CA Case Nos. 13-55156, 13-55157, 13-55226, and 13-55228 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________ NBCUNIVERSAL MEDIA, LLC; et al., Plaintiffs-Appellees / Cross-Appellants, v. AEREOKILLER LLC; et al., Defendants-Appellants / Cross-Appellees. On Appeal from the United States District Court For the Central District of California (Hon. George Wu, Presiding) DC Nos. CV-12-6921-GW and CV-12-6950-GW NBCUNIVERSAL APPELLEES/CROSS-APPELLANTS’ PRINCIPAL BRIEF ON CROSS-APPEAL AND RESPONSE TO APPELLANTS’ PRINCIPAL BRIEF ON APPEALS ARNOLD & PORTER LLP Ronald L. Johnston (SBN 57418) John C. Ulin (SBN 165524) James S. Blackburn (SBN 169134) 777 South Figueroa Street, 44th Floor Los Angeles, California 90017 Tel. 213-243-4000 / Fax 213-243-4199 ARNOLD & PORTER LLP Robert Alan Garrett 555 12th St. N.W. Washington, D.C. 20004 Tel. 202-942-5444 / Fax 202-942-5999 Attorneys for Plaintiffs-Appellees-Cross-Appellants NBCUniversal Media, LLC, Universal Network Television, LLC, Open 4 Business Productions LLC, NBC Subsidiary (KNBC-TV), Telemundo Network Group LLC, WNJU-TV Broadcasting LLC, American Broadcasting Companies, Inc., ABC Holding Company Inc., Disney Enterprises, Inc., CBS Broadcasting Inc., CBS Studios Inc., and Big Ticket Television, Inc. Case: 13-55228 04/26/2013 ID: 8607386 DktEntry: 43 Page: 1 of 79
79
Embed
NBCUniversal v. Aereokiller - Brief of the NBCUniversal Appellees - Cross-Appellants
NBCUniversal brief in Aereokiller appeal to Ninth Circuit.
Welcome message from author
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
CA Case Nos. 13-55156, 13-55157, 13-55226, and 13-55228
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT _______________________
NBCUNIVERSAL MEDIA, LLC; et al.,
Plaintiffs-Appellees / Cross-Appellants, v.
AEREOKILLER LLC; et al., Defendants-Appellants / Cross-Appellees.
On Appeal from the United States District Court For the Central District of California (Hon. George Wu, Presiding)
DC Nos. CV-12-6921-GW and CV-12-6950-GW
NBCUNIVERSAL APPELLEES/CROSS-APPELLANTS’ PRINCIPAL BRIEF ON CROSS-APPEAL
AND RESPONSE TO APPELLANTS’ PRINCIPAL BRIEF ON APPEALS
ARNOLD & PORTER LLP Ronald L. Johnston (SBN 57418) John C. Ulin (SBN 165524) James S. Blackburn (SBN 169134) 777 South Figueroa Street, 44th Floor Los Angeles, California 90017 Tel. 213-243-4000 / Fax 213-243-4199
ARNOLD & PORTER LLP Robert Alan Garrett 555 12th St. N.W. Washington, D.C. 20004 Tel. 202-942-5444 / Fax 202-942-5999
Attorneys for Plaintiffs-Appellees-Cross-Appellants NBCUniversal Media, LLC, Universal Network Television, LLC, Open 4 Business Productions LLC, NBC Subsidiary (KNBC-TV), Telemundo Network Group LLC, WNJU-TV Broadcasting LLC,
American Broadcasting Companies, Inc., ABC Holding Company Inc., Disney Enterprises, Inc., CBS Broadcasting Inc.,
I. The District Court Correctly Concluded That Copyright Owners Are Likely To Succeed On The Merits. ........................................................ 22
A. The Language And History Of The 1976 Copyright Act Make Clear That Aereokiller’s Broadcast Retransmission Service Publicly Performs Copyrighted Programming. ................................... 22
1. Because It Retransmits The Same Broadcast Of A Television Program To Multiple Subscribers, Aereokiller’s Service Falls Squarely Within The Transmit Clause. ..................................... 22
2. Congress Did Not Provide A Technology Exemption To The Transmit Clause. ....................................................................... 25
3. Congress Intended To Include Broadcast Retransmission Services Such As Aereokiller In The Transmit Clause. ........... 28
4. Aereokiller’s Broadcast Retransmission Service Makes Public, Not Private, Performances. ........................................... 30
B. Aereokiller’s Reliance Upon Cablevision And Aereo Is Misplaced. . 31
1. The Cablevision And Aereo Decisions Misinterpreted The Transmit Clause By Confusing The Terms “Performance” And “Transmissions.” ............................................................... 31
2. The Interpretation Of The Transmit Clause Reflected In Cablevision And Aereo Is Inconsistent With Established Transmit Clause Jurisprudence. ................................................ 36
3. Cablevision’s And Aereo’s Misreading Of The Transmit Clause Is Not Necessary To Preserve Private Performances. .. 39
4. This Court Should Not Apply Cablevision To Immunize Aereokiller From Copyright Liability Contrary To Congressional Intent. ................................................................ 41
C. None Of The Other Arguments Advanced By Aereokiller And Its Amici Supports The Conclusion That Aereokiller May Lawfully Provide An Unlicensed Broadcast Retransmission Service. ............... 45
1. Congress Rejected The Notion That A Broadcast Retransmission Service Like Aereokiller Should Be Exempt From Copyright Liability Because It Provides Subscribers With Television Programming They Can Receive On Their Own. .......................................................................................... 45
2. As This Court’s Decision In Professional Real Estate Investors Illustrates, Aereokiller Cannot Avoid Copyright Liability For Unlicensed Public Performances On The Ground That It Is Merely “Providing Technology.” ................ 47
3. Nothing In The Sony Decision Supports Exempting Aereokiller Or Any Other Broadcast Retransmission Service From Copyright Liability. ......................................................... 51
4. The Dish Court’s Volitional Analysis Has No Applicability To This Case. ............................................................................ 53
II. The District Court Correctly Concluded That Each Of The Other Relevant Factors Support A Preliminary Injunction. .................................... 56
III. The District Court Should Not Have Limited Its Injunction To The Geographic Boundaries Of The Ninth Circuit. .............................................. 56
Aereokiller Defendants-Appellants-Cross-Appellees Aereokiller LLC, Alkiviades “Alki” David, FilmOn TV Networks, Inc., FilmOn.TV and FilmOn.com, Inc.
AK Br. Aereokiller’s Consolidated Opening Brief
(filed March 15, 2013) Copyright Owners Plaintiffs-Appellees-Cross-Appellants
NBCUniversal Media, LLC, Universal Network Television, LLC, Open 4 Business Productions LLC, NBC Subsidiary (KNBC-TV), Telemundo Network Group LLC, WNJU-TV Broadcasting LLC, American Broadcasting Companies, Inc., ABC Holding Company Inc., Disney Enterprises, Inc., CBS Broadcasting Inc., CBS Studios Inc., and Big Ticket Television, Inc.
ER Excerpts of Record (sealed and unsealed) FCC Federal Communications Commission FOX Br. Brief of Plaintiffs-Appellees-Cross-
Appellants Fox Television Stations, Inc., et al. in CA Case Nos. 13-55156, 13-55157, 13-55226 (filed April 26, 2013)
Op. Opinion in Fox Television Stations, Inc. v.
Barry Driller Content Sys., PLC, ___ F. Supp. 2d ___, 2012 WL 6784498 (C.D. Cal. Dec. 27, 2012) (Wu, J.), reprinted at ER 13-24 (NBC)
CBS Broad., Inc. v. FilmOn.com, Inc., No. 10-cv-07532 (S.D.N.Y. Aug. 9, 2012)..................................................... 5, 10
Columbia Pictures Indus., Inc. v. Prof’l Real Estate Investors, Inc., 866 F.2d 278 (9th Cir. 1989) .................................................................. 37, 48, 49
Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154 (3rd Cir. 1984) ........................................................................ 37, 38
Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968) .......................................................................... 13, 14, 46, 47
Fox Broadcasting Co. v. Dish Network, LLC, ___ F. Supp. 2d ___, 2012 WL 593856 (C.D. Cal. Nov. 7, 2012) ......... 53, 54, 55
Fox Television Stations, Inc. v. Barry Driller Content Sys., PLC, ___ F. Supp. 2d ___, 2012 WL 6784498 (C.D. Cal. Dec. 27, 2012) ................... 1
ITV Broad. Ltd. v. TVCatchup Ltd., Case C-607/11 (European Court of Justice, Mar. 7, 2013) ................................ 10
Los Angeles News Serv. v. Reuters Television Int’l, Ltd., 149 F.3d 987 (9th Cir. 1998) .............................................................................. 53
Marlyn Nutraceuticals, Inc. v. Mucos Pharma Gmbh & Co., 571 F.3d 873 (9th Cir. 2009) .............................................................................. 16
Metro One Telecomms., Inc. v. C.I.R., 704 F.3d 1057 (9th Cir. 2012) ............................................................................ 22
Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399 (D.C. Cir. 1998) .......................................................................... 59
New York Times Co. v. Tasini, 533 U.S. 483 (2001) ............................................................................................ 50
On Command Video Corp. v. Columbia Pictures Indus., 777 F. Supp. 787 (N.D. Cal. 1991) ..................................................................... 37
Soc’y of Composers, Authors & Music Publishers of Canada, SCC Case No 33922, 2012 SCC 35, [2012] 2 S.C.R. 283 (Canada Supreme Ct. July 12, 2012) .................................................................. 36
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) (“Sony”) ................................................................. 51, 52, 53
Stewart v. Abend, 495 U.S. 207, 227 (1990) .................................................................................... 20
Teleprompter Corp. v. Columbia Broad. Sys., Inc., 415 U.S. 394 (1974) ................................................................................ 14, 46, 47
Twentieth Century Fox Film Corp. v. iCraveTV, Nos. Civ. A. 00-121, 00-120, 2000 WL 255989 (W.D. Pa. Feb. 8, 2000) ...................................................................................... 10
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975) ................................................................................ 18, 28, 30
United States v. AMC Entm’t, Inc., 549 F.3d 760 (9th Cir. 2008) ............................................................ 59, 60, 61, 62
WPIX, Inc. v. ivi, Inc., 691 F.3d 275 (2d Cir. 2012) ......................................................................... 10, 30
Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc., 192 F. Supp. 2d 321 (D.N.J. 2002) ............................................................... 37, 53
Walt Disney Co. v. Powell, 897 F.2d 565 (D.C. Cir. 1990) ............................................................................ 59
Warner Bros. Entm’t Inc. v. WTV Sys., Inc., 6 2d 1003 (C.D. Cal. 2011) ..................................................................... 36, 37, 54
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ................................................................................................ 15
American Bar Association Section of Intellectual Property Law Past Action Book (2011-12) ......................................................................... 35, 38
S. Rep. No. 94-473 (1975) ....................................................................................... 56
Brief of the United States as Amicus Curiae, Cable News Network, Inc. v. CSC Holdings, Inc., No. 08-448, 2009 WL 1511740 (U.S. May 29, 2009) ..................................................................................... 42, 43
Jane Ginsburg, WNET v. Aereo: The Second Circuit Persists in Poor (Cable)Vision THe Media Institute (Apr. 23, 2013) ................................................................. 35
Jane C. Ginsburg, Recent Developments in US Copyright Law -- Part II, Caselaw: Exclusive Rights on the Ebb? 26 (Columbia Law Sch. Pub. Law & Legal Theory Working Paper Grp., Paper No. 08158, Dec. 1, 2008) ..................................................23, 32, 34, 35, 38
Paul Goldstein, Goldstein on Copyright (3d ed.) ........................................ 30, 32, 35
Hearings Before the Subcomm. On Courts, Civil Liberties, and the Admin. Of Justice of the House Comm. On the Judiciary, 96th Cong., 1st Sess. 32 (1979)) ................................................................................................................. 48
Jeffrey Malkan, The Public Performance Problem in Cartoon Network LP v. CSC Holdings, Inc., 89 Or.L. Rev. 505 (2010) ..................................... 26, 32, 35
Peter Mennell, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, 2012 J. Copyright Soc’y of U.S.A. (Aug. 26, 2011)e ........................................................................................................... 27
Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill (Comm. Print 1965) ................. 27
Jenna Wortham, No TV? No Subscription? No Problem, N.Y. Times (Apr. 6, 2013) ...................................................................................................... 44
real-time basis. Aereokiller’s retransmission service therefore comes squarely
within the Transmit Clause. By failing to obtain the necessary copyright licenses
to retransmit broadcast television programming, Aereokiller is infringing as the
district court correctly held.
STATEMENT OF FACTS
A. Aereokiller’s Unlicensed Broadcast Retransmission Service
Aereokiller launched its service in August 2012 by streaming over the
Internet through its website the signals of broadcast television stations from the
Los Angeles, Chicago, New York, and Minneapolis markets.1 This broadcast
programming includes programs whose copyrights are owned by Copyright
Owners, including such well-known shows as Saturday Night Live (NBC), Grey’s
Anatomy (ABC), and The Good Wife (CBS). ER 1654-740, 1743-45, 1759-86,
1791-92, 1820-21. Copyright Owners did not consent to the retransmissions.
After Copyright Owners filed this infringement action against Aereokiller in the
Central District of California for the unauthorized retransmission of their
programming, Aereokiller expanded its service to stream broadcast stations from
1 Only days earlier, one of Aereokiller’s affiliated companies had agreed to a consent judgment that permanently enjoined its unauthorized streaming of Copyright Owners’ programming over the Internet. See CBS Broad., Inc. v. FilmOn.com, Inc., No. 10-cv-07532 (S.D.N.Y. Aug. 9, 2012); ER 1265, 1271-94, 2587, 2642-46.
Dallas, San Francisco, Miami, Las Vegas, and Washington, D.C., without the
consent of any party. ER 37-38 (Tr.), 64 (Tr.), 1820-21, 1823, 2576-77, 2593-98.
Aereokiller originally made its service available at www.barrydriller.com.
ER 1791-92, 1820-21. Barry Diller (a principal investor in the Aereo service that
Aereokiller seeks to mimic) successfully sued Aereokiller for misuse of his name.
Aereokiller then began redirecting viewers to www.filmonx.com. ER 1792, 1820-
21, 2565, 2590-92. Simply by clicking on a particular broadcast station listed on
the program guide on the www.filmonx.com website, a visitor to that site is able to
view on her laptop or personal computer the content -- including copyrighted
programming -- being televised by the station at that time, just like a subscriber to
a cable system can view the same program by turning on her television set.
ER 218-19, 1823-24, 1853-57. Aereokiller’s subscribers may access the same
broadcast programming on their mobile devices using “apps” compatible with
iPhones, Android phones, Facebook, and Windows. ER 1825, 1843-51, 1880-91.
Just like cable and satellite providers, Aereokiller retransmits all of
Copyright Owners’ broadcasts 24 hours a day, 7 days a week.2 Aereokiller does
not simply provide a feed of each broadcast signal. It also provides a channel
2 In addition, Aereokiller provides its subscribers with access to various non-broadcast channels. Unlike the broadcast programming, Aereokiller allegedly obtains the necessary copyright licenses to retransmit its non-broadcast programming.
infringer. This Court should extend the district court’s injunction nationwide, as
the statute mandates.
ARGUMENT
I. The District Court Correctly Concluded That Copyright Owners Are Likely To Succeed On The Merits.
The issue of whether Copyright Owners are likely to succeed on the merits
turns upon whether Aereokiller engages in public performances, as defined in the
Transmit Clause, when it simultaneously retransmits the same broadcast of a
television program in real time to numerous subscribers -- each of whom allegedly
receives a separate retransmission of that broadcast by virtue of Aereokiller’s use
of individually-assigned “mini-antennas” and digital recording devices. Op. 4.
The district court correctly held that such retransmissions are public performances.
A. The Language And History Of The 1976 Copyright Act Make Clear That Aereokiller’s Broadcast Retransmission Service Publicly Performs Copyrighted Programming.
1. Because It Retransmits The Same Broadcast Of A Television Program To Multiple Subscribers, Aereokiller’s Service Falls Squarely Within The Transmit Clause.
“When interpreting a statute we must start with the language of the statute.”
See Metro One Telecomms., Inc. v. C.I.R., 704 F.3d 1057, 1061 (9th Cir. 2012).
Section 106(4) of the Copyright Act, 17 U.S.C. § 106(4), affords copyright owners
the exclusive right to “perform the copyrighted work publicly.” Section 101 states
that “[t]o perform or display a work ‘publicly’” means
(1) to perform or display 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 or otherwise communicate a performance or display 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 or display receive it in the same place or in separate places and at the same time or at different times.
17 U.S.C. § 101. Clause (2) is the “Transmit Clause.” “To ‘transmit’ a
performance or display is to communicate it by any device or process whereby
images or sounds are received beyond the place from which they are sent.” Id. “A
‘device’ . . . or ‘process’ is one now known or later developed.” Id.
Aereokiller satisfies each element of the Transmit Clause. It (1) “transmits”
(communicates beyond the place from which it sends); (2) “to the public”
(thousands of subscribers); (3) by “means of any device or process” “now known
or later developed” (mini-antennas “along with routers, servers, adapters, tuners,
transcoders and other equipment” (AK Br. 8)); (4) a “performance . . . of [a] work”
(a particular broadcast by a television station of a program). See 1976 H.R. Rep.
No. 94-1476, at 63 (1976) (“1976 Report”) (under the definition of “perform,” “a
local broadcaster is performing when it transmits the network broadcast”).
Aereokiller counters that it avoids the Transmit Clause because it makes
separate retransmissions of the same broadcast to each of its viewers, i.e., each
subscriber receives his or her own individual retransmission of a broadcast. But
that is a distinction without a legal difference. By its very terms, the Transmit
Clause applies regardless of “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.” 17 U.S.C. § 101. Congress
thus contemplated that the Transmit Clause would apply even where a service
makes separate transmissions as Aereokiller claims to do. See infra pages 28-31.
“The phrase ‘members of the public capable of receiving the performance’ . . .
clarif[ies] that a transmission is still ‘to the public’ even if its receipt is
individualized.” Jane C. Ginsburg, Recent Developments in US Copyright Law --
Part II, Caselaw: Exclusive Rights on the Ebb? 26 (Columbia Law Sch. Pub. Law
& Legal Theory Working Paper Grp., Paper No. 08158, Dec. 1, 2008) (published
in 218 Revue Internationale du Droit d’Auteur (2008) (Fr.)), available at
http://ssrn.com/abstract=1305270.
Congress intended that broadcast retransmission services, such as cable
systems, would come within the Transmit Clause so long as they made the same
“performance” available to their subscribers, not the same transmission:
[A] performance made available by transmission to the public at large is ‘public’ even though the recipients are not gathered in a single place, and even if there is no proof that any of the potential recipients was operating his receiving apparatus at the time of the transmission. The same principles apply whenever the potential
recipients of the transmission represent a limited segment of the public, such as the occupants of hotel rooms or the subscribers of a cable television service.
1976 Report at 64-65 (emphasis added). Accordingly, Congress contemplated that
broadcast retransmission services would make public performances even where
they made separate transmissions to individual subscribers. As Copyright Owners
demonstrated in the court below, all broadcast retransmission services (not just
Aereokiller) make such separate transmissions. ER 148-52 (Tr.), 157-59 (Tr.),
193-94, 197, 201-02, 216, 231.
2. Congress Did Not Provide A Technology Exemption To The Transmit Clause.
Aereokiller claims it is exempt from the Transmit Clause because it has
creatively designed its retransmission technology to avoid making public
performances. Aereokiller is wrong. The Transmit Clause is expressly
technology-neutral. As noted above, it applies to transmissions made “by means of
any device or process.” 17 U.S.C. § 101 (emphasis added). This broad language is
repeated in the definition of the term “transmit:” To transmit a performance of a
work means to transmit it by “any device or process.” Id. The definition of
“device or process” underscores the fact that Congress intended the Transmit
Clause to capture all possible technologies. “[D]evice or process” includes all
The legislative history further confirms Congress’ intent to include all
possible technologies within the Transmit Clause:
The definition of “transmit” . . . is broad enough to include all conceivable forms and combinations of wired or wireless communications media, including but by no means limited to radio and television broadcasting as we know them. Each and every method by which the images or sounds comprising a performance or display are picked up and conveyed is a ‘transmission,’ and if the transmission reaches the public in [any] form, the case comes within the scope of clauses (4) or (5) of section 106.
1976 Report at 64 (emphasis added); see id. at 63 (noting that a “performance may
be accomplished ‘either directly or by means of any device or process,’ including
all kinds of equipment for reproducing or amplifying sounds or visual images, any
sort of transmitting apparatus, any type of electronic retrieval system, and any
other techniques and systems not yet in use or even invented”) (emphasis added).
As Congress expressly noted, the “approach of the [1976 Act] is to set forth
the copyright owner’s exclusive rights in broad terms in section 106, and then to
provide various limitations, qualifications, or exemptions in the 12 sections that
follow.” Id. at 61 (emphasis added). Congress “state[d] the public performance
right in broad terms . . . .” Id. at 62. And it “enacted the transmit clause to make
the performance right as broad as possible . . . .” Jeffrey Malkan, The Public
Performance Problem in Cartoon Network LP v. CSC Holdings, Inc., 89 Or. L.
Rev. 505, 541 (2010). In doing so, Congress followed the advice of the Register of
Copyrights:
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 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.
Supplementary Report of the Register of Copyrights on the General Revision of the
U.S. Copyright Law: 1965 Revision Bill at 13-14 (Comm. Print 1965) (emphasis
added). Congress “conceived of the exclusive rights broadly [and] encouraged
courts to interpret them so as to avoid their erosion as a result of unforeseen
technological changes . . . .” Peter Mennell, In Search of Copyright’s Lost Ark:
Interpreting the Right to Distribute in the Internet Age, 2012 J. Copyright Soc’y of
U.S.A., at 57-58 (Aug. 26, 2011), available at http://papers.ssrn.com/sol3/papers.
cfm?abstract_id=1679514; see Aiken, 422 U.S. at 158 (copyright laws “‘should not
be so narrowly construed as to permit their evasion because of changing habits due
to new inventions and discoveries’”) (citation omitted) (legislatively overruled on
other grounds). Nothing in the language of the statute or the legislative history
provides support for Aereokiller’s position that the Transmit Clause does not
encompass Aereokiller’s technological platform.
3. Congress Intended To Include Broadcast Retransmission Services Such As Aereokiller In The Transmit Clause.
The district court’s conclusion that Aereokiller comes within the plain
language of the Transmit Clause finds additional support in the legislative history
of the 1976 Copyright Act concerning broadcast retransmission services. As that
history reflects, Congress drafted the Transmit Clause to ensure that it
encompasses commercial services, such as cable television systems, that build their
businesses on exploiting broadcast television programming. As Congress
explained:
Cable television systems are commercial subscription services that pick up broadcasts of programs originated by others and retransmit them to paying subscribers. . . . . In general, the Committee believes that cable systems are commercial enterprises whose basic retransmission operations are based on the carriage of copyrighted program material and that copyright royalties should be paid by cable operators to the creators of such programs.
1976 Report at 88-89. Aereokiller too is a “commercial enterprise[] whose basic
retransmission operations are based on the carriage of copyrighted material.” And
device or process, whether the members of the public capable of receiving the performance transmission or display receive it the transmission in the same place or in separate places and at the same time or at different times.
See Paul Goldstein, Goldstein on Copyright § 7.7.2.2 (3d ed. 2012) (“The error in
the Second Circuit’s construction of the transmit clause was to treat ‘transmissions’
and ‘performance’ as synonymous, where the Act clearly treats them as distinct --
and different --operative terms. . . . There can be little doubt that the italicized
word it in the definition refers to ‘performance or display,’ not transmission . . . .”);
Jane Ginsburg, supra, at 26 (“the court confused ‘performance’ and
‘transmission’”); Jeffrey Malkan, supra, 89 Or. L. Rev. at 536, 553 (the court
“thought that the words ‘performance’ and ‘transmission’ were interchangeable . . .
[but] a transmission and a performance remain, technically and legally, two distinct
things . . . . The principal error in the court’s interpretation of the transmit clause
was that it substituted the word ‘transmission’ for the word ‘performance’ in the
phrase ‘capable of receiving the performance . . . .’”).
The Cablevision court’s erroneous substitution of the word “transmission”
for “performance” led to a result that was exactly the opposite of what the statute
means and what Congress intended. To determine who is “capable of receiving”
each distinct transmission required the court in Cablevision to focus on the
individual transmissions while ignoring the fact that the performance of the
copyrighted works (i.e., the particular broadcast of a television program) being
communicated by the transmissions is “capable of being received” by all of
Cablevision’s subscribers. See Cablevision, 536 F.3d at 135-136. The primary
problem with focusing on the individual transmissions in isolation is that it reads
the “different times” language out of the Transmit Clause:
The court’s construction clashes with the text of the Act in another important way as well: it is not possible to transmit a performance “created by the act of transmission” to members of the public “at different times.” While such a “performance” could be transmitted simultaneously to differently located recipients, recipients differently situated in time cannot receive the same transmission. The court’s interpretation thus reads non simultaneous receipt out of the statute.
Jane Ginsburg, supra, at 25; see id. at 25-26 (“Because the Act explicitly covers
performances that are transmitted to members of the public who are separated in
time, however, the Second Circuit’s statutory construction cannot be correct.”).
The district court in this case correctly rejected the interpretation of the
Transmit Clause reflected in Cablevision and Aereo, explaining that: “[I]t is the
public performance of the copyrighted work with which the Copyright Act, by its
express language, is concerned.” Op. 6. The dissenting judge in Aereo likewise
recognized that the relevant inquiry (as Congress intended) is whether the
retransmission service makes the same “performance of a work” available to the
public, not whether one distinct transmission is made available to the public. See
Aereo, 2013 WL 1285591, at *19, 22 (Chin, J. dissenting). The district court
reasoned:
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.
Op. 4 (emphasis in original). The district court also discussed the Supreme Court
authority and legislative history upon which the Cablevision court had relied. And
it noted that both focused upon the performance of the work and not (as had
Cablevision) on the “performance of the performance.” Id. (citing Buck v. Jewell-
LaSalle Realty Co., 283 U.S. 191, 196 (1931) and 1976 House Report).
The district court’s decision to reject the interpretation by the courts in
Cablevision and Aereo finds considerable support. See Paul Goldstein, supra; Jane
Ginsburg, Recent Developments in U.S. Copyright Law, supra; Jeffrey Malkan,
supra; Jane Ginsburg, WNET v. Aereo: The Second Circuit Persists in Poor
(Cable)Vision, The Media Institute (Apr. 23, 2013) (“That’s why Cablevision is
wrong, that’s why Aereo is wrong, and the prospects for business models are
terrifying, or terrific, depending on whether you own a copyright, or just make
money off of someone else’s.”), available at
http://www.mediainstitute.org/IPI/2013/042313.php; American Bar Association
Section of Intellectual Property Law Past Action Book at 72-73 (2011-12)
and explaining that “a party may not avoid direct liability for unauthorized public
performances by using as the source thereof separate copies of the work that
members of the public may have requested for such transmission”).
3. Cablevision’s And Aereo’s Misreading Of The Transmit Clause Is Not Necessary To Preserve Private Performances.
Aereokiller contends that the district court’s reading of the Transmit Clause
would lead to “untenable results” and “effectively eliminates an individual’s right
to privately perform broadcast content.” AK Br. 2, 19. That is the same argument
that led the Cablevision Court to mistakenly focus on each individual transmission
rather than the performance of the work. The argument is simply not correct and
does not excuse a misreading of the Transmit Clause.
Aereokiller claims, for example, that a “hapless customer” would be liable
for making an unauthorized public performance where she recorded a program and
then transmitted that program to other portions of her home. See also Cablevision,
536 F.3d at 136 (citing same example). The district court, however, specifically
referenced that example and left no doubt that it does not involve a public
performance:
There is nothing public about such a performance. By contrast, this case involves a commercial service transmitting copyrighted content to thousands, and potentially millions, of people.
transmission of a stored program goes directly to the home of the subscriber who
made the copy of that program and requested its playback. See 536 F.3d at 124
(subscribers “receive playback of those programs through their home television
sets”); id. at 126 (each playback transmission is “uniquely associated with one
customer’s set-top box and intended for that customer’s exclusive viewing in his or
her home”) (citation and internal quotation marks omitted). Accordingly, the only
person “capable of receiving” (the “potential audience” for) each RS-DVR
transmission from Cablevision was the subscriber who requested the copy used to
make that retransmission. See id. at 135 (“only one subscriber is capable of
receiving any given RS-DVR transmission”).
That is not the case with Aereokiller. Aereokiller does not make
retransmissions over its own closed and managed facilities, as Cablevision does;
nor does it confine those retransmissions to individual subscribers’ homes.
Aereokiller’s retransmissions travel via the Internet (over which it has no control)
to mobile devices that may be located anywhere, including public places such as
malls, airports, and stadiums.3 Anyone with the relevant password may request
and receive each retransmission; and anyone with access to an Internet-connected
3 Under Section 101 of the Copyright Act, Aereokiller also publicly performs a work if it transmits a performance of that work to “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 . . . .” 17 U.S.C. § 101. Aereokiller does precisely that.
shared-accounts.html?pagewanted=all&_r=0. Thus, the “potential audience” for,
or the persons “capable of receiving,” each Aereokiller retransmission is not just
the one subscriber who receives RS-DVR retransmissions. The Aereo court failed
to consider the substantial differences between distributing programming over a
closed and managed facility as in Cablevision and retransmitting programming
over the Internet.
C. None Of The Other Arguments Advanced By Aereokiller And Its Amici Supports The Conclusion That Aereokiller May Lawfully Provide An Unlicensed Broadcast Retransmission Service.
1. Congress Rejected The Notion That A Broadcast Retransmission Service Like Aereokiller Should Be Exempt From Copyright Liability Because It Provides Subscribers With Television Programming They Can Receive On Their Own.
Aereokiller claims that it simply facilitates its subscribers’ receipt of the
same programming they could lawfully receive with “legal home equipment.”
have viewed the issues raised by Teleprompter and Fortnightly any differently had
the services in those cases utilized thousands of antennas attached to a tower on a
hill rather than a single community antenna.4
Furthermore, nothing in Aereokiller’s legal theory is dependent upon
whether its subscribers are authorized to receive the retransmitted programming on
their own. For example, under its theory, Aereokiller would not engage in an
infringing public performance if it retransmitted non-broadcast programming, such
as that provided by HBO, ESPN or TNT. In such a case, Aereokiller would claim
it is simply providing technology to permit private performances by its subscribers.
Aereokiller’s theory, if adopted, would effectively gut the Transmit Clause (and its
delineation of the public performance right) beyond recognition.
2. As This Court’s Decision In Professional Real Estate Investors Illustrates, Aereokiller Cannot Avoid Copyright Liability For Unlicensed Public Performances On The Ground That It Is Merely “Providing Technology.”
Aereokiller and its amici argue that Aereokiller simply “provides technology
that enables consumers to make private performances” (AK Br. 20) and that this
4 Amici also argue that Congress could not have enacted the Transmit Clause in response to Fortnightly and Teleprompter because it drafted that provision in 1965 prior to the Supreme Court issuing those decisions in 1968 and 1974. This argument ignores the legislative history of the Transmit Clause. Congress had been dealing with the “difficult problem” of determining copyright liability of broadcast retransmission services such as cable systems “since 1965,” 1976 Report at 89, and Congress left no doubt that the basis for the Fortnightly and Teleprompter decisions was “completely overturned” in the 1976 Act. See id. at 87.
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.”). Thus, the plaintiff content
owners were unsuccessful in PREI because that case involved no transmission
whatsoever -- wholly unlike this case where there is no dispute that transmissions
are made.
By contrast, the Court in PREI determined that a service (called
Spectradyne) that transmitted movies to individual hotel guest rooms on-demand,
on a pay-per-view basis, does make public performances:
Spectradyne's closed circuit system falls squarely within the transmit clause of the Act. It uses wires to transmit a signal, employs a central transmission device, and the signal is received at places beyond the place from which it is sent.
Id. at 282 n.7. As the Court in PREI noted, “[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 owners permission.”
Id. at 282. As such, because Aereokiller, like Spectradyne, “uses wire to transmit a
signal, employs a central transmission device, and the signal is received at places
beyond the place from which it was sent,” PREI provides additional support for the
district court’s conclusion that Aereokiller is engaged in infringing activity.
geographical area. Courts in the Ninth Circuit should not grant relief that would cause substantial interference with the established judicial pronouncements of such sister circuits.
Id. at 773 (emphasis added). No court outside the Second Circuit, other than the
court below, has “spoken to the issue” of whether a service such as Aereokiller’s is
infringing under the Transmit Clause; and there are no “established judicial
pronouncements” outside the Second Circuit suggesting that Aereokiller’s service
is non-infringing. Under these circumstances, the AMC decision would, at most,
support excluding only the Second Circuit from the scope of the injunction against
Aereokiller. See Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1161 (9th Cir. 2011)
(upholding nationwide copyright injunction and distinguishing AMC as not
compelling consideration of comity concerns in sister circuits that have not decided
the legal issue that supports injunctive relief).
Here, the district court limited its injunction to the Ninth Circuit simply
because it thought that other courts “might adopt” Cablevision when presented
with the choice and copyright owners “do not appear” to have sought “rulings
contrary to Cablevision’s public performance analysis in the other circuits.” Op. 8.
The district court concluded that: “In those circumstances, [it] would not assume
that the other Circuits would agree with” its decision rather than Cablevision. Id.
As this Court has made clear, the mere possibility of a different interpretation does
not provide a proper basis for precluding application of the injunction -- at a