Prof. Peter S. Menell,* University of California at Berkeley School of Law,
and Prof. David Nimmer,** UCLA School of Law
June 27, 2014

The Aereo case presented two fundamental showdowns: one between the cable industry and a charismatic disruptive technology, and the other between textualists and jurists seeking to vindicate legislative intent.  Much of the media attention surrounding the case focused on the former.  But it was the latter that proved decisive, and rightfully so.

Under our Constitution, Congress has primacy in enacting laws and the judiciary plays a critical role interpreting those laws.  Copyright law poses a particular interpretive challenge in that it comprises a mix of statutory provisions and court-developed doctrines.  The interpretive challenge is compounded by the relentless emergence of new technologies.  In some cases, such as online service providers, Congress has augmented the Copyright Act to accommodate technological change.  In others, courts must apply older statutory provisions to new technologies.

The Supreme Court’s majority opinion in Aereo grounds its decision in a respectful, balanced effort to vindicate Congress’s legislative intent in crafting copyright’s public performance right.  As chronicled in our brief, the emergence of the cable industry in the mid 1960s exerted a profound influence on copyright history and the drafting of the Copyright Act of 1976.  What might well have been the Copyright Act of 1966 was derailed by an impasse over community antenna television (CATV).  The Supreme Court grappled with the applicability of the Copyright Act of 1909 to CATV in two controversial decisions – Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968), and Teleprompter Corp. v. Columbia Broadcasting Sys., Inc., 415 U.S. 394 (1974) – holding that such services did not violate the 1909 Copyright Act.

By 1976, the number of cable systems had grown to over 3,000 systems servicing over 10 million homes throughout the United States.  In legislatively overturning Fortnightly and Teleprompter, Congress noted 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.”  H.R. Rep. No. 94-1475, at 89 (1976).  As a compromise responding to the impracticality of requiring every cable system to negotiate with every copyright owner whose work was retransmitted, Congress crafted a compulsory license for the retransmission of over-the-air broadcasts.

Aereo sought to circumvent that regime through what Judge Denny Chin below characterized as a “Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act.”  WNET, Thirteen v. Aereo, Inc., 712 F.3d 676, 697 (2d Cir. 2013) (Chin, J., dissenting).  Writing for the majority of the U.S. Supreme Court, Justice Breyer looked to the detailed text of the Copyright Act of 1976 as well as its broader purposes and the circumstances surrounding its passage in ruling that Aereo violates copyright’s public performance right.

In applying the Copyright Act’s provisions to Aereo’s miniature antenna/DVR farms, the Supreme Court’s majority gave due regard to the momentous compromise over cable television reflected in Copyright Act of 1976.

Congress enacted new language that erased the Court’s [Fortnightly/ Teleprompter] line between 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….  Under this new language, both the broadcaster and the viewer of a television program “perform,” because they both show the program’s images and make audible the program’s sounds.  See H.R. Rep. at 63 (“[A] broadcasting network is performing 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”).

Aereo Slip Op. at 7 (emphasis in original).  The opinion notes the breadth of the Transmit Clause, emphasizing how it was crafted to cover the CATV systems at issue in Fortnightly and Teleprompter.   The creation of the Section 111 compulsory license completed the statutory regime by opening a balanced, low-transaction-cost pathway for cable television systems to operate within the scope of the Copyright Act.

The majority applied a functional lens to vindicate Congress’s intent in crafting what constitutes a public performance, concluding that the legislative “history makes clear that Aereo is not simply an equipment provider [but r]ather ‘performs[s]’ (or ‘transmit[s]’)” copyrighted works.  The majority opinion parsed the broad language of the Transmit Clause – expressly providing that an entity may perform publicly “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” – in concluding that “Aereo ‘perform[s]’ petitioners’ copyrighted works ‘publicly,’ as those terms are defined by the Transmit Clause.”

Justice Scalia’s dissent, joined by Justices Thomas and Alito, is remarkable in its reliance upon a non-textual doctrine: that copyright infringement can only occur through volitional conduct.  Although that doctrine had been invoked in several lower court decisions, the Supreme Court has never adopted it.  The doctrine traces its roots to Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp. 1361 (N.D. Cal. 1995), a pre-DMCA Internet case holding that “[a]lthough copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party.”  Although early drafts of the DMCA online service provider safe harbor (Section 512) provision would have codified the volition doctrine, the ultimate statutory formulation took a different path.  See 4 Nimmer on Copyright § 12B.06[B][2][b].

It is surprising to see Justice Scalia putting so much emphasis on a non-textual doctrine, especially when there is so much text to chew on.  His suggestion that the volition requirement “is firmly grounded in the Act’s text, which defines ‘perform’ in active, affirmative terms” reveals the “eye of the beholder” quality behind his textualist jurisprudence.  His analysis overlooks the broad statutory definition of “perform” as well as the detailed text of Section 111, which channels those retransmitting over-the-air broadcast signals into a compulsory license regime.  He is not even willing to engage the statute’s Transmit Clause.  The dissent’s analogy between a copy shop that rents out photocopiers and Aereo’s service rings hollow, especially in view of Congress’s clear intention to channel retransmission services into the detailed statutory regime.

Based on active questioning at oral argument about potential ramifications for other Internet services, many commentators speculated that the Supreme Court would focus on the effects of its ruling on cloud-based services.  Aereo’s response had been to deflect attention from the legislative intention in crafting the Transmit Clause by raising the specter that holding it liable could trigger a parade of horribles for other cloud technologies.  The majority opinion wisely steered clear of addressing technologies and services that were not before it.

Does this decision vindicate optimal public policy for the Internet Age?  Such a determination would require assessing how consumer demand for entertainment goods and distribution services can most effectively be satisfied in a technologically dynamic marketplace, along with the effects of alternative regimes on the quality and quantity of audiovisual works – complex inquiries that lie beyond the competence of courts to evaluate.

The Constitution appropriately puts Congress in the driver’s seat in assessing these policy matters.  But as we have witnessed time and time again, Congress faces tremendous structural constraints in updating copyright law.  It took nearly two decades for the Copyright Act of 1976 to emerge, with the battle over cable television proving to be the largest stumbling block.  That is why it was so difficult for the Supreme Court to ignore the legislative history in addressing Aereo’s efforts to circumvent the Copyright Act’s public performance right.

Yet no one should be entirely satisfied with where the Supreme Court’s resolution of this case leaves the larger policy determination.  The Copyright Act of 1976 is indeed creaky.  While its drafters enunciated purposes and principles that have guided the evolution of copyright protection, we are nearly half a century beyond those drafting choices.  Thus, while we commend the Supreme Court’s faithful execution of its constitutional role, we nonetheless believe that the time is ripe to consider how best to reform the Copyright Act for the current technological age.  The Supreme Court’s appropriate respect for Congress’s 1976 legislative choices should not be seen as magically achieving the best regime today for serving the insatiable demand for Internet access to copyrighted works.  Market forces have responded to that demand – as reflected in the growing range of services – but as Aereo’s rapid growth has shown, there are reasons to believe that Congress should carefully review the availability of over-the-air signals in the Internet Age.  Aereo highlights the need to open up better ways of channeling creators and consumers into well-functioning markets for content – just as the compulsory license for cable retransmission accomplished nearly 40 years ago.