throbber
No. 13-461
`
`
`
`IN THE
`Supreme Court of the United States
`___________
`
`AMERICAN BROADCASTING COMPANIES, INC., ET AL.,
` Petitioners,
`
`v.
`
`AEREO, INC., F/K/A BAMBOOM LABS, INC.,
`
`
`Respondent.
`
`
`
`___________
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals
`for the Second Circuit
`___________
`
`BRIEF OF WASHINGTON LEGAL FOUNDATION
`AS AMICUS CURIAE
`IN SUPPORT OF PETITIONERS
`___________
`
`
`CORY L. ANDREWS
` Counsel of Record
`RICHARD A. SAMP
`WASHINGTON LEGAL
` FOUNDATION
` 2009 Mass. Ave. N.W.
` Washington, D.C. 20036
` (202) 588-0302
` candrews@wlf.org
`
`
`
`
`
`
`
`

`
`QUESTION PRESENTED
`Whether, under the 1976 Copyright Act, 17
`U.S.C. § 106(4), a company “publicly performs” a
`copyrighted television program when it retransmits
`a broadcast of that program to thousands of paid
`subscribers over the Internet.
`
`

`
`
`
`iii
`
`iii
`
`TABLE OF CONTENTS
`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES ................................. .. iv
`
`INTERESTS OF THE AMICUS CURIAE ............ .. 1
`
`STATEMENT OF THE CASE ............................... .. 2
`
`SUMMARY OF ARGUMENT ................................ .. 7
`
`REASONS FOR GRANTING THE PETITION .... .. 9
`
`I.
`
`THE DECISION BELOW CONLFICTS
`
`WITH THE PLAIN LANGUAGE AND
`
`LEGISLATIVE HISTORY OF THE
`
`
`QUESTION PRESENTED ....................................... i
`QUESTION PRESENTED ..................................... ..i
`
`TABLE OF AUTHORITIES ................................... iv
`
`INTERESTS OF THE AMICUS CURIAE .............. 1
`
`STATEMENT OF THE CASE ................................. 2
`
`SUMMARY OF ARGUMENT .................................. 7
`
`REASONS FOR GRANTING THE PETITION ...... 9
`
`I.
`
`THE DECISION BELOW CONLFICTS
`WITH THE PLAIN LANGUAGE AND
`LEGISLATIVE HISTORY OF THE
`COPYRIGHT ACT ....................................... 10
`
`COPYRIGHT ACT ..................................... .. 10
`
`CABLEVISION WAS WRONGLY
`
`DECIDED
`
`AND
`
`SHOULD
`
`NOT
`
`MANDATE THE RESULT IN THIS
`
`
` II. CABLEVISION WAS WRONGLY
`DECIDED AND
`SHOULD NOT
`MANDATE THE RESULT IN THIS
`CASE ............................................................ 13
`
`CASE .......................................................... .. 13
`
`
`BELOW
`DECISION
`III. THE
`THREATENS TO UPEND SETTLED
`EXPECTATIONS
`IN
`THE
`BROADCAST
`TELEVISION
`INDUSTRY .................................................. 17
`
`III.
`
`THE
`
`DECISION
`
`BELOW
`
`THREATENS TO UPEND SETTLED
`
`EXPECTATIONS
`
`IN
`
`THE
`
`BROADCAST
`
`TELEVISION
`
`INDUSTRY ................................................ .. 17
`
`
`CONCLUSION ....................................................... 21
`
`CONCLUSION ..................................................... .. 2 1
`
`
`
`

`
`
`
`iv
`TABLE OF AUTHORITIES
`
`Page(s)
`
`
`CASES:
`
`Cartoon Network LP, LLLP v. CSC Holdings,
` Inc., 536 F.3d 121 (2d Cir. 2008) .................passim
`
`Eldred v. Ashcroft,
` 537 U.S. 186 (2003) ............................................. 10
`
`Fortnightly Corp. v. United Artists Television,
` Inc., 392 U.S. 390 (1968) ..................................... 10
`
`Harper & Row, Publishers, Inc. v. Nation
` Enterprises, 471 U.S. 539 (1985) .......................... 9
`
`Metro-Goldwyn-Mayer Studios, Inc. v. Grokster,
` Ltd., 545 U.S. 913 (2005) ...................................... 1
`
`Twentieth Century Music Corp. v. Aiken,
` 422 U.S. 151 (1975) ............................................. 18
`
`UMG Recordings Inc. v. Shelter Capital
` Partners LLC, 718 F.3d 1006 (2d Cir. 2013) ........ 1
`
`STATUTES:
`
`17 U.S.C. §101 .................................................passim
`
`17 U.S.C. §106 ...................................................... 3, 4
`
`LEGISLATIVE MATERIALS:
`
`H.R. Rep. No. 94-1476 (1976) ................................ 12
`
`
`

`
`Page(s)
`
` v
`
`
`
`
`OTHER AUTHORITIES:
`
`Brief for the United States as Amicus Curiae,
` Cable News Network, Inc. v. CSC Holdings,
` Inc., 129 S. Ct. 2890 (2009) (No. 08-448), 2009
` WL 1511740 ................................................... 15, 16
`
`Ronald A. Cass, Liberty and Property: Human
` Rights and the Protection of Intellectual
` Property (WLF Working Paper, Jan. 2009) .......... 1
`
`Copyrights in Cyberspace: Are Intellectual
` Property Rights Obsolete in the Digital
` Economy? (WLF Media Briefing, Mar. 28,
` 2001) ...................................................................... 2
`
`Andy Fixmer, et al., DirecTV, Time Warner
` Cable Are Said to Weigh Aereo-Type Services,
` Bloomberg News (Oct. 26, 2013) ......................... 20
`
`Jane C. Ginsburg, Recent Developments in U.S.
` Copyright Law – Part II, Caselaw: Exclusive
` Rights on the Ebb? Colum. Pub. L. & Legal
` Theory Working Papers, No. 08158 (2008) ........ 14
`
` Paul Goldstein, Goldstein on Copyright
` (3d ed. 2011 Supp.) .............................................. 14
`
`Katerina Eva Matsa, Time Warner vs. CBS: The
` High Stakes of Their Fight Over Fees, Pew
` Research Center, (August 21, 2013) ................... 19
`
`Raymond T. Nimmer, Law of Computer
` Technology (2013) ................................................ 13
`
` 2
`
`

`
`
`
`vi
`
`Page(s)
`
`
`Press Release, Aereo, Inc., Aereo Announces
` Launch Date for Chicago (June 27, 2013),
` available at https://aereo.com ....................... 20, 21
`
`Ben Sheffner, Sony v. Tenenbaum: There are
` Limits to Fair Use Defense In Copyright
` Infringement Cases (WLF Legal Opinion
` Paper, Oct. 9 2009) ................................................ 1
`
`Veronis Suhler Stevenson, Industry Forecast of
` Retransmission Fees (26th ed. 2012-2016) ........ 20
`
`
`
`

`
`
`
`INTERESTS OF AMICUS CURIAE1
`The Washington Legal Foundation (WLF) is a
`public interest law and policy center with supporters
`in all 50 states. WLF devotes a substantial portion
`of its resources to defending and promoting free
`enterprise, individual rights, a limited, accountable
`government, and the rule of law. In particular, WLF
`has regularly appeared as amicus curiae before this
`Court and numerous other federal and state courts
`in support of protecting the property rights of
`owners, including owners of intellectual property.
`See, e.g., Metro-Goldwyn-Mayer Studios, Inc. v.
`Grokster, Ltd., 545 U.S. 913 (2005); UMG Recordings
`Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006
`(2d Cir. 2013).
`
`
`In addition, WLF’s Legal Studies Division
`frequently publishes articles and sponsors media
`briefings on a variety of intellectual property issues,
`including issues arising from federal copyright law.
`See, e.g., Ben Sheffner, Sony v. Tenenbaum: There
`are Limits to Fair Use Defense In Copyright
`Infringement Cases (WLF Legal Opinion Paper, Oct.
`9, 2009); Ronald A. Cass, Liberty and Property:
`Human Rights and the Protection of Intellectual
`Property
`(WLF Working Paper, Jan. 2009);
`
`1 Pursuant to Supreme Court Rule 37.6, amicus WLF
`states that no counsel for a party authored this brief in whole
`or in part; and that no person or entity, other than WLF and its
`counsel, made a monetary contribution intended to fund the
`preparation and submission of this brief. More than ten days
`before the due date, counsel for WLF provided counsel for
`Respondent with notice of intent to file. All parties have
`consented to the filing of this brief; letters of consent have been
`lodged with the Clerk.
`
`

`
` 2
`
`
`
`Copyrights in Cyberspace: Are Intellectual Property
`Rights Obsolete in the Digital Economy? (WLF Media
`Briefing, Mar. 28, 2001).
`
`This case has vitally important implications
`for all copyright holders, recording artists, and
`producers of original content. WLF has
`long
`supported a
`legal regime of robust copyright
`protection to encourage and reward the creativity
`and genius that are so essential for the free market
`to flourish. WLF is deeply troubled, however, by the
`Second Circuit’s decision
`in this case, which
`threatens to legitimize a business model based
`entirely on the unauthorized, for-profit exploitation
`of
`the copyrighted works of others. Unless
`discretionary review is granted by this Court,
`copycat services are sure to follow the blueprint
`endorsed by the Second Circuit for circumventing
`the longstanding protections afforded by federal
`copyright law.
`
`As amicus curiae, WLF believes that the
`arguments set forth in this brief will assist the Court
`in evaluating the issues presented by the Petition.
`WLF has no direct interest, financial or otherwise, in
`the outcome of this case. Because of its lack of a
`direct interest, WLF believes that it can provide the
`Court with a perspective that is distinct from that of
`the parties.
`
`
`STATEMENT OF THE CASE
`
`
`
`The Copyright Act of 1976, 17 U.S.C. §§ 101 et
`seq., fosters and protects intellectual creativity by
`granting exclusive rights to copyright holders in
`their expressive works. Among those protections is
`
`

`
` 3
`
`
`
`the exclusive right “to perform the copyrighted work
`publicly.” Id. §106(4). In establishing the scope of
`protection afforded by this exclusive right of “public
`performance,” Congress provided an expansive
`definition of “perform,” which includes “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.”
`Id. §101. Equally
`expansive, to “publicly” perform or display a work
`under the Act means “to transmit or otherwise
`communicate a performance or display of the work
`. . . 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.” Id.
`
`
`distribute,
`produce,
`create,
`Petitioners
`market, and transmit original broadcast television
`programming for which they own the copyrights.
`Using an elaborate network of thousands of tiny
`antennae, Respondent Aereo captures over-the-air
`television broadcasts and retransmits them over the
`Internet to subscribers. Pet. App. 2a-6a. A subscriber
`logging onto Aereo
`to watch a program
`is
`temporarily assigned an antenna, which feeds the
`requested broadcast signal to a computer system
`that transcodes the data. Aereo then sends that data
`to a server, which creates a copy of the program in
`real time and saves it to an individualized hard drive
`directory. Id. at 7a-8a. If the subscriber elects to
`view the broadcast live, Aereo streams it over the
`Internet from the hard-drive copy with a delayed
`buffer of only six or seven seconds. Id.
`
`

`
` 4
`
`
`
`
`Because Aereo routinely profits from the
`unauthorized
`retransmission
`of
`Petitioners’
`programming without providing
`compensation,
`Petitioners sued Aereo for copyright infringement in
`the Southern District of New York alleging, among
`other
`things,
`that Aereo’s
`retransmission of
`Petitioners’ “live” television programming over the
`Internet violates their rights of public performance
`and reproduction under 17 U.S.C. §106. See Pet.
`App. 60a-61a. Specifically, Petitioners claimed that
`Aereo’s multiple retransmissions of copyrighted
`broadcast performances were each received by a
`particular member of the public “in separate places
`and . . . at separate times” under 17 U.S.C. §101.
`Accordingly, Petitioners sought a preliminary
`injunction
`barring Aereo
`from
`transmitting
`Petitioners’
`television programming over
`the
`Internet to Aereo’s subscribers while Petitioners’
`programs are still being broadcast. Id.
`
`Following expedited briefing and discovery,
`the district court held a two-day evidentiary hearing,
`after which it considered Petitioners’ motion for
`preliminary injunction. The district court concluded
`that Petitioners’ likelihood of success on the merits
`was precluded by the Second Circuit’s binding
`precedent in Cartoon Network LP, LLLP v. CSC
`Holdings, Inc., 536 F.3d 121
`(2d Cir. 2008)
`(“Cablevision”). Pet. App. 59a-60a
`(“But
`for
`Cablevision’s express holding regarding the meaning
`of . . . the transmit clause . . . Plaintiffs would likely
`prevail on
`their
`request
`for a preliminary
`injunction.”). Finding that Aereo’s system was
`substantially similar to the remote-storage digital
`video recorder (RS-DVR) system held not to infringe
`
`

`
` 5
`
`
`
`copyright plaintiffs’ public-performance rights in
`Cablevision, the district court denied Petitioners’
`motion
`for preliminary
`injunction. Petitioners
`promptly filed an interlocutory appeal to the U.S.
`Court of Appeals for the Second Circuit. Id. at 60a.
`
`A divided panel of the Second Circuit
`affirmed. Pet. App. 2a. Agreeing with the district
`court
`that Cablevision
`foreclosed Petitioner’s
`infringement claims, the panel majority reasoned
`that, as in Cablevision, when an Aereo subscriber
`selects a program, Aereo creates a unique copy of
`that program on a designated portion of a hard drive
`assigned only to the subscriber. When the Aereo
`subscriber then views the recorded program, “the
`transmission sent by Aereo and received by that user
`is generated from that unique copy.” Id. at 23a.
`Therefore, the appeals court reasoned, “just as in
`Cablevision, the potential audience of each Aereo
`transmission is the single user who requested that a
`program be recorded.” Id. According to the Second
`Circuit, “the relevant inquiry under the Transmit
`Clause is the potential audience of a particular
`transmission, not the potential audience for the
`underlying work or the particular performance of
`that work being transmitted.” Id. at 25a-26a.
`Because every Aereo subscriber
`receives an
`individualized
`transmission
`from
`a
`unique
`subscriber-associated digital copy of the same
`broadcast, Aereo’s simultaneous transmission to
`thousands of subscribers is rendered “private.” The
`Second Circuit conceded, however, that such a “focus
`on the potential audience of each particular
`transmission would render superfluous the ‘different
`times’ language from the statute.” Id. at 21a n.11.
`
`
`
`
`

`
` 6
`
`
`
`Judge Chin dissented, colorfully criticizing
`
`Aereo’s
`“Rube Goldberg-like contrivance, over-
`engineered in an attempt to avoid the reach of the
`Copyright Act and to take advantage of a perceived
`loophole in the law.” Pet. App. 40a. Regardless of
`Cablevision’s holding, Judge Chin concluded, by
`retransmitting copyrighted programming to the
`public without authorization, Aereo was engaged in
`“copyright infringement in clear violation of the
`Copyright Act.” Id. at 39a.
`
`
`
`Petitioners unsuccessfully sought rehearing
`en banc. Judge Chin, joined by Judge Wesley,
`vigorously dissented from the denial of rehearing.
`Pet. App. 128a-155a. Noting that “the panel
`majority’s decision has already had a significant
`impact on the entertainment industry,” id. at 130a,
`Judge Chin explained why “[u]nder any reasonable
`construction of the statute, Aereo is performing the
`broadcasts publicly as it is transmitting copyrighted
`works ‘to the public.’” Id. at 136a-37a. Consequently,
`Judge Chin insisted, the panel’s opinion could not be
`squared with either the plain language of the
`Copyright Act or with Congress’s intent.
`
`
`Judge Chin went on to criticize the Second
`Circuit’s reasoning in Cablevision itself, which in his
`view “conflated the phrase ‘performance or display’
`with the term ‘transmission,’ shifting the focus of the
`inquiry from whether the transmitter’s audience
`receives the same content to whether it receives the
`same transmission.” Pet. App. 142a. But under the
`statute, he explained, the public need only be
`“capable of receiving the performance or display, not
`the transmission.” Id. at 144a (emphasis in original).
`By placing such undue emphasis on the cleverness of
`
`

`
` 7
`
`
`
`Aereo’s technology, the panel failed to recognize that
`Aereo’s elaborate network of tiny antennas and
`unique copies were simply a “device or process” for
`transmitting copyrighted broadcasts to the public
`without permission. Id. 149a-51a.
`
`
`SUMMARY OF ARGUMENT
`
`
`
`The exclusive right of “public performance” is
`among
`the most
`critically
`important
`and
`economically significant rights that federal law
`grants to copyright holders. It is undisputed that
`Respondent Aereo retransmits over the Internet, for
`profit
`and without
`permission,
`copyrighted
`programming
`to
`its
`subscribers while
`that
`programming is still being broadcast live over the
`airwaves. In the Copyright Act, Congress made it
`clear that such an unauthorized public performance
`is infringing “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. So long as the performance or display is
`capable of reaching members of the public, copyright
`liability attaches.
`
`The Second Circuit’s holding in this case
`threatens to eviscerate the public-performance right,
`by holding that the relevant inquiry “is the potential
`audience of a particular transmission, not the
`potential audience for the underlying work or the
`particular performance
`of
`that work being
`transmitted.” Pet. App. 25a-26a (emphasis added).
`In other words, because every Aereo subscriber
`receives an individual transmission from a unique
`subscriber-associated digital copy of the same
`
`

`
` 8
`
`
`
`performance, no violation occurs. But neither the
`plain text nor the legislative history of the Copyright
`Act offers any support for such an interpretation.
`Indeed, the Second Circuit’s curious approach to
`copyright liability is completely untethered from the
`statute, which nowhere
`suggests
`that
`the
`“uniqueness” of the copies used somehow immunizes
`from
`copyright
`liability
`the
`unauthorized
`transmission of a “performance” to the “public.”
`
`The holding below is also an unwarranted
`extension of the Second Circuit’s inherently flawed
`and
`factually
`limited Cablevision case, which
`immunized a remote cable operator’s RS-DVR from
`public
`performance
`liability.
`Cablevision’s
`interpretation of
`the Copyright Act’s public-
`performance right has been widely criticized as
`legally untenable and
`in serious conflict with
`Congress’s express intent. Even if it remains binding
`precedent in the Second Circuit, the Cablevision
`panel expressly
`limited
`its public performance
`holding to RS-DVRs, insisting that its limited
`holding does not provide a blueprint for services to
`circumvent the public-performance right through
`technological cleverness.
`
`Finally, the decision below, if allowed to
`stand, will have drastic, far-reaching consequences
`for the broadcast entertainment
`industry. The
`Second Circuit’s judicial gutting of copyright holders’
`exclusive public-performance right severely distorts
`a well-defined marketplace and upends settled
`expectations among the affected stakeholders. As
`Aereo expands the reach of its operations, copycat
`services will follow suit. Broadcasters increasingly
`will have little incentive to continue creating and
`
`

`
` 9
`
`
`
`producing programming for which they cannot be
`compensated through retransmission fees. At the
`same time, entities such as Aereo are designed to
`lure viewers away from original broadcasts tracked
`by Nielsen ratings—a vital source of advertising
`revenue for broadcasters. Only discretionary review
`by this Court can vindicate the important interests
`at stake in this case.
`
`REASONS FOR GRANTING THE PETITION
`This Court has previously warned that “[t]he
`
`promise of copyright would be an empty one if it
`could be avoided” by nothing more than a creative
`legal argument. Harper & Row, Publishers, Inc. v.
`Nation Enterprises, 471 U.S. 539, 557 (1985). The
`Petition presents issues of exceptional importance to
`the broadcast entertainment industry as well as
`copyright owners throughout the country. At issue is
`whether the holding below undermines Congress’s
`intent under the Copyright Act to grant an exclusive
`right of “public performance” to those who create,
`produce, and transmit original broadcast television
`programming. This case offers the Court an excellent
`vehicle to decide whether one of the most critically
`important and economically significant rights that
`federal law grants to copyright holders should be
`rendered a dead letter.
`
` The interests of fairness, predictability, and
`stare decisis were all injured in this case. WLF joins
`Petitioners in urging this Court to grant the petition
`for writ of certiorari.
`
`
`
`

`
`
`
`10
`
`THE DECISION BELOW CONLFICTS
`WITH THE PLAIN LANGUAGE AND
`LEGISLATIVE HISTORY OF THE
`COPYRIGHT ACT
`
`“[I]t is generally for Congress, not the courts,
`to decide how to best pursue the Copyright Clause’s
`objectives.” Eldred v. Ashcroft, 537 U.S. 186, 212
`(2003). But the Second Circuit’s opinion gives an
`unusually narrow and idiosyncratic reading to an
`exclusive property right that Congress clearly
`intended to have a broad and flexible scope.
`Although Congress could not have anticipated every
`sweeping technological change that would confront
`the broadcast entertainment industry, the plain text
`and legislative history of the Copyright Act reveal
`that Congress was well aware of the future dangers
`posed by cutting-edge efforts to infringe copyrighted
`works.
`
`the 1976
`Of course, Congress enacted
`Copyright Act in direct response to this Court’s
`holding in Fortnightly Corp. v. United Artists
`Television, Inc., 392 U.S. 390 (1968), which held that
`a community antenna television (CATV) system’s
`retransmission of broadcast programming to cable
`viewers located in remote areas did not infringe the
`public-performance right under the original 1909
`Copyright Act. In the wake of Fortnightly, Congress
`decided it did not want copyright protection to hinge
`on the minute technical details of any given
`transmission, and so included a series of definitions
`in the new law designed to ensure that that virtually
`any retransmission of a broadcast performance was
`covered by the public-performance right.
`
`
`I.
`
`
`
`

`
`
`
`11
`
`Nothing in the Copyright Act suggests that
`Congress intended a commercial entity that profits
`by retransmitting copyrighted material to the public
`to avoid liability for infringement of the copyright
`holder’s exclusive right to public performance. In
`crafting the 1976 statute, Congress determined that
`a broad, flexible law was necessary to ensure that
`copyrighted works remain fully protected, regardless
`of the technological gamesmanship of any future
`innovation. Congress chose to provide copyright
`holders with exclusive rights that apply across all
`delivery methods, to better ensure that the nation’s
`copyright system could withstand any
`future
`developments in technological innovation. Indeed,
`the public-performance right is one of the strongest
`indicators that Congress intended the Copyright Act
`to be applied in a technologically neutral fashion so
`that even clever future attempts to circumvent the
`boundaries of exclusive rights would not be
`rewarded.
`
`The Act’s exclusive public-performance right
`hinges on whether “members of the public” are
`“capable of receiving
`the performance” of a
`copyrighted work. 17 U.S.C. §101. In establishing
`the scope of protection afforded by this exclusive
`right of “public performance,” Congress provided an
`expansive definition of “perform,” which includes “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.”
`Id. §101. Equally
`expansive, to “publicly” perform or display a work
`under the Act means “to transmit or otherwise
`communicate a performance or display of the work
`
`

`
`
`
`12
`
`. . . 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.” Id. Likewise, the Act
`defines a “device or process” to include “any device or
`process whereby images or sounds are received
`beyond the place from which they are sent,” whether
`“now known or later developed.” Id. (emphasis
`added).
`
`further
`history
`legislative
`The Act’s
`underscores Congress’s strong desire for flexibility in
`the law’s enforcement and application. Even back in
`1976, Congress understood that “a cable television
`system is performing when it retransmits the
`broadcast to its subscribers.” H.R. Rep. 94-1476, at
`63 (1976). Congress embraced the “traditional”
`interpretation of copyright law “under which public
`communication by means other than a home
`receiving set, or further transmission of a broadcast
`to the public, is considered an infringing act.” Id. at
`87. More emphatically, Congress intended that
`“[e]ach and every method by which the images or
`sounds comprising a performance . . . are picked up
`and conveyed
`is a
`‘transmission,’ and
`if the
`transmission reaches the public in any form, that
`case comes within the scope” of the public-
`performance right. Id. at 64. Leaving no room for
`ambiguity, the legislative history goes even further,
`acknowledging
`that a
`“performance” may be
`accomplished by “any other techniques and systems
`not yet in use or even invented.” Id. at 63 (emphasis
`added).
`
`The Second Circuit’s approach to the public-
`
`

`
`
`
`13
`
`performance right runs roughshod over the plain
`text and clear legislative history of the Copyright
`Act. In particular, it ignores the statute’s express
`language clarifying that a performance is public
`“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. The
`Second Circuit admits as much, conceding that its
`“focus on the potential audience of each particular
`transmission would essentially read out
`the
`‘different times’ language” from the Copyright Act.
`Pet. App. 21a n.11. And it ignores altogether
`Congress’s clear intent that the statute be applied in
`a technologically neutral fashion so as not to be
`vulnerable to being undermined by any future
`technological innovation. This Court should grant
`review to vindicate both the letter and the spirit of
`the Copyright Act.
`
`II.
`
`WRONGLY
`WAS
`CABLEVISION
`SHOULD
`NOT
`DECIDED
`AND
`MANDATE THE RESULT IN THIS CASE
`
`
`
`The panel majority agreed with the district
`court that the Second Circuit’s earlier holding in
`Cablevision mandated the outcome in this case. But
`as critics have repeatedly pointed out,
`the
`Cablevision court mistakenly focused on who is
`capable of receiving “a particular transmission of a
`performance” rather than who is capable of receiving
`“the performance being transmitted” (as §101 of the
`Copyright Act actually requires). See, e.g., Raymond
`T. Nimmer, Law of Computer Technology §15:6
`(2013) (stating that the Cablevision court took “a
`restrictive view of the case that combined an
`
`

`
`
`
`14
`
`emphasis on the technology Cablevision used with
`an apparent desire to enable cable entities to control
`this type of delayed viewing.”).
`
`its result, Cablevision also
`In reaching
`overlooked the fact that a work can be publicly
`performed in ways other than from a single copy
`(such as in this case, where thousands of copies are
`made). Building on this fundamental error, the panel
`below held that “the creation of user-associated
`copies . . . under Cablevision means that Aereo’s
`transmissions are not public.” Pet. App. 31a. Under
`this view, “technical architecture matters,” id. at
`33a, even if the statute provides exactly the opposite.
`
`Leading copyright scholars agree that the
`Cablevision case was wrongly decided and will have
`a detrimental
`impact on
`the
`creative arts
`community. See, e.g., 2 Paul Goldstein, Goldstein on
`Copyright, § 7.7.2, at 7:168.1 (3d ed. 2011 Supp.)
`(“Cablevision effectively closed off a critical aspect of
`the transmit clause’s intended embrace.”); Jane C.
`Ginsburg, Recent Developments in U.S. Copyright
`Law – Part II, Caselaw: Exclusive Rights on the Ebb?
`Colum. Pub. L. & Legal Theory Working Papers, No.
`08158 (2008) (“[T]he Second Circuit’s recent decision
`in Cartoon Networks v. CSC Holdings, if followed,
`could substantially eviscerate the reproduction and
`public performance rights.”).
`
`In response to Cablevision, some 36 amici
`filed eight amicus briefs urging this Court to grant
`discretionary review and reverse the appeals court’s
`holding. The petitioners and their amici were
`especially concerned that the court’s interpretation
`of a statutory, technology-neutral performance right
`
`

`
`
`
`15
`
`was allowed to be so heavily influenced by a specific
`technology. Many worried that Cablevision would
`incentivize the development of delivery services, like
`Aereo, designed
`to circumvent
`the copyright
`licensing system altogether. Now that these fears
`have been realized, this case provides the Court a
`renewed opportunity to set this area of law right.
`
`
`Ironically, Cablevision itself emphasized that
`its holding did not provide a blueprint for future
`services to perform an end-run around the public
`performance right, stating that “[t]his holding, we
`must emphasize, does not generally permit content
`delivery networks to avoid all copyright liability by
`making copies of each
`item of content and
`associating one unique copy with each subscriber to
`the network, or by giving their subscribers the
`capacity to make their own individual copies.” 536
`F.3d at 139.
`
`When then-Solicitor-General Elena Kagan
`opposed certiorari in Cablevision, she acknowledged
`that “some aspects of the Second Circuit’s reasoning
`on the public-performance issue are problematic,”
`observing:
`
`
`Some language in the court of appeals’ opinion
`could be read to suggest that a performance is
`not made available “to the public” unless more
`than one person is capable of receiving a
`particular
`transmission.
`.
`.
`. Such a
`construction could threaten to undermine
`copyright protection
`in circumstances far
`beyond those presented here, including with
`respect to
`[video-on-demand] services or
`situations
`in which a party
`streams
`
`

`
`
`
`16
`
`copyrighted material on an individualized
`basis over the Internet.
`
`Brief for the United States as Amicus Curiae, Cable
`News Network, Inc. v. CSC Holdings, Inc., 129 S. Ct.
`2890 (2009) (No. 08-448), 2009 WL 1511740, at *20-
`21 (emphasis in original). In recommending against
`review, the Solicitor-General took the Second Circuit
`at its word that the copyright owners need not be
`worried because the Cablevision holding was
`expressly limited to its own facts. As she explained,
`“[t]he Second Circuit simply resolved a narrow
`question about a discrete technology in the terms
`that it had been framed by the parties” and “was
`careful to tie its actual holdings to the facts of this
`case.” Id. at *19, *6.
`
`
`Unfortunately, the panel majority’s reliance
`on Cablevision in this case confirms that the earlier
`fears of copyright holders were not only well-
`founded, but also prescient. Despite the Second
`Circuit’s assurance that Cablevision would not be
`expanded, both the district court and the Second
`Circuit have now expanded it. In fact, the panel
`below went so far as to conclude that it was
`important to validate Aereo’s reliance on Cablevision
`in designing the Aereo service, even though
`Cablevision itself made clear that such reliance was
`unwarranted. Id. at 35a n.19 (“Stare decisis is
`particularly warranted here in light of substantial
`reliance on Cablevision. As mentioned above, it
`appears that many media and technology companies
`have relied on Cablevision as an authoritative
`interpretation of the Transmit Clause.”). Of course,
`this Court is not bound by Cablevision. It can refer
`directly to the statutory text and draw its own
`
`

`
`
`
`17
`
`Judge Chin’s dissent
`as
`conclusions. And
`persuasively demonstrates,
`it
`is particularly
`important that the Court do so here.
`
`
`In any event, Cablevision does not mandate
`the outcome in this case, which is distinguishable
`from Cablevision in many material respe

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