Peter S. Menell, Koret Professor of Law and Director,
Berkeley Center for Law & Technology,
University of California at Berkeley School of Law
March 4, 2014

The Supreme Court will soon confront whether Aereo’s service – which affords subscribers access to over-the-air television signals through the use of dime-sized, customer-specific antennas and remote digital video recorders – infringes the Copyright Act’s public performance right under the “transmit clause”:

To perform or display a work “publicly” means –
. . .
(2) 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.

17 U.S.C. § 101.  A majority of the Second Circuit panel found that it did not.  See WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2013).  Judge Chin concluded otherwise.  Professor Jane Ginsburg has astutely pointed out that the Second Circuit misread the statutory text by failing to concentrate on “members” of the public and conflating “performance” with “transmission.”

In endorsing the majority’s decision holding that Aereo does not so infringe, some advocates have suggested that such disruptive digital age technology is well beyond what Congress contemplated when it drafted the “Transmit Clause” of the public performance right nearly 50 years ago.  As I did in explicating the Copyright Act’s distribution right several years ago, I exhumed copyright’s “lost ark” – the detailed legislative history chronicling the crafting of the 1976 Copyright Act – to analyze what the drafters understood and intended.  Much of the 1976 omnibus copyright reform was completed by the early to mid-1960s, but due in substantial part to a logjam over how to address the emerging cable television marketplace, passage of the statute was delayed more than a decade. Thus, the most pertinent explanations of the 1976 Act’s provisions are buried in reports and hearing transcripts from the early to mid 1960s.  I combined forces with David Nimmer, who has chronicled the development of the law surrounding the retransmission compulsory license, to assess whether Aereo’s service infringes the public performance right.  Our exploration of the history, embodied in a brief to the Supreme Court, indicates that it does.

The drafters of the Copyright Act of 1976 had far greater foresight than the Second Circuit and some advocates.  As the 1965 Supplementary Report of the Register of Copyrights emphasizes, “it is becoming increasingly apparent that the transmission of works by nonprofit broadcasting, linked computers, and other new media of communication, may soon be among the most important means of disseminating them, and will be capable of reaching vast audiences.  Even when these new media are not operated for profit, they may be expected to displace the demand for authors’ works by other users from whom copyright owners derive compensation.”

The following year, Congress explained its intent in crafting the public performance right to cover transmissions of performances “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.”  Its 1966 report notes that liability would arise “whenever the potential recipients of the transmission represent a limited segment of the public, such as … the subscribers of a community antenna television service.”  It noted that the “same principles apply … where the transmission is capable of reaching different recipients at different times, as in the case of sounds or images stored in an information system and capable of being performed or displayed at the initiative of individual members of the public” – language that comes eerily close to describing Aereo’s service.

Based on this evidence, it is difficult to imagine the drafters not considering Aereo to fall comfortably within their conception of a public performance right, especially when considered in light of the drafters’ stated intention that the statute be interpreted broadly so as to protect against the “real danger” of confining the “scope of the author’s rights on the basis of the present technology” in the face of even “unforeseen technical advances.”

When Congress’s development of the retransmission compulsory license is added to the mix, the case for liability becomes airtight.  After 1966, the governing law affecting cable television evolved considerably.  After the Supreme Court determined that cable television services do not implicate the copyright owner’s rights, Congress added Section 111 as part of its stated intention to legislatively reverse the Court’s Teleprompter and Fortnightly rulings.  This provision establishes a detailed compensation regime whereby cable services are charged for sending over-the-air signals to their subscribers.  Retransmission of those signals absent compliance with the provisions set forth in Section 111 or authorization from the copyright owner constitutes copyright infringement.  Over the ensuing decades, Congress has cemented this proposition time and again.

Thus, when taken together, the text, structure, and legislative history of the 1976 Act establish that Congress intended its public performance right to reach the Aereo service.