Copyhype

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.” ¹17 U.S.C. § 106(4). 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 transmit ²The 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.” 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. ³17 U.S.C. § 101.

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.” ⁴Cartoon 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.

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.” ⁵Golan v. Holder, 132 S. Ct. 873, 888-889 (2012).

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. ⁶Copyright Act of 1790. 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. ⁷Act 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), The right to public performance was extended to musical compositions in 1897. ⁸Act of January 6, 1897, 44th Cong., 2d Sess., 29 Stat. 481. 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. ⁹Borge Varmer, Copyright Office Revision Study 16: Limitations on Performing Rights, U.S. Copyright Office (1958). 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. ¹⁰Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law at 29 (1961).

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. ¹¹Columbia 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). 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.” ¹²The 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.’” 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. ¹³Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 US 539, 552 (1985). 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.) ¹⁴Drone, The Law of Property in Intellectual Productions (1879).

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. ¹⁵See, 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). 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. ¹⁶Deborah R. Gerhardt, Copyright Publication: An Empirical Study, 87 Notre Dame Law Review 135, 138 (2011). 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. ¹⁷Brown 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).

“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.” ¹⁸Burke at 692, citing Nimmer on Copyright § 4.04, at 4-20-21. 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. ¹⁹Id. 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). ²⁰Gerhardt at 145-48. 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.” ²¹17 U.S.C. § 106(3). 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.” ²²930 F.2d 277, 299 (3rd Cir. 1991).

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. ²³I 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. 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. ²⁴On Command Video Corp. v. Columbia Pictures, 777 F. Supp. 787, 790 (ND Cali, 1991).

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.’” ²⁵WNET, Thirteen v. Aereo, Inc., 712 F.3d 676, 698 (2nd Cir. 2013) (J. Chin, dissent).

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?