Last week the Supreme Court received the first round of amicus briefs in American Broadcasting Companies v. Aereo. Individuals and organizations who support the broadcasters’ position (or support neither party) filed nearly 20 briefs; in a few weeks we’ll see Aereo’s opening brief, followed a week later by amici in support of Aereo, setting the stage for oral arguments in front of the Court on April 22.
The issue in front of the Court should be familiar by now to anyone following the case, but to reiterate, it is this: does Aereo violate a copyright owner’s exclusive right to perform a work publicly?
Much ink has been spilled over how the Supreme Court should rule in Aereo, and my posts, concluding that, yes, Aereo does perform to the public, were no exception. The primary argument in favor of Aereo is that it is Aereo’s customers, not Aereo itself, engaged in performing broadcast television to users.
So it would seem that one question remains as to Aereo’s ultimate liability: who is the “performer”? This question is pivotal. If, as I have argued, we interpret “to the public” as requiring a look at the relationship between performer and audience, then a conclusion that it is the user engaged in performing would mean the performance is private, since a user-to-user performance is undoubtedly private. But if Aereo is the performer, the opposite conclusion seems required, since the relationship between Aereo, Inc. and its paying subscribers is very likely a public one. In other words, the latter involves direct liability for copyright infringement while the former does not.
But rather than attempting to answer this question here and now, I want to reframe it. Specifically, I want to suggest that the question of who “performs” a work is not a copyright question.
That does not mean it is any less valid of a question. It just means it is a question involving legal doctrines besides copyright law. If the argument, for example, is that Aereo is merely renting equipment to users to engage in otherwise legal actions, than the question is whether this is actually what is happening (and not just legal sleight of hand) and whether the agreement between Aereo and the user is sufficient to shift liability from Aereo onto the user. This involves questions of contract and tort rather than copyright.
Indeed, tort law provides a diverse array of doctrines that can be called upon to answer who a “performer” is: ideas such as proximate causation, agency, and perhaps even bailment.
The answer does not, however, come from the Copyright Act.
What is the import of this claim? For one, it means that it is not necessary to torture the text of the Copyright Act to reach a conclusion that it is a user of Aereo rather than Aereo who is performing a work. The text of the Transmit Clause is straightfoward: one performs a work publicly if they transmit a performance of the work to the public, by means of any device or process. Only the most baffling interpretations can make “by means of any device or process” mean “by means of any device or process… except 1,000 antennas” or “by means of any device or process… except 10,000 antennas.”
It also means the legislative history of the public performance provisions in the 1976 Copyright Act are of no help. In fact, the legislative history compels the conclusion that the Copyright Act is the wrong place to turn to for answering who the “performer” is.
In 1965, the Register of Copyrights released a report on the current version of the Copyright Act, one in which the public performance provisions were substantially the same as those that would eventually become law. In the report, the Register noted that Congress “adopted the approach, like that taken in foreign laws, of stating the public performance right in broad terms in section 106, and of providing the specific exemptions for educational and other nonprofit uses in section 109.” 1U.S. Copyright Office, Supplementary Register’s Report on the General Revision of the U.S. Copyright Law (1965),
It signals this breadth through its explanations of the definition for performances in the draft revision:
A work may be performed ”either directly or by means of any device or process,” and these devices or processes would encompass sound or visual reproduction equipment of all kinds, amplifying systems, radio and television transmitting and receiving apparatus, electronic retrieval devices, and a host of other techniques, undoubtedly including some not invented yet. 2Id.
It goes on to state that the language adopted was intended to cover all commercial providers of copyrighted broadcasts except for explicitly provided exceptions:
The bill does not exempt community antennas and other commercial systems that retransmit broadcasts of copyrighted material to the public. It would, however, under section 109(5), exempt operators of nonprofit “boosters” or “translators” who retransmit, “without altering or adding to the content of the original transmission, without any purpose of direct or indirect commercial advantage, and without charge to the recipients.”
So there is no mistake, the report explains just how broadly the language of the Copyright Act should be read, including the note that a specific exception for “common carriers” was considered and rejected.
We have therefore adopted the phrase “transmit or otherwise communicate * * * to the public” to cover every method by which the images or sounds comprising a performance or exhibition can be picked up and conveyed to the public. This concept would include, among other things: direct amplification (as over a loud speaker system); transmission over wires or other connections; wireless transmission by the originating transmitter and by any other transmitter who picks up his signals and passes them on; and further transmission, over wires, of a wireless transmission. Likewise, although probably also covered under clause (A), it would include performances in public places resulting from the playing of records on jukeboxes and other sound reproducing equipment and from the reception of wired or wireless transmissions.
In effect, the definition is intended to cover every transmission, retransmission, or other communication of a performance which reaches “the public.” The 1964 bill contained language exempting transmissions by someone acting, “as a common carrier,” the thought being that a corporation merely leasing wires or equipment for the intermediate transmission of signals to other transmitters, rather than to the public, should not be subjected to liability to the copyright owner. It was pointed out that the concept of “common carrier” might be extended unjustifiably to some commercial transmitters to the public, and we have therefore dropped this exception as ill-advised. We are convinced that purely intermediate transmissions should be exempt, but that an express exemption is not necessary to exclude them.
There is further evidence that Congress did not intend for the language of the public performance provisions to explain the distinction between cable services and antenna rental services. For example, following the district court’s decision in United Artists Television v. Fortnightly Corporation, 3255 F. Supp. 177 (SDNY 1966). which found the operator of a community antenna television service liable for publicly performing copyrighted works, a bill was introduced that would establish three categories of liability: CATV operators would not be liable for providing access to broadcasts within the broadcast area. Liability would attach where a CATV operator provided access to distant broadcast signals, and a reasonable license fee would be required where CATV services brought outside signals when local viewers were not “adequately served” by three major networks. CATV operators rejected this approach. 4Judith E. Ciani, CATV and Copyright Infringement, 10 B.C.L. Rev. 459, 471-72 (1969).
The Supreme Court eventually reversed in Fortnightly, holding that a CATV operator does not perform television broadcasts; instead, its “basic function the equipment serves is little different from that served by the equipment generally furnished by a television viewer.” 5Fortnightly Corp. v. United Artists Television, Inc., 392 US 390 (1968). So we know that the idea of a distinction between a service performing a work publicly and a service allowing an individual to perform a work privately was on Congress’s radar during the revision process. But it declined to insert any language that could potentially mediate that distinction. Rather, the public performance provisions would include all third parties, and “cover every transmission, retransmission, or other communication of a performance which reaches ”the public,” no matter how closely they resemble a mere provider of equipment for a user. 6Supplementary Report, supra.
To say otherwise, to suggest that language in the Copyright Act itself guides us to distinguish between a transmitter of performances and a mere passive device or process is supported by zero evidence. To say, after this clear and convincing evidence, that Congress drafted statutory language that would distinguish between companies performing a work to the public and companies merely providing facilities allowing members of the public to perform a work to themselves is untenable. Nothing in the final text of the provisions indicates that Congress intended this distinction, and nothing in the legislative history suggests that it buried such a distinction in the language, to await a clever lawyer to tease it out.
And this isn’t the case that Congress wasn’t aware of an argument that a service could argue it is just doing what users could otherwise do themselves. It heard that argument repeatedly.
Congress heard the argument that CATV equipment was “not owned by the CATV system but by the system’s individual subscribers.” 7Statement of Louis Nizer, representing producers and distributors of copyrighted television film programs, Copyright Law Revision, Hearings before Subcommittee No. 3, pg. 1359, Serial No. 8 (1966). Congress heard CATV operators argue that “Because CATV systems are functionally identical to rooftop antennas on private homes, broadcasters deserve no greater exclusivity than they would obtain if everyone chose to install a private rooftop antenna adequate to receive the available signals.” 8Id. at 1298. Congress heard that “CATV is not a passive rooftop or ‘rabbit-ear’ antenna.” 9Statement of Arthur B. Krim, Hearings before Senate Judiciary IP Subcommittee on S.1006 at 170 (1966). CATV proponents argued to Congress that CATV is simply an “aid in reception of television broadcast signals”. 10Fn. 7 at 1330.
And, driving home the point that this is not an issue of the Copyright Act being inadequate to deal with current technological challenges, the president of the NCTA argued nearly half a century ago that “The conventional way in which a viewer obtains programs is by buying his own set, installing his own antenna, and then enjoying the program. But the viewer may resort to other methods to enjoy his local station. If, instead of buying his set outright, the viewer chose to rent it from a company which agreed to keep it in good condition, there would be no reason in policy or logic why this act should bring into play different copyright consequences from those which obtain when the viewer owns his set outright.” 11Id. at 103.
Congress explicitly rejected—decades ago—the arguments Aereo and its supporters are currently making. As noted above, it ultimately settled on a broad statute that does not make the distinctions CATV proponents sought.
But, before consumer electronic advocates’ heads explode, I want to reiterate that this does not mean Aereo or similar services are necessarily liable for copyright infringement. It merely means that any possible salvation does not lie in the Copyright Act but in some other legal doctrine, whether through contract, tort, or otherwise.
General copyright principles would certainly inform the application of these legal doctrines, and the statutory text may serve as a guide, but the language itself does not answer the question of who is the “performer”.
So the Supreme Court’s job is clear. Assuming that Aereo is the performer, since that issue is not in front of the Court, 12And was not foreclosed by Cablevision in 2008. Cartoon Network LP v. CSC Holdings, 536 F. 3d 121, 134 (2nd Cir. 2008) (“We need not address Cablevision’s” argument “that (1) the RS-DVR customer, rather than Cablevision, does the transmitting and thus the performing”). it plainly is performing “to the public” because it is transmitting works using any device or process to individual subscribers that it has a public relationship with.
(I personally think proximate causation can play a critical role in the distinction discussed here and hope to explore this more fully in a future post.)
Thanks to Devlin Hartline for valuable feedback during the drafting process!
|↑1||U.S. Copyright Office, Supplementary Register’s Report on the General Revision of the U.S. Copyright Law (1965),|
|↑3||255 F. Supp. 177 (SDNY 1966).|
|↑4||Judith E. Ciani, CATV and Copyright Infringement, 10 B.C.L. Rev. 459, 471-72 (1969).|
|↑5||Fortnightly Corp. v. United Artists Television, Inc., 392 US 390 (1968).|
|↑6||Supplementary Report, supra.|
|↑7||Statement of Louis Nizer, representing producers and distributors of copyrighted television film programs, Copyright Law Revision, Hearings before Subcommittee No. 3, pg. 1359, Serial No. 8 (1966).|
|↑8||Id. at 1298.|
|↑9||Statement of Arthur B. Krim, Hearings before Senate Judiciary IP Subcommittee on S.1006 at 170 (1966).|
|↑10||Fn. 7 at 1330.|
|↑11||Id. at 103.|
|↑12||And was not foreclosed by Cablevision in 2008. Cartoon Network LP v. CSC Holdings, 536 F. 3d 121, 134 (2nd Cir. 2008) (“We need not address Cablevision’s” argument “that (1) the RS-DVR customer, rather than Cablevision, does the transmitting and thus the performing”).|