That’s simply me transmitting it to myself—the epitome of a private transmission. When the equipment is located at my cable company’s facility, then the cable company is transmitting to me—a member of the public. The former is me transmitting it to myself, and the latter is the cable company transmitting it to any member of the public who pays for the service.

            Just look at the different ways I can watch a movie from HBO. I can simply turn on my cable box and tune it to Channel 1200, which is HBO. I don’t think you’d disagree that Cox is publicly performing the movie when I do this since it’s transmitting a performance of the movie to me, a member of the public. The fact is that Cox is licensed to do this because it’s a public performance. I can also go to HBO On Demand using my cable box and initiate the streaming of the movie from Cox’s facilities. I don’t think you’d disagree that this is also a public performance. The fact is that Cox is also licensed to do this precisely because it’s also a public performance.

            Another way I can watch the movie is to set my home-based DVR to record it for later playback. Cox is publicly performing the movie when it sends the movie to my DVR, just like it’s publicly performing it when it sends it to my cable box for simultaneous viewing on Channel 1200. But then when I later on watch the movie, I’m not publicly performing it whether I watch it on the TV hooked up to the DVR or whether I stream it from the DVR in the den, where it’s recorded, to the cable box in my bedroom. If I watch it on the TV hooked up to the DVR, I’m not in a public place so the performance isn’t public. If I stream it to my bedroom, it’s not a transmission to the public, so it’s a private performance on my part.

            Things change, though, when the DVR is located at Cox’s facilities. In that case, when I initiate playback of the recorded copy on the remote-based DVR, Cox is transmitting the movie to the public. Just like how when I tune to Channel 1200 to watch HBO live, Cox is publicly performing it by transmitting it to the public, and just like how when I use HBO On Demand to watch a movie, Cox is publicly performing it by transmitting it to the public, Cox is also publicly performing it by transmitting it to the public when it streams it to me from the remote-based DVR. In my opinion, they’re all public performances. The remote-based DVR is just like the video-on-demand service which is just like the live stream since they are all transmissions of the work to the public. Cox has licenses for two of these transmissions, and I don’t see why, based on the Transmit Clause, it wouldn’t need a license for the third, namely, the remote-based DVR.

            Furthermore — and perhaps this is the key to the disconnect here — I believe that you cannot reasonably view the home DVR as an isolated system, simply because it is co-located at the customers home. Rather, I believe you need to compare the systems on an apples-to-apples basis. That is, when a cable company has a million home DVR customers, that is simply a distributed architecture system to deliver DVR service to customers, where some of the equipment is co-located in the customers’ homes. This should then be compared to a (hypothetical) million customer RS-DVR system — which is also a distributed architecture system to deliver DVR service to customers, where some of the equipment is co-located in customer homes (just with a little less equipment — namely the disks — in the customer homes). In BOTH cases, the cable company owns and has the same level of control over the system — there’s no difference at all in the division of what the cable company controls vs. wh
            at the customer controls. In industry parlance, we would say that the demarc (demarcation point of control between the cable provider and the customer) is at the television connector outputs of the set-top box, in both cases.

            I think there’s a big difference between the home-based DVR and the remote-based DVR. With the home-based DVR, the playback of the movie from the DVR is not public since, whether it’s played on the television it’s connected to or whether it’s streamed to another room in the same house, it’s not being performed publicly. With the remote-based DVR, the movie must first be streamed to the public before it can be watched on a television. With the home-based DVR, the cable company is not publicly performing the work as far as the signal from the DVR to the television is concerned. The customer is the one performing the work, and that performance is private. With the remote-based DVR, the cable company must first publicly perform the work by sending it to the customer’s cable box, and then the customer thereafter privately performs the work in his house.

            When you look at it that way, as opposed to artificially (and I’d argue, arbitrarily) isolating the home DVR simply because it is located within a customer premises, I don’t believe the two instances can be distinguished other than by creating a new arbitrary criteria, not based in the statute. (And I’d argue that a criteria based on location within the home would both be arbitrary, and also would break under any reasonable analysis, as we start constructing placeshifting scenarios.)

            I disagree, and the criteria that matters is right there in the statute in the words “to the public.” If a performance of the work is being transmitted to the public, then it’s a public performance. If the performance is private, as when I stream from my den to my bedroom, then it’s not to the public. What do you think “to the public” means if not this?

          • Devlin, your line of reasoning continues to simply take it as an assumption that if the program streams from the cable company’s facilities, it must be a public transmission (while if it streams from inside the home, it is a private transmission). But you can’t simply assume that. That is the question at issue. You have to justify that conclusion, not simply assume it!

            Simple slippery slope analysis again. Cox places their DVR inside your den. When you play back a recording to your bedroom, is it a public performance? Who is the transmitter? Suppose Cox moves the DVR outside, and mounts it on the side of your house. When you play back a recording, is it a public performance? Who is the transmitter? Now suppose Cox places the DVR so that it is strand-mounted on the drop line (over your front yard) from the utility pole to your house. When you play back a recording, is it a public performance? Who is the transmitter? Now suppose Cox mounts the DVR on the utility pole that your drop line connects to. Public performance now? Who is the transmitter? Now let’s move the DVR one pole closer to Cox. Public performance now? Who is the transmitter? Keeping moving it until the DVR is located inside a Cox building. Remember, in each of these cases, it is the exact same piece of equipment. In each case, only you can schedule a recording on the DVR. And in each case, play back of the recording can only be received by you, in your house.

            At what point do you propose that the play back using this same piece of equipment transitioned from being a private performance, where you are the transmitter, to a public performance where Cox is the transmitter? What’s the principled legal basis for drawing the line where you drew it?

            I assert that any distinction you make will be completely arbitrary. Wherever you draw the line, you will have to create a new arbitrary criteria to separate the case where Cox is the transmitter and the performance is public, from the case where you are the transmitter, and the performance is private. You will not be able to define any criteria to achieve this that finds a basis anywhere in the existing statute. (And what’s more, barring you coming back with a very complicated, multi-part criteria, with whatever criteria you specify, I expect I will be able to construct an example situation where you would agree it involves a clearly private transmission, but which using your criteria will end up instead being classified as a public transmission.)

            What do you propose is the criteria/test to distinguish these two cases?

          • Devlin Hartline

            Devlin, your line of reasoning continues to simply take it as an assumption that if the program streams from the cable company’s facilities, it must be a public transmission (while if it streams from inside the home, it is a private transmission). But you can’t simply assume that. That is the question at issue. You have to justify that conclusion, not simply assume it!

            Simple slippery slope analysis again. Cox places their DVR inside your den. When you play back a recording to your bedroom, is it a public performance? Who is the transmitter? Suppose Cox moves the DVR outside, and mounts it on the side of your house. When you play back a recording, is it a public performance? Who is the transmitter? Now suppose Cox places the DVR so that it is strand-mounted on the drop line (over your front yard) from the utility pole to your house. When you play back a recording, is it a public performance? Who is the transmitter? Now suppose Cox mounts the DVR on the utility pole that your drop line connects to. Public performance now? Who is the transmitter? Now let’s move the DVR one pole closer to Cox. Public performance now? Who is the transmitter? Keeping moving it until the DVR is located inside a Cox building. Remember, in each of these cases, it is the exact same piece of equipment. In each case, only you can schedule a recording on the DVR. And in each case, play back of the recording can only be received by you, in your house.

            At what point do you propose that the play back using this same piece of equipment transitioned from being a private performance, where you are the transmitter, to a public performance where Cox is the transmitter? What’s the principled legal basis for drawing the line where you drew it?

            I get your argument, which is that you can concoct complicated schemes where the answer is not clear. But I don’t think that applies here where the answer is clear. Just because I can’t tell you where the line is drawn in all cases doesn’t mean I can’t tell you that Aereo has crossed the line in this case.

            I assert that any distinction you make will be completely arbitrary. Wherever you draw the line, you will have to create a new arbitrary criteria to separate the case where Cox is the transmitter and the performance is public, from the case where you are the transmitter, and the performance is private. You will not be able to define any criteria to achieve this that finds a basis anywhere in the existing statute. (And what’s more, barring you coming back with a very complicated, multi-part criteria, with whatever criteria you specify, I expect I will be able to construct an example situation where you would agree it involves a clearly private transmission, but which using your criteria will end up instead being classified as a public transmission.)

            What do you propose is the criteria/test to distinguish these two cases?

            Rather than repeat myself, let me ask you this, if you will. Do you agree that Cox is publicly performing whatever works it offers me in the On Demand section of my cable system even though I initiate the playback and I’m the only one who can receive the stream? And do you agree that YouTube is publicly performing works whenever it streams something to a user who initiates the playback of that particular stream that only he can receive?

            If those two things are public performances, why aren’t Aereo’s transmissions? What nonarbitrary, statutorily-based criteria do you use to distinguish them?

          • I get your argument, which is that you can concoct complicated schemes where the answer is not clear. But I don’t think that applies here where the answer is clear. Just because I can’t tell you where the line is drawn in all cases doesn’t mean I can’t tell you that Aereo has crossed the line in this case.

            Devlin, there’s nothing complicated, nor a scheme. The point is to construct a simple example that transitions very clearly, step-by-step from a case you believe is clearly classified one way, to a case you believe is clearly classified a different way.

            Surely you realize that your response amounts to “I know it when I see it.” This is not obscenity, and that’s not a valid legal test. And if the answer were as obviously clear as you suggest, the Second Circuit would not have ruled the opposite way (multiple times), and this case would not be before the Supreme Court.

            It is not asking too much to ask you to define a test that distinguishes these cases, and which can then be analyzed to see 1) whether it has some reasonable basis in the statute or is arbitrary, and 2) whether it would clearly miscategorize some cases. If you can’t define such a test, you haven’t got much of an argument.

            If you were representing plaintiffs at oral arguments, would you expect the Court to accept an argument that “Just because I can’t tell you where the line is drawn in all cases doesn’t mean I can’t tell you that Aereo has crossed the line in this case.”

            Rather than repeat myself, let me ask you this, if you will. Do you agree that Cox is publicly performing whatever works it offers me in the On Demand section of my cable system even though I initiate the playback and I’m the only one who can receive the stream? And do you agree that YouTube is publicly performing works whenever it streams something to a user who initiates the playback of that particular stream that only he can receive?

            If those two things are public performances, why aren’t Aereo’s transmissions? What nonarbitrary, statutorily-based criteria do you use to distinguish them?

            I use the exact same criteria that the Second Circuit used, where the the two cases are distinguished based on the meaning of the term “performance.” One emanates performances from a single copy, created by the Cox/Youtube; the other emanates performances from many copies — one for each user — created by those users, exactly the same as they create copies and initiate performances from locally-placed antennas and DVRs.

          • Devlin Hartline

            Devlin, there’s nothing complicated, nor a scheme. The point is to construct a simple example that transitions very clearly, step-by-step from a case you believe is clearly classified one way, to a case you believe is clearly classified a different way.

            Surely you realize that your response amounts to “I know it when I see it.” This is not obscenity, and that’s not a valid legal test. And if the answer were as obviously clear as you suggest, the Second Circuit would not have ruled the opposite way (multiple times), and this case would not be before the Supreme Court.

            You’re doing an old trick, which is to point out how difficult it is to decide cases at the margin. For example, under this type of reasoning, the line between idea and expression is completely arbitrary since you can imagine scenarios where that line is difficult to discern. The reason it’s a trick is because it invites people to consider difficult cases while asking them to take their eye off the ball in the case at hand where the question is far less difficult.

            It is not asking too much to ask you to define a test that distinguishes these cases, and which can then be analyzed to see 1) whether it has some reasonable basis in the statute or is arbitrary, and 2) whether it would clearly miscategorize some cases. If you can’t define such a test, you haven’t got much of an argument.

            If you were representing plaintiffs at oral arguments, would you expect the Court to accept an argument that “Just because I can’t tell you where the line is drawn in all cases doesn’t mean I can’t tell you that Aereo has crossed the line in this case.”

            If opposing counsel were doing as you’re doing, and trying to draw attention to irrelevant cases closer to the margin, then yes I would remind the Court that those cases aren’t before it.

            I use the exact same criteria that the Second Circuit used, where the the two cases are distinguished based on the meaning of the term “performance.” One emanates performances from a single copy, created by the Cox/Youtube; the other emanates performances from many copies — one for each user — created by those users, exactly the same as they create copies and initiate performances from locally-placed antennas and DVRs.

            But where in the Transmit Clause is it implied that the number of source copies matters? The one source copy theory has no textual basis and no basis in the legislative history. Whence does it come? The Transmit Clause says: “to transmit or otherwise communicate a performance . . . of the work . . . to the public, by means of any device or process . . . .” By its own terms, it speaks of transmitting a performance of the work to the public. It’s completely silent on the number of source copies used to generate those transmissions. How is the number of source copies relevant? I honestly don’t see how one derives this one source copy/multiple source copies distinction from the Transmit Clause.

        • I’ve been reading through your series of posts on Aereo, and I just wanted to comment here (while I have your ear) on Part 4 of your posts: http://cimc-greenfield.com/2014/01/28/understanding-aereo-part-4/

          You say:

          The courts that heard the FilmOn X cases, unconstrained by Cablevision, managed to reach conclusions that they could not have reasonably reached, had they properly considered the unavoidable implications brought to the forefront only by a case like Cablevision. If upheld, their holdings would have sweeping implications for the rights of individuals to use timeshifting and placeshifting technologies. (And likewise, sweeping implications for settled law on authorship of actions.)

          Basing the reading of the statute on the “sweeping implications” for “timeshifting and placeshifting technologies” seems to me to be the very act of working backwards that you accuse me of. You appear to have started with the conclusion that cloud-based timeshifting and placeshifting should be noninfringing, and you’re reading the statute in a way to reach that preordained conclusion.

          The basic problem is twofold. First, to find that Aereo, rather than its users, were engaged in unauthorized public performance, would require ignoring or reversing long-standing precedent assigning authorship for actions based on volition. When a copy shop makes photocopiers available for customers to use for self-service copying, it is the customer, not the copy shop, that supplies the volition for the act of copying, and as such they are the authors of that act.

          I agree that a copy shop proprietor who merely makes his machines available to the public is not causing the copies to be made. But I think that’s a far cry from the situation in Cablevision and Aereo where the service provides the source materials to be copied and maintains complete control over the copy machine throughout the entire process. While the copy shop analogy holds true for truly passive services, such as that in Netcom, I think it breaks down for services like Cablevision and Aereo who do far more than merely provide a copy machine.

          Secondly, the Second Circuit correctly concluded that to find the playback transmissions of the RS-DVR of Cablevision to be public performances would eviscerate the notion that there is anything that constitutes a private performance. To interpret the transmit clause to reference all separate performances of a single underlying work, or all separate performances of separate recordings of a single prior broadcast, inevitably requires the conclusion that individuals playing back programs conventionally recorded within their home are engaged in public performances, simply because others also recorded and played back that same program. This is an untenable result.

          Again, you appear to be starting with the result and working backwards. However, I disagree that that’s even the result. I don’t think that finding that Cablevision or Aereo is publicly performing works when it retransmits performances to its customers means that all transmissions of the same underlying work should be aggregated. For example, if HBO transmits to both Cablevision and Comcast, then whatever Cablevision does with its transmissions should not be aggregated with what Comcast does with its transmissions. Holding Cablevision responsible for what Comcast does makes no sense since they are independent of each other. The issue with Cablevision and Aereo isn’t what some unrelated third party does with its transmissions, but rather it’s what Cablevision and Aereo does with their own transmissions.

          The same holds true for Cablevision’s and Aereo’s customers. If Cablevision retransmits HBO’s transmission to its customer, and that customer then publicly performs that transmission by transmitting it to the public, then Cablevision isn’t responsible for that customer’s public performance. You don’t aggregate all performances of the same underlying work. I agree with Cablevision that you don’t look upstream. I disagree with Cablevision, though, in that it failed to account for what Cablevision itself was doing—that is, performing the work to the public downstream.

          Cablevision (the company) also correctly observed in their white paper that such an interpretation would inevitably require the conclusion that streaming personal copies of media from cloud storage systems, for personal consumption, actually constitute public performances, simply because others also store and retrieve copies of the same underlying work—another untenable result.

          Again, you appear to be reading the statute based on whether you think the result is tenable or not. But I don’t see why it’s an untenable result unless you start with the conclusion and work backwards. I believe that Apple and Amazon are taking out licenses for their cloud-based music lockers because they realize that they are publicly performing the works in such a way that the DMCA does not protect them. I also think it’s possible to have a cloud-computing service where the DMCA would protect the service under 512(c) or where the service’s role is passive enough that it would not cause the performance to occur under the volitional conduct test. But I disagree with the notion that the petitioners’ view of Cablevision or Aereo, as well as my own view, necessitates aggregating all performances of the underlying work, no matter who is transmitting them to whom. I have a DVR in my home, and I record television shows in one room and transmit them to several other rooms. I’m not publicly performing the works because I’m not transmitting them to the public. Cablevision and Aereo, on the other hand, are transmitting them to the public.

          Although Denny Chin asserted in his district court holding in Cablevision that RS-DVR was distinguishable from conventional set-top DVRs, the two distinctions he asserts are factually erroneous, and in reality, there is no principled way to distinguish the operator’s role in the ongoing operation of the two systems. The unavoidable consequence of concluding that RS-DVR runs afoul of the Copyright Act is to conclude that set-top DVRs do the same. *** There simply is no way to reconcile the conclusion that RS-DVR infringes the Copyright Act with a conclusion that set-top DVR does not, without introducing an arbitrary exception. The creation of any such exception is not the dominion of courts, but rather, is properly left to Congress.

          I think the obvious difference between a cloud-based DVR and home-based DVR is that with the former, the service is transmitting the performances to the public, while with the latter, it is not. I don’t see how considering Cablevision to be publicly performing works with its RS-DVR leads to the conclusion that I’m publicly performing works with my home-based DVR. But to reach your conclusion that the cloud-based DVR cannot be publicly performing works because to hold so would be to also hold that a home-based DVR is publicly performing works is an example of working backwards, IMO.

          Here, the fact that Aereo does use distinct antennas for each user makes it impossible to reconcile a conclusion that Aereo infringes with the fundamental right of individuals to receive over-the-air broadcast signals, under the very same Copyright Act. User’s have an undisputed and completely intentional right under the Copyright Act to place an antenna for private reception of broadcast signals. Aereo does, in fact, rent individual antennas to users. If transmissions in the Aereo system are deemed public, it implies that there is a distinction for copyright purposes between an owned antenna and a rented antenna. If a user purchases an antenna at Radio Shack, their reception of broadcast signals is legal. But if a user rents an antenna from Radio Shack, the same reception is rendered infringing? And what’s more, it’s an infringing act attributable to Radio Shack? This result is clearly untenable.

          Again, I don’t see how the result is untenable unless you start with the conclusion that you don’t like that result. And again, I disagree with your reasoning. There is a fundamental difference between using your own antenna to receive a transmission and hiring a service that provides an antenna to receive the broadcast which it then retransmits to you. As you know, the point of adding the Transmit Clause was to overrule the Supreme Court’s opinion in Fortnightly and that other case (I’m blanking on the name at the moment) that held that those operating such communal antennae were not publicly performing the works they retransmitted to the public. I think the key issue is not whether the customer could have erected his own antenna to receive the broadcasts. The key issue is whether he did in fact do that—and with Aereo he clearly has not.

          Thanks again for your feedback! I enjoyed reading your series of posts on Aereo. It’s an interesting legal issue for sure!

          • Again, very hard in a comment thread to address many issues at once.

            There are indeed certain things that I take as a priori conclusions, because I think they are valid as prior conclusions. For example, the 1976 Copyright Act was crafted specifically to protect the right of individuals to receive over-the-air broadcasts without requiring a performance license. If after four decades we have a new interpretation that eviscerates that right, something is broken very badly. I think it’s reasonable to start with a conclusion that no interpretation that produces such a result can be valid. (This is essentially a paraphrase of the Second Circuit’s holding that any interpretation that reads the “to the public” limitation out of the transmit clause is invalid.)

            I also take as an a prior conclusion, for example, that the legality of something I do cannot be controlled by independent actions of unrelated parties. So, for example, the legal status of my own storage and playback of media cannot be dependent upon the independent actions of an unrelated party who happens to store and playback the same underlying work.

            An assumption that cloud technologies for timeshifting and placeshifting should be noninfringing is NOT one of my starting assumptions. That HOME technologies for timeshifting and placeshifting should be noninfringing is. (Granted, the right to timeshift stems from a fair use holding, rather than from the statute.) I reach the conclusion that cloud technologies implemented along the lines of Aereo and Cablevision are noninfringing as a result of recognizing, after analysis, that there is no principled distinction between the home implementations and those cloud implementations. (This is a conclusion I reached, in terms of the law, only in light of reviewing the cases, btw. It wasn’t even something I took as a given when the system was being designed, prior to litigation.)

            The “obvious” distinction you cite between home and cloud is completely arbitrary, not at all principled. The issue of copying might be a simpler point to address than that of performing (because of the statutory definition of “transmit” depends on the meaning of “place”), but the basic issue is very simple. If you have a DVR in your home from Cablevision, it is Cablevision equipment just like RS-DVR. It is rented by a set of customers, just like RS-DVR. Cablevision is essential to its ongoing operation, just like RS-DVR. There is simply no principled way to distinguish between RS-DVR and the set of home DVRs Cablevision rents to customers. If copies in the RS-DVR are made by Cablevision, then so are the copies made on Cablevision home DVRs. And if playback of those copies on RS-DVR are public performances by Cablevision, then so are playbacks of those copies on Cablevision home DVRs (ignoring the question of whether they’re performances at all, in the case of same-room playback).

            You hit the key point in your last paragraph, when you noted that the transmit clause was enacted specifically to address communal — that is, shared — antenna systems. The fact is, because of its system design, Aereo is not a communal antenna system. Rather, it is a collection of individual antennas, each used individually by a single user. That is a substantive difference (even if the functional result is largely the same, from a user perspective). It is something that wasn’t anticipated by Congress four decades ago, and it’s not terribly surprising if the language they adopted turns out not to be broad enough to cover it — an error that Congress can easily fix, but which the courts should not undertake to fix, on their own.

          • Devlin Hartline

            There are indeed certain things that I take as a priori conclusions, because I think they are valid as prior conclusions. For example, the 1976 Copyright Act was crafted specifically to protect the right of individuals to receive over-the-air broadcasts without requiring a performance license. If after four decades we have a new interpretation that eviscerates that right, something is broken very badly. I think it’s reasonable to start with a conclusion that no interpretation that produces such a result can be valid. (This is essentially a paraphrase of the Second Circuit’s holding that any interpretation that reads the “to the public” limitation out of the transmit clause is invalid.)

            Was there ever any doubt that individuals can receive OTA broadcasts without a license? I’m not aware of that ever being an issue. The issue with the ‘76 Act was whether intermediaries could receive and then retransmit those broadcasts to individuals without a license. Even if the Supreme Court rules against Aereo, people will still have the ability to receive OTA broadcasts without a license—so I don’t really understand your point.

            I also take as an a prior conclusion, for example, that the legality of something I do cannot be controlled by independent actions of unrelated parties. So, for example, the legal status of my own storage and playback of media cannot be dependent upon the independent actions of an unrelated party who happens to store and playback the same underlying work.

            If you are storing your files utilizing a service, then that service is hardly independent and unrelated to you. You and that service have a direct relationship since you are its customer. That relationship, which could lead to liability for services based on the actions of its customers, is what led to the enactment of the DMCA.

            An assumption that cloud technologies for timeshifting and placeshifting should be noninfringing is NOT one of my starting assumptions. That HOME technologies for timeshifting and placeshifting should be noninfringing is. (Granted, the right to timeshift stems from a fair use holding, rather than from the statute.) I reach the conclusion that cloud technologies implemented along the lines of Aereo and Cablevision are noninfringing as a result of recognizing, after analysis, that there is no principled distinction between the home implementations and those cloud implementations. (This is a conclusion I reached, in terms of the law, only in light of reviewing the cases, btw. It wasn’t even something I took as a given when the system was being designed, prior to litigation.)

            This is where you and I disagree. I think there is a very principled distinction between what you do at home on your own equipment and what you do in the cloud on the service’s equipment. This is why, I assume, services like Amazon and Apple have licenses to do what they do. I think your mistake stems from viewing these services as being completely independent and unrelated to their customers. Amazon and Apple don’t appear to think their actions are unrelated to the actions of their customers, for if they did, they wouldn’t see the need for licenses.

            The “obvious” distinction you cite between home and cloud is completely arbitrary, not at all principled.

            That’s true only if you think, as you appear to do, that these services are independent and unrelated to their customers. But clearly the relationship between a service and its customers is not so. This is why, for example, YouTube seeks refuge in the DMCA for the infringing videos uploaded by its customers. If there were no relationship between the two, then it would argue that and not the DMCA.

            The issue of copying might be a simpler point to address than that of performing (because of the statutory definition of “transmit” depends on the meaning of “place”), but the basic issue is very simple. If you have a DVR in your home from Cablevision, it is Cablevision equipment just like RS-DVR. It is rented by a set of customers, just like RS-DVR. Cablevision is essential to its ongoing operation, just like RS-DVR. There is simply no principled way to distinguish between RS-DVR and the set of home DVRs Cablevision rents to customers. If copies in the RS-DVR are made by Cablevision, then so are the copies made on Cablevision home DVRs. And if playback of those copies on RS-DVR are public performances by Cablevision, then so are playbacks of those copies on Cablevision home DVRs (ignoring the question of whether they’re performances at all, in the case of same-room playback).

            Whether the service is causing the copies to be made on the home-based DVR, I think, turns on whether the service has control over the making of those copies. With the Betamax, the customer had complete control over the copies made, and so it made sense to find that Sony was only an indirect infringer at best. But with something like the DISH Hopper, I think the service’s continuing control over the copies that are made should change the analysis on who is making the copies. I think in a situation like that, it’s both DISH and the customer who are making the copies. Assuming the copies are fair use timeshifting, then it doesn’t really matter whether DISH is directly or indirectly causing them to be made since the result is the same.

            But I think it’s important to separate the issue of who is making the copies from the issue of who is performing them. With the RS-DVR, or with Aereo, I think that both the service and the customer is performing them. The service performs them publicly when it transmits the performance to the customer, and the customer is performing them privately when he renders the performance on his television or computer. The distinction between public and private is simply whether the performance is public or private. A customer who tunes into a broadcast is engaging in a private performance because the performance is not to the public or in a public place. The same goes for a customer who transmits from his den to his bedroom.

            You hit the key point in your last paragraph, when you noted that the transmit clause was enacted specifically to address communal — that is, shared — antenna systems. The fact is, because of its system design, Aereo is not a communal antenna system. Rather, it is a collection of individual antennas, each used individually by a single user. That is a substantive difference (even if the functional result is largely the same, from a user perspective). It is something that wasn’t anticipated by Congress four decades ago, and it’s not terribly surprising if the language they adopted turns out not to be broad enough to cover it — an error that Congress can easily fix, but which the courts should not undertake to fix, on their own.

            I think that reading of the Transmit Clause, which turns on one antenna or many antennae, is erroneous. I think Congress did focus on whether the transmitter is transmitting to the public, and it intended to capture any such device or process which results in a transmission to the public. The Transmit Clause is technologically neutral.

            I think the House Report makes this clear:

            Under the definitions of ‘perform,’ ‘display,’ ‘publicly,’ and ‘transmit’ in section 101, the concepts of public performance and public display cover not only the initial rendition or showing, but also any further act by which that rendition or showing is transmitted or communicated to the public. Thus, for example: a single [singer?] is performing when he or she sings a song; a broadcasting network is performing when it transmits his or her performance (whether simultaneously or from records); a local broadcaster is performing when it transmits the network broadcast; a cable television system is performing when it retransmits the broadcast to its subscribers; and any individual is performing whenever he or she plays a phonorecord embodying the performance or communicates the performance by turning on a receiving set. Although any act by which the initial performance or display is transmitted, repeated, or made to recur would itself be a ‘performance’ or ‘display’ under the bill, it would not be actionable as an infringement unless it were done ‘publicly,’ as defined in section 101. Certain other performances and displays, in addition to those that are ‘private,’ are exempted or given qualified copyright control under sections 107 through 118. ***

            Clause (2) of the definition of ‘publicly’ in section 101 makes clear that the concepts of public performance and public display include not only performances and displays that occur initially in a public place, but also acts that transmit or otherwise communicate a performance or display of the work to the public by means of any device or process. The definition of ‘transmit ‘– to communicate a performance or display ‘by any device or process whereby images or sound are received beyond the place from which they are sent’– 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 or sounds comprising a performance or display are picked up and conveyed is a ‘transmission,’ and if the transmission reaches the public in my [any?] form, the case comes within the scope of clauses (4) or (5) of section 106.

            Under the bill, as under the present law, a performance made available by transmission to the public at large is ‘public’ even though the recipients are not gathered in a single place, and even if there is no proof that any of the potential recipients was operating his receiving apparatus at the time of the transmission. 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. Clause (2) of the definition of ‘publicly’ is applicable ‘whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”

            H.R. Rep. No. 94-1476, 63-65 (emphasis added).

            Congress wasn’t concerned about whether one antenna or many antennae were used to make the transmission. Instead, it was concerned with “each and every method by which the images and sounds comprising a performance” are “picked up and conveyed,” assuming “the transmission reaches the public in any form.” This is why I think the number of antennae, as well as the number of copies used, if any, is not the relevant focus. The proper focus is on whether the party at issue transmits the performance to the public. If so, then it’s infringing, unless some other doctrine such as fair use or the DMCA excuses it from liability.

          • Devlin, I’m not saying there has been any debate over the right of individuals to receive OTA broadcasts without a license. That’s actually the point. There is no debate about that. Accordingly, it’s reasonable to take that as an a priori conclusion, and to say that any interpretation that would produce a result where individuals don’t clearly have that right is invalid. When you say I’m working backwards to a pre-ordained conclusion, that’s an example of a pre-ordained conclusion I start with — and which I think is absolutely justified.

            When I talk about the independent actions of unrelated parties, I’m not talking about the cloud providers. I’m talking about other individuals like me. “Legal strangers” to use the Second Circuit’s terminology. (I’m going to try to use some html here, since it’s looks like you’ve been able to. We’ll see if it works.)

            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.

            Finally (and again, specifically limiting the scope of my response due to limitations of this medium), I’m not reading the transmit clause to be explicitly limited to a shared antenna vs. separate antennas. I’m reading the case of individual antennas to be private performances, because I fundamentally agree with the the Second Circuit’s analysis in both Cablevision and Aereo and because I find each of the alternative analyses proposed to be fatally flawed. I then simply _observe_ that the root cause of the issue is that Congress in 1976 didn’t anticipate (and perhaps couldn’t reasonably anticipate) the adoption of Aereo-like technology, and so when they tried to future-proof the transmit clause, they end up using language that wasn’t actually broad enough to address that particular evolution in technologies. (We know that they wanted to be technology-neutral, but that doesn’t mean that they succeeded in actually writing statutory language that was neutral to all possible future technologies.)

          • Devlin, I’m not saying there has been any debate over the right of individuals to receive OTA broadcasts without a license. That’s actually the point. There is no debate about that. Accordingly, it’s reasonable to take that as an a priori conclusion, and to say that any interpretation that would produce a result where individuals don’t clearly have that right is invalid. When you say I’m working backwards to a pre-ordained conclusion, that’s an example of a pre-ordained conclusion I start with — and which I think is absolutely justified.

            I think where we disagree is over whether the Aereo case involves the right of somebody to receive OTA broadcasts using their own equipment. It’s not about that at all. It’s about whether third parties can receive those broadcasts and then retransmit them to the public. The Transmit Clause says that is a public performance, so a license is needed or else it’s infringement.

            When I talk about the independent actions of unrelated parties, I’m not talking about the cloud providers. I’m talking about other individuals like me. “Legal strangers” to use the Second Circuit’s terminology. (I’m going to try to use some html here, since it’s looks like you’ve been able to. We’ll see if it works.)

            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.

            I disagree with the Second Circuit’s argument that aggregating all the retransmissions made by Cablevision means that all retransmissions of the same underlying work by legal strangers should also be aggregated. It’s a red herring. You don’t aggregate Cablevision’s retransmissions with the retransmissions of Comcast. The argument is that you aggregate all of Cablevision’s own retransmissions. I think the best analysis of this point can be found in Professor Malkan’s article: http://law.uoregon.edu/org/olrold/archives/89/Malkan.pdf

            Finally (and again, specifically limiting the scope of my response due to limitations of this medium), I’m not reading the transmit clause to be explicitly limited to a shared antenna vs. separate antennas. I’m reading the case of individual antennas to be private performances, because I fundamentally agree with the the Second Circuit’s analysis in both Cablevision and Aereo and because I find each of the alternative analyses proposed to be fatally flawed. I then simply _observe_ that the root cause of the issue is that Congress in 1976 didn’t anticipate (and perhaps couldn’t reasonably anticipate) the adoption of Aereo-like technology, and so when they tried to future-proof the transmit clause, they end up using language that wasn’t actually broad enough to address that particular evolution in technologies. (We know that they wanted to be technology-neutral, but that doesn’t mean that they succeeded in actually writing statutory language that was neutral to all possible future technologies.)

            I think that Transmit Clause clearly encompasses any device or process whereby performances are transmitted to the public. Aereo is such a device or process, no matter how many antennae it may happen to use—and even if it uses no antennae. How is Aereo not a device or process that retransmits broadcasts to the public? I really don’t see it.

          • I think where we disagree is over whether the Aereo case involves the right of somebody to receive OTA broadcasts using their own equipment. It’s not about that at all. It’s about whether third parties can receive those broadcasts and then retransmit them to the public. The Transmit Clause says that is a public performance, so a license is needed or else it’s infringement.

            I don’t think Aereo is a case involving the right of somebody to receive OTA broadcasts using their own equipment. What I think (and as the Second Circuit also explained) is that to interpret the transmit clause as you propose would end up implying that all retransmissions are public, and therefore also imply that even a user transmitting a signal from their own antenna (that they own) to their television would require a license.

            I disagree with the Second Circuit’s argument that aggregating all the retransmissions made by Cablevision means that all retransmissions of the same underlying work by legal strangers should also be aggregated. It’s a red herring. You don’t aggregate Cablevision’s retransmissions with the retransmissions of Comcast. The argument is that you aggregate all of Cablevision’s own retransmissions. I think the best analysis of this point can be found in Professor Malkan’s article….

            I’ll try to find time to read the article you mention. But note that your proposed construction still doesn’t work. Take the Second Circuit example, and simply replace Comcast with Cablevision. If you aggregate all retransmissions from the same party, you get the very strange result that if they ever make any retransmissions publicly, then all of their retransmissions are public. So if Cablevision retransmits a work from one facility to another, and does nothing else, that’s a private transmission. However, if it also transmits the work to its customers, then the transmission between facilities becomes a public transmission. What’s more, if Cablevision first transmits the work between facilities, it is a private transmission — until Cablevision subsequently transmits the work to its customers, at which point the first transmission is retroactively transformed into a public transmission. Even if the subsequent transmission happens 50 years later, the first transmission is retroactively transformed into a public transmission requiring a license, 50 years later!

            This simply cannot be correct.

            I think that Transmit Clause clearly encompasses any device or process whereby performances are transmitted to the public. Aereo is such a device or process, no matter how many antennae it may happen to use—and even if it uses no antennae. How is Aereo not a device or process that retransmits broadcasts to the public? I really don’t see it.

            You don’t see it because 1) you take it as an a priori conclusion that Aereo is the transmitter, and 2) that the transmission are to the public, because 3) you want to abstract the details of the Aereo system into just being a “device a process,” without examining the underlying details. But you can’t do that and produce an result that is coherent.

            I mentioned in one of my early comments that there is a slippery slope going from the classical customer-owned antenna on the roof to Aereo, where at no step along the way can you draw a line on anything other than an arbitrary basis. This is hardly a suitable forum for going through a complete discussion of that, but let me give you a taste.

            Customer goes to Radio Shack and purchases and installs a rooftop antenna, connected by a wire to a TV inside their home. Who is the transmitter? Customer goes to Radio Shack and instead rents the rooftop antenna. Who is the transmitter? Customer doesn’t get a good signal on his rooftop, so he rents space from his neighbor, on the neighbor’s rooftop, and installs the antenna there. Who is the transmitter. Another neighbor has the same issue, and also rents space on the same rooftop. Who are the transmitters? The neighbor happens to be the same Radio Shack store that the antennas are rented from. Who are the transmitters? The customers also rented the cables used to connect the antennas to their homes. Who are the transmitters? The two customers have opposite schedules. One lives in his home during the week, and leaves for a vacation home on the weekends. The other lives elsewhere during the week, and comes to his home only on weekends. They decide to rent just a single antenna, with two cables to their homes, but only one can be connected at a time. Whenever one of them comes home, they climb up onto the rooftop and switch the connection. Who are the transmitters? They get tired of climbing, so they hire a local kid to make the switch for them, every Saturday and Monday morning. Who are the transmitters? The kid isn’t reliable, so they make a deal to pay Radio Shack, instead, and one of the Radio Shack employees makes the switch every Saturday and Monday. Who are the transmitters? Radio Shack decides it’s too dangerous and inefficient to send employees onto the roof, so they install a switch that the two users can trigger remotely. Who are the transmitters? Radio Shack installs a device on each of their TVs so that when the TV is turned on, it automatically triggers the switch. Who are the transmitters?

            By now, I expect you get the idea. This can be made as detailed as one wants. The only way to transition from the individuals being the transmitters to Radio Shack being the transmitter is to arbitrarily draw a line, and declare that, from that point on, Radio Shack is “doing too much” so they are deemed to be the transmitter for legal purposes. Such an arbitrary distinction is the domain of Congress to define, not the courts.

            There is a fundamental distinction between equipment rental and retransmission services. When you have a shared antenna (or any other equipment) that is used simultaneously by multiple users, there’s no question you’re dealing with retransmission services that fall squarely within the statutory definition of a public performance where the owner of the antenna is the transmitter. But when you have an antenna that is exclusively rented/allocated to one user at a time, you can’t deem the antenna owner to be the transmitter and the performance to be public without either 1) sliding down the slippery slope to the conclusion that the original paradigm of antenna on the individual’s own roof is also a public transmission, or 2) drawing an arbitrary line somewhere along the way, to separate the two.

            (1) is clearly antithetical to the plain language of the statute (as well as the legislative history and Congress’s clear intent). And there’s simply no basis in the statute for where the arbitrary line of (2) should be drawn. It is not the role of the Courts to fabricate such a line. If such a line is to be drawn, Congress must choose where to draw it.

            This is why I say that, even though Congress attempted to future-proof their language by making it technology neutral, the Aereo approach is not one that they anticipated, and the language that they enacted simply isn’t sufficient to bring it under the transmit clause as a public performance requiring a license.

            (1) is what you get when you try to ignore the details of the system, and simply abstract it away as a “device or process” — and since that would have the untenable implication of classifying transmissions from home antennas as public performances, it cannot be the correct interpretation. The only way to fix that is to define an arbitrary line that doesn’t yet exist in the Copyright Act. Neither you, nor I, nor even the Supreme Court can properly define where that line should be drawn. That is a power reserved exclusively to Congress.

          • Devlin Hartline

            I don’t think Aereo is a case involving the right of somebody to receive OTA broadcasts using their own equipment. What I think (and as the Second Circuit also explained) is that to interpret the transmit clause as you propose would end up implying that all retransmissions are public, and therefore also imply that even a user transmitting a signal from their own antenna (that they own) to their television would require a license.

            I don’t think the argument is that you aggregate all transmissions. I think the point of the aggregation argument is that the focus can’t possibly be on the audience for a particular transmission since the Transmit Clause’s “different times” language clearly means that one public performance can be comprised of several asynchronous transmissions. That only shows that some transmissions can be aggregated, not that all transmissions must be aggregated. The Second Circuit was so concerned about aggregating transmissions from legal strangers that it lost sight of the fact that Cablevision’s own transmissions should be aggregated and not everyone else’s. The “different times” language, I think, refers to interactive services like YouTube. Or Aereo. Or Cablevision. That one particular transmission can be received by one particular customer doesn’t change the fact that the transmissions are to the public.

            I’ll try to find time to read the article you mention. But note that your proposed construction still doesn’t work. Take the Second Circuit example, and simply replace Comcast with Cablevision. If you aggregate all retransmissions from the same party, you get the very strange result that if they ever make any retransmissions publicly, then all of their retransmissions are public. So if Cablevision retransmits a work from one facility to another, and does nothing else, that’s a private transmission. However, if it also transmits the work to its customers, then the transmission between facilities becomes a public transmission. What’s more, if Cablevision first transmits the work between facilities, it is a private transmission — until Cablevision subsequently transmits the work to its customers, at which point the first transmission is retroactively transformed into a public transmission. Even if the subsequent transmission happens 50 years later, the first transmission is retroactively transformed into a public transmission requiring a license, 50 years later!

            This simply cannot be correct.

            I don’t think the argument that all transmissions from the same party get aggregated. Just the ones that are to the public. Is Aereo performing the work by sending transmissions to the public in separate places and at different times? Yes. Then it’s a public performance, according to the Transmit Clause.

            You don’t see it because 1) you take it as an a priori conclusion that Aereo is the transmitter, and 2) that the transmission are to the public, because 3) you want to abstract the details of the Aereo system into just being a “device a process,” without examining the underlying details. But you can’t do that and produce an result that is coherent.

            I don’t think there’s any doubt that Aereo is the transmitter. When I order a pay-per-view movie from Cox, is not Cox the transmitter? Is not Cox publicly performing the work, even though it sends a transmission of the performance only to be received by me? How is Aereo different? I don’t think the underlying details matter. They don’t change the fact that Aereo is in the broadcast retransmission business.

            Customer goes to Radio Shack and purchases and installs a rooftop antenna, connected by a wire to a TV inside their home. Who is the transmitter? Customer goes to Radio Shack and instead rents the rooftop antenna. Who is the transmitter? Customer doesn’t get a good signal on his rooftop, so he rents space from his neighbor, on the neighbor’s rooftop, and installs the antenna there. Who is the transmitter. Another neighbor has the same issue, and also rents space on the same rooftop. Who are the transmitters? The neighbor happens to be the same Radio Shack store that the antennas are rented from. Who are the transmitters? The customers also rented the cables used to connect the antennas to their homes. Who are the transmitters? The two customers have opposite schedules. One lives in his home during the week, and leaves for a vacation home on the weekends. The other lives elsewhere during the week, and comes to his home only on weekends. They decide to rent just a single antenna, with two cables to their homes, but only one can be connected at a time. Whenever one of them comes home, they climb up onto the rooftop and switch the connection. Who are the transmitters? They get tired of climbing, so they hire a local kid to make the switch for them, every Saturday and Monday morning. Who are the transmitters? The kid isn’t reliable, so they make a deal to pay Radio Shack, instead, and one of the Radio Shack employees makes the switch every Saturday and Monday. Who are the transmitters? Radio Shack decides it’s too dangerous and inefficient to send employees onto the roof, so they install a switch that the two users can trigger remotely. Who are the transmitters? Radio Shack installs a device on each of their TVs so that when the TV is turned on, it automatically triggers the switch. Who are the transmitters?

            I don’t think these sorts of arguments are persuasive. I mentioned above that just because I can’t tell you where the line is drawn in all circumstances, that doesn’t mean it’s not obvious that Aereo is performing works as it retransmits them to its customers, that is, members of the public.

            By now, I expect you get the idea. This can be made as detailed as one wants. The only way to transition from the individuals being the transmitters to Radio Shack being the transmitter is to arbitrarily draw a line, and declare that, from that point on, Radio Shack is “doing too much” so they are deemed to be the transmitter for legal purposes. Such an arbitrary distinction is the domain of Congress to define, not the courts.

            But Congress did define it in the Transmit Clause, and the only task is to determine whether Aereo, and not the parade of hypotheticals you cooked up, has crossed the line.

            There is a fundamental distinction between equipment rental and retransmission services. When you have a shared antenna (or any other equipment) that is used simultaneously by multiple users, there’s no question you’re dealing with retransmission services that fall squarely within the statutory definition of a public performance where the owner of the antenna is the transmitter. But when you have an antenna that is exclusively rented/allocated to one user at a time, you can’t deem the antenna owner to be the transmitter and the performance to be public without either 1) sliding down the slippery slope to the conclusion that the original paradigm of antenna on the individual’s own roof is also a public transmission, or 2) drawing an arbitrary line somewhere along the way, to separate the two.

            (1) is clearly antithetical to the plain language of the statute (as well as the legislative history and Congress’s clear intent). And there’s simply no basis in the statute for where the arbitrary line of (2) should be drawn. It is not the role of the Courts to fabricate such a line. If such a line is to be drawn, Congress must choose where to draw it.

            I honestly don’t think there’s any doubt that Aereo is the transmitter, your parade of horribles notwithstanding. Does Aereo provide a service where it captures and the retransmits broadcast signals to members of the public? Yes.

            This is why I say that, even though Congress attempted to future-proof their language by making it technology neutral, the Aereo approach is not one that they anticipated, and the language that they enacted simply isn’t sufficient to bring it under the transmit clause as a public performance requiring a license.

            If the Transmit Clause actually said to consider the audience for each transmission, you might have a point, but it instead says to focus on whether the work is being transmitted to the public. The “different times” language shows that the one source copy/one source antenna argument can’t be right.

            (1) is what you get when you try to ignore the details of the system, and simply abstract it away as a “device or process” — and since that would have the untenable implication of classifying transmissions from home antennas as public performances, it cannot be the correct interpretation. The only way to fix that is to define an arbitrary line that doesn’t yet exist in the Copyright Act. Neither you, nor I, nor even the Supreme Court can properly define where that line should be drawn. That is a power reserved exclusively to Congress.

            I think the Supreme Court can and will read the very broad Transmit Clause, which was enacted to capture retransmission services using “any device or process,” as easily encompassing Aereo. Given that the purpose of the Transmit Clause was to capture companies doing the very thing Aereo is doing, I think it’s pretty simple. I just don’t buy the argument that the number of antennae matters. Is Aereo retransmitting broadcasts to the public? Yes. That’s its very business model.

          • The Second Circuit didn’t focus on a single transmission, ignoring the specification of the transmit clause regarding aggregation entirely. The Second Circuit focused on the meaning of the term “performance” in the transmit clause. They (correctly) concluded that it cannot mean that all performances of the same underlying work are to be grouped together (which is what you fundamentally propose, though you propose to further limit that by who the transmitter is, where you define who the transmitter is based, apparently, on just your own intuition).

            In these cases, they concluded that, just as with a home DVR, the end user is the maker of the copy, and the transmissions to be aggregated have be those transmissions emanating from that particular copy made by the end user. There can be multiple transmissions, but since all of them can only be received by that one end user, they do not constitute public performances.

            I don’t think there’s any doubt that Aereo is the transmitter. When I order a pay-per-view movie from Cox, is not Cox the transmitter? Is not Cox publicly performing the work, even though it sends a transmission of the performance only to be received by me? How is Aereo different? I don’t think the underlying details matter. They don’t change the fact that Aereo is in the broadcast retransmission business.

            It’s quite clear that you don’t think the underlying details matter, but you can’t just assert that, and all you’ve done is to simply assert it.

            Aereo is different from Cox delivering pay-per-view movies because Aereo is renting equipment to users (as a service), whereas Cox is renting content to users (as a service). Whether you want to accept it or not, the difference is significant.

            Aereo is indeed in the same basic business, and I even agree that given what they do, philosophically, they should be subject to the same licensing requirements as others. There should be a level playing field. But the fact is they have implemented their system in a way that avoids the need to license retransmission. The details do matter. And to the degree this is a problem, the power to fix it lies with Congress, not the courts.

            I honestly don’t think there’s any doubt that Aereo is the transmitter, your parade of horribles notwithstanding.

            I didn’t present a parade of horribles. I presented a step-by-step transition from an example you believe is clearly classified one way to an example you believe is clearly classified aother way, and asked you to tell me where the line is drawn between the two, and what the criteria is for such. That’s not a parade of horribles.

            The “different times” language shows that the one source copy/one source antenna argument can’t be right.

            No it doesn’t. Even by your line of argument, if the transmitter were, in fact, the end user, then it would be game over — private performance — right?

            I think the Supreme Court can and will read the very broad Transmit Clause, which was enacted to capture retransmission services using “any device or process,” as easily encompassing Aereo.

            If it does, it will either create a broad and highly problematic precedent that renders public and subject to licensing a lot of what we have all previously believed were legitimate private performances, or they will create an arbitrary exception to deem Aereo performances public.

            I’m not in the business of predicting what the Supreme Court will do. I’m just observing that they would be wrong to do either of those two things.

          • Devlin Hartline

            The Second Circuit didn’t focus on a single transmission, ignoring the specification of the transmit clause regarding aggregation entirely. The Second Circuit focused on the meaning of the term “performance” in the transmit clause. They (correctly) concluded that it cannot mean that all performances of the same underlying work are to be grouped together (which is what you fundamentally propose, though you propose to further limit that by who the transmitter is, where you define who the transmitter is based, apparently, on just your own intuition).

            I think it’s more than just intuition. We don’t usually aggregate the actions of completely unrelated parties. If Robber A robs two people, we don’t try him for the three robberies committed by Robber B. But we do try Robber A for all the robberies he committed. I don’t think anybody denies that you don’t aggregate all performances. The argument is that you aggregate Aereo’s performances of the same underlying work, and the argument that each particular transmission is the proper focus is disproved by the “different times” language.

            In these cases, they concluded that, just as with a home DVR, the end user is the maker of the copy, and the transmissions to be aggregated have be those transmissions emanating from that particular copy made by the end user. There can be multiple transmissions, but since all of them can only be received by that one end user, they do not constitute public performances.

            And while YouTube’s particular streams can only be received by one end user at a time, you think those should be aggregated and considered a public performance because they arise from one source copy (although, I’m sure in practice that YouTube uses several source copies). Could YouTube escape the fact that it’s publicly performing works by simply installing a button that lets a user make a copy before streaming the performance to himself from that particular copy? I don’t think so. The Transmit Clause says nothing about source copies. In both cases, YouTube is streaming a performance of the work to a user, who is a member of the public.

            It’s quite clear that you don’t think the underlying details matter, but you can’t just assert that, and all you’ve done is to simply assert it.

            I assert it based on the incredibly broad language of the Transmit Clause, which speaks of “any device or process.”

            Aereo is different from Cox delivering pay-per-view movies because Aereo is renting equipment to users (as a service), whereas Cox is renting content to users (as a service). Whether you want to accept it or not, the difference is significant.

            I use rented equipment from Cox, that is, my cable box, to receive the pay-per-views. Could Cox say I’m also renting space on their servers and thus avoid having to pay licensing fees for the pay-per-views they stream to me? I think you’re pointing out a distinction without a difference. Both Cox and Aereo are publicly performing because both transmit performances of works to the public. I disagree that Aereo can simply claim to be renting equipment and that erases the fact that its very business model is to retransmit broadcasts to the public. Is Aereo erecting an antenna which it uses to capture broadcasts that it then retransmits to the public? Yes. It’s not a passive file locker. It’s a complicated interactive video streaming service.

            Aereo is indeed in the same basic business, and I even agree that given what they do, philosophically, they should be subject to the same licensing requirements as others. There should be a level playing field. But the fact is they have implemented their system in a way that avoids the need to license retransmission. The details do matter. And to the degree this is a problem, the power to fix it lies with Congress, not the courts.

            I don’t see how any technology can get around the “any device or process” language. I think you’re missing the forest for the trees.

            I didn’t present a parade of horribles. I presented a step-by-step transition from an example you believe is clearly classified one way to an example you believe is clearly classified aother way, and asked you to tell me where the line is drawn between the two, and what the criteria is for such. That’s not a parade of horribles.

            I could do the same for you with any other distinction, such as the line between idea and expression. Just because I can imagine circumstances where it’s difficult to separate the two, that tells us nothing about whether the line is difficult to separate in this particular case.

            No it doesn’t. Even by your line of argument, if the transmitter were, in fact, the end user, then it would be game over — private performance — right?

            I think you can have passive systems, like true file lockers, where a customer could stream his own files to himself and those would be private performances. I mentioned before that other doctrines would play a role as well, such as the volitional conduct test, fair use, and the DMCA. But Aereo is anything but passive. Its entire business model is literally that it erects antennae to receive broadcasts which it then retransmits to its customers. One thing that I think works against them is that they aren’t mentioning fair use or the DMCA.

            If it does, it will either create a broad and highly problematic precedent that renders public and subject to licensing a lot of what we have all previously believed were legitimate private performances, or they will create an arbitrary exception to deem Aereo performances public.

            I’m not in the business of predicting what the Supreme Court will do. I’m just observing that they would be wrong to do either of those two things.

            I think it will look at Aereo and ask whether it’s a service that receives and then retransmits broadcasts to the public. I think the answer is clearly yes, and one can arrive at this answer without making a lot of performances which are private suddenly public.

            Let me just say again that I appreciate the civil conversation! I think we’ve flogged this horse pretty well. Our differences, it seems, are pretty intractable, and it boils down to how we frame the issues–you think that’s what under the hood matters, and I think the bigger picture is what matters. It’s been fun discussing it with you. Your arguments are better than I’ve been letting on, I admit, and I appreciate you taking the time to share your thoughts.

          • I’m consolidating the two threads into one.

            I think it’s more than just intuition. We don’t usually aggregate the actions of completely unrelated parties.

            Devlin, the intuition I referenced wasn’t about aggregation, it was about your insistence that Aereo is the transmitter. I say “intuition” because you decline to provide any test or reason why Aereo should be deemed such, other than that it is “obvious.” But in truth, based on your classification of different examples, it appears that your actual criteria is based on the location of equipment — i.e., at the customer’s home vs. at a remote facility. That, however, is precisely an arbitrary criterion, with no basis in the statute.

            And while YouTube’s particular streams can only be received by one end user at a time, you think those should be aggregated and considered a public performance because they arise from one source copy (although, I’m sure in practice that YouTube uses several source copies).

            Under the Second Circuit analysis, one copy vs. multiple copies is not a significant distinction where the provider is the legal author of the copies, and when Youtube makes multiple copies, at their own volition, in order to scale performance of their system, they are certainly the legal author.

            It is critical that the Second Circuit concluded (correctly) that location does not matter, and a consumer scheduling a recording to a remote disk is no different than a consumer scheduling a recording to disk that happens to be located in their home. In both cases, the consumer is the legal author of the copy.

            Could YouTube escape the fact that it’s publicly performing works by simply installing a button that lets a user make a copy before streaming the performance to himself from that particular copy? I don’t think so. The Transmit Clause says nothing about source copies. In both cases, YouTube is streaming a performance of the work to a user, who is a member of the public.

            If they constructed their system correctly, then yes, I believe Youtube (or any provider) could transform their VOD performances into private performances. They would have to create an equipment rental service comparable to that of Aereo and Cablevision to do so.

            While they could escape infringement under the transmit clause by such, they could not escape infringement under the Copyright Act altogether, because the act of making the individual copy of the VOD asset would be an infringement. Neither Youtube nor the consumer have the right to make that copy, absent a license. (And even when a consumer rents a VOD, there’s no fair use right to make a copy of it.)

            I use rented equipment from Cox, that is, my cable box, to receive the pay-per-views. Could Cox say I’m also renting space on their servers and thus avoid having to pay licensing fees for the pay-per-views they stream to me? I think you’re pointing out a distinction without a difference.

            If they are not allocating space to you exclusively, it’s not a rental of equipment. And per the above discussion respecting Youtube, if they did allocate space to you exclusively to hold a copy, then they would run afoul of the Copyright Act by virtue of making a copy into that space without a license.

            I could do the same for you with any other distinction, such as the line between idea and expression. Just because I can imagine circumstances where it’s difficult to separate the two, that tells us nothing about whether the line is difficult to separate in this particular case.

            (Referencing the other thread) It is not a trick to ask you for a test and to expect that a test produced by a coherent theory should be able to classify the different cases properly.

            If anything is a trick, it would be your suggestion that all aspects of law are equally abstract — that if it is difficult to draw a line between something abstract like “idea and expression” then it is equally difficult to draw lines in any other areas of law. By this argument, it should be acceptable for all distinctions to be hand-waved as Justice Stewart did with obscenity: “I know it when I see it.”

            I hardly think that jurisprudence is on your side, in making that suggestion.

            This is not an abstract issue like obscenity or “idea and expression.” You can easily create a test. My point was simply that it will be arbitrary. And arbitrary lines are ok, so long as Congress is responsible for drawing them. They are not ok when courts fabricate them of whole cloth.

            What’s more, I didn’t ask you for a test and then say I was going to argue that one of those oddball cases along the continuum was misclassified by it. I asked you to produce a test, and then said that I believed I could construct a case that we both would agree should be classified one way, but which the test would misclassify the other way.

            You are telling me that posing hypotheticals is unreasonable, but isn’t that precisely what the courts do to understand issues? Did not the Second Circuit pose hypotheticals in their holdings in these cases? Do not the Supreme Court Justices, themselves, routinely pose hypotheticals during oral arguments, to test the theories and tests being proposed by counsel?

            The point of the hypotheticals I propose is not to complicate the situation, but to simplify and clarify it. I make simplifying assumptions, like assuming it is the same exact piece of equipment that is being moved to different locations, in order to focus on the core issues. This is not trickery.

            You are an academic, specializing in copyright, no? Can you seriously suggest that it is unreasonable for me to ask you to produce a criteria and legal test — something which we can then test against different (yes, hypothetical) scenarios, to see whether your test produces coherent or incoherent results?

            I, after all, am an engineer and scientist. This is the basic scientific method. You produce a hypothesis, and then you test it. That’s what I’ve been doing with your arguments, and those of others. When I test the Second Circuit analysis, it produces coherent results. When I test the opposing proposals, they produce incoherent results. That includes yours.

            But here, this has ended up with you dismissing the incoherencies of your own position by saying, in essence, it’s hard to be coherent and that I’m unreasonable if I ask you to be coherent. Instead, you’re telling me that a hand-wave is enough, and if I don’t agree, it’s because I can’t see the forest for the trees.

            I don’t think that’s a defensible argument. (And frankly, to the degree that courts have engaged in this sort of behavior, even in much more difficult areas, such as obscenity, it has been to their discredit — almost universally been viewed as such, not just by me.)

            I think you can have passive systems, like true file lockers, where a customer could stream his own files to himself and those would be private performances.

            When I buy an MP3 from Amazon, they automatically place a copy into my file locker. In your analysis, that would be indistinguishable from what Aereo and Cablevision do, right?

            So by your analysis, when I stream an MP3 that Amazon automatically deposited, the transmission is a public performance by Amazon. If, on the other hand, I took the downloaded copy of the MP3 from Amazon, and uploaded it myself to the very same server, when I stream that copy of the MP3, the transmission is a private performance by me.

            This seems a completely incoherent result to me.

          • Devlin, the intuition I referenced wasn’t about aggregation, it was about your insistence that Aereo is the transmitter. I say “intuition” because you decline to provide any test or reason why Aereo should be deemed such, other than that it is “obvious.” But in truth, based on your classification of different examples, it appears that your actual criteria is based on the location of equipment — i.e., at the customer’s home vs. at a remote facility. That, however, is precisely an arbitrary criterion, with no basis in the statute.

            The location of the equipment is a factor. This is borne out in the early case law on renting VCRs and offering private viewing rooms. It’s the difference between the case where the hotel rents a VCR which the guest uses in his room (private) and the central VCR where the hotel streams the movie to the room (public). I’m not just latching onto an arbitrary distinction. I think this distinction has a relatively firm basis in the case law—which I admit is somewhat scarce and not as firm as it could be had the issues been litigated more often. I think another key distinction is in whether the service provides the very content, as Cablevision and Aereo do, and services that are truly passive. This distinction is again not arbitrary, and it’s reflected in the case law as well as codified in the DMCA.

            Under the Second Circuit analysis, one copy vs. multiple copies is not a significant distinction where the provider is the legal author of the copies, and when Youtube makes multiple copies, at their own volition, in order to scale performance of their system, they are certainly the legal author.

            But if a YouTube user causes the copy to be made by merely pressing a button, then why wouldn’t he be the one causing the copy to be made under Cablevision’s and Aereo’s formulation of the volitional conduct test? I think too that the Cablevision and Aereo courts gave paramount attention to the fact that each transmission could only be received by one person, and this was a function of the one source copy/multiple source copy theory that they pulled out of thin air as correcting their admitted reading out of the statute the “different times” language. The proper approach would be to leave the “different times” language in the statute and focus on the performance of the underlying work and not the performance of each individual source copy of that underlying work. Sure, the courts could think of an atextual way to reconcile the problem of interpretation that they had caused in the first place, but, as you know, that’s not the role of the courts.

            It is critical that the Second Circuit concluded (correctly) that location does not matter, and a consumer scheduling a recording to a remote disk is no different than a consumer scheduling a recording to disk that happens to be located in their home. In both cases, the consumer is the legal author of the copy.

            Even if the customer is the author of the copy—a view that I think is mistaken—that doesn’t have anything to do with the question of who is transmitting the transmissions. If your view is so obviously correct, then why do Amazon and Apple license their music file lockers? The location does matter, as is demonstrated in the case law. And it’s not just the location, it’s the features. Once the service provides more than just bare storage, it starts to cross the line from passive conduit (protected by the DMCA) to willing participant (unprotected by the DMCA). Aereo, as you know, is not even arguing that it’s protected by the DMCA as simply being a storage facility for user generated content. Why do you think that is? If it’s so obviously a passive conduit, then why isn’t it invoking the DMCA under 512(C)?

            If they constructed their system correctly, then yes, I believe Youtube (or any provider) could transform their VOD performances into private performances. They would have to create an equipment rental service comparable to that of Aereo and Cablevision to do so.

            If YouTube could simply say that its users are “renting” the equipment and therefore they aren’t publicly performing anything, don’t you think they would have? Instead, there’s case law saying that YouTube is publicly performing works. That’s why YouTube pays for licenses on much content, and it’s protected by the DMCA for much as well.

            While they could escape infringement under the transmit clause by such, they could not escape infringement under the Copyright Act altogether, because the act of making the individual copy of the VOD asset would be an infringement. Neither Youtube nor the consumer have the right to make that copy, absent a license. (And even when a consumer rents a VOD, there’s no fair use right to make a copy of it.)

            But under this hypothetical, YouTube provides a button that allows the user to initiate the copy. I thought that under the broad reading of the volitional conduct test, which it appears you subscribe to, only the user is making the copy. But my point was not about the reproduction right. It was about the performance right.

            If they are not allocating space to you exclusively, it’s not a rental of equipment. And per the above discussion respecting Youtube, if they did allocate space to you exclusively to hold a copy, then they would run afoul of the Copyright Act by virtue of making a copy into that space without a license.

            If we were talking about a file locker service that passively stores user generated content, I’d think you have a good point. But Aereo is a service that provides the antennae for the purpose of retransmitting works to the public. I just don’t see it as a cloud-based file locker service. I see it for what it is, which is a service that sets up antennae to receive over-the-air broadcasts which it retransmits to the public—the very type of service the Transmit Clause was enacted to proscribe.

            (Referencing the other thread) It is not a trick to ask you for a test and to expect that a test produced by a coherent theory should be able to classify the different cases properly.

            If anything is a trick, it would be your suggestion that all aspects of law are equally abstract — that if it is difficult to draw a line between something abstract like “idea and expression” then it is equally difficult to draw lines in any other areas of law. By this argument, it should be acceptable for all distinctions to be hand-waved as Justice Stewart did with obscenity: “I know it when I see it.”

            The problem with “know it when I see it” vis-à-vis obscenity is that it was too subjective a test. The line between public and private or idea and expression is not too subjective. The case law that exists has been drawing these distinctions at greater and greater resolutions since the passage of the ’76 Act. The statute itself is open-textured and broadly written, but the case law tells us that certain facts limit its scope. The rest is reasoning by analogy. This isn’t subjectively stating that I know it when I see it, it’s objectively placing the given fact pattern into the existing jurisprudential gloss on the Transmit Clause.

            I hardly think that jurisprudence is on your side, in making that suggestion.

            I think it is, and that’s why services like Amazon and Apple have licenses, even for the files stored by their users.

            This is not an abstract issue like obscenity or “idea and expression.” You can easily create a test. My point was simply that it will be arbitrary. And arbitrary lines are ok, so long as Congress is responsible for drawing them. They are not ok when courts fabricate them of whole cloth.

            I disagree that any of the existing lines are arbitrary. They are based in statutory text and the case law. This is how the law naturally develops when Congress writes broad statutes like the Transmit Clause. The Supreme Court’s opinion in Aereo will be the next big step in that jurisprudence. It’s developing nicely and it’s anything but arbitrary. Courts are confronted with new technologies and they have to decide how to apply the Transmit Clause to that technology. The lines drawn may seem somewhat arbitrary up close, but the fact is that courts are where these finer details take shape by design. The case before the Court dictates that a line be drawn, and the fact is that a line will be drawn—however arbitrary it may seem when focused on in isolation.

            What’s more, I didn’t ask you for a test and then say I was going to argue that one of those oddball cases along the continuum was misclassified by it. I asked you to produce a test, and then said that I believed I could construct a case that we both would agree should be classified one way, but which the test would misclassify the other way.

            You are telling me that posing hypotheticals is unreasonable, but isn’t that precisely what the courts do to understand issues? Did not the Second Circuit pose hypotheticals in their holdings in these cases? Do not the Supreme Court Justices, themselves, routinely pose hypotheticals during oral arguments, to test the theories and tests being proposed by counsel?

            The point of the hypotheticals I propose is not to complicate the situation, but to simplify and clarify it. I make simplifying assumptions, like assuming it is the same exact piece of equipment that is being moved to different locations, in order to focus on the core issues. This is not trickery.

            You are an academic, specializing in copyright, no? Can you seriously suggest that it is unreasonable for me to ask you to produce a criteria and legal test — something which we can then test against different (yes, hypothetical) scenarios, to see whether your test produces coherent or incoherent results?

            I, after all, am an engineer and scientist. This is the basic scientific method. You produce a hypothesis, and then you test it. That’s what I’ve been doing with your arguments, and those of others. When I test the Second Circuit analysis, it produces coherent results. When I test the opposing proposals, they produce incoherent results. That includes yours.

            But here, this has ended up with you dismissing the incoherencies of your own position by saying, in essence, it’s hard to be coherent and that I’m unreasonable if I ask you to be coherent. Instead, you’re telling me that a hand-wave is enough, and if I don’t agree, it’s because I can’t see the forest for the trees.

            I don’t think that’s a defensible argument. (And frankly, to the degree that courts have engaged in this sort of behavior, even in much more difficult areas, such as obscenity, it has been to their discredit — almost universally been viewed as such, not just by me.)

            Fair enough. Throw out whatever hypotheticals you want. I don’t deny, and no one can deny, that you can think of hard cases. And we could then debate about whether in those hard cases the courts are applying the law or making it up. I don’t see much point. I’m focusing on the facts of this case, and I think it’s perfectly coherent to say that a service which literally uses antennae to receive and then retransmit works to the public is engaging in public performances. I think it strains credulity to argue otherwise. I think you have to present a warped version of my theory in order to rebut it. I don’t deny that some cases closer to the margin are more difficult. I just disagree that this case is nearly as difficult as you argue it to be. And I also disagree that a slew of hypotheticals where the line is less clear tells us anything important about where the line is here.

            When I buy an MP3 from Amazon, they automatically place a copy into my file locker. In your analysis, that would be indistinguishable from what Aereo and Cablevision do, right?

            So by your analysis, when I stream an MP3 that Amazon automatically deposited, the transmission is a public performance by Amazon. If, on the other hand, I took the downloaded copy of the MP3 from Amazon, and uploaded it myself to the very same server, when I stream that copy of the MP3, the transmission is a private performance by me.

            This seems a completely incoherent result to me.

            I think it’s more complicated than that. First of all, Amazon would have a license to distribute that copy to you. Whether or not Amazon is then publicly performing the work as you stream it to yourself would not turn on whether you were using the copy Amazon deposited or the copy you yourself deposited on Amazon. It would instead turn on the details of Amazon’s system, which I don’t fully grasp. Other doctrines would tie in such as the DMCA and the fair use doctrine. While I don’t grasp the specifics of Amazon’s system, I think it’s relevant to note that Amazon itself has public performance licenses. You seem to assume that Amazon is not publicly performing anything, when Amazon’s own actions suggest that it believes otherwise.

          • But if a YouTube user causes the copy to be made by merely pressing a button, then why wouldn’t he be the one causing the copy to be made under Cablevision’s and Aereo’s formulation of the volitional conduct test?

            Perhaps he would, but Youtube would not escape liability. If Youtube were deemed the author of the copy, then they would be directly liable. If the user were deemed the author, then Youtube would surely be secondarily liable. (Completely consistent with the Second Circuit in Cablevision, btw, where they discussed secondary liability, even though it had be excluded from plaintiffs’ claims.)

            The key difference, between Youtube in that situation and Cablevision/Aereo is that in the former, the user has no right, under any theory, to copy the content, whereas in the latter, the user has a pretty clear right to access the content (either as part of a cable subscription, or by receiving an over-the-air broadcast) and an established fair use right to make the copy that’s then used for the subsequent transmission.

            If YouTube could simply say that its users are “renting” the equipment and therefore they aren’t publicly performing anything, don’t you think they would have?

            First, my argument was that they could escape a public performance by modifying their system to make individual copies, but that they would still run afoul of the Copyright Act by making those copies. (And this is precisely what the Second Circuit said in Cablevision, btw.) So there’s really no motivation at all for them to do this.

            Even if that were not the case, they couldn’t just say it. They would have to modify the implementation of their system to actually do it. I expect it’s precisely because you’re not familiar with the details of how these systems work that it’s not clear to you why they don’t do that. To put it in a nutshell, very expensive. Not only would they have to allocate individual storage to all of their users to store all these copies, and to be managed at their users’ volition (meaning a gigantic increase in storage), they would need to use a completely different delivery model. No longer could they use CDNs for cost-effective delivery, because CDNs don’t deliver individual streams from users’ individual copies. They would have to deliver via end-to-end transit from their facilities to the users. Very expensive, and very hard to ensure quality of service. In 2011, Youtube’s transit costs were estimated to be nearly $500MM. That was using third-party CDNs. Google implemented its own CDN, likely pushing their transit costs close to 0. If Youtube were to implement individualized copies and delivery, it would cost them even more than when they were using third-party CDNs.

            So there’s plenty of reason for them not to do such, even if it would be legal for them to do so.

            The problem with “know it when I see it” vis-à-vis obscenity is that it was too subjective a test. The line between public and private or idea and expression is not too subjective.

            Then you should be able to tell me what you believe the criteria for drawing the line is, or should be. And we should be able to test the reasonableness of that interpretation by applying that criteria to different cases, to see if it produces results that can be reconciled with the statute and precedent. (And we should be able to look to see if the criteria is arbitrary, or finds basis in the statute.)

            I don’t think that refusing to say what the criteria should be for drawing the line, because it’s a hard problem to do so, is a valid position to take. To my view, you are distinguishing cases that I don’t think are substantively different by saying “This one is obviously public, and that one is obviously private.” That is the same as saying “I know it when I see it.”

            [JSG] I hardly think that jurisprudence is on your side, in making that suggestion.

            [DH] I think it is, and that’s why services like Amazon and Apple have licenses, even for the files stored by their users.

            First, my reference to jursiprudence not being on your side was with respect to (my characterization) you essentially saying an “I know it when I see it” standard is sufficient.

            Regarding Amazon and Apple, I think you fundamentally mischaracterize their file locker services, and why they have taken licenses.

            Amazon launched their Cloud Drive service in March 2011 (well after Cablevision), without taking any licenses. After Apple entered the market with the itunes match service, Amazon also negotiated licenses to offer a comparable service. Amazon still offers a free level of Cloud Drive service which I would presume remains unlicensed. And since they would only have taken licenses with respect to major labels, they certainly still operate that service unlicensed, with respect to some content.

            Apple launched their itunes match service late in November 2011, having taken licenses from major labels. But as with Amazon, they operate in a hybrid fashion, using individual copies of music for any content where they don’t possess a license.

            Apple and Amazon took licenses because they wanted the benefit of being able to store and stream from single copies of content. They wanted the storage and bandwidth efficiency that came with such, and they wanted to offer their customers the convenience of being able to quickly match the music that they already had, vs. having to actually upload all that music.

            In other words, they took the licenses not because they believed they had to, but because of the tradeoffs involved in the individual copy model vs. single/shared copy model. That they still believe individual storage without licenses is a legal model is obvious, given the fact that both still do it, either entirely for some customers, or for any music where they don’t have a license.

            Fair enough. Throw out whatever hypotheticals you want. I don’t deny, and no one can deny, that you can think of hard cases. And we could then debate about whether in those hard cases the courts are applying the law or making it up. I don’t see much point. I’m focusing on the facts of this case…

            I’m not trying to construct hard cases. I’m trying to construct cases to test any criteria or theory that’s proposed, in order to illuminate whether they produce plausible results when applied to a variety of situations.

            The Supreme Court doesn’t generally take cases just in order to focus myopically on the specific case. They take cases that they believe to be of broader import, and they surely should be (and generally are) concerned with whether those precedents produce reasonable results upon application to other sets of facts. (In fact, when they occasionally punt by handing down one of these decisions where they dismiss their own decision as having precedential standing for other cases, they are rightfully criticized for such.)

            …and I think it’s perfectly coherent to say that a service which literally uses antennae to receive and then retransmit works to the public is engaging in public performances. I think it strains credulity to argue otherwise. I think you have to present a warped version of my theory in order to rebut it. I don’t deny that some cases closer to the margin are more difficult. I just disagree that this case is nearly as difficult as you argue it to be. And I also disagree that a slew of hypotheticals where the line is less clear tells us anything important about where the line is here.

            It’s not coherent if it implies results in other cases that are implausible.

            And I don’t know how I could present a warped version of your theory, because I can only guess what your theory is at this point. It seems like the critical criterion for you is location. And I could construct some hypotheticals to challenge a focus on location as the critical factor, but I don’t see much point until you actually state what you think the criteria and legal test should be (because for sure you’ll end up explaining to me that I’ve got your theory wrong).

            Tell you what, let’s focus on a specific subset. Tell me your criteria, your legal test, to distinguish between the legal status of copies and transmissions on rented equipment placed in-home, vs. rented equipment placed remotely (within the renter’s facilities), and I’ll try to construct a hypothetical that’s not a hard case, but rather that’s an easy case for us to say should be one thing, but the criteria will end up classifying it as the opposite.

          • And I don’t know how I could present a warped version of your theory, because I can only guess what your theory is at this point. It seems like the critical criterion for you is location. And I could construct some hypotheticals to challenge a focus on location as the critical factor, but I don’t see much point until you actually state what you think the criteria and legal test should be (because for sure you’ll end up explaining to me that I’ve got your theory wrong).

            Tell you what, let’s focus on a specific subset. Tell me your criteria, your legal test, to distinguish between the legal status of copies and transmissions on rented equipment placed in-home, vs. rented equipment placed remotely (within the renter’s facilities), and I’ll try to construct a hypothetical that’s not a hard case, but rather that’s an easy case for us to say should be one thing, but the criteria will end up classifying it as the opposite.

            I believe I’ve explained why I think the location matters. It’s because when the location is remote, there is a transmission of a performance which puts the Transmit Clause in play. When the equipment is local, there is no transmission and hence the Transmit Clause does not apply.

            Take Maxwell’s, where the clerk would play the movie from the machine in the front of the store to private viewing booths at the back of the store:

            The conclusion that Maxwell’s activities constitute public performances is fully supported by subsection (2) of the statutory definition of public performance:

            (2) to transmit 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.

            17 U.S.C. § 101 (1982). As explained in the House Report which accompanies the Copyright Revision Act of 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 ….” House Report, supra, at 64-65, U.S.Code Cong. & Admin.News, p. 5678. Thus, the transmission of a performance to members of the public, even in private settings such as hotel rooms or Maxwell’s viewing rooms, constitutes a public performance. As the statutory language and legislative history clearly indicate, the fact that members of the public view the performance at different times does not alter this legal consequence.

            Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154, 159 (3d Cir. 1984).

            Because Maxwell’s transmitted it, even just across the store, that made the Transmit Clause applicable. If there’s no transmission, then the Transmit Clause is not implicated:

            A plain reading of the transmit clause indicates that its purpose is to prohibit transmissions and other forms of broadcasting from one place to another without the copyright owner’s permission. The Act provides a definition of “transmit.” “To ‘transmit’ a performance or display is to communicate it by any device or process whereby images and sounds are received beyond the place from which they are sent.” Section 101.

            This reading is reinforced by the rest of the transmit clause which refers to the use of transmission devices or processes and the reception by the public of the performance. Devices must refer to transmission or communication devices, such as, perhaps, wires, radio towers, communication satellites, and coaxial cable, while reception of the performance by the public describes acts, such as listening to a radio, or watching—network, cable, or closed-circuit—television “beyond the place” of origination.

            In sum, when one adds up the various segments of clause (2), one must conclude that under the transmit clause a public performance at least involves sending out some sort of signal via a device or process to be received by the public at a place beyond the place from which it is sent.6

            Nothing that La Mancha has done has violated this common sense construction of the transmit clause. While La Mancha has indeed provided the videodisc player, television screens, guest rooms, and makes videodiscs available in the lobby, we are not persuaded that any transmission of the kind contemplated by the statute occurs. If any transmission and reception occurs, it does so entirely within the guest room; it is certainly not received beyond the place from which it is sent. We are not persuaded that the term “otherwise communicate” can be read so broadly as to include the videodisc arrangements at La Mancha.

            Columbia Pictures Indus., Inc. v. Prof’l Real Estate Investors, Inc., 866 F.2d 278, 282 (9th Cir. 1989).

            Using a central system to transmit videos to hotel rooms violates the Transmit Clause:

            Public performance of defendants’ movies under this clause occurs if On Command “transmits” the movies “to the public.” Under the Copyright Act, to “transmit” a performance is

            to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.

            Id. Plaintiff’s argument that On Command’s system involves not “transmissions” but “electronic rentals” similar to patrons’ physical borrowing of videotapes is without merit. On Command transmits movie performances directly under the language of the definition. The system “communicates” the motion picture “images and sounds” by a “device or process”—the equipment and wiring network *790 —from a central console in a hotel to individual guest rooms, where the images and sounds are received “beyond the place from which they are sent.” See also Professional Real Estate, 866 F.2d at 282 n. 7. The fact that hotel guests initiate this transmission by turning on the television and choosing a video is immaterial.

            On Command’s video transmissions are also “to the public” for the purposes of the transmit clause. Hotel guests watching a video movie in their room through On Command’s system are not watching it in a “public place” but they are nonetheless members of “the public.” See Columbia Pictures Industries, Inc. v. Redd Horne, 568 F.Supp. 494 (W.D.Pa.1983), aff’d 749 F.2d 154, 159 (3rd Cir.1984) (“the transmission of a performance to members of the public, even in private settings such as hotel rooms … constitutes a public performance”) (citing H.R.Rep. No. 1476, 94th Cong., 2d Sess. at 64 (1976) [“1976 House Report”] ); ESPN, Inc. v. Edinburg Community Hotel, Inc., 735 F.Supp. 1334, 1340 (S.D.Tex.1986) (“The [1976] House Report … on the Copyright Act makes explicit that performances to occupants of hotel rooms fall within the definition of a public performance”). This is because the relationship between the transmitter of the performance, On Command, and the audience, hotel guests, is a commercial, “public” one regardless of where the viewing takes place. The non-public nature of the place of the performance has no bearing on whether or not those who enjoy the performance constitute “the public” under the transmit clause.

            A performance may still be public under the transmit clause “whether the members of the public … receive it in the same place or in separate places and at the same time or at different times.” 17 U.S.C. § 101. A 1967 Report by the House of Representatives reveals that Congress added this language to the transmit clause to cover precisely the sort of single-viewer system developed by plaintiff:

            [This language makes doubly clear that] a performance made available by transmission to the public at large is “public” even though the recipients are not gathered in a single place, and even if there is no direct proof that any of the potential recipients was operating his receiving apparatus at the time of the transmission. 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….; they are also applicable where the transmission is 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.

            H.R.Rep. No. 83, 90th Cong., 1st Sess. at 29 (1967). Thus, whether the number of hotel guests viewing an On Command transmission is one or one hundred, and whether these guests view the transmission simultaneously or sequentially, the transmission is still a public performance since it goes to members of the public. See also Redd Horne, 749 F.2d at 159 (transmissions of videos to private viewing booths occupied by one to four persons infringing under transmit clause); Paramount Pictures Corp. v. Labus, 16 U.S.P.Q.2d (BNA) 1142, 1147, 1990 WL 120642 (W.D.Wisc.1990) (hotel’s distribution of unauthorized copies of video cassettes to single guest violated copyright owner’s exclusive right to distribute work to “the public”). On Command therefore “publicly performs” defendants’ movies under the meaning of the transmit clause.

            On Command Video Corp. v. Columbia Pictures Indus., 777 F. Supp. 787, 789-90 (N.D. Cal. 1991).

            Zediva’s system clearly fell under the Transmit Clause:

            In addition, Defendants’ transmissions are “to the public” for purposes of the transmission clause. Customers watching one of Plaintiffs’ Copyrighted Works on their computer through Zediva’s system are not necessarily watching it in a “public place,”6 but those customers are nonetheless members of “the public.” See Columbia Pictures Industries, Inc. v. Redd Horne, 568 F.Supp. 494 (W.D.Pa.1983), aff’d 749 F.2d 154, 159 (3rd Cir.1984) (“the transmission of a performance to members of the public, even in private settings such as hotel rooms … constitutes a public performance”) (citing H.R.Rep. No. 1476, 94th Cong., 2d Sess. at 64 (1976), 1976 U.S.C.C.A.N. 5659 [“1976 House Report”] ); ESPN, Inc. v. Edinburg Community Hotel, Inc., 735 F.Supp. 1334, 1340 (S.D.Tex.1986) (“The [1976] House Report … on the Copyright Act makes explicit that performances to occupants of hotel rooms fall within the definition of a public performance”). Defendants’ transmissions are “to the public” because the relationship between Defendants, as the transmitter of the performance, and the audience, which in this case consists of their customers, is a commercial, “public” relationship regardless of where the viewing takes place. The non-public nature of the place of the performance has no bearing on whether or not those who enjoy the performance constitute “the public” under the transmit clause.

            Moreover, it does not matter that Defendants’ customers are viewing the transmissions at different times and in different places. Section 101 of the Copyright Act explicitly states that a performance can still be public under the transmit clause “whether the members of the public … receive it in the same place or in separate places and at the same time or at different times.” 17 U.S.C. § 101. A 1967 Report by the House of Representatives reveals that Congress added this language to the transmit clause to cover precisely the sort of single-viewer system developed by Defendants:

            [This language makes doubly clear that] a performance made available by transmission to the public at large is “public” even though the recipients are not gathered in a single place, and even if there is no direct proof that any of the potential recipients was operating his receiving apparatus at the time of the transmission. 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….; they are also applicable where the transmission is capable of reaching different recipients at *1011 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.

            H.R.Rep. No. 83, 90th Cong., 1st Sess. at 29 (1967); see, also, On Command, 777 F.Supp. at 790 (“Thus, whether the number of hotel guests viewing an On Command transmission is one or one hundred, and whether these guests view the transmission simultaneously or sequentially, the transmission is still a public performance since it goes to members of the public.”); Redd Horne, 749 F.2d at 159 (holding that transmissions of videos to private viewing booths occupied by one to four persons infringing under transmit clause). Therefore, Defendants “publicly perform” Plaintiffs’ Copyrighted Works within the meaning of the transmit clause.

            Warner Bros. Entm’t Inc. v. WTV Sys., Inc., 824 F. Supp. 2d 1003, 1010-11 (C.D. Cal. 2011).

            See my point? A remote location implicates a transmission which implicates the Transmit Clause.

          • Devlin, I’m well aware that for a transmission to be a transmission under the statute, it has to go to a different “place.” I pointed that out, myself, in at least one prior comment (1/29, 12:07pm).

            But that’s not an issue here. We clearly have real-world examples where rented equipment, placed within the home, is used to make transmissions under the law. If transmitting from one room to another within a single premises constitutes a transmission under the law, then any multi-room DVR system creates transmissions under the statute. Even if transmissions within a single premises didn’t qualify, there are at least two operator-supplied DVRs deployed today that transmit outside of the home: Dish’s Hopper DVR (with integrated Slingbox) and Tivo’s Roamio (with Slingbox-equivalent functionality, and supplied by some operators).

            So we definitely have (widespread) cases where in-home DVRs transmit, as a matter of law.

            To this point, I have understood your view to be that when those in-home devices transmit, they transmit privately (and the transmitter is the user), while on the other hand, if the same exact device were located at the operator’s facilities, then the transmission would be public (and the transmitter would be the operator).

            I’m looking for you to tell me what the criteria is, what legal test should be applied, to distinguish these cases. I’m not looking for you to justify it (with citations to precedent, or otherwise) at this point. Just explain what the test is — because my first focus, at this point, is to test the proposed criteria to see whether it produces results that we can at least grudgingly agree are plausible (even if not what we think is “correct”) or if it produces results that we can at least grudgingly agree do not seem plausible.

            (If we get past that, then we can get into precedent, in terms of looking at whether there is some statutory basis for the criteria, or whether it would be entirely a creation of the courts.)

          • I’m looking for you to tell me what the criteria is, what legal test should be applied, to distinguish these cases. I’m not looking for you to justify it (with citations to precedent, or otherwise) at this point. Just explain what the test is — because my first focus, at this point, is to test the proposed criteria to see whether it produces results that we can at least grudgingly agree are plausible (even if not what we think is “correct”) or if it produces results that we can at least grudgingly agree do not seem plausible.

            I’m working on a follow-up post now. I’ll try to develop my argument and touch on your concerns in the post. I’d like to continue this conversation once I make the post, if you don’t mind waiting.

  2. No, I think the interpretation that focuses on transmission is the most natural and correct one, because we are talking not about the actual performances themselves but copies of those performances. This case is about the right to copy, not about the source of that copy. In the digital age, it is precisely the transmission that is the physical act of copying, so that is what makes it the key of the argument in this case.

    • Devlin Hartline

      No, I think the interpretation that focuses on transmission is the most natural and correct one, because we are talking not about the actual performances themselves but copies of those performances. This case is about the right to copy, not about the source of that copy. In the digital age, it is precisely the transmission that is the physical act of copying, so that is what makes it the key of the argument in this case.

      Well, there is the issue of who is making the copies, which I didn’t address in this post. I disagree with Cablevision’s conclusion, applying the volitional conduct test, that it is only the customer who causes the copies to be made. I think that both Cablevision and the customer jointly cause the copy to be made. I think the same applies to Aereo. I suspect the Cablevision court used the volitional conduct test–stretching it past any logical limit, IMO–because fair use wasn’t on the table, yet it wanted to reach the same result as in Sony given the somewhat analogous nature of the RS-DVR and the Betamax. Regardless, I disagree that this case should really turn on the source copy for the reason mentioned above that the Transmit Clause is silent on the source of the transmissions. I don’t follow your meaning in the last sentence where you say “it is precisely the transmission that is the physical act of copying.” One can transmit a performance whether there’s a source copy or not. For example, if Aereo simply used an antenna to receive a transmission which it then immediately rebroadcast to the public, there’d be no copy from which it was transmitting.