February 21, 2014 · · Comments Off

The political conflicts and ambitions of [Shakespeare's] England are known to the scholar and the specialist. But his plays will forever move men in every corner of the world. The leaders that he wrote about live far more vividly in his worlds than in the forgotten facts of their own rule.

Our civilization, too, will survive largely in the works of our creation. There is a quality in art which speaks across the gulf dividing man from man, nation from nation and century from century. …

[I]t is important to know that the opportunity we give to the arts is a measure of the quality of our civilization. It is important to be aware that artistic activity can enrich the life of our people; which is the central object of government. It is important that our material prosperity liberate and not confine the creative spirit.

—President Johnson, at the groundbreaking ceremony for the John F. Kennedy Center for the Arts on December 2, 1964.1

National Endowment for the Arts, Sunil Iyengar, on “Why The Arts Really Do Mean Business” — Check out this podcast with Copyright Alliance’s Sandra Aistars and National Endowment for the Arts Sunil Iyengar on the NEA’s recent report showing the arts and culture sectors contribute over half a trillion dollars to U.S. GDP and create nearly 2 million jobs.

‘Grindhouse’ to ‘John Carter’ – 18 ‘dream projects’ that turned into nightmares — An interesting article in its own right, though I was struck in particular by the author’s remarks that, “The best art comes from dealing with the limitations under which something is produced, and when all of those limitations are taken away, you can end up with something that is wall-to-wall indulgence.” and “The lesson to take away is that when you want to pay tribute to the guys who came before you, do it in a way like Lucas and Spielberg did with Indiana Jones. Take that energy and channel it into something of your own”

New report says how much advertising is going to piracy sites — $227 million in 2013. And, according to the report, a significant chunk of that is coming from dozens of “blue-chip advertisers”, major brands like “AT&T, Lego, and Toyota.”

‘House of Cards’ Searches on Google Turn Up Pirate Links as Top Results — Variety reports, “In a Google search for “Watch House of Cards” on Wednesday, the top two results were links to apparent pirate sites, couchtuner.eu and stream-tv.me.” That reminds me of the story about Charlie Chaplin entering a Charlie Chaplin look-alike contest and coming in third.

Utah Judge Gives TV Broadcasters an Injunction Against Aereo — Although the Supreme Court has already agreed to determine the liability of the internet streaming TV service, the Utah court heard and granted a motion to enjoin Aereo in a parallel proceeding. Said the judge, “Aereo’s retransmission of Plaintiffs’ copyrighted programs is indistinguishable from a cable company.”

Kim Dotcom raid warrants legal, Court of Appeals rules — Despite continual proclamations of innocence, Dotcom has done nothing but delay having his day in court. Here, a New Zealand court strikes down one such attempt.

Wikipedia: as accurate as Britannica? — A 2005 study has given rise to the gospel that Wikipedia is as accurate as Encyclopedia Britannica. Here, Andreas Kolbe points out the sharp limitations of that study. “Nicholas Carr put it this way: in limiting itself to topics like the ‘kinetic isotope effect’ or ‘Meliaceae’, which no one without some specialized understanding of the subject matter would even be aware of, the Nature survey played to Wikipedia’s strengths. Carr also established that the Nature ‘study’ was not actually an expert-written research article of the type that built the reputation of Nature, but a non-peer-reviewed piece of news journalism (a fact he confirmed with the piece’s author, Jim Giles).”


  1. As quoted in Copyright Law Revision Pt. 6, Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill, xiv (1965). []

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February 14, 2014 · · Comments Off

How to photograph the Sochi Winter Olympics, as told by a pro — Sports photojournalist Adam Pretty describes what its like shooting the 2014 games. As a Getty Images photographer, Pretty also receives some help to capture the best moments. “Getty will have laid 20km of cable to create a state-of-the-art fiber optic network that will connect all the key photo positions inside the venues directly back to the Getty Images office in the Main Press Center. With the VLAN connections on the mountains, the photographers will be able to dump the contents of their memory cards onto their laptops, and they’ll automatically be back with the editor a minute or so later.”

Proposal for Compulsory Remix License Has Foes in Steven Tyler and Attorney Dina LaPolt — A post-deadline comment for the IPTF Green Paper proceedings on copyright policy from a number of music luminaries, including Aereosmith frontman Tyler, Don Henley, Sting, Ozzy Osbourne, Britney Spears, Deadmau5, and Joe Walsh takes on the idea of a compulsory license for remixes. Could this mean that attention to current copyright review discussions is starting to pick up?

Spanish box-office loses almost half of its audience over nine years — The Spanish film industry has almost completely crumbled in the past decade. Recently, the IIPA has also recommended to the USTR that Spain be placed on the Special 301 Watch List, noting “In stark contrast to so many of its neighbors in Western Europe, Spain suffers from unrelentingly high rates of digital piracy in every sector – music, film, videogames, software, and books.”

Pandora Suit May Upend Century-Old Royalty Plan — Few realize that ASCAP and BMI, organizations that collect public performance royalties for songwriters and music publishers, are limited in what they can do by an over 70 year old consent decree with the DOJ. Is it time for a change?

The Australian Law Reform Commission officially recommends adoption of fair use — The Australian Law Reform Commission (ALRC), an independent statutory body in Australia tasked with reviewing existing law and offering recommendations for reform, has dropped a 478 page report recommending the country repeals specific exemptions for, to name a few, personal copying and educational uses, and adopts a US-style fair use provision. Around 60% of ALRC recommendations are substantially implemented, while another 30% are partially implemented.1

The Day the Internet Didn’t Fight Back — Apparently repeating “SOPA” over and over is starting to lose its effectiveness.

Silicon Valley Needs to Lose the Arrogance or Risk Destruction — From Wired, no less. “It’s all adding up to a nasty picture of Silicon Valley—of an industry that hoovers up personal data and reaps massive profits from its use, preaching a gospel of sharing but refusing to share back.”


  1. Australian Law Reform Commission Annual Report 2011-12, pg. 30. []

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On January 24th, the Ninth Circuit denied a petition for rehearing en banc in Fox Broadcasting v. Dish Networks. The decision was, however, amended slightly from the original opinion, released last July.

Fox Broadcasting v. Dish Network involved satellite television provider Dish’s Hopper, a set-top device with digital video recording (DVR) and video on demand (VOD) capabilities. Relevant to this discussion, Dish began providing its Hopper customers with a service called “PrimeTime Anytime” (PTAT). PTAT, when enabled, automatically recorded all primetime (8 p.m.-11 p.m.) programming from the four broadcast networks (ABC, CBS, NBC, and Fox). The recordings are saved locally on a customer’s Hopper for a predetermined amount of time (typically 8 days), after which they are automatically deleted.

Fox sued for copyright infringement, alleging, in part, that Dish directly infringed its reproduction right when it made PTAT copies of Fox television programs. Fox sought a preliminary injunction

The District Court in Dish concluded that “at this stage of the proceedings, the Court is not satisfied that PTAT has crossed over the line that leads to direct liability. Despite Dish’s involvement in the copying process, the fact remains that the user, not Dish, must take the initial step of enabling PTAT after deciding that he or she wants to initiate the recording. The user, then, and not Dish, is the ‘most significant and important cause’ of the copy.” This, despite the fact that Dish designed, houses, and maintains the system that creates the copies. The court also did not consider the following facts indicative of causation:

  • “Dish decides which networks are available on PTAT and has defaulted the PTAT settings to record all four networks.”
  • “Dish also decides the length of time each copy is available for viewing: PTAT recordings are automatically deleted after expiration of a certain number of days, and a user may neither delete nor preserve the original PTAT copy before that time.”
  • “Dish decides when primetime recordings start and end each night, and it maintains the authority to modify those times according to the particular programs airing that night. Additionally, the user cannot stop a copy from being made during the copying process, but must wait until the recording ends before disabling the link.”

The Ninth Circuit affirmed this result, saying “the district court did not err in holding that Fox did not establish a likelihood of success on its direct infringement claim.”

The “volitional conduct” test relied upon by both courts is idiosyncratic within the larger contours of tort law, and neither court explains why it decided to extend the test so far beyond previous applications. I’ve detailed some criticisms of the opinion when the original decision was released last summer. But today I want to head overseas and look at a recent case where a court got it right.

TV Now

In 2012, an Australian court considered a very similar question. Telecom service provider Optus created “TV Now”, a service that enables customers to watch and record television broadcasts through a mobile device or personal computer. It was sued by a group of sports leagues for infringing its copyright in broadcast football games. The trial court judge held that Optus was not liable for infringement, relying in part on the US court decision in Cablevision and analogizing the service to a VCR or DVR. The decision was appealed.

The primary issue on appeal was “who ‘does’ the act of copying.” The appellate court said “the rival contenders are Optus, the subscriber, or Optus and the subscriber jointly.”

The court first considers the case that the copies were made solely by the subscriber. This approach is based on the premise that “Optus makes available to a subscriber a facility (a service) which enables the subscriber as and when he or she is so minded to use that facility to record broadcasts and later to view them. The copies that are made are the result of the subscriber’s use of the facility though the actual making of them requires Optus’ technology to function as it was designed to.” This is the position taken by the trial court judge, which said that to “make” a copy means “’to create’ by selecting what is to be recorded and by initiating a process utilising technology or equipment that records the broadcast”, a conception the court here said “robs the entirely automated copying process of any significance beyond that of being the vehicle which does the making of copies.”

Besides the analogy of Optus as a DVR operated by a subscriber, the trial court judge also saw the subscriber choosing to copy as “the last ‘volitional act’ in the sequence of acts leading to a copy being made and, for that reason, is significant in determining the identity of the maker.” The appellate court found these arguments less than compelling.

It noted too the trial court’s citation to Cablevision and the “volitional conduct concept.” However, the court viewed this concept as relevant only when there is a need to distinguish between direct and contributory liability—which is the case in U.S. jurisprudence but not under Australian law. The court added, referring to the academic criticism of the Cablevision decision, “It equally is not apparent to us why a person who designs and operates a wholly automated copying system ought as of course not be treated as a ‘maker’ of an infringing copy where the system itself is configured designedly so as to respond to a third party command to make that copy.”

The court concluded:

[W]e consider that Optus’ role in the making of a copy – ie in capturing the broadcast and then in embodying its images and sounds in the hard disk – is so pervasive that, even though entirely automated, it cannot be disregarded when the “person” who does the act of copying is to be identified. The system performs the very functions for which it was created by Optus. Even if one were to require volitional conduct proximate to the copying, Optus’ creating and keeping in constant readiness the TV Now system would satisfy that requirement. It should also be emphasised that the recording is made by reason of Optus’ system remaining “up” and available to implement the subscriber’s request at the time when its recording controllers poll the user database and receive a response indicating that a recording has been requested. What Optus actually does has –

a nexus sufficiently close and causal to the illegal copying that one could conclude that the machine owner … trespassed on the exclusive domain of the copyright owners: CoStar Group Inc v LoopNet Inc, 373 F3d 544 at 550 (4th Circ. 2004).

… Put shortly Optus is not merely making available its system to another who uses it to copy a broadcast. Rather it captures, copies, stores and makes available for reward, a programme for later viewing by another.

The real question for the court was whether Optus alone is liable or whether Optus and the subscriber are jointly liable. And here, the court indicated that the latter was most likely (since only Optus was named as a defendant, it was not strictly necessary for the court to resolve the question of the subscriber’s liability.) Said the court:

If one focussed not only upon the automated service which is held out as able to produce, and which actually produces, the copies but also on the causative agency that is responsible for the copies being made at all, the need for a more complex characterisation is suggested. The subscriber, by selecting the programme to be copied and by confirming that it is to be copied, can properly be said to be the person who instigates the copying. Yet it is Optus which effects it. Without the concerted actions of both there would be no copy made of a football match for the subscriber. Without the subscriber’s involvement, nothing would be created; without Optus’ involvement nothing would be copied. They have needed to act in concert to produce – they each have contributed to – a commonly desired outcome. The subscriber’s contributing acts were envisaged by the contractual terms and conditions. How they were to be done were indicated by the prompts given on the Optus TV Now TV guide page. The common design – the production of the selected programme for transmission to the subscriber – informed the solicitation and the taking of a subscription by the subscriber; it was immanent in the service to be provided.

The Australian court’s conclusion seems to hew more closely to general principles of tort law. Though the issue is settled, for now, in the Ninth Circuit, the Second Circuit is set to take up the issue soon in a parallel case involving the same Dish services and the other three major broadcast networks. Last October, the Southern District Court of New York denied a preliminary injunction against Dish in part because it agreed that the customer, not Dish, made the PTAT copies. That decision has been appealed, and oral arguments are set for next week.

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Previously, I began looking at the legal questions involved in American Broadcasting Companies v. Aereo, currently in front of the Supreme Court. The issue is whether Aereo, by providing a service that allows paying subscribers to watch broadcast television online, is publicly performing the copyrighted programming. The Second Circuit said it is not, based on its 2008 decision in Cablevision, which held that a transmission from a unique copy of a work is merely a private performance. Aereo, relying on the Cablevision decision, designed its service to purportedly assign a unique antenna to each individual subscriber.

The Copyright Act states that to perform a work publicly means, in relevant part, “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.”

The seemingly straightforward language belies some of the complexities that result, as evidenced by the Supreme Court’s agreement to hear Aereo. The approach I began in my previous post was to break the definition up into its separate components to understand it better: we have an actor (otherwise unnamed in the Act, we can refer to this as a “performer”), the action (“to transmit or otherwise communicate”), the object (“a performance of the work”), and a prepositional phrase (“to the public”).

To the public redux

I first took a look at what “to the public” means. Having had the opportunity to consider some of the feedback I’ve received on the article, I do want to make a slight modification to my definition.1

Originally, I wrote, “Any transmission from one person to another person who is not a family member or a close social acquaintance is a public performance.” The mention of family members and social acquaintances invites a level of specificity that I did not intend and distracts from the original purpose, which is to focus on the relationship between performer and audience. The legislative history of the Copyright Act says that under the second clause of the definition of “publicly”, performances during “routine meetings of business and governmental personnel” would be exempt “because they do not represent the gathering of a ‘substantial number of persons.’” I think the definition of “to the public” should similarly exempt such performances. It seems it would be more accurate to step back one level of abstraction; rather than referring to family members and social acquaintances, we should refer to “public” and “private” relationships. “Public” relationships are those that tend to be described as commercial, arms-length, or impersonal, and are strongly unidirectional, while “private” relationships tend to be described as familial, social, or collegial, and are much more reciprocal in nature.

What is a performance?

With that out of the way, we can turn to the next question in the analysis: what is a performance?

As with “to the public”, “performance” is not directly defined in the Copyright Act. But the Act does define the act of performing:

To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.2

A performance right for dramatic compositions first appeared in US copyright law in 1856.3 Nondramatic musical works gained a performance right in 1897,4 and the 1909 Copyright Act, the last general revision before the current Copyright Act, provided performance rights for dramatic works, nondramatic literary works, and musical compositions. However, the current Copyright Act is the first to actually define “perform.”

Though the current Copyright Act did not become law until 1978, the language of the definition for performance is substantially the same as the definition included in the 1965 version of the bill.5 Following the introduction of that bill, the US Copyright Office released a report explaining the bill in detail. The Supplementary Report explained:

Under clause (1) of section 106(b), to ”perform” a work means ”to recite, render, play, dance, or act it.” This includes, for example, the reading aloud of a literary work, the singing or playing of music, the dancing of a choreographic work, and the acting out of a dramatic work or pantomime. 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. In the case of a motion picture, performance would mean ”to show its images or to make the sounds accompanying it audible.” It would be clear under this language that the purely aural performance of a motion picture sound track would constitute a performance of the motion picture; but, if the sounds on the soundtrack are reproduced on an authorized phonorecord, performance of the phonorecord would not be a performance of the motion picture.

The definition is relatively clear, and there are very few cases that have have been confronted with issues relating to its interpretation. One of the most relevant and thorough is US v. ASCAP.6 There, the court was tasked with considering whether a download of a music file was a performance. It looked at the “ordinary sense” of the words used in the Copyright Act’s definition of performance and concluded that performance requires “contemporaneous perceptibility.” Said the Second Circuit:

The downloads at issue in this appeal are not musical performances that are contemporaneously perceived by the listener. They are simply transfers of electronic files containing digital copies from an on-line server to a local hard drive. The downloaded songs are not performed in any perceptible manner during the transfers; the user must take some further action to play the songs after they are downloaded. Because the electronic download itself involves no recitation, rendering, or playing of the musical work encoded in the digital transmission, we hold that such a download is not a performance of that work, as defined by § 101.

In other words, “Transmittal without a performance,” said the Second Circuit, “is not a ‘public performance.’”

Transmission without performance

As support for this proposition, the court cited to Columbia Pictures Indus. v. Prof’l Real Estate Investors.7 In Columbia, the operators of a hotel resort offered guests the ability to rent movies on videocassette at the front desk, which they could watch on hotel-provided equipment in their own rooms. Plaintiffs sued, relying on the Third Circuit’s line of cases holding video store operators liable for public performance for operating private viewing booths on their premises.8 The Ninth Circuit, however, rejected this argument, holding that hotel rooms, though offered to the general public, become private spaces once they are rented.9 Thus, the operation of the equipment is not a performance in a public place.

Plaintiffs, however, also argued that the act of providing videocassettes to hotel guests implicated the Transmit Clause because the hotel was “otherwise communicat[ing]” the films. The Ninth Circuit rejected this argument as well.

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.” According to the rule of ejusdem generis, the term “otherwise communicate” should be construed consistently with the term “transmit.”  Consequently, the “otherwise communicate” phrase must relate to a “process whereby images or sounds are received beyond the place from which they are sent.”

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.

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.

The reasoning of the Ninth Circuit here and the Second Circuit in ASCAP seems sound.10

To perform a work includes the transmission of a contemporaneously perceptible rendition of the work and is distinguished from the delivery of a work, including electronic delivery via transmission.11

The nature of a performance

A “performance of a work”, then, follows from this definition. If “performing” means rendering a work so that it is contemporaneously perceptible, a “performance of a work” is something that is contemporaneously perceptible. It is intangible—the Copyright Act refers to the tangible objects that embody works as copies. It is conceptual, an act rather than a thing.12 A performance is not the actor on stage, nor the sound waves emanating from a speaker, nor the photons transmitted across fiber optic data lines.13

It is also, perhaps, worth pointing out that it is not a performance that is embodied in a copy but a work.14 A performance is, by definition, incapable of embodiment; indeed, one does not even need a copy to perform a work, as is the case of a singer singing from memory.

And it is a conceptual unity. Consider two members in an audience. Neither will be perceiving the exact same thing, both because they are in different locations and because they themselves have variations in their eyes and ears that shape their personal perception. But conceptually there is only one performance of the work, and it is exactly the same for each audience member for copyright purposes.

The same holds true if a performance reaches its audience via transmission rather than via sound and light waves through the air. The Central District Court of California explains why in its decision enjoining FilmOnX (then “BarryDriller”):

The definition section sets forth what constitutes a public performance of a copyrighted work, and says that transmitting a performance to the public is a public performance. It does not require a “performance” of a performance. The Second Circuit buttressed its definition with a “cf.” to Buck v. Jewell-La Salle Realty Co., 283 U.S. 191, 196 (1931), which interpreted the 1909 Copyright Act’s provision of an exclusive right to publicly perform a musical composition and held that “the reception of a radio broadcast and its translation into audible sound” is a performance. But Buck, like Cablevision and this case, was concerned with a copyright in the work that was broadcast. The Supreme Court was not concerned about the “performance of the performance” – instead, it held that using a radio to perform the copyrighted song infringed the exclusive right to perform the song (not to perform the performance of the song).

The Transmit Clause explicitly recognizes this conceptual unity, saying a work is performed publicly when it is transmitted even if “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.” There could be thousands of separate transmissions, but there is still only the performance.

These may seem like inconsequential distinctions, but I think they undermine even more the Second Circuit’s notion that we can conceptually sever performances of the same work made by the same actor but from distinct copies. If the Transmit Clause spoke about the audience capable of receiving the physical transmission, as the Second Circuit says it does, then it would be possible to have multiple private performances since physical transmissions are discrete and separable. But it doesn’t—the Transmit Clause speaks about the audience capable of receiving the “performance of a work”, which remains a conceptual unity no matter how scattered the audience is.15

This interpretation of performance is, in my opinion, far more consonant with the statutory language and the ordinary use of the terms than the Second Circuit’s “unique copies” interpretation. It also means, as we’ll see in the next installment of this series, that most of the heavy lifting (at least for issues arising in the cloud computing context) occurs in the causation inquiry, i.e., “who is the performer”?


  1. I also flubbed when I referred to the three situations as being “mutually exclusive”. What I meant instead is that each situation excludes the previous. For example, a “place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered” could include a place open to the public, but that would make the previous clause redundant. Similarly, the last clause, transmission to the public, could include transmission to the public in a public place, or transmission to a place where a substantial number of persons is gathered, but that would make the previous two clauses redundant.

    I think it still follows that each situation is analyzed by exclusive means. We can presume (from the case law) that a “place open to the public” turns on the nature of the place. The “place where a substantial number of persons…” situation doesn’t turn on the nature of the place: if such a place were public, then the first situation covers it, while being a private place is insufficient to tell us if there are a substantial number of persons there. The same holds true for the last situation. The nature of the place is irrelevant (otherwise the first clause would be redundant), the size and relationship of the audience to each other is irrelevant (otherwise the second clause would be redundant). So what is there left to consider? The only thing I can come up with is the relationship between the performer and the audience. There could be others I am not aware of, but the relationship between performer and audience seems to provide a workable rule consistent with the Copyright Act’s structure and purpose. []

  2. 17 U.S.C. § 101. []
  3. Act of August 18, 1856, 34th Cong., 1st Sess., 11 Stat. 138. []
  4. Act of January 6, 1897, 44th Cong., 2d Sess., 29 Stat. 694. []
  5. H.R. 4347 and S. 1006, 89th Cong. []
  6. 627 F. 3d 64 (2nd Circuit 2010). []
  7. 866 F.2d 278, 282 (9th Cir. 1989). []
  8. Columbia Pictures Industries v. Redd Horne, 749 F.2d 154 (3d Cir.1984); Columbia Pictures Industries, Inc. v. Aveco, Inc., 800 F.2d 59 (3d Cir.1986). []
  9. In support of this conclusion, the court relied on Fourth Amendment case law holding that hotel guests have constitutional protection from unreasonable searches and seizures in hotel rooms. []
  10. And indeed, the Copyright Office’s 1965 Supplementary Report adds support.

    In general the concept of ”performance” must be distinguished sharply from the reproduction of copies on the one hand and the exhibition of copies on the other. It has been suggested that some of the internal operations of a computer, such as the scanning of a work to determine whether it contains material the user is seeking, is closely analogous to a ”performance.” We cannot agree, and for this reason we deleted from the definition of ”perform” the ambiguous term ”represent” which appeared in the 1964 bill. A computer may well ”perform” a work by running off a motion picture or playing a sound recording as part of its output, but its internal operations do not appear to us to fall within this concept. []

  11. Thus, uploading of a work to a web site, like downloading, is not a performance. []
  12. performance“, Merriam-Webster Online, “an activity (such as singing a song or acting in a play) that a person or group does to entertain an audience”. []
  13. “Very few people gather around their oscilloscopes to admire the sinusoidal waves of a television broadcast transmission. People are interested in watching the performance of the work.” Fox Television Stations v. BarryDriller, at 5 (C.D. Cali December 27, 2013). []
  14. Congress separately and outside the Copyright Office has made it a criminal offense to fix, without authorization, a live musical performance in a copy, thus underscoring this distinction. See 18 U.S.C. § 2319A. []
  15. Likewise, the Transmit Clause does not speak about “the potential audience of a particular ‘work’,” an alternative interpretation that the Second Circuit raises and dismisses. []

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Too often, copyright critics speak dismissively of permission and belittle the mere individual right involved. Such rhetoric surrounded last week’s IP Subcommittee hearing on the scope of fair use, and while the panelists largely agreed that no legislative changes were needed regarding fair use, there were sharp divisions over whether the doctrine currently goes too far or not far enough.

One does not win popularity contests critiquing fair use. How can you ignore the public benefit of Google Books? How can you be against fan fiction? But the question is not whether or not there is a public benefit or creativity involved, the question is how to mediate between public and private interests. And, as fair use is on an expansive course—and increasingly becoming part of the business model of large corporations—it is worth asking how easily public interests should trump private rights.

That’s not to say there are not, as with any form of property or right, competing equities that must be considered, and balanced against a copyright owner’s interests when they come into conflict. Fair use has traditionally played this role. But lately, it has seen a steady and troubling expansion, one that more and more is comfortable with letting the common good override individual rights.1

For those who fall on the “fair use has gone too far” side, who are worried about large companies getting a “volume discount” on fair use to excuse the wholesale copying of millions of works,2 or who share the concerns of Supreme Court Justice Kennedy—who said in his concurrence in Campbell v. Acuff-Rose Music, “If we allow any weak transformation to qualify as parody, however, we weaken the protection of copyright. And under-protection of copyright disserves the goals of copyright just as much as overprotection, by reducing the financial incentive to create”—it is worth reaffirming some of the principles that fair use is established on.

A Marketplace for Ideas

Fair use is necessary, but it necessarily must be limited—especially if the primary goal of the doctrine is to complement the goal of copyright rather than subvert it. “[T]he author’s consent to a reasonable use of his copyrighted works ha[d] always been implied by the courts as a necessary incident of the constitutional policy of promoting the progress of science and the useful arts, since a prohibition of such use would inhibit subsequent writers from attempting to improve upon prior works and thus . . . frustrate the very ends sought to be attained.”3 (Note here the reference to consent.)

One of the reasons fair use analysis includes an examination of the effect of the use upon the potential market for or value of the copyrighted work is because the creation of a marketplace is a core function of copyright law.

By understanding the predicate concepts of the Copyright Clause (limited times, authors, exclusive rights, and writings) the central purpose of the Copyright Clause can be seen: it achieves a public benefit in the progress of knowledge by securing such rights. The structure of the Copyright Clause is not limited to a proclamation that this is beneficial. Rather, it assumes that promoting the progress of knowledge is advantageous and directs Congress to achieve this benefit by securing exclusive rights in intellectual property. It mandates the creation of a marketplace, wherein this unique form of property, the copyright, may be traded and protected.4

Thus, as an economic asset, copyright provides the certainty necessary for the creation of a market, one where transactions can occur peacefully and systematically, where private ordering can emerge, and where economic efficiency can be promoted. Considering the size of this cultural, scientific, and artistic market in the U.S. reached over one trillion dollars in contributions to the GDP in 2013, it seems safe to say this approach is working generally well.

But as with any market, there will be disagreements over price, or refusal to work together. These disagreements, by themselves, should not invite fair use. There are plenty of situations where licensing might be too difficult or expensive, where some modicum of public benefit might be achieved absent the barriers of prices or permission—but this is true of all markets and forms of property. Fair use should be reserved, as with any limitation on individual rights and property, for those situations where a compelling public interest exists, one that demands recognition. As famed treatise Nimmer on Copyright explains, “if the ‘progress of science and useful arts’ is promoted by granting copyright protection to authors, such progress may well be impeded if copyright protection is virtually obliterated in the name of fair use.”5

Equally important is a defense of the notion of consent, or permission. Despite consent being a foundation of civil government—the Declaration of Independence expressly notes governments only derive “their just powers from the consent of the governed”—and a moral and legal concept that pervades our institutions, some copyright skeptics reject the idea.6 What they see as the foundation instead—divine right, perhaps?—is unclear.

Nevertheless, my guess is that most of us would choose consent over coercion.7 And this provides an additional reason to make sure fair use is properly cabined.

The “right to exclude” is perhaps overstated as an essential element of property. Property in general, and copyright specifically, create a freedom to choose how to use economic assets. Legal theorist Felix Cohen puts it this way: “Private property is a relationship among human beings such that the so-called owner can exclude others from certain activities or permit others to engage in those activities and in either case secure the assistance of the law in carrying out his decision.”8 The key here is that the choice itself (so long as it does not interfere on someone else’s interests) is irrelevant.9 I’d like to point out two general reasons why this sort of structure is important to maintain in copyright.

One, it respects the dignity and autonomy of individuals:

An autonomous person is one who directs her own life, and not someone whose life is controlled by others. Of course, we can’t all do whatever we would like without running the risk of interfering with each other. Hence, from the idea of autonomy, we might derive the idea of moral rights and duties that create for each individual a sphere of autonomous action, in which each individual can direct her own life without interfering with the like freedom of others to do the same. The moral force of consent comes naturally if one accepts autonomy as a central moral value. Consent allows others to enter one’s sphere of autonomy. So long a consent is freely given, consented-to rights violations seem perfectly consistent with the idea that rights protect a sphere of individual choice.10

This respect is especially important  regarding expressive works, which can be seen as an extension or reflection of a creator’s personality.11

Two, it provides for a plurality of valid choices. Some creators may choose to partner with larger businesses, some may choose to go their own way and stick to specific formats, some may choose to disseminate freely and as widely as possible. None of these is an inherently “right” choice. All creators place different priorities on getting compensated, seeking exposure, or maintaining creative control, priorities that can easily shift from one project to the next and evolve throughout a creator’s career. None of these is an inherently “correct” choice. One of the principles of the free market is that vesting this choice at the granular level will result in the greatest advance of liberty and efficiency. A system that narrows the range of plurality is inferior to one that preserves a wide range of reasonable choices.

Exceptions to this sort of regime, including fair use, should thus be applied judiciously and conservatively.

The Inherent Public Interest in Copyright

For all the talk about fair use’s role in facilitating public interests, it is easy to forget that copyright—indeed, all property rights—inherently serve the public interest.12 So it bears repeating. The creation of a marketplace for expressive works and the protection of autonomy, both discussed above, undoubtedly advance public interests.13

The results of copyright as being in the public interest are palpable. But for the labor of an author to write about how to cultivate a certain skill, the public would not have that particular expression of knowledge. But for the labor of a filmmaker, members of the public would not see a film that may change the way they view the world or provide them a greater understanding of themselves.

The interests of the public and the author coincide, something recognized by the drafter of the Copyright Clause, James Madison, in the early days of the republic, and reiterated to this day. 14 In Eldred v. Ashcroft, the Supreme Court explicitly rejected as missing the mark the assertion that copyright law “must serve public, not private, ends.” Instead, it said, “The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.”

So, yes, fair use has a long pedigree in U.S. copyright law and an important role to play. But at the same time, courts and policy makers should be mindful that the doctrine does not end up subverting the very goals it is meant to reinforce.


  1. See, for example, Princeton University Press v. Michigan Document Services, 99 F.3d 1381, 1393 (6th Cir. 1996) (J. Martin dissent), saying fair use is intended “to protect society’s vested interest in the sharing of ideas and information against pursuits of illegitimate or excessive private proprietary claims” (Emphasis added); Monge v. Maya Magazines, 688 F.3d 1164, 1184 (9th Cir. 2012) (J. Smith dissent), “The majority’s fair use analysis in this case … thwarts the public interests of copyright by allowing newsworthy public figures to control their images in the press.” []
  2. Statement of June Besek, Hearing on Fair Use (Jan. 28, 2014), “It’s as though courts are according some kind of ‘volume discount’ for fair use, where a massive taking justifies a lower level of scrutiny in a fair use determination. It becomes increasingly difficult to explain to authors and public alike a copyright regime that rigorously examines the extent of a single scholar’s partial copying, while essentially according a free pass to a for-profit enterprise’s massive takings.” []
  3. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 US 539, 549 (1985), quoting H. Ball, Law of Copyright and Literary Property 260 (1944). []
  4. David A. Householder, The Progress of Knowledge: A Reexamination of the Fundamental Principles of American Copyright Law, 14 Loy. L.A. Ent. L. Rev. 1, 35 (1993). See also Adam Mossoff, How Copyright Drives Innovation in Scholarly Publishing, George Mason Law & Economics Research Paper No. 13-25 (2013), “This commercialization policy—that intermediaries like publishers should be rewarded for their labors in creating the legal and market mechanisms necessary to disseminate works—is essential to the American copyright system.” []
  5. 4 Melville B. Nimmer and David Nimmer, Nimmer on Copyright § 13.05[E][1] (2013). []
  6. See, for example, here, here, and here. []
  7. See Cass R. Sunstein, It’s for Your Own Good! NY Review of Books, March 7, 2013. []
  8. Felix Cohen, Dialogue on Private Property, 9 Rutgers Law Review 357, 373 (1954). It is worth noting that Cohen considered copyrights as property. []
  9. See, for example, John Stuart Mill, On Liberty (1869), “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.” []
  10. Consent“, Legal Theory Lexicon. []
  11. Accord Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L. J. 287 (1988). []
  12. See Thomas W. Merrill and Henry E. Smith, The Morality of Property, 48 Wm. & Mary L. Rev. 1849 (2007). []
  13. See, for example, Daniel Solove, ‘I’ve Got Nothing to Hide’ and other Misunderstandings of Privacy, 44 San Diego Law Review 745, 762 (2007), agreeing with proposition that “Society makes space for the individual because of the social benefits this space provides.” []
  14. Writing in the Federalist Papers, Madison said of the Clause, “The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged in Great Britain, to be a right of common law. … The public good fully coincides…with the claims of individuals.” []

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Ninja Tune Puts This Warning Sticker On All New Releases… — (Actually, just promo pre-releases): “You are not ‘striking a blow against outdated copyright laws’ or ‘liberating content from the corporations’, nor are you ‘promoting our records for us.’ You are making it much harder for the musicians on our label to make anything like a living wage for creating the music which you think is good enough to share.”

Pro photographers remind lucky amateurs: Viral pictures have value — “The age of the citizen photographer is upon us. And while anybody with a phone or camera can take a picture that goes viral, that doesn’t necessarily mean they will be fairly compensated for it. To help level the playing field, some media-savvy professional photographers are taking matters into their own hands, reaching out to amateurs who were in the right place at the right time and letting them know that their viral pictures have value.”

Keeping Fair Use “Fair” — A timely reminder given the House Judiciary Committee hearing on the scope of fair use this week. “The concept of ‘fair use’ is sometimes misunderstood to imply ‘free use’ in any situation in which the result is thought to be socially beneficial in some general sense; which may sound appealing to some but is ultimately damaging to consumers and our economy.”

And a straw child shall lead them: Fan Fiction as an Example of Web 2.0 Double Rip Off — One of the witnesses at Tuesday’s fair use hearing, Naomi Novik, spoke of her experiences participating in online fan fiction communities. A reaction: “It has never been the case that anyone even thought about trying to stop children from telling stories, making up plot lines, and generally getting some costumes and putting on a play in the barn. But Google wasn’t selling advertising for an afternoon of children’s play, either. And why should Google’s advertising team get to hide behind Captain Picard or the Lone Ranger?”

It’s history, not a viral feed — @HistoryinPics is the type of enterprise copyright skeptics love: a highly popular Twitter account that solely posts historical photos, without the original photographer’s permission or even attribution. But as Sarah Werner, those drawbacks are only symptoms of deeper issues. “[H]istory is not a toy. It’s not a private amusement. And those of us who engage with the past know how important it is and how enjoyable it can be to learn about it and from it. These accounts piss me off because they undermine an enterprise I value.  Historical research—indeed, humanistic inquiry as a whole—is being undermined by the constant plugging of economic value as a measure of worth, the public defunding of higher education, and the rampant devaluing of faculty teaching.”

CAA Publishes One-Sided Fair Use Report — Says Sergio Muñoz Sarmiento, “There are a lot of problems with the College Art Association… but what’s more pernicious is how this nonprofit arts organization continues to champion the poverty and ignorance of artists, all while putting the blame on this thing called copyright law. “

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In the whole history of industry, no industry has ever been put out of business because it recognized the rights of authors.1

What the heck is “net neutrality” anyway — Net neutrality is a bit out of my wheelhouse, but with the recent DC court decision striking down net neutrality rules, the issue has been discussed seemingly everywhere. Richard Bennett provides an informative primer on the topic.

Norms and Values in Digital Media: Rethinking Intellectual Property in the Digital Age — The World Economic Forum released this week the result of deep discussions on the “shared goals developed by leaders in industry, government, civil society as well as individual creators.” Among the results are this set of principles: “Foster and reward creativity”, “Build an ecosystem for innovation”, “Expand access to content”, “Inform users about ownership rights”, “Give creators and rights owners control and choice”, “Enable people to be creators”, and “Strengthen global cooperation.” Not bad.

The 2 Teenagers Who Run the Wildly Popular Twitter Feed @HistoryInPics — “The audiences that Di Petta and Cameron have built are created with the work of photographers who they don’t pay or even credit. They don’t provide sources for the photographs or the captions that accompany them. Sometimes they get stuff wrong and/or post copyrighted photographs. They are playing by rules that “old media” and most new media do not. To one way of thinking, they are cheating at the media game, and that’s why they’re winning. (Which they are.)”

The purloined picture: Visual artists confront piracy on the Web — For a few months last fall, Hannah Price was famous. More precisely, she was Internet famous. In October, the website the Morning News posted a feature on “City of Brotherly Love,” a series of photographs Price, 27, had taken of men who catcalled her after she moved to Philadelphia in 2009. Only the site displayed Price’s ambiguously titled works under a more pointed, but click-catching, headline: “My Harassers.” Online news outlets from Slate to Jezebel to Buzzfeed took the bait. More than 15,000 articles and blog posts followed. And what came out of all that attention for Price? Gallery invitations? Photo sales? Commissions? “Nothing, really,” she said. “It kind of stayed on the Internet.”

Google patents ad-powered taxi service that would offer free rides to shoppers — “Advertisers would pay for your transportation in the hope that you buy something.” Turns out the car mostly drives you to fake storefronts owned by spammers.


  1. Statement of Sydney M. Kaye, BMI, Hearings Before the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary United States Senate, Pursuant to S. Res. 201 on S. 1006, pg. 151 (1966). []

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The Supreme Court a few weeks ago agreed to review the Second Circuit’s decision in ABC v. Aereo, setting the stage for a major copyright decision that could come as early as this summer.

The legal issues—and the policy issues—can be quite complex.  The case law thus far has not been terribly enlightening. The legal commentary on the issues has tended to add more layers of complexity rather than getting us closer to rules that provide guidance and clarity to courts and the public.

So it makes sense to look at the statute one step at a time. Today, I want to focus solely on what the Copyright Act means by the phrase “to the public.”

The Copyright Act provides that one of a copyright owner’s exclusive rights is the right “to perform the copyrighted work publicly.”1 The Act explains, “To ‘perform’ a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.” One can perform a work either privately or publicly, and only the latter is within a copyright owner’s exclusive control. the Act goes on to say:

To perform … a work “publicly” means—

(1) 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; or

(2) to transmit2 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.3

It is the last action in clause (2)—transmission of a work to the public—that is at issue in Aereo.

But what does “to the public” mean? The Copyright Act does not define it. And, perhaps surprisingly, Cablevision (which the Second Circuit relied on to reach its conclusion in Aereo) never answers this—it even admits that it reaches its conclusion “without analyzing the contours of that phrase in great detail.”4

So we have some work to do. In order to analyze the contours of the phrase, I want to first look at the history and purpose of the public performance right, and then the statutory text itself in order to provide greater clarity to “to the public.”

History and purpose of public performance right

Goal of copyright law

One of the many important ends of copyright law is to encourage the creation and release of expressive works to the public. As the Supreme Court has said

Nothing in the text of the Copyright Clause confines the “Progress of Science” exclusively to “incentives for creation.” Evidence from the founding, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science. Until 1976, in fact, Congress made “federal copyright contingent on publication[,] [thereby] providing incentives not primarily for creation,” but for dissemination. Our decisions correspondingly recognize that “copyright supplies the economic incentive to create and disseminate ideas.”5

It does this by securing to authors the exclusive right to engage in acts that multiply the audience of works. Initially, this meant the multiplication of printed copies. For example, the first US copyright law, the 1790 Copyright Act, secured to authors the “sole right and liberty of printing, reprinting, publishing and vending” copies of works.6 Today, US copyright law gives authors the exclusive right not only to make copies, but also to distribute to the public and perform or display works publicly.

These rights are often commercially valuable; by vesting them in the author, the possibility exists to recoup investments in creation and publication. We know bringing works to new audiences is commercially valuable by sheer fact that companies like Aereo expend capital doing just that.

An interpretation of the public performance provisions that is consistent with this principle is ideal. Acts that expose works to new audiences—that multiply the audience of works—should preferably be within the ambit of copyright.

History of public performance right

As noted above, copyright originally protected only the right to reproduction and distribution. An exclusive right to perform dramatic compositions to the public for profit was added to copyright law in 1856.7 The right to public performance was extended to musical compositions in 1897.8 In 1909 Congress passed a major revision to the Copyright Act. The revision provided that copyright owners have the exclusive right “To perform or represent the copyrighted work publicly if it be a drama” and “To perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit.”

The decades following the 1909 Act saw tremendous social and technological changes, and Congress soon felt the need to update the copyright law once again. A general revision process began in earnest in 1955, when Congress appropriated funds for the Copyright Office to lay the groundwork for revision through a comprehensive program of research and study, and the resulting reports from the Register of Copyrights document well the purpose of the public performance provisions and the issues they attempt to address.

Most cases dealing with the public performance right under the 1909 Copyright Act, said the Copyright Office in a 1958 study, revolved around the “for profit” limitation; very few involved the question of what constitutes a “public” performance.9 At the same time, concerns about “semi-public” performances, in places such as “social clubs, lodges, camps, schools, and factories” were raised during revision efforts.10

Ultimately, the 1976 Copyright Act did away with the “for profit” limitation, instead providing a broad public performance right with specific exceptions for certain nonprofit and noncommercial uses. As the Register of Copyrights pointed out in a 1965 Supplemental Report:

[I]t is becoming increasingly apparent that the transmission of works by nonprofit broadcasting, linked computers, and other new media of communication, may soon be among the most important means of disseminating them, and will be capable of reaching vast audiences. Even when these new media are not operated for profit, they may be expected to displace the demand for authors’ works by other users from whom copyright owners derive compensation.

A 1975 report on the copyright law revision from the Senate Judiciary Committee also noted:

The line between commercial and “nonprofit” organizations is increasingly difficult to draw. Many “nonprofit” organiza­tions are highly subsidized and capable of paying royalties and the widespread public exploitation of copyrighted works by’ educational broadcasters and other noncommercial organizations is likely to grow. In addition to these trends, it is worth noting that performances and displays are continuing to supplant markets for printed copies and that in the future a broad “not for profit” exemption could not only hurt authors but could dry up their incentive to write.

The new Copyright Act also had the goal of addressing the issue of public performance for broadcasting. This was a very dynamic issue; as the 1965 Supplemental Report of the Register pointed out, “Anyone looking for an example of how fast things move in the field of author’s rights can find no more striking illustration than the problem of community antennas and their liability under the copyright law. This question, which was not even referred to in the 1961 Report, now promises to be one of the most hotly debated issues in the entire revision program.”

Earlier in the Report, the effect of rapid technological change on author’s rights is discussed. Though the context of the discussion there regards the exhibition of static images or text, it is just as relevant to the performance of audio and video.

Since the Report was issued in 1961 we have become increasingly aware of the enormous potential importance of showing, rather than distributing, copies as a means of disseminating an author’s work. In addition to improved projection equipment, the use of closed-and open-circuit television for presenting images of graphic and textual material to large audiences of spectators could, in the near future, have drastic effects upon copyright owners’ rights. Equally if not more significant for the future are the implications of information storage and retrieval devices; when linked together by communications satellites or other means, these could eventually provide libraries and individuals throughout the world with access to a single copy of a work by transmission of electronic images. It is of inconceivable that, in certain areas at least, ”exhibition” may take over from ”reproduction” of ”copies” as the means of presenting authors’ works to the public, and we are now convinced that a basic right of public exhibition should be expressly recognized in the statute.

The Report says that what eventually would become the 1976 Copyright Act should provide a broad public performance right that would include any and all means of transmission, including “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.” In addition, the Register foresaw the potential of statutory language being used to erode author’s rights:

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.

So the Register called for a broad, “future proof” approach, one that would continue to provide meaningful rights to authors even as technological advances changed the way works reach their audiences. Said the report:

Obviously no one can foresee accurately and in detail the evolving patterns in the ways author’s works will reach the public 10, 20, or 50 years from now. Lacking that kind of foresight, the bill should, we believe, adopt a general approach aimed at providing compensation to the author for future as well as present uses of his work that materially affect the value of his copyright. … A real danger to be guarded against is that of confining the scope of an author’s rights on the basis of the present technology so that, as the years go by, his copyright loses much of its value because of unforeseen technical advances. For these reasons, we believe that the author’s rights should be stated in the statute in broad terms, and that the specific limitations on them should not go any further than is shown to be necessary in the public interest.

What is “to the public”

Given that background, we can take a closer look at the statutory language and resolve any ambiguities in light of the intent and purpose behind the provisions. I’ll state upfront what I believe the definition of “to the public” entails:

Any transmission from one person to another person who is not a family member or a close social acquaintance is a public performance.

How do we get here?

Though the Copyright Act defines “publicly”, it does not define “to the public”—or even “public”. But we can deduce the definition of “to the public” from the definition of “publicly,” specifically, the Transmit Clause. The Transmit Clause states that performing a work “publicly” means “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.”

If we replace the phrase “place specified by clause (1)” with the actual language of clause (1), we see that performing a work “publicly” means “to transmit or otherwise communicate a performance … of the work to a [place open to the public[, to] any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered] 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.”

These three are mutually exclusive. That is, we can read them this way:

Communication of a performance to:

  1. A place open to the public
  2. A place not open to the public but where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered
  3. The public, not including a substantial number of persons outside of a normal circle of a family and its social acquaintances, and at a place not open to the public

It turns out that interpretation of each of these are based on factors that are also mutually exclusive. Courts determine the first, whether a specific place is open to the public, by looking at the nature of the place.11 The second is determined not by the nature of the place, but by the nature and quantity of the audience. How would the third be determined? Since these are exclusive, we are not looking at the nature of the place or the nature and quantity of the audience. What is left to look at?

I posit that a court should look at the relationship between performer/transmitter and audience/recipient. First, the definition contemplates, through the “same place or in separate places and at the same time or at different times”, that one individual is all that is required for a public performance. But we presume, at the very minimum, that an individual transmitting a performance to only herself is performing privately. A consideration of the relationship between transmitter and recipient will account for this in all circumstances. Second, the second transmit phrase expressly states that a performance at a private place where the normal circle of a family and its social acquaintances (and perhaps an insubstantial number of persons outside that) are gathered is a private performance. It should follow that “the public” in phrase 3 also exempts family and social acquaintances—but we can only determine this exemption if we’re looking at the relationship between transmitter and recipient. (Almost) everyone is a member of some family. Finally, this reading is most consonant with the ordinary meaning of the words, the language of the statute and the purpose of the public performance right. There is no need here to import nonstatutory requirements like “unique copies,” as the Second Circuit did in Cablevision and Aereo.

I would add that the legislative history provides an additional point of support against reading in a “unique copy” requirement. The Transmit Clause speaks of a performance of a work, not a particular copy of a work. The U.S. Copyright Office noted in the 1965 Supplemental Report, “A consistent effort has been made in this section and throughout the bill to distinguish between the ‘original work’ which is the product of the author’s creative intellect and which is the real subject of copyright protection and ‘copies’ or ‘phonorecords’ (which are the material objects embodying the work). Failure to draw this distinction under the present law has resulted in a great deal of unnecessary confusion, and has led to results in individual cases that were unpredictable or unfair.”12 This is plain evidence that if Congress intended courts to look at the audience of a performance from a copy rather than a work, it would have said so in the statute.

The Public/Private Distinction Elsewhere

This reading of “to the public” is consistent with case law on other copyright doctrines.

The first is found by looking at the distinction between “limited” and “general” publication. Prior to the 1976 Copyright Act, publication of a work rather than creation served as the genesis of federal copyright protection.13 As with the public performance right, neither “publish” nor “publication” was ever defined by statute. But in its most general sense, “a work is published when it is communicated to the public.” (Emphasis added.)14

Prior to publication, authors enjoyed absolute protection under common law copyright. Publication ended common law protection and made a work eligible for protection under federal copyright statutes. However, before the 1976 Copyright Act, federal copyright protection was also premised on formalities such as notice and registration. This led on occasion to harsh results for authors who inadvertently lost copyright protection by disseminating works without complying with formalities. Because of this, courts tended to interpret “publication” narrowly, and a distinction between “limited” publication and “general” publication emerged, with only the second acting as a publication for purposes of copyright law.15 Roughly speaking, then, the distinction between a limited publication and a general publication is a distinction between a private dissemination and a dissemination to the public.

This distinction was, as many legal distinctions tend to be, somewhat fuzzy.16 But, for our purposes, one general proposition consistently arises from case law: the distinction between the two is one of kind, not degree. That is, the number of copies that have been disseminated is not relevant, it is the nature of the dissemination that matters. And that means that there can be cases where the dissemination of a single copy of a work can be a general publication.17

“In cases where general publication has been found, the creator had made his work available in a manner that suggested that any interested person could have a copy.”18 Essentially, an offer of “come one, come all” had been made—even if no one shows up. On the other hand, “Mere limited publication has been found where the range and purpose of distribution did not suggest that the general public was free to obtain and use the work”—even if the work was circulated widely.19 That is, the audience has been limited ex ante.

Distribution to the Public

The lines drawn above carry over into other copyright doctrines.

Following the general copyright revision in 1976, publication ceased to be the dividing line between common law and statutory protection (although when a work is published remains relevant for a number of other copyright doctrines).20 The 1976 Copyright Act brought both unpublished and published works under the ambit of federal statutory protection.

Much of the language of the Act departed from prior copyright statutes. Thus, for the first time, the Act included, among a copyright owner’s exclusive rights, an exclusive right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.”21 The House Report on the 1976 Copyright Act indicates that distribution is largely synonymous with publication: “Clause (3) of section 106 establishes the exclusive right of publication.” Section 101 of the Act also defines “Publication” as “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending,” lending support to the interchangeability of the two terms. So here we have a bridge between the pre-1976 concept of publication and the 1976 Copyright Act right of distribution, allowing the doctrines of the former to inform the latter.

The Third Circuit made this observation in Ford Motor Co. v. Summit Motor Products:

The term “public” is not defined in the Copyright Act. Thus, we need to look elsewhere for a definition. Our search commences with the observation that the right protected by section 106(3) is generally referred to as that of publication. Indeed, the statutory definition of “publication” is “the distribution of copies … of a work to the public by sale or other transfer of ownership,” a definition which tracks the language of section 106(3). “Publication” and the exclusive right protected by section 106(3), then, are for all practical purposes, synonymous. Therefore, any clarification of what is meant by “publication” would also clarify what is meant by section 106(3), and in particular, the term “public.”22

Armed with this rule, the Circuit Court turned to prior decisions to see what was meant by “publication” and found that

Courts have held that when deciding if a common law “publication” occurred, the “number of persons receiving copies is not determinative; a general publication may be found when only one copy of the work reaches a member of the general public….” Hence, because “publication” and the right protected by section 106(3) are the same, and because a “publication” can occur when only one member of the public receives a copyrighted work, it follows that a violation of section 106(3) can also occur when illicit copies of a copyrighted work are only distributed to one person.

Cablevision explicitly rejected applying the reasoning in Ford to public performance, saying

Commentators have criticized the Ford court for divesting the phrase “to the public” of “all meaning whatsoever,” and the decision does appear to have that result. Whether this result was justified in the context of the distribution right is not for us to decide in this case. We merely note that we find no compelling reason, in the context of the transmit clause and the public performance right, to interpret the phrase “to the public” out of existence.

With all due respect, the Second Circuit rushes through its dismissal of Ford to get to the result it wants. For starters, “Commentators” is perhaps overstating things, as the court cites to only one source: Nimmer on Copyright. In addition, the court, in its haste, misunderstands what Nimmer is saying.

The section cited is on “publication and public distribution,” and in it, Nimmer notes that the exclusive right to distribution is limited to distributions made “to the public”—so, like the performance right, the Copyright Act contemplates the existence of non-infringing “private” distributions. Nimmer refers to the legislative history that demonstrates a rough correspondence between the pre-1976 publication right and the 1976 distribution right; he concludes that the distinction between a “general” publication and a “limited” publication should survive as a distinction between an infringing distribution to the public and a non-infringing “private” distribution if the two were to be synonymous.

But, says Nimmer, one could argue to the contrary that the distribution right not only incorporated the pre-1976 right to publish but also the pre-1976 right “to vend” a work—and it is apparently the case that the vending right made no distinction between limited and general dissemination. Both private sales and sales to the public at large fell within the scope of the vending right. Nimmer says, “The problem with that construction is that it limits the statutory language concerning distribution ‘to the public’ so that the phrase loses almost all meaning.” Nimmer goes on to say that Ford takes this construction one step further by holding that a gift rather than a sale to a designated individual constitutes a distribution. That is, Nimmer attacked Ford first for its holding that distribution encompassed the right not only to publish but to vend and second for its conclusion that a transaction that lacked “pecuniary remuneration” implicates the right to vend. He did not attack the case for the proposition that a distribution can be to the public when only one copy is disseminated, consistent with well-settled jurisprudence regarding limited and general publication.23 In fact, Nimmer’s treatise reinforces the parallels between publication and distribution, and thus the idea that it is the nature of the act rather than the quantity involved that is important. Nimmer begins this section by explaining,

Note that it is not any distribution of copies or phonorecords that falls within the right, but only such distributions as are made “to the public.” In essence, it is a right to control the work’s publication. The term “distribution” rather than “publication” was used merely “for the sake of clarity.” Accordingly, a limited publication, i.e., a distribution made to a limited group for a limited purpose and not made to the public at large, should not infringe this right.

The Copyright Act speaks of distributions “to the public”, which is roughly synonymous with general publication. The Copyright Act also speaks of transmitting a performance “to the public.” Interpretation of this language should thus be informed by case law on publication. And that suggests we are not looking at quantity of performances—and we’re certainly not looking at whether the origin of the performance stems from a “unique copy.” Instead, we are looking at the nature of the performance. Is it, as in general publications, made available to the public at large? Or is it ex ante limited, available, at a minimum, only to an individual, her family, and her close social acquaintances?

And to answer that, we need to ask, what is the relationship between performer and audience?

This is how a California court in 1991 resolved a copyright dispute involving 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.” 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.24

This is, I’d note, also the conclusion reached by Judge Chin in his dissent in Aereo. “Giving the undefined term ‘the public’ its ordinary meaning, a transmission to anyone other than oneself or an intimate relation is a communication to a ‘member[] of the public,’ because it is not in any sense ‘private.’”25

Next steps

Defining “to the public” is only the first step in determining if copyright infringement has occurred. What remains are perhaps the more difficult questions: what is a performance? And who is a performer? This last question is especially germane in the cloud computing context: when is an online service performing a work, and when is it acting merely as a “device or process” for a user to perform a work?


  1. 17 U.S.C. § 106(4). []
  2. The Act later adds, “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.” []
  3. 17 U.S.C. § 101. []
  4. Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F. 3d 121, 138 (2nd Cir. 2008). The court merely said that the relevant audience of an individual transmission is limited to who is capable of receiving that individual transmission and then presumed that that would always be an individual subscriber. Maybe that presumption is fine at the summary judgment stage, but clearly it could be the case that a subscriber might be an establishment open to the public, such as a bar or restaurant, which would make Cablevision’s transmission a public performance. []
  5. Golan v. Holder, 132 S. Ct. 873, 888-889 (2012). []
  6. Copyright Act of 1790. []
  7. Act of August 18, 1856, 34th Cong., 1st Sess., 11 Stat. 138. Oren Bracha notes bills to this effect had been introduced as early as 1841 in the U.S., and the UK added public performance of dramatic works in 1833. See Oren Bracha, Commentary on the U.S. Copyright Act Amendment 1856, in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer (2008), []
  8. Act of January 6, 1897, 44th Cong., 2d Sess., 29 Stat. 481. []
  9. Borge Varmer, Copyright Office Revision Study 16: Limitations on Performing Rights, U.S. Copyright Office (1958). []
  10. Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law at 29 (1961). []
  11. Columbia Pictures Industries, Inc. v. Professional Real Estate Inv,, Inc., 866 F. 2d 278,281 (9th Cir. 1989); Columbia Pictures Industries, Inc. v. Aveco, Inc., 800 F.2d 59, 63 (3d Cir.1986). []
  12. The House Report on the 1976 Copyright Act echoes this point, stating, ” The definitions of ['copy' and 'phonorecord'] in section 101, together with their usage in section 102 and throughout the bill, reflect a fundamental distinction between the ‘original work’ which is the product of ‘authorship’ and the multitude of material objects in which it can be embodied. Thus, in the sense of the bill, a ‘book’ is not a work of authorship, but is a particular kind of ‘copy.’ Instead, the author may write a ‘literary work,’ which in turn can be embodied in a wide range of ‘copies’ and ‘phonorecords,’ including books, periodicals, computer punch cards, microfilm, taped recordings, and so forth. It is possible to have an ‘original work of authorship’ without having a ‘copy’ or ‘phonorecord’ embodying it, and it is also possible to have a ‘copy’ or ‘phonorecord’ embodying something that does not qualify as an ‘original work of authorship.’” []
  13. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 US 539, 552 (1985). []
  14. Drone, The Law of Property in Intellectual Productions (1879). []
  15. See, e.g., American Tobacco Company v. Werckmeister, 207 US 284 (1907); Burke v. National Broadcasting Co., Inc., 598 F. 2d 688, 691-92 (1st Cir. 1979). []
  16. Deborah R. Gerhardt, Copyright Publication: An Empirical Study, 87 Notre Dame Law Review 135, 138 (2011). []
  17. Brown v. Tabb, 714 F. 2d 1088, 1091-92 (11th Cir. 1983); Burke v. National Broadcasting Co., Inc. 598 F.2d 688, 691-92. (1st. Cir. 1979); Bobbs-Merrill Co. v. Strauss, 147 F. 15, 19 (2d Cir. 1906), aff’d, 210 U.S. 339 (1908). []
  18. Burke at 692, citing Nimmer on Copyright § 4.04, at 4-20-21. []
  19. Id. []
  20. Gerhardt at 145-48. []
  21. 17 U.S.C. § 106(3). []
  22. 930 F.2d 277, 299 (3rd Cir. 1991). []
  23. I would add that Nimmer’s criticism of Ford is appropriate, but for reasons other than those offered by Nimmer. It is not the fact that the transaction involved took the form of a gift rather than a sale. Ford explains, “That the bags were a gift is of no import. The term ‘other transfer of ownership’ is broad enough to encompass gifts. In fact, the House Report on the 1976 Amendment to the Copyright Act states during the course of a discussion on section 106(3) that the copyright owner has the right to control public distribution, whether by sale, gift, loan, or some rental or lease arrangement.’” Rather, the fatal flaw of Ford is that it skips over the distinction between a limited and general publication, taking the proposition that “a publication can occur when only one member of the public receives a copyrighted work” (emphasis added) to mean that all transfers involving one individual receiving a copyrighted work constitute a general publication. This is a logical fallacy. []
  24. On Command Video Corp. v. Columbia Pictures, 777 F. Supp. 787, 790 (ND Cali, 1991). []
  25. WNET, Thirteen v. Aereo, Inc., 712 F.3d 676, 698 (2nd Cir. 2013) (J. Chin, dissent). []

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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.”1 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.2 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.3 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.4

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,5 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,6 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.7

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


  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.”). []

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