Prof. Jane C. Ginsburg, Columbia University School of Law
August 21, 2014

In ABC v. Aereo, a 6-to-3 majority (Breyer, joined by Roberts, Kennedy, Ginsburg, Sotomayor, and Kagan) held that Aereo was “performing” the broadcast programming when the service captured the programming through the users’ individually assigned antennas, then digitized, momentarily stored in individualized copies, and retransmitted the programming to its subscribers at their request.  The majority also ruled that the performances were “to the public” notwithstanding each transmission’s origin in a separate subscriber-assigned copy.  The majority emphasized Aereo’s resemblance to cable retransmission operators, a service Congress in the 1976 Copyright Act unambiguously brought within the scope of the exclusive right of public performance.  Although the Aereo majority distinguished less cable-like transmission services, notably “cloud storage” models such as Dropbox, and RS-DVR services, it declined to elaborate on the implications of its holdings for these other kinds of Internet-based enterprises.  The dissenters (Scalia, joined by Thomas and Alito) did not address the “public” character of the performance because they contended that Aereo lacked sufficient volition to be “performing” the programming.  The dissenters distinguished video-on-demand services, which exercise volition in the selection of content offered to consumers, from automated retransmission services, which simply relay an upstream transmission entity’s (in this case, the broadcasters’) selection of programming proposed to users.

Aereo raises many questions regarding its impact on U.S. compliance with the international “communication to the public” and  “making available” rights.  Space constraints confine this column to addressing only one of them: Who is “the public”?  Is the Supreme Court’s construction of a public performance by transmission “to the public” consistent with the international treaties’ right of “communication to the public”?

Meaning of “the public” in the Berne Convention and the WCT

The Berne Convention and WIPO Copyright Treaty mandate protection for two kinds of public communications of works: performances in public, and “communication” of the work to the public by transmission.  The first kind, covered in Berne Convention Articles 11, 11ter, 14, and 14bis, concerns performances in places open to the public; the public is present at these performances and therefore apprehends them directly.  The second kind, “communication to the public,” provided for in the cited Berne Convention articles as well as in Berne Convention Art. 11bis and WCT Art. 8 and WPPT Arts. 10 and 14, reaches members of the public through the intermediary of any manner of wired or wireless transmission.  Neither convention defines “the public.”  But the concept implies its opposite: Some performances or communications by transmission will be “private” in nature.  The “private” quality of the performance or communication may be ascertained by the size of the potential audience; if only an insubstantial number of persons have the opportunity to attend the performance in person (public performance) or receive it via transmission (communication to the public), it follows that the Berne Convention and WCT rights would not be engaged.

It is important to emphasize “potential” audience: A performance in a place open to the public is a public performance, even if an insubstantial number of people in fact attend.  Similarly, a transmission offered to the public at large does not become “private” if only a few members of the public in fact receive it.  The WCT “gives greater indication than does the Berne Convention that the relevant ‘public’ is comprised of ‘members,’ and, accordingly, need not be populous, although the greater the numbers to whom a work is made available, the more apparent the conclusion that the making available was to ‘the public.’  But simply offering the work on an undiscriminating basis, so that any member of the general public may access the work, should come within the scope of the right.  Even more restricted offers, such as to all university students, or to all aficionados of obscure Australian or Estonian poetry, appeal to an audience potentially too large for a ‘family circle’ or similar exclusion.”1  Put another way, different kinds of works may have different “publics”; the potential audience for a Hollywood action film may be far greater than the potential audience for a European “art” film (in which nothing happens), but both are directed toward persons whose only relationship to the copyright owner and to each other is their predilection for that type of work.

The Berne Convention and the WIPO Treaties leave to member states the precise demarcation of the line between public and private communications, for example, member states may exclude from the scope of the right performances or communications to a “family circle,”2 or enlarge the “private” zone to cover not only family but also its “social acquaintance,”3 or define “the public” to mean “an indeterminate number of potential recipients [which] implies, moreover, a fairly large number of persons.”4  But wherever a member state sets the dividing line, one may infer that the “public” character of a communication turns on the opportunity for a substantial number of unrelated persons to receive the communication.

Commercial benefit furnishes another dividing line between public and private communications: If members of the public are invited to pay to receive the communication, it is unlikely to be private in nature.  But one should beware the negative inference: It does not follow that a not-for-profit communication is therefore not “to the public”; many noncommercial performances nonetheless are amply “public.”  Rather, the commercial nature of the performance is a one-way street, furnishing an indicium of the “public” character of the communication, but not concomitantly permitting a characterization of a noncommercial communication as not “to the public.”

The meaning of “the public” in Aereo

The Supreme Court in Aereo elaborated on the meaning of a performance “to the public.”  The Court emphasized that “an entity does not transmit to the public if it does not transmit to a substantial number of people outside of a family and its social circle” (134 S. Ct. at 2511).  The Court distinguished Aereo, which it viewed as akin to a cable retransmission service, from “an entity that transmits a performance to individuals in their capacities as owners or possessors”; such a service “does not perform to ‘the public,’ whereas an entity like Aereo that transmits to large numbers of paying subscribers who lack any prior relationship to the works does so perform” (Id. at 2510).

The court’s reference to “owners or possessors” is very imprecise; the service’s customer is unlikely to be an owner of “the work” because “the work” is the incorporeal object whose “owner” is the author or other copyright owner.  Presumably, the court was positing the request by a customer of a remote storage service to play back a digital copy that she was entitled, by express or implied license, or under the fair use doctrine, to deposit in a digital storage locker.  In that event, even if multiple customers separately stored the same content with the service, the latter’s subsequent on-demand playback of performances of the same work to those customers would not be to “the public”:  “[T]he term ‘the public’ … does not extend to those who act as owners or possessors of the relevant product” (Id.).  “Product” in this context apparently includes a license to access the stored content.  When a digital storage service plays that stored content back to its customers, then, there is no public performance.

However, in addition to the customer’s entitlement of access (which the Court treated as a possessory relationship) to the customer-stored content, the Court introduced a further consideration: “And we have not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content” (Id. at 2511).  The Court appears to be focusing on the nature of the commercial relationship between the customer and the service.  Remote storage services are transmitting content to members of the public (their subscribers) when they play back the files requested by the users.  Unlike pay-per-view, however, the service for which the members of the public are paying is not the opportunity to receive transmissions of performances of particular works offered by the service, but rather to store whatever content the users post, whatever its source, and make it accessible remotely.  The customers pay the same subscription fees whatever the content they store and access.  Thus, while there is a public that pays in dollars or in subjection to advertising5 (or other costs of “free” commercial services), the public is not specifically paying for transmissions of performances of any given copyrighted works.

Whether a service is performing “publicly,” then, appears to turn on what the service’s customers are paying for.  The service’s customers are certainly members of the public, but the same act by the service – transmitting a performance of a given work – may or may not be a public performance depending on the existence of some kind of possessory relationship between the individual members of the public and a copy of or a license to use the content, and depending on whether the service is primarily offering streaming access to specified copyrighted works.

Consistency with international norms

A reformulation of the Court’s statement that “an entity does not transmit to the public if it does not transmit to a substantial number of people outside of a family and its social circle” (134 S. Ct. at 2511), as an affirmative assertion – that an entity that transmits [a performance of a work] to a substantial number of people outside of a family and its social circle is publicly performing the work – seems to conform to international norms.  But if the “public” character of a transmission of a performance also depends on the relationship of the customer of the transmission entity to the copyrighted work (owner of a copy; licensee of an access right), is this gloss also consistent with international norms?  As discussed above, the treaties permit certain inferences concerning the size and nature of a communication’s potential audience, but do not introduce distinctions based on any possessory relationship of the members of the public to the content of the work.  That said, the inquiry into the nature of the service implied by the Court’s attention to the kind of service (storage v. transmission of particular works) that the members of the public who constitute the service’s customers are paying for is not necessarily inconsistent with international norms.

To ask whether the service is offering to transmit performances of particular copyrighted works to members of the public, or whether these transmissions instead are ancillary to some other service (storage) that does not trigger the right of communication to the public (though it may implicate the right of reproduction), is to focus on the economic dimension of the communication.  The above-cited articles of the Berne Convention and the WIPO Copyright Treaties all concern exploitations of the work; they confer on the author the exclusive rights to authorize various kinds of exploitations (or, in the case of Art. 11bis(2), the right to be remunerated for certain retransmissions).  It may follow that “the public” should correspond to “the group which the copyright owner would otherwise contemplate as its public for the performance of its work.”6  Arguably, the essence of a performance “to the public” is that it is occurring in circumstances where the owner is entitled to expect payment for the work’s authorized performance because the performing entity is exploiting the work.  In Aereo, the Supreme Court’s emphasis on the resemblance between Aereo’s retransmission service and a cable retransmission service reflects a determination that if the Copyright Act entitles broadcasters to payment for cable retransmission, then broadcasters are also entitled to payment for cable-like retransmissions.  By contrast, copyright owners are not entitled to expect payment when members of the public view legitimately acquired copies of films at home; arguably it should make no difference whether the home-viewed copy is stored at home, or stored remotely.

Thus, the Court’s focus on a possessory relationship between the member of the public and the source copy for the transmission enjoys some support as a matter of construction of the right of communication to the public in the Berne Convention and WIPO Copyright Treaties.  Nonetheless, the analysis is problematic because it appears to make the public character of a work turn on a prior analysis of infringement: If the author is entitled to control the exploitation, then a third party’s exploitation is “to the public,” but if the author is not entitled to expect payment, then the communication is not to the public.  As a result, the question of the prima facie application of exclusive rights may become improperly conflated with the question of copyright exceptions.  But as Section 110 of the U.S. Copyright Act demonstrates, a communication, for example in the course of online education, may be a “public performance” yet be exempt from liability.  For example, if the TEACH Act exceptions in Section 110(2) apply, the copyright holder is not entitled to expect payment, but there is no question that the transmissions are to (a defined segment of) the public.  Aereo itself did not invite this confusion of the public character of a performance with liability for infringement, but if one is to understand the Court’s attention to the nature of the service as implying a distinction between uses that the copyright owner may control and uses that the copyright owner may not, then it becomes important to bear in mind that a communication can be “to the public” even if, by virtue of an exception, it falls outside the copyright owner’s rights.