throbber
(Slip Opinion)
`
`
`
` OCTOBER TERM, 2013
`
`
`Syllabus
`
`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
`
`
`
` The syllabus constitutes no part of the opinion of the Court but has been
`
` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
` AMERICAN BROADCASTING COS., INC., ET AL. v.
`
`
`AEREO, INC., FKA BAMBOOM LABS, INC.
`
`
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE SECOND CIRCUIT
` No. 13–461. Argued April 22, 2014—Decided June 25, 2014
`
`The Copyright Act of 1976 gives a copyright owner the “exclusive
`
` righ[t]” to “perform the copyrighted work publicly.” 17 U. S. C.
`§106(4). The Act’s Transmit Clause defines that exclusive right to in-
`clude the right to “transmit or otherwise communicate a performance
`. . . of the [copyrighted] 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.” §101.
`Respondent Aereo, Inc., sells a service that allows its subscribers to
`
`watch television programs over the Internet at about the same time
`as the programs are broadcast over the air. When a subscriber wants
`
` to watch a show that is currently airing, he selects the show from a
`menu on Aereo’s website. Aereo’s system, which consists of thou-
`sands of small antennas and other equipment housed in a centralized
`warehouse, responds roughly as follows: A server tunes an antenna,
`
` which is dedicated to the use of one subscriber alone, to the broadcast
`carrying the selected show. A transcoder translates the signals re-
`ceived by the antenna into data that can be transmitted over the In-
`ternet. A server saves the data in a subscriber-specific folder on
`Aereo’s hard drive and begins streaming the show to the subscriber’s
`screen once several seconds of programming have been saved. The
`streaming continues, a few seconds behind the over-the-air broadcast,
`
`until the subscriber has received the entire show.
`
`
`Petitioners, who are television producers, marketers, distributors,
`
`and broadcasters that own the copyrights in many of the programs
`
`that Aereo streams, sued Aereo for copyright infringement. They
`sought a preliminary injunction, arguing that Aereo was infringing
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`2
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`AMERICAN BROADCASTING COS. v. AEREO, INC.
`
`
`Syllabus
`their right to “perform” their copyrighted works “publicly.” The Dis-
`trict Court denied the preliminary injunction, and the Second Circuit
`affirmed.
`Held: Aereo performs petitioners’ works publicly within the meaning of
`
`the Transmit Clause. Pp. 4–18.
`
`
`(a) Aereo “perform[s].” It does not merely supply equipment that
`
`allows others to do so. Pp. 4–10.
`
`
`(1) One of Congress’ primary purposes in amending the Copy-
`right Act in 1976 was to overturn this Court’s holdings that the activ-
`
`ities of community antenna television (CATV) providers fell outside
`
`the Act’s scope. In Fortnightly Corp. v. United Artists Television,
`Inc., 392 U. S. 390, the Court determined that a CATV provider was
`more like a viewer than a broadcaster, because its system “no more
`
`than enhances the viewer’s capacity to receive the broadcaster’s sig-
`nals [by] provid[ing] a well-located antenna with an efficient connec-
`
`tion to the viewer’s television set.” Id., at 399. Therefore, the Court
`concluded, a CATV provider did not perform publicly. The Court
`
`reached the same determination in respect to a CATV provider that
`
`retransmitted signals from hundreds of miles away in Teleprompter
`
`
`Corp. v. Columbia Broadcasting System, Inc., 415 U. S. 394. “The re-
`ception and rechanneling of [broadcast television signals] for simul-
`
`taneous viewing is essentially a viewer function, irrespective of the
`
`distance between the broadcasting station and the ultimate viewer,”
`the Court said. Id., at 408. Pp. 4–7.
`
`
`(2) In 1976, Congress amended the Copyright Act in large part to
`reject the Fortnightly and Teleprompter holdings. The Act now clari-
`fies that to “perform” an audiovisual work means “to show its images
`in any sequence or to make the sounds accompanying it audible.”
`§101. Thus, both the broadcaster and the viewer “perform,” because
`they both show a television program’s images and make audible the
`program’s sounds. Congress also enacted the Transmit Clause,
`
`which specifies that an entity performs when it “transmit[s] . . . a
`performance . . . to the public.” Ibid. The Clause makes clear that an
`entity that acts like a CATV system itself performs, even when it
`simply enhances viewers’ ability to receive broadcast television sig-
`nals. Congress further created a complex licensing scheme that sets
`out the conditions, including the payment of compulsory fees, under
`
`
`which cable systems may retransmit broadcasts to the public. §111.
`Congress made all three of these changes to bring cable system activ-
`
`ities within the Copyright Act’s scope. Pp. 7–8.
`
`
`
`
`(3) Because Aereo’s activities are substantially similar to those of
`the CATV companies that Congress amended the Act to reach, Aereo
`is not simply an equipment provider. Aereo sells a service that al-
`
`lows subscribers to watch television programs, many of which are
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`Cite as: 573 U. S. ____ (2014)
`
`
`Syllabus
`copyrighted, virtually as they are being broadcast. Aereo uses its
`
`own equipment, housed in a centralized warehouse, outside of its us-
`
`ers’ homes. By means of its technology, Aereo’s system “receive[s]
`
`
`programs that have been released to the public and carr[ies] them by
`private channels to additional viewers.” Fortnightly, supra, at 400.
`
`This Court recognizes one particular difference between Aereo’s
`
`system and the cable systems at issue in Fortnightly and Teleprompt-
`
`er: The systems in those cases transmitted constantly, whereas
`Aereo’s system remains inert until a subscriber indicates that she
`
`wants to watch a program. In other cases involving different kinds of
`service or technology providers, a user’s involvement in the operation
`of the provider’s equipment and selection of the content transmitted
`may well bear on whether the provider performs within the meaning
`of the Act. But given Aereo’s overwhelming likeness to the cable
`companies targeted by the 1976 amendments, this sole technological
`difference between Aereo and traditional cable companies does not
`make a critical difference here. Pp. 8–10.
`
`(b) Aereo also performs petitioners’ works “publicly.” Under the
`
`Clause, an entity performs a work publicly when it “transmit[s] . . . a
`performance . . . of the work . . . to the public.” §101. What perfor-
`mance, if any, does Aereo transmit? Petitioners say Aereo transmits
`a prior performance of their works, whereas Aereo says the perfor-
`
`
`mance it transmits is the new performance created by its act of
`transmitting. This Court assumes arguendo that Aereo is correct and
`thus assumes, for present purposes, that to transmit a performance
`of an audiovisual work means to communicate contemporaneously
`
`visible images and contemporaneously audible sounds of the work.
`Under the Court’s assumed definition, Aereo transmits a perfor-
`
`mance whenever its subscribers watch a program.
`
`
`What about the Clause’s further requirement that Aereo transmit
`a performance “to the public”? Aereo claims that because it trans-
`mits from user-specific copies, using individually-assigned antennas,
`and because each transmission is available to only one subscriber, it
`does not transmit a performance “to the public.” Viewed in terms of
`Congress’ regulatory objectives, these behind-the-scenes technological
`differences do not distinguish Aereo’s system from cable systems,
`which do perform publicly. Congress would as much have intended to
`protect a copyright holder from the unlicensed activities of Aereo as
`from those of cable companies.
`
`The text of the Clause effectuates Congress’ intent. Under the
`
`Clause, an entity may transmit a performance through multiple
`transmissions, where the performance is of the same work. Thus
`when an entity communicates the same contemporaneously percepti-
`ble images and sounds to multiple people, it “transmit[s] . . . a per-
`
`
`
`
`
`3
`
`
`
`
`
`
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`
`
`

`
`4
`
`
`AMERICAN BROADCASTING COS. v. AEREO, INC.
`
`
`Syllabus
`formance” to them, irrespective of the number of discrete communica-
`
` tions it makes and irrespective of whether it transmits using a single
`copy of the work or, as Aereo does, using an individual personal copy
` for each viewer.
`
`
`
`
` Moreover, the subscribers to whom Aereo transmits constitute “the
`
` public” under the Act. This is because Aereo communicates the same
`
` contemporaneously perceptible images and sounds to a large number
`
` of people who are unrelated and unknown to each other. In addition,
`
` neither the record nor Aereo suggests that Aereo’s subscribers receive
`
` performances in their capacities as owners or possessors of the under-
`
`lying works. This is relevant because when an entity performs to a
` set of people, whether they constitute “the public” often depends upon
`
`their relationship to the underlying work. Finally, the statute makes
`
`clear that the fact that Aereo’s subscribers may receive the same pro-
`grams at different times and locations is of no consequence. Aereo
`transmits a performance of petitioners’ works “to the public.” Pp. 11–
`
` 15.
`(c) Given the limited nature of this holding, the Court does not be-
`
`lieve its decision will discourage the emergence or use of different
`kinds of technologies. Pp. 15–17.
`712 F. 3d 676, reversed and remanded.
`BREYER, J., delivered the opinion of the Court, in which ROBERTS,
`
`
`C. J., and KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.
`
`
`
`SCALIA, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ.,
`
`
`joined.
`
`
`
`
`
`
`
`

`
`
`
`
`
` Cite as: 573 U. S. ____ (2014)
`
`Opinion of the Court
`
`1
`
`
` NOTICE: This opinion is subject to formal revision before publication in the
`
`
`
` preliminary print of the United States Reports. Readers are requested to
`
` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
`
` ington, D. C. 20543, of any typographical or other formal errors, in order
`
`
` that corrections may be made before the preliminary print goes to press.
`
`
`
`
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 13–461
`_________________
`
` AMERICAN BROADCASTING COMPANIES, INC.,
`
`
`
`ET AL., PETITIONERS v. AEREO, INC., FKA
`
`BAMBOOM LABS, INC.
`
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE SECOND CIRCUIT
`
`[June 25, 2014]
`
`JUSTICE BREYER delivered the opinion of the Court.
`The Copyright Act of 1976 gives a copyright owner the
`
`“exclusive righ[t]” to “perform the copyrighted work pub-
`licly.” 17 U. S. C. §106(4). The Act’s Transmit Clause
`defines that exclusive right as including the right to
`“transmit or otherwise communicate a performance
`. . . of the [copyrighted] 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.” §101.
`
`We must decide whether respondent Aereo, Inc., infringes
`this exclusive right by selling its subscribers a technologi-
`cally complex service that allows them to watch television
`programs over the Internet at about the same time as the
`
`programs are broadcast over the air. We conclude that it
`does.
`
`
`
`
`

`
`AMERICAN BROADCASTING COS. v. AEREO, INC.
`
`Opinion of the Court
`I
`
`A
`
`For a monthly fee, Aereo offers subscribers broadcast
`
`television programming over the Internet, virtually as the
`programming is being broadcast. Much of this program-
`ming is made up of copyrighted works. Aereo neither
`
`owns the copyright in those works nor holds a license from
`the copyright owners to perform those works publicly.
`Aereo’s system is made up of servers, transcoders, and
`
`thousands of dime-sized antennas housed in a central
`warehouse. It works roughly as follows: First, when a
`
`subscriber wants to watch a show that is currently being
`broadcast, he visits Aereo’s website and selects, from a list
`of the local programming, the show he wishes to see.
`
`Second, one of Aereo’s servers selects an antenna, which
`
`
`it dedicates to the use of that subscriber (and that sub-
`scriber alone) for the duration of the selected show. A
`
`server then tunes the antenna to the over-the-air broad-
`cast carrying the show. The antenna begins to receive the
`
`broadcast, and an Aereo transcoder translates the sig-
`nals received into data that can be transmitted over the
`Internet.
`Third, rather than directly send the data to the sub-
`
`scriber, a server saves the data in a subscriber-specific
`folder on Aereo’s hard drive.
`In other words, Aereo’s
`system creates a subscriber-specific copy—that is, a “per-
`sonal” copy—of the subscriber’s program of choice.
`Fourth, once several seconds of programming have been
`
`saved, Aereo’s server begins to stream the saved copy of
`the show to the subscriber over the Internet. (The sub-
`scriber may instead direct Aereo to stream the program at
`a later time, but that aspect of Aereo’s service is not before
`us.) The subscriber can watch the streamed program on
`the screen of his personal computer, tablet, smart phone,
`Internet-connected television, or other Internet-connected
`device. The streaming continues, a mere few seconds
`
`
`
`2
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`

`
`3
`
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`
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` Cite as: 573 U. S. ____ (2014)
`
`Opinion of the Court
`behind the over-the-air broadcast, until the subscriber has
`received the entire show. See A Dictionary of Computing
`494 (6th ed. 2008) (defining “streaming” as “[t]he process
`of providing a steady flow of audio or video data so that an
`Internet user is able to access it as it is transmitted”).
`
`Aereo emphasizes that the data that its system streams
`
`to each subscriber are the data from his own personal
`copy, made from the broadcast signals received by the
`
`
`particular antenna allotted to him. Its system does not
`transmit data saved in one subscriber’s folder to any other
`subscriber. When two subscribers wish to watch the same
`program, Aereo’s system activates two separate antennas
`and saves two separate copies of the program in two sepa-
`rate folders. It then streams the show to the subscribers
`through two separate transmissions—each from the sub-
`scriber’s personal copy.
`
`B
`
`Petitioners are television producers, marketers, distrib-
`utors, and broadcasters who own the copyrights in many
`of the programs that Aereo’s system streams to its sub-
`scribers. They brought suit against Aereo for copyright
`infringement in Federal District Court. They sought a
`preliminary injunction, arguing that Aereo was infringing
`their right to “perform” their works “publicly,” as the
`Transmit Clause defines those terms.
`
`The District Court denied the preliminary injunction.
`874 F. Supp. 2d 373 (SDNY 2012). Relying on prior Cir-
`cuit precedent, a divided panel of the Second Circuit af-
`firmed. WNET, Thirteen v. Aereo, Inc., 712 F. 3d 676
`
`(2013) (citing Cartoon Network LP, LLLP v. CSC Hold-
`ings, Inc., 536 F. 3d 121 (2008)). In the Second Circuit’s
`view, Aereo does not perform publicly within the meaning
`of the Transmit Clause because it does not transmit “to
`the public.” Rather, each time Aereo streams a program to
`
`a subscriber, it sends a private transmission that is avail-
`
`
`
`
`
`
`
`

`
`4
`
`
`AMERICAN BROADCASTING COS. v. AEREO, INC.
`
`Opinion of the Court
`able only to that subscriber. The Second Circuit denied
`rehearing en banc, over the dissent of two judges. WNET,
`
`Thirteen v. Aereo, Inc., 722 F. 3d 500 (2013). We granted
`
`certiorari.
`
`
`II
`
`This case requires us to answer two questions: First, in
`operating in the manner described above, does Aereo
`“perform” at all? And second, if so, does Aereo do so “pub-
`
`licly”? We address these distinct questions in turn.
`
`Does Aereo “perform”? See §106(4) (“[T]he owner of [a]
`copyright . . . has the exclusive righ[t] . . . to perform the
`copyrighted work publicly” (emphasis added)); §101 (“To
`perform . . . a work ‘publicly’ means [among other things]
`
`to transmit . . . a performance . . . of the work . . . to the
`public . . . ” (emphasis added)). Phrased another way, does
`Aereo “transmit . . . a performance” when a subscriber
`watches a show using Aereo’s system, or is it only the
`subscriber who transmits? In Aereo’s view, it does not
`perform. It does no more than supply equipment that
`“emulate[s] the operation of a home antenna and [digital
`video recorder (DVR)].” Brief for Respondent 41. Like a
`home antenna and DVR, Aereo’s equipment simply re-
`sponds to its subscribers’ directives. So it is only the
`subscribers who “perform” when they use Aereo’s equip-
`ment to stream television programs to themselves.
`
`Considered alone, the language of the Act does not
`
`clearly indicate when an entity “perform[s]” (or “trans-
`mit[s]”) and when it merely supplies equipment that
`
`allows others to do so. But when read in light of its pur-
`pose, the Act is unmistakable: An entity that engages in
`activities like Aereo’s performs.
`A
`History makes plain that one of Congress’ primary
`
`purposes in amending the Copyright Act in 1976 was to
`
`
`
`
`
`

`
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`
` Cite as: 573 U. S. ____ (2014)
`
`Opinion of the Court
`overturn this Court’s determination that community
`antenna television (CATV) systems (the precursors of
`modern cable systems) fell outside the Act’s scope. In
`Fortnightly Corp. v. United Artists Television, Inc., 392
`U. S. 390 (1968), the Court considered a CATV system
`that carried local television broadcasting, much of which
`was copyrighted, to its subscribers in two cities. The
`CATV provider placed antennas on hills above the cities
`and used coaxial cables to carry the signals received by the
`antennas to the home television sets of its subscribers.
`The system amplified and modulated the signals in order
`to improve their strength and efficiently transmit them to
`subscribers. A subscriber “could choose any of the . . .
`
`programs he wished to view by simply turning the knob on
`his own television set.” Id., at 392. The CATV provider
`“neither edited the programs received nor originated any
`
`programs of its own.” Ibid.
`
`
`Asked to decide whether the CATV provider infringed
`copyright holders’ exclusive right to perform their works
`publicly, the Court held that the provider did not “per-
`
`
`form” at all. See 17 U. S. C. §1(c) (1964 ed.) (granting
`copyright holder the exclusive right to “perform . . . in
`public for profit” a nondramatic literary work), §1(d)
`(granting copyright holder the exclusive right to “perform
`. . . publicly” a dramatic work). The Court drew a line:
`
`“Broadcasters perform. Viewers do not perform.” 392
`U. S., at 398 (footnote omitted). And a CATV provider
`“falls on the viewer’s side of the line.” Id., at 399.
`
`The Court reasoned that CATV providers were unlike
`broadcasters:
`“Broadcasters select the programs to be viewed; CATV
`
`systems simply carry, without editing, whatever pro-
`grams they receive. Broadcasters procure programs
`and propagate them to the public; CATV systems re-
`ceive programs that have been released to the public
`
`5
`
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`
`
`
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`

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`6
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`AMERICAN BROADCASTING COS. v. AEREO, INC.
`
`Opinion of the Court
`and carry them by private channels to additional
`viewers.” Id., at 400.
`Instead, CATV providers were more like viewers, for “the
`basic function [their] equipment serves is little different
`from that served by the equipment generally furnished by”
`
`viewers.
`Id., at 399. “Essentially,” the Court said, “a
`CATV system no more than enhances the viewer’s capac-
`ity to receive the broadcaster’s signals [by] provid[ing] a
`well-located antenna with an efficient connection to the
`viewer’s television set.” Ibid. Viewers do not become
`performers by using “amplifying equipment,” and a CATV
`provider should not be treated differently for providing
`viewers the same equipment. Id., at 398–400.
`In Teleprompter Corp. v. Columbia Broadcasting Sys-
`tem, Inc., 415 U. S. 394 (1974), the Court considered the
`copyright liability of a CATV provider that carried broad-
`cast television programming into subscribers’ homes from
`hundreds of miles away. Although the Court recognized
`that a viewer might not be able to afford amplifying
`equipment that would provide access to those distant
`signals, it nonetheless found that the CATV provider was
`more like a viewer than a broadcaster. Id., at 408–409. It
`explained: “The reception and rechanneling of [broadcast
`television signals] for simultaneous viewing is essentially
`a viewer function, irrespective of the distance between the
`
`broadcasting station and the ultimate viewer.” Id., at 408.
`
`The Court also recognized that the CATV system exer-
`cised some measure of choice over what to transmit. But
`that fact did not transform the CATV system into a broad-
`caster. A broadcaster exercises significant creativity in
`choosing what to air, the Court reasoned. Id., at 410. In
`
`contrast, the CATV provider makes an initial choice about
`
`which broadcast stations to retransmit, but then “‘simply
`
`carr[ies], without editing, whatever programs [it] re-
`ceive[s].’” Ibid. (quoting Fortnightly, supra, at 400 (altera-
`
`
`
`
`
`
`
`

`
`
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` Cite as: 573 U. S. ____ (2014)
`
`Opinion of the Court
`
`7
`
`
`
` tions in original)).
`
`
`
`
`
`B
`In 1976 Congress amended the Copyright Act in large
`
`part to reject the Court’s holdings in Fortnightly and
`Teleprompter. See H. R. Rep. No. 94–1476, pp. 86–87
`(1976) (hereinafter H. R. Rep.) (The 1976 amendments
`“completely overturned” this Court’s narrow construction
`of the Act in Fortnightly and Teleprompter).
` Congress
`enacted new language that erased the Court’s line be-
`tween broadcaster and viewer, in respect to “perform[ing]”
`a work. The amended statute clarifies that to “perform”
`an audiovisual work means “to show its images in any
`sequence or to make the sounds accompanying it audible.”
`§101; see ibid. (defining “[a]udiovisual works” as “works
`
`that consist of a series of related images which are intrin-
`
`sically intended to be shown by the use of machines . . . ,
`together with accompanying sounds”). Under this new
`language, both the broadcaster and the viewer of a televi-
`sion program “perform,” because they both show the pro-
`gram’s images and make audible the program’s sounds.
`See H. R. Rep., at 63 (“[A] broadcasting network is per-
`
`forming when it transmits [a singer’s performance of a
`song] . . . and any individual is performing whenever he or
`she . . . communicates the performance by turning on a
`
`receiving set”).
`
`Congress also enacted the Transmit Clause, which
`specifies that an entity performs publicly when it “trans-
`mit[s] . . . a performance . . . to the public.” §101; see ibid.
`(defining “[t]o ‘transmit’ a performance” as “to communi-
`cate it by any device or process whereby images or sounds
`are received beyond the place from which they are sent”).
`Cable system activities, like those of the CATV systems in
`Fortnightly and Teleprompter, lie at the heart of the activ-
`ities that Congress intended this language to cover. See
`H. R. Rep., at 63 (“[A] cable television system is perform-
`
`
`
`
`
`
`
`

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`8
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`AMERICAN BROADCASTING COS. v. AEREO, INC.
`
`Opinion of the Court
`ing when it retransmits [a network] broadcast to its sub-
`scribers”); see also ibid. (“[T]he concep[t] of public perfor-
`mance . . . cover[s] not only the initial rendition or show-
`ing, but also any further act by which that rendition or
`
`showing is transmitted or communicated to the public”).
`The Clause thus makes clear that an entity that acts like
`a CATV system itself performs, even if when doing so, it
`simply enhances viewers’ ability to receive broadcast
`television signals.
`
`Congress further created a new section of the Act to
`regulate cable companies’ public performances of copy-
`righted works. See §111. Section 111 creates a complex,
`highly detailed compulsory licensing scheme that sets out
`the conditions, including the payment of compulsory fees,
`under which cable systems may retransmit broadcasts.
`H. R. Rep., at 88 (Section 111 is primarily “directed at the
`operation of cable television systems and the terms and
`conditions of their liability for the retransmission of copy-
`
`righted works”).
`
`Congress made these three changes to achieve a similar
`end: to bring the activities of cable systems within the
`
`scope of the Copyright Act.
`
`
`
`
`
`
`
`C
`
`This history makes clear that Aereo is not simply an
`equipment provider. Rather, Aereo, and not just its sub-
`scribers, “perform[s]” (or “transmit[s]”). Aereo’s activities
`are substantially similar to those of the CATV companies
`
`that Congress amended the Act to reach. See id., at 89
`(“[C]able systems are commercial enterprises whose basic
`retransmission operations are based on the carriage of
`copyrighted program material”). Aereo sells a service that
`allows subscribers to watch television programs, many of
`
`which are copyrighted, almost as they are being broadcast.
`
`In providing this service, Aereo uses its own equipment,
`
`housed in a centralized warehouse, outside of its users’
`
`

`
`
`
` Cite as: 573 U. S. ____ (2014)
`
`Opinion of the Court
`homes. By means of its technology (antennas, trans-
`
`coders, and servers), Aereo’s system “receive[s] programs
`that have been released to the public and carr[ies] them by
`private channels to additional viewers.” Fortnightly, 392
`U. S., at 400.
`It “carr[ies] . . . whatever programs [it]
`
`receive[s],” and it offers “all the programming” of each
`
`over-the-air station it carries. Id., at 392, 400.
`
`Aereo’s equipment may serve a “viewer function”; it may
`enhance the viewer’s ability to receive a broadcaster’s
`programs. It may even emulate equipment a viewer could
`use at home. But the same was true of the equipment that
`was before the Court, and ultimately before Congress, in
`Fortnightly and Teleprompter.
`
`
`We recognize, and Aereo and the dissent emphasize,
`one particular difference between Aereo’s system and the
`cable systems at issue in Fortnightly and Teleprompter.
`The systems in those cases transmitted constantly; they
`sent continuous programming to each subscriber’s televi-
`sion set. In contrast, Aereo’s system remains inert until a
`subscriber indicates that she wants to watch a program.
`Only at that moment, in automatic response to the sub-
`
`scriber’s request, does Aereo’s system activate an antenna
`
`and begin to transmit the requested program.
`
`This is a critical difference, says the dissent. It means
`that Aereo’s subscribers, not Aereo, “selec[t] the copy-
`righted content” that is “perform[ed],” post, at 4 (opinion of
`SCALIA, J.), and for that reason they, not Aereo, “transmit”
`the performance. Aereo is thus like “a copy shop that
`provides its patrons with a library card.” Post, at 5. A
`copy shop is not directly liable whenever a patron uses the
`shop’s machines to “reproduce” copyrighted materials
`
`found in that library. See §106(1) (“exclusive righ[t] . . . to
`
`
`reproduce the copyrighted work”). And by the same token,
`Aereo should not be directly liable whenever its patrons
`use its equipment to “transmit” copyrighted television
`programs to their screens.
`
`
`
`
`
`
`
`9
`
`
`
`
`
`

`
`
` 10
`
`
`AMERICAN BROADCASTING COS. v. AEREO, INC.
`
`Opinion of the Court
`In our view, however, the dissent’s copy shop argument,
`
`in whatever form, makes too much out of too little. Given
`Aereo’s overwhelming likeness to the cable companies
`targeted by the 1976 amendments, this sole technological
`difference between Aereo and traditional cable companies
`does not make a critical difference here. The subscribers
`of the Fortnightly and Teleprompter cable systems also
`selected what programs to display on their receiving sets.
`
`Indeed, as we explained in Fortnightly, such a subscriber
`
`“could choose any of the . . . programs he wished to view by
`simply turning the knob on his own television set.” 392
`U. S., at 392. The same is true of an Aereo subscriber. Of
`course, in Fortnightly the television signals, in a sense,
`
`lurked behind the screen, ready to emerge when the sub-
`scriber turned the knob. Here the signals pursue their
`ordinary course of travel through the universe until to-
`day’s “turn of the knob”—a click on a website—activates
`machinery that intercepts and reroutes them to Aereo’s
`subscribers over the Internet. But this difference means
`nothing to the subscriber. It means nothing to the broad-
`caster. We do not see how this single difference, invisible
`
` to subscriber and broadcaster alike, could transform a
`system that is for all practical purposes a traditional cable
`system into “a copy shop that provides its patrons with a
`library card.”
`
`In other cases involving different kinds of service or
`technology providers, a user’s involvement in the opera-
`tion of the provider’s equipment and selection of the con-
`tent transmitted may well bear on whether the provider
`performs within the meaning of the Act. But the many
`similarities between Aereo and cable companies, consid-
`ered in light of Congress’ basic purposes in amending the
`Copyright Act, convince us that this difference is not
`critical here. We conclude that Aereo is not just an
`equipment supplier and that Aereo “perform[s].”
`
`
`
`
`
`
`
`
`
`

`
`
`
`
`
`
`
` Cite as: 573 U. S. ____ (2014)
`
`
`Opinion of the Court
`
`
` III
`
`Next, we must consider whether Aereo performs peti-
`
`tioners’ works “publicly,” within the meaning of the
`Transmit Clause. Under the Clause, an entity performs a
`work publicly when it “transmit[s] . . . a performance . . . of
`the work . . . to the public.” §101. Aereo denies that it
`satisfies this definition. It reasons as follows: First, the
`“performance” it “transmit[s]” is the performance created
`by its act of transmitting. And second, because each of
`these performances is capable of being received by one and
`only one subscriber, Aereo transmits privately, not pub-
`licly. Even assuming Aereo’s first argument is correct, its
`second does not follow.
`
`We begin with Aereo’s first argument. What perfor-
`
`mance does Aereo transmit? Under the Act, “[t]o ‘trans-
`mit’ 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.” Ibid. And “[t]o ‘per-
`
`form’” an audiovisual work means “to show its images in
`any sequence or to make the sounds accompanying it
`audible.” Ibid.
`
`Petitioners say Aereo transmits a prior performance of
`their works. Thus when Aereo retransmits a network’s
`prior broadcast, the underlying broadcast (itself a perfor-
`mance) is the performance that Aereo transmits. Aereo,
`as discussed above, says the performance it transmits is
`
`
`the new performance created by its act of transmitting.
`
`That performance comes into existence when Aereo
`streams the sounds and images of a broadcast program to
`a subscriber’s screen.
`
`
`We assume arguendo that Aereo’s first argument is
`correct. Thus, for present purposes, to transmit a perfor-
`mance of (at least) an audiovisual work means to com-
`municate contemporaneously visible images and contem-
`
`poraneously audible sounds of the work. Cf. United States
`v. American Soc. of Composers, Authors and Publishers,
`
`
`
` 11
`
`
`
`
`
`
`
`
`
`

`
`
` 12
`
`
`AMERICAN BROADCASTING COS. v. AEREO, INC.
`
`Opinion of the Court
`627 F. 3d 64, 73 (CA2 2010) (holding that a download of a
`work is not a performance because the data transmitted
`are not “contemporaneously perceptible”). When an Aereo
`subscriber selects a program to watch, Aereo streams the
`program over the Internet to that subscriber. Aereo
`thereby “communicate[s]” to the subscriber, by means of a
`
`“device or process,” the work’s images and sounds. §101.
`And those images and sounds are contemporaneously
`visible and audible on the subscriber’s computer (or other
`
`Internet-connected device). So under our assumed defini-
`tion, Aereo transmits a performance whenever its sub-
`scribers watch a pro

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