Copyhype

Launched in February 2012, Aereo is a service that retransmits broadcast TV over the internet, for a monthly fee, and without permission from copyright holders. It was quickly sued by several broadcasters, who sought to enjoin the service during court proceedings. However, the district court denied the injunction, noting that the broadcasters had not sufficiently distinguished Aereo from the Second Circuit’s 2008 “Cablevision” decision. ¹Cartoon Network LP v. CSC Holdings, 536 F.3d 121 (2nd Cir. 2008). The court strongly suggested that, but for Cablevision, the preliminary injunction would have been granted. The broadcasters appealed this decision.

The broadcasters’ appellate brief has recently been filed, as well as the amici briefs in support of plaintiff (opposing briefs are due later this year). William Ruiz at the Copyright Alliance has a roundup and links to several of these briefs, which include briefs filed by ASCAP and other copyright member organizations, professional sports organizations, former US Register of Copyrights Ralph Oman, and, somewhat surprisingly, Cablevision itself.

But despite the complex and confusing issues at play here, I believe the question on appeal is actually easily answered. To see why, let’s take a closer look at public performances, the Cablevision case, the Aereo system, and, finally, the “missing link” that distinguishes Aereo from Cablevision.

Public Performance

The US Copyright Act gives copyright owners the exclusive right “to perform the copyrighted work publicly.” ²17 USC § 106(4). The nature of this right is admittedly confusing.

It helps to visualize a performance as a chain, with each link in the chain a separate and discrete performance. When a television station broadcasts a show, it is performing the work. When a cable provider retransmits that broadcast to subscribers, it is also performing the work. And when a viewer turns on her TV to watch the show, she is also performing the work. The relevant question, for copyright purposes, is whether a particular performance is public — the right to privately perform a work is not exclusive to the copyright holder.

The Copyright Act defines public in this context not only in the traditional sense of a place open to the general public but also as a transmission “by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” This means that a performance by a television or radio station is public even if every single reception of that broadcast takes place in the privacy of the viewers’ homes. And by extension, as the Second Circuit held in National Football League v PrimeTime 24 Joint Venture, ³211 F.3d 10 (2000). “each step in the process by which a protected work wends its way to its audience” — each link in this specific performance chain that results in a public performance — is itself a public performance.

So in our example, the broadcaster’s initial performance is a public one, and the cable service’s retransmission of the performance is a separate public performance. The television viewer’s performance, however, is a private one, since that particular performance has already wended its way to the public and is now occurring in a private setting.

Cablevision and the VCR Analogy

Cablevision involved a new service from cable provider Cablevision that allowed remote DVR functions (“RS-DVR”) for subscribers. Like a set-top DVR, viewers could program the recording of shows for later viewing, except in this case, the DVR’s were housed remotely at Cablevision’s own facilities. Broadcasters and TV and film producers sued Cablevision, claiming that Cablevision infringed their copyrights twice, by first copying their works onto the RS-DVR and then publicly performing the work when a subscriber played the recorded show from the RS-DVR.

The Second Circuit disagreed. As far as Cablevision’s liability for copying, the court analogized the RS-DVR to an ordinary VCR. Just as Cablevision wouldn’t be directly liable if a viewer decided to record a show at home, it wouldn’t be liable if the viewer recorded a show on a remote device. Even though the remote device is housed within Cablevision’s system, said the court, it is still the viewer’s “volitional conduct” that causes the reproduction. ⁴The court did note that Cablevision might face secondary liability in this situation, but this theory was “expressly disavowed by plaintiffs” in this particular case.” Cartoon Network at 130.

The court also held that Cablevision was not separately liable for the performance that results when a show is played from the RS-DVR by a viewer. Plaintiffs argued that Cablevision’s transmission of shows from the RS-DVR was indistinguishable from its transmission of live shows to subscribers. Since the latter is a public performance, so too is the former. Things get tricky here, but ultimately, the decision relied on a distinction between the transmission of a particular performance of a work and the transmission of the underlying work to draw the line between a public and a private performance.

The district court, in deciding whether the RS-DVR playback of a program to a particular customer is “to the public,” apparently considered all of Cablevision’s customers who subscribe to the channel airing that program and all of Cablevision’s RS-DVR subscribers who request a copy of that program. Thus, it concluded that the RS-DVR playbacks constituted public performances because “Cablevision would transmit the same program to members of the public, who may receive the performance at different times, depending on whether they view the program in real time or at a later time as an RS-DVR playback.” In essence, the district court suggested that, in considering whether a transmission is “to the public,” we consider not the potential audience of a particular transmission, but the potential audience of the underlying work (i.e., “the program”) whose content is being transmitted.

We cannot reconcile the district court’s approach with the language of the transmit clause. That clause speaks of people capable of receiving a particular “transmission” or “performance,” and not of the potential audience of a particular “work.” Indeed, such an approach would render the “to the public” language surplusage. Doubtless the potential audience for every copyrighted audiovisual work is the general public. As a result, any transmission of the content of a copyrighted work would constitute a public performance under the district court’s interpretation. But the transmit clause obviously contemplates the existence of non-public transmissions; if it did not, Congress would have stopped drafting that clause after “performance.”

Aereo’s Service

Aereo argued in front of the lower court that its service is similar to Cablevision’s. The individual copies of broadcast signals are made at the volition of users, so Aereo is not directly liable for reproduction. And since the performance that results when a user watches the video originates from a unique copy, it is not a public performance. The district court held that since plaintiffs could not distinguish Aereo from Cablevision, they had not demonstrated a likelihood of success on the merits.

A note on Aereo’s thousands of tiny antennas. Both Aereo and the district court emphasized the fact that Aereo used thousands of tiny antennas instead of one big antenna to capture television signals, but I don’t believe this is ultimately important. As explained above, Cablevision distinguished between a particular transmission and a particular work. It didn’t distinguish between a transmission of a particular work and a particular transmission of a particular work. In other words, it was silent on whether a public performance can become a private performance if you manage to “divide” one transmission of a particular work into separate, unique transmissions of that particular work, as Aereo claims its thousands of tiny antennas does.

I don’t think you can; the language of the Copyright Act doesn’t contemplate this view and there is no case law that supports it. Whether Aereo uses one big antenna or thousands of tiny antennas, it is still retransmitting the same transmission of a particular work — the particular transmission of a work that originates from the broadcasting station. A transmission is indivisible. The same logic used by Aereo and the district court would seem to support the view that a restaurant which is engaged in a public performance by playing music for its patrons could escape liability by adding speakers until there is a 1:1 ratio of speakers to patrons, thereby “dividing” the transmission into multiple private performances. Clearly, this is not the case.

So we’re left with the distinction between Aereo and Cablevision.

The Missing Link

That distinction relies on what I’ll call the “missing link” in the performance chain.

The Cablevision court didn’t address this “missing link”, nor did the district court in Aereo. The “missing link” is the transmission of a program by Cablevision to its RS-DVR service, which is itself a separate public performance. It does not matter that this particular performance was to a bunch of recording devices. What does matter is that Cablevision is licensed to retransmit this performance, by virtue of its license to retransmit broadcasts to its subscribers in general — think of the DVR’s as simply additional subscribers. Aereo is not licensed to retransmit the broadcasters’ performance to its devices that make copies for its users — regardless of whether, as in Cablevision, a court determines that those copies themselves are made by Aereo’s users rather than Aereo.

To go back to the VCR analogy, a cable service is publicly performing a work and needs a license to retransmit the broadcast to its customers. The cable service is not liable if a TV viewer records an on-air program to her VCR. And if the user later plays back that recording, she — not the cable service — is “performing” the work, which, in her own home, would be a private performance. Aereo is like the cable service here. Even if the service is in all other respects similar to this VCR analogy, Aereo would still need a license to publicly perform the work that users copy and privately perform. And, as explained above, thousands of tiny antennas does not negate the need for that license.

The plaintiffs here do call attention to this “missing link” in their brief:

The direct capture of a broadcast by Aereo’s antennas and the retransmissions of the signal from those antennas to servers that make multiple subscriber-associated copies is itself an infringing performance to the public. That Aereo then sends the broadcast programming along to its subscribers by routing it through subscriber-associated digital copies does not transform those retransmissions into a private performance. That last step is simply another link in the chain of steps by which Appellants’ copyrighted programs are retransmitted to the public.

In my opinion, this is the key argument. Aereo does not have a license to retransmit the broadcasters’ performance in the first instance, so it is irrelevant what it does afterwards with that unauthorized public performance or how closely its system resembles Cablevision’s. This makes it a straightforward legal question that easily supports a preliminary injunction. The district court erred when it held otherwise, and the Second Circuit should reverse.