Ref. Ares(2017)3194500 - 26/06/2017
ANNEX II
1. Email from the International Federation of the Phonographic Industry (IFPI) with legal note,
15/07/2016, (Ref.Ares(2017)2268842)
4. Email from the International Federation of the Phonographic Industry (IFPI), with legal
note, 02/08/2016, (Ref. Ares(2017)2269094)
5. Email from the International Federation of the Phonographic Industry (IFPI) with legal
note,05/08/2016, (Ref. Ares(2017)2269139)
1
Doc.1
(CNECT)
From:
Olivia Regnier <xxxxxx.xxxxxxx@xxxx.xxx>
Sent:
15 July 2016 18:26
To:
(CNECT)
Cc:
(CNECT);
(CNECT);
(CNECT);
;
; Frances Moore
Subject:
FW: Legal Note
Attachments:
Legal note on
....docx
Dear
,
FYI. Do not hesitate to contact us if you have any questions in relation to this note.
We would be happy to catch up with you next week on the latest developments and the preparation of the
Directive.
Have a good week-end.
Kind regards,
Olivia
From:
On Behalf Of Frances Moore
Sent: vendredi 15 juillet 2016 18:19
To: xxxxxxxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx
Cc: xxxx.xxxxxx@xx.xxxxxx.xx; xxxxxxx.xxxxx@xx.xxxxxx.xx; Olivia Regnier <xxxxxx.xxxxxxx@xxxx.xxx>
Subject: Legal Note
Dear Commissioner
Thank you for inviting IFPI to participate in the 8th July Round Table consultation on the Commission’s proposal to
deal with the Value Gap in the forthcoming Copyright package.
Art.
4(3);
.
Art. 4
(2)(2)
We will follow up with your cabinet to discuss and enquire whether anything further is needed.
Thank you again, Commissioner for your engagement on this issue.
Best regards
Frances Moore
Frances Moore
Chief Executive Officer
IFPI – representing the recording industry worldwide
7 Air Street | London W1B 5AD | UK | T: +44 (0)20 7878 7975 |
xxxxxxx.xxxxx@xxxx.xxx
European Regional Office | Square de Meeus 40 | 1000 Brussels | Belgium | T: +32 (0)2 511 92 08
1
2
www.ifpi.org – representing the recording industry worldwide
www.pro-music – for all you need to know about getting music on the internet
@IFPI_org
2
3
Confidential – Not for public dissemination
Legal analysis
Art. 4(2)(2)
1
4
Confidential – Not for public dissemination
2
5
Confidential – Not for public dissemination
3
6
Confidential – Not for public dissemination
4
7
Doc.4
(CNECT)
From:
@ifpi.org>
Sent:
02 August 2016 18:16
To:
CNECT);
(CNECT);
(CNECT)
Cc:
Olivia Regnier
Subject:
Attachments:
ifpi advice 28.7.16.docx; Aereo 13-461_l537.pdf; 13-461 tsac IFPI.PDF
Dear
,
I attach some materials
:
Art. 4(2)
(2)
•
In addition to our legal note that we have already sent to you, I attach a short legal advice
,
•
US Supreme Court decision in the case Aereo, where the Court found that Aereo, which provided a
service allowing its users to watch TV programs online near – live, fell under the exclusive right of
public performance. The Court argued that Aereo was not merely an equipment provider and that
Aereo, and not just its subscribers, “performed” (or “transmitted”), and its activities were similar to
those of cable systems.
•
IFPI amicus brief in the Aereo case
We hope that you will find these materials useful. Note that we are looking into some further arguments,
and might send you additional papers in the coming days. Do not hesitate to let us know if you would like
to discuss further.
Kind regards,
IFPI – representing the recording industry worldwide
European Regional Office |
Square de Meeûs 40
| 1000 Brussels
| Belgium
| T: +32 (0)2 511 9208
|
@ifpi.org
www.ifpi.org
www.pro-music.org
@IFPI_org
1
8
(Slip Opinion)
OCTOBER TERM, 2013
1
Syllabus
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
9
2
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
10
Cite as: 573 U. S. ____ (2014)
3
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-
11
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.
12
Cite as: 573 U. S. ____ (2014)
1
Opinion of the Court
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.
13
2
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
14
Cite as: 573 U. S. ____ (2014)
3
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-
15
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
16
Cite as: 573 U. S. ____ (2014)
5
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
17
6
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-
18
Cite as: 573 U. S. ____ (2014)
7
Opinion of the Court
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-
19
8
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’
20
Cite as: 573 U. S. ____ (2014)
9
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.
21
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].”
22
Cite as: 573 U. S. ____ (2014)
11
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,
23
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 program.
But what about the Clause’s further requirement that
Aereo transmit a performance “to the public”? As we have
said, an Aereo subscriber receives broadcast television
signals with an antenna dedicated to him alone. Aereo’s
system makes from those signals a personal copy of the
selected program. It streams the content of the copy to the
same subscriber and to no one else. One and only one
subscriber has the ability to see and hear each Aereo
transmission. The fact that each transmission is to only
one subscriber, in Aereo’s view, means that it does not
transmit a performance “to the public.”
In terms of the Act’s purposes, these differences do not
distinguish Aereo’s system from cable systems, which do
perform “publicly.” Viewed in terms of Congress’ regula-
tory objectives, why should any of these technological differ-
ences matter? They concern the behind-the-scenes way in
which Aereo delivers television programming to its view-
ers’ screens. They do not render Aereo’s commercial objec-
tive any different from that of cable companies. Nor do
they significantly alter the viewing experience of Aereo’s
subscribers. Why would a subscriber who wishes to watch
a television show care much whether images and sounds
are delivered to his screen via a large multisubscriber
antenna or one small dedicated antenna, whether they
24
Cite as: 573 U. S. ____ (2014)
13
Opinion of the Court
arrive instantaneously or after a few seconds’ delay, or
whether they are transmitted directly or after a personal
copy is made? And why, if Aereo is right, could not mod-
ern CATV systems simply continue the same commercial
and consumer-oriented activities, free of copyright re-
strictions, provided they substitute such new technologies
for old? 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.
Aereo’s argument to the contrary relies on the premise
that “to transmit . . . a performance” means to make a
single transmission. But the Clause suggests that an
entity may transmit a performance through multiple,
discrete transmissions. That is because one can “trans-
mit” or “communicate” something through a
set of actions.
Thus one can transmit a message to one’s friends, irre-
spective of whether one sends separate identical e-mails to
each friend or a single e-mail to all at once. So can an
elected official communicate an idea, slogan, or speech to
her constituents, regardless of whether she communicates
that idea, slogan, or speech during individual phone calls
to each constituent or in a public square.
The fact that a singular noun (“a performance”) follows
the words “to transmit” does not suggest the contrary.
One can sing a song to his family, whether he sings the
same song one-on-one or in front of all together. Similarly,
one’s colleagues may watch a performance of a particular
play—say, this season’s modern-dress version of “Measure
for Measure”—whether they do so at separate or at the
same showings. By the same principle, an entity may
transmit a performance through one or several transmis-
sions, where the performance is of the same work.
The Transmit Clause must permit this interpretation,
for it provides that one may transmit a performance to the
public “whether the members of the public capable of
25
14
AMERICAN BROADCASTING COS.
v. AEREO, INC.
Opinion of the Court
receiving the performance . . . receive it . . . at the same
time or at different times.” §101. Were the words “to
transmit . . . a performance” limited to a single act of
communication, members of the public could not receive
the performance communicated “at different times.”
Therefore, in light of the purpose and text of the Clause,
we conclude that when an entity communicates the same
contemporaneously perceptible images and sounds to
multiple people, it transmits a performance to them re-
gardless of the number of discrete communications it
makes.
We do not see how the fact that Aereo transmits via
personal copies of programs could make a difference. The
Act applies to transmissions “by means of any device or
process.”
Ibid. And retransmitting a television program
using user-specific copies is a “process” of transmitting a
performance. A “cop[y]” of a work is simply a “material
objec[t] . . . in which a work is fixed . . . and from which the
work can be perceived, reproduced, or otherwise communi-
cated.”
Ibid. So whether Aereo transmits from the same
or separate copies, it performs the same work; it shows the
same images and makes audible the same sounds. There-
fore, when Aereo streams the same television program to
multiple subscribers, it “transmit[s] . . . a performance” to
all of them.
Moreover, the subscribers to whom Aereo transmits
television programs constitute “the public.” Aereo com-
municates the same contemporaneously perceptible images
and sounds to a large number of people who are unre-
lated and unknown to each other. This matters because,
although the Act does not define “the public,” it specifies
that an entity performs publicly when it performs at “any
place where a substantial number of persons outside of a
normal circle of a family and its social acquaintances is
gathered.”
Ibid. The Act thereby suggests that “the pub-
lic” consists of a large group of people outside of a family
26
Cite as: 573 U. S. ____ (2014)
15
Opinion of the Court
and friends.
Neither the record nor Aereo suggests that Aereo’s
subscribers receive performances in their capacities as
owners or possessors of the underlying works. This is
relevant because when an entity performs to a set of peo-
ple, whether they constitute “the public” often depends
upon their relationship to the underlying work. When, for
example, a valet parking attendant returns cars to their
drivers, we would not say that the parking service pro-
vides cars “to the public.” We would say that it provides
the cars to their owners. We would say that a car dealer-
ship, on the other hand, does provide cars to the public, for
it sells cars to individuals who lack a pre-existing relation-
ship to the cars. Similarly, an entity that transmits a
performance to individuals in their capacities as owners or
possessors does not perform to “the public,” whereas an
entity like Aereo that transmits to large numbers of pay-
ing subscribers who lack any prior relationship to the
works does so perform.
Finally, we note that Aereo’s subscribers may receive
the same programs at different times and locations. This
fact does not help Aereo, however, for the Transmit Clause
expressly provides 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.”
Ibid. In other words, “the public” need not be
situated together, spatially or temporally. For these
reasons, we conclude that Aereo transmits a performance
of petitioners’ copyrighted works to the public, within the
meaning of the Transmit Clause.
IV
Aereo and many of its supporting
amici argue that to
apply the Transmit Clause to Aereo’s conduct will impose
copyright liability on other technologies, including new
27
16
AMERICAN BROADCASTING COS.
v. AEREO, INC.
Opinion of the Court
technologies, that Congress could not possibly have wanted
to reach. We agree that Congress, while intending the
Transmit Clause to apply broadly to cable companies and
their equivalents, did not intend to discourage or to control
the emergence or use of different kinds of technologies.
But we do not believe that our limited holding today will
have that effect.
For one thing, the history of cable broadcast transmis-
sions that led to the enactment of the Transmit Clause
informs our conclusion that Aereo “perform[s],” but it does
not determine whether different kinds of providers in
different contexts also “perform.” For another, an entity
only transmits a performance when it communicates
contemporaneously perceptible images and sounds of a
work. See Brief for Respondent 31 (“[I]f a distributor . . .
sells [multiple copies of a digital video disc] by mail to
consumers, . . . [its] distribution of the DVDs merely
makes it possible for the recipients to perform the work
themselves—it is not a ‘device or process’ by which the
distributor publicly performs the work” (emphasis in
original)).
Further, we have interpreted the term “the public” to
apply to a group of individuals acting as ordinary mem-
bers of the public who pay primarily to watch broadcast
television programs, many of which are copyrighted. We
have said that it does not extend to those who act as own-
ers or possessors of the relevant product. And we have not
considered whether the public performance right is in-
fringed when the user of a service pays primarily for
something other than the transmission of copyrighted
works, such as the remote storage of content. See Brief for
United States as
Amicus Curiae 31 (distinguishing cloud-
based storage services because they “offer consumers more
numerous and convenient means of playing back copies
that the consumers have
already lawfully acquired” (em-
phasis in original)). In addition, an entity does not trans-
28
Cite as: 573 U. S. ____ (2014)
17
Opinion of the Court
mit to the public if it does not transmit to a substantial
number of people outside of a family and its social circle.
We also note that courts often apply a statute’s highly
general language in light of the statute’s basic purposes.
Finally, the doctrine of “fair use” can help to prevent
inappropriate or inequitable applications of the Clause.
See
Sony Corp. of America v.
Universal City Studios, Inc.,
464 U. S. 417 (1984).
We cannot now answer more precisely how the Transmit
Clause or other provisions of the Copyright Act will apply
to technologies not before us. We agree with the Solicitor
General that “[q]uestions involving cloud computing,
[remote storage] DVRs, and other novel issues not before
the Court, as to which ‘Congress has not plainly marked
[the] course,’ should await a case in which they are
squarely presented.” Brief for United States as
Amicus
Curiae 34 (quoting
Sony,
supra, at 431 (alteration in
original)). And we note that, to the extent commercial
actors or other interested entities may be concerned with
the relationship between the development and use of such
technologies and the Copyright Act, they are of course free
to seek action from Congress. Cf. Digital Millennium
Copyright Act, 17 U. S. C. §512.
* * *
In sum, having considered the details of Aereo’s practices,
we find them highly similar to those of the CATV systems
in
Fortnightly and
Teleprompter. And those are activities
that the 1976 amendments sought to bring within the
scope of the Copyright Act. Insofar as there are differ-
ences, those differences concern not the nature of the
service that Aereo provides so much as the technological
manner in which it provides the service. We conclude that
those differences are not adequate to place Aereo’s activi-
ties outside the scope of the Act.
For these reasons, we conclude that Aereo “perform[s]”
29
18
AMERICAN BROADCASTING COS.
v. AEREO, INC.
Opinion of the Court
petitioners’ copyrighted works “publicly,” as those terms
are defined by the Transmit Clause. We therefore reverse
the contrary judgment of the Court of Appeals, and we
remand the case for further proceedings consistent with
this opinion.
It is so ordered.
30
Cite as: 573 U. S. ____ (2014)
1
SCALIA, J., dissenting
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 SCALIA, with whom JUSTICE THOMAS and
JUSTICE ALITO join, dissenting.
This case is the latest skirmish in the long-running
copyright battle over the delivery of television program-
ming. Petitioners, a collection of television networks and
affiliates (Networks), broadcast copyrighted programs on
the public airwaves for all to see. Aereo, respondent,
operates an automated system that allows subscribers to
receive, on Internet-connected devices, programs that they
select, including the Networks’ copyrighted programs.
The Networks sued Aereo for several forms of copyright
infringement, but we are here concerned with a single
claim: that Aereo violates the Networks’ “exclusive righ[t]”
to “perform” their programs “publicly.” 17 U. S. C.
§106(4). That claim fails at the very outset because Aereo
does not “perform” at all. The Court manages to reach the
opposite conclusion only by disregarding widely accepted
rules for service-provider liability and adopting in their
place an improvised standard (“looks-like-cable-TV”) that
will sow confusion for years to come.
I. Legal Standard
There are two types of liability for copyright infringe-
ment: direct and secondary. As its name suggests, the
31
2
AMERICAN BROADCASTING COS.
v. AEREO, INC.
SCALIA, J., dissenting
former applies when an actor personally engages in in-
fringing conduct. See
Sony Corp. of America v.
Universal
City Studios, Inc., 464 U. S. 417, 433 (1984). Secondary
liability, by contrast, is a means of holding defendants
responsible for infringement by third parties, even when
the defendants “have not themselves engaged in the in-
fringing activity.”
Id., at 435. It applies when a defendant
“intentionally induc[es] or encourag[es]” infringing acts by
others or profits from such acts “while declining to exer-
cise a right to stop or limit [them].”
Metro-Goldwyn-Mayer
Studios Inc. v.
Grokster, Ltd., 545 U. S. 913, 930 (2005).
Most suits against equipment manufacturers and ser-
vice providers involve secondary-liability claims. For ex-
ample, when movie studios sued to block the sale of
Sony’s Betamax videocassette recorder (VCR), they argued
that Sony was liable because
its customers were making
unauthorized copies. See
Sony,
supra, at 434–435. Record
labels and movie studios relied on a similar theory when
they sued Grokster and StreamCast, two providers of
peer-to-peer file-sharing software. See
Grokster,
supra, at
920–921, 927.
This suit, or rather the portion of it before us here, is
fundamentally different. The Networks claim that Aereo
directly infringes their public-performance right. Accord-
ingly, the Networks must prove that Aereo “perform[s]”
copyrighted works, §106(4), when its subscribers log in,
select a channel, and push the “watch” button. That pro-
cess undoubtedly results in a performance; the question is
who does the performing. See
Cartoon Network LP, LLLP
v.
CSC Holdings, Inc., 536 F. 3d 121, 130 (CA2 2008). If
Aereo’s subscribers perform but Aereo does not, the claim
necessarily fails.
The Networks’ claim is governed by a simple but pro-
foundly important rule: A defendant may be held directly
liable only if it has engaged in volitional conduct that
violates the Act. See 3 W. Patry, Copyright §9:5.50 (2013).
32
Cite as: 573 U. S. ____ (2014)
3
SCALIA, J., dissenting
This requirement is firmly grounded in the Act’s text,
which defines “perform” in active, affirmative terms: One
“perform[s]” a copyrighted “audiovisual work,” such as a
movie or news broadcast, by “show[ing] its images in any
sequence” or “mak[ing] the sounds accompanying it audi-
ble.” §101. And since the Act makes it unlawful to copy or
perform copyrighted works, not to copy or perform in
general, see §501(a), the volitional-act requirement de-
mands conduct directed to the plaintiff ’s copyrighted
material, see
Sony, supra, at 434. Every Court of Appeals
to have considered an automated-service provider’s direct
liability for copyright infringement has adopted that rule.
See
Fox Broadcasting Co. v.
Dish Network LLC, 747 F. 3d
1060, 1066–1068 (CA9 2014);
Cartoon Network, supra, at
130–131 (CA2 2008);
CoStar Group, Inc. v.
LoopNet, Inc.,
373 F. 3d 544, 549–550 (CA4 2004).1 Although we have
not opined on the issue, our cases are fully consistent with
a volitional-conduct requirement. For example, we gave
several examples of direct infringement in
Sony, each of
which involved a volitional act directed to the plaintiff ’s
copyrighted material. See 464 U. S., at 437, n. 18.
The volitional-conduct requirement is not at issue in
most direct-infringement cases; the usual point of dispute
is whether the defendant’s conduct is infringing (
e.g., Does
the defendant’s design copy the plaintiff ’s?), rather than
whether the defendant has acted at all (
e.g., Did this
defendant create the infringing design?). But it comes
right to the fore when a direct-infringement claim is
——————
1 An unpublished decision of the Third Circuit is to the same effect.
Parker v.
Google, Inc., 242 Fed. Appx. 833, 836–837 (2007) (
per curiam).
The Networks muster only one case they say stands for a different
approach,
New York Times Co. v.
Tasini, 533 U. S. 483 (2001). Reply
Brief 18. But
Tasini is clearly inapposite; it dealt with the question
whether the defendants’ copying was permissible, not whether the
defendants were the ones who made the copies. See 533 U. S., at 487–
488, 492, 504–506.
33
4
AMERICAN BROADCASTING COS.
v. AEREO, INC.
SCALIA, J., dissenting
lodged against a defendant who does nothing more than
operate an automated, user-controlled system. See,
e.g.,
Fox Broadcasting,
supra, at 1067;
Cartoon Network,
supra,
at 131. Internet-service providers are a prime example.
When one user sends data to another, the provider’s
equipment facilitates the transfer automatically. Does
that mean that the provider is directly liable when the
transmission happens to result in the “reproduc[tion],”
§106(1), of a copyrighted work? It does not. The provid-
er’s system is “totally indifferent to the material’s con-
tent,” whereas courts require “some aspect of volition”
directed at the copyrighted material before direct liability
may be imposed.
CoStar, 373 F. 3d, at 550–551.2 The
defendant may be held directly liable only if the defendant
itself “trespassed on the exclusive domain of the copyright
owner.”
Id., at 550. Most of the time that issue will come
down to who selects the copyrighted content: the defend-
ant or its customers. See
Cartoon Network,
supra, at
131–132.
A comparison between copy shops and video-on-demand
services illustrates the point. A copy shop rents out photo-
copiers on a per-use basis. One customer might copy his
10-year-old’s drawings—a perfectly lawful thing to do—
while another might duplicate a famous artist’s copyrighted
photographs—a use clearly prohibited by §106(1). Either
way,
the customer chooses the content and activates the
copying function; the photocopier does nothing except in
response to the customer’s commands. Because the shop
plays no role in selecting the content, it cannot be held
directly liable when a customer makes an infringing copy.
See
CoStar,
supra, at 550.
——————
2 Congress has enacted several safe-harbor provisions applicable to
automated network processes, see,
e.g., 17 U. S. C. §512(a)–(b), but
those provisions do not foreclose “any other defense,” §512(
l), including
a volitional-conduct defense.
34
Cite as: 573 U. S. ____ (2014)
5
SCALIA, J., dissenting
Video-on-demand services, like photocopiers, respond
automatically to user input, but they differ in one crucial
respect:
They choose the content. When a user signs in to
Netflix, for example, “thousands of . . . movies [and] TV
episodes” carefully curated by Netflix are “available to
watch instantly.” See How [D]oes Netflix [W]ork?, online
at http://help.netflix.com/en/node/412 (as visited June 20,
2014, and available in Clerk of Court’s case file). That
selection and arrangement by the service provider consti-
tutes a volitional act directed to specific copyrighted works
and thus serves as a basis for direct liability.
The distinction between direct and secondary liability
would collapse if there were not a clear rule for deter-
mining whether
the defendant committed the infringing
act. See
Cartoon Network, 536 F. 3d, at 132–133. The
volitional-conduct requirement supplies that rule; its
purpose is not to excuse defendants from accountability,
but to channel the claims against them into the correct
analytical track. See Brief for 36 Intellectual Property
and Copyright Law Professors as
Amici Curiae 7. Thus, in
the example given above, the fact that the copy shop does
not choose the content simply means that its culpability
will be assessed using secondary-liability rules rather
than direct-liability rules. See
Sony,
supra, at 434–442;
Cartoon Network,
supra, at 132–133.
II. Application to Aereo
So which is Aereo: the copy shop or the video-on-demand
service? In truth, it is neither. Rather, it is akin to a copy
shop that provides its patrons with a library card. Aereo
offers access to an automated system consisting of routers,
servers, transcoders, and dime-sized antennae. Like a
photocopier or VCR, that system lies dormant until a
subscriber activates it. When a subscriber selects a pro-
gram, Aereo’s system picks up the relevant broadcast
signal, translates its audio and video components into
35
6
AMERICAN BROADCASTING COS.
v. AEREO, INC.
SCALIA, J., dissenting
digital data, stores the data in a user-specific file, and
transmits that file’s contents to the subscriber via the
Internet—at which point the subscriber’s laptop, tablet, or
other device displays the broadcast just as an ordinary
television would. The result of that process fits the statu-
tory definition of a performance to a tee: The subscriber’s
device “show[s]” the broadcast’s “images” and “make[s] the
sounds accompanying” the broadcast “audible.” §101. The
only question is whether those performances are the prod-
uct of Aereo’s volitional conduct.
They are not. Unlike video-on-demand services, Aereo
does not provide a prearranged assortment of movies and
television shows. Rather, it assigns each subscriber an
antenna that—like a library card—can be used to obtain
whatever broadcasts are freely available. Some of those
broadcasts are copyrighted; others are in the public do-
main. The key point is that subscribers call all the shots:
Aereo’s automated system does not relay any program,
copyrighted or not, until a subscriber selects the program
and tells Aereo to relay it. Aereo’s operation of that sys-
tem is a volitional act and a but-for cause of the resulting
performances, but, as in the case of the copy shop, that
degree of involvement is not enough for direct liability.
See
Grokster, 545 U. S., at 960 (BREYER, J., concurring)
(“[T]he producer of a technology which
permits unlawful
copying does not himself
engage in unlawful copying”).
In sum, Aereo does not “perform” for the sole and simple
reason that it does not make the choice of content. And
because Aereo does not perform, it cannot be held directly
liable for infringing the Networks’ public-performance
right.3 That conclusion does not necessarily mean that
Aereo’s service complies with the Copyright Act. Quite the
——————
3 Because I conclude that Aereo does not perform at all, I do not reach
the question whether the performances in this case are to the public.
See
ante, at 10–15.
36
Cite as: 573 U. S. ____ (2014)
7
SCALIA, J., dissenting
contrary. The Networks’ complaint alleges that Aereo is
directly
and secondarily liable for infringing their public-
performance rights (§106(4))
and also their reproduction
rights (§106(1)). Their request for a preliminary injunc-
tion—the only issue before this Court—is based exclusively
on the direct-liability portion of the public-performance
claim (and further limited to Aereo’s “watch” function, as
opposed to its “record” function). See App. to Pet. for Cert.
60a–61a. Affirming the judgment below would merely
return this case to the lower courts for consideration of the
Networks’ remaining claims.
III. Guilt By Resemblance
The Court’s conclusion that Aereo performs boils down
to the following syllogism: (1) Congress amended the Act
to overrule our decisions holding that cable systems do not
perform when they retransmit over-the-air broadcasts;4 (2)
Aereo looks a lot like a cable system; therefore (3) Aereo
performs.
Ante, at 4–10. That reasoning suffers from a
trio of defects.
First, it is built on the shakiest of foundations. Perceiv-
ing the text to be ambiguous,
ante, at 4, the Court reaches
out to decide the case based on a few isolated snippets of
legislative history,
ante, at 7–8 (citing H. R. Rep. No. 94–
1476 (1976)). The Court treats those snippets as authori-
tative evidence of congressional intent even though they
come from a single report issued by a committee whose
members make up a small fraction of one of the two Houses
of Congress. Little else need be said here about the severe
shortcomings of that interpretative methodology. See
Lawson v.
FMR LLC, 571 U. S. ___, ___ (2014) (SCALIA, J.,
concurring in principal part and concurring in judgment)
(slip op., at 1–2).
——————
4 See
Teleprompter Corp. v.
Columbia Broadcasting System, Inc., 415
U. S. 394 (1974);
Fortnightly Corp. v.
United Artists Television, Inc.,
392 U. S. 390 (1968).
37
8
AMERICAN BROADCASTING COS.
v. AEREO, INC.
SCALIA, J., dissenting
Second, the Court’s reasoning fails on its own terms
because there are material differences between the cable
systems at issue in
Teleprompter Corp. v.
Columbia
Broadcasting System, Inc., 415 U. S. 394 (1974), and
Fort-
nightly Corp. v.
United Artists Television, Inc., 392 U. S.
390 (1968), on the one hand and Aereo on the other. The
former (which were then known as community-antenna
television systems) captured the full range of broadcast
signals and forwarded them to all subscribers at all times,
whereas Aereo transmits only specific programs selected
by the user, at specific times selected by the user. The
Court acknowledges this distinction but blithely concludes
that it “does not make a critical difference.”
Ante, at 10.
Even if that were true, the Court fails to account for other
salient differences between the two technologies.5 Though
cable systems started out essentially as dumb pipes that
routed signals from point A to point B, see
ante, at 5, by
the 1970’s, that kind of service “ ‘no longer exist[ed],’ ”
Brief for Petitioners in
Columbia Broadcasting System,
Inc. v.
Teleprompter Corp., O. T. 1973, No. 72–1633, p. 22.
At the time of our
Teleprompter decision, cable companies
“perform[ed] the same functions as ‘broadcasters’ by delib-
erately selecting and importing distant signals, originat-
ing programs, [and] selling commercials,”
id., at 20, thus
making them curators of content—more akin to video-on-
demand services than copy shops. So far as the record
reveals, Aereo does none of those things.
——————
5 The Court observes that “[t]he subscribers of the
Fortnightly and
Teleprompter cable systems . . . selected what programs to display on
their receiving sets,” but acknowledges that those choices were possible
only because “the television signals, in a sense, lurked behind the
screen, ready to emerge when the subscriber turned the knob.”
Ante, at
10. The latter point is dispositive: The signals were “ready to emerge”
because the cable system—much like a video-on-demand provider—
took affirmative, volitional steps to
put them there. As discussed
above, the same cannot be said of the programs available through
Aereo’s automated system.
38
Cite as: 573 U. S. ____ (2014)
9
SCALIA, J., dissenting
Third, and most importantly, even accepting that the
1976 amendments had as their purpose the overruling of
our cable-TV cases, what they were meant to do and how
they did it are two different questions—and it is the latter
that governs the case before us here. The injury claimed
is not violation of a law that says operations similar to
cable TV are subject to copyright liability, but violation of
§106(4) of the Copyright Act. And whatever soothing
reasoning the Court uses to reach its result (“this looks
like cable TV”), the consequence of its holding is that
someone who implements this technology
“perform[s]”
under that provision. That greatly disrupts settled juris-
prudence which, before today, applied the straightforward,
bright-line test of volitional conduct directed at the copy-
righted work. If that test is not outcome determinative in
this case, presumably it is not outcome determinative
elsewhere as well. And it is not clear what the Court
proposes to replace it. Perhaps the Court means to adopt
(invent, really) a two-tier version of the Copyright Act, one
part of which applies to “cable companies and their equiv-
alents” while the other governs everyone else.
Ante, at 9–
10, 16.
The rationale for the Court’s ad hoc rule for cable-
system lookalikes is so broad that it renders nearly a third
of the Court’s opinion superfluous. Part II of the opinion
concludes that Aereo performs because it resembles a
cable company, and Congress amended the Act in 1976 “to
bring the activities of cable systems within [its] scope.”
Ante, at 8. Part III of the opinion purports to address
separately the question whether Aereo performs “pub-
licly.”
Ante, at 10–15. Trouble is, that question cannot
remain open if Congress’s supposed intent to regulate
whatever looks like a cable company must be given legal
effect (as the Court says in Part II). The Act reaches only
public performances, see §106(4), so Congress could not
have regulated “the activities of cable systems” without
39
10
AMERICAN BROADCASTING COS.
v. AEREO, INC.
SCALIA, J., dissenting
deeming their retransmissions public performances. The
upshot is this: If Aereo’s similarity to a cable company
means that it performs, then by necessity that same char-
acteristic means that it does so publicly, and Part III of
the Court’s opinion discusses an issue that is no longer
relevant—though discussing it certainly gives the opinion
the “feel” of real textual analysis.
Making matters worse, the Court provides no criteria
for determining when its cable-TV-lookalike rule applies.
Must a defendant offer access to live television to qualify?
If similarity to cable-television service is the measure,
then the answer must be yes. But consider the implica-
tions of that answer: Aereo would be free to do exactly
what it is doing right now so long as it built mandatory
time shifting into its “watch” function.6 Aereo would not
be providing
live television if it made subscribers wait to
tune in until after a show’s live broadcast ended. A sub-
scriber could watch the 7 p.m. airing of a 1-hour program
any time after 8 p.m. Assuming the Court does not intend
to adopt such a do-nothing rule (though it very well may),
there must be some other means of identifying who is and
is not subject to its guilt-by-resemblance regime.
Two other criteria come to mind. One would cover any
automated service that captures and stores live television
broadcasts at a user’s direction. That can’t be right, since
it is exactly what remote storage digital video recorders
(RS–DVRs) do, see
Cartoon Network, 536 F. 3d, at 124–
125, and the Court insists that its “limited holding” does
not decide the fate of those devices,
ante, at 16–17. The
other potential benchmark is the one offered by the Gov-
ernment: The cable-TV-lookalike rule embraces any entity
——————
6 Broadcasts accessible through the “watch” function are technically
not live because Aereo’s servers take anywhere from a few seconds to a
few minutes to begin transmitting data to a subscriber’s device. But
the resulting delay is so brief that it cannot reasonably be classified as
time shifting.
40
Cite as: 573 U. S. ____ (2014)
11
SCALIA, J., dissenting
that “operates an integrated system, substantially de-
pendent on physical equipment that is used in common by
[its] subscribers.” Brief for United States as
Amicus Curiae
20. The Court sensibly avoids that approach because it
would sweep in Internet service providers and a host of
other entities that quite obviously do not perform.
That leaves as the criterion of cable-TV-resemblance
nothing but th’ol’ totality-of-the-circumstances test (which
is not a test at all but merely assertion of an intent to
perform test-free, ad hoc, case-by-case evaluation). It will
take years, perhaps decades, to determine which automated
systems now in existence are governed by the tradi-
tional volitional-conduct test and which get the Aereo
treatment. (And automated systems now in contemplation
will have to take their chances.) The Court vows that its
ruling will not affect cloud-storage providers and cable-
television systems, see
ante, at 16–17, but it cannot deliver
on that promise given the imprecision of its result-driven
rule. Indeed, the difficulties inherent in the Court’s
makeshift approach will become apparent in this very
case. Today’s decision addresses the legality of Aereo’s
“watch” function, which provides nearly contemporaneous
access to live broadcasts. On remand, one of the first
questions the lower courts will face is whether Aereo’s
“record” function, which allows subscribers to save a pro-
gram while it is airing and watch it later, infringes the
Networks’ public-performance right. The volitional-
conduct rule provides a clear answer to that question:
Because Aereo does not select the programs viewed by its
users, it does not perform. But it is impossible to say how
the issue will come out under the Court’s analysis, since
cable companies did not offer remote recording and play-
back services when Congress amended the Copyright Act
in 1976.
41
12
AMERICAN BROADCASTING COS.
v. AEREO, INC.
SCALIA, J., dissenting
* * *
I share the Court’s evident feeling that what Aereo is
doing (or enabling to be done) to the Networks’ copyrighted
programming ought not to be allowed. But perhaps we
need not distort the Copyright Act to forbid it. As dis-
cussed at the outset, Aereo’s secondary liability for per-
formance infringement is yet to be determined, as is its
primary and secondary liability for reproduction infringe-
ment. If that does not suffice, then (assuming one shares
the majority’s estimation of right and wrong) what we
have before us must be considered a “loophole” in the law.
It is not the role of this Court to identify and plug loop-
holes. It is the role of good lawyers to identify and exploit
them, and the role of Congress to eliminate them if it
wishes. Congress can do that, I may add, in a much more
targeted, better informed, and less disruptive fashion than
the crude “looks-like-cable-TV” solution the Court invents
today.
We came within one vote of declaring the VCR contra-
band 30 years ago in
Sony. See 464 U. S., at 441, n. 21.
The dissent in that case was driven in part by the plain-
tiffs’ prediction that VCR technology would wreak all
manner of havoc in the television and movie industries.
See
id., at 483 (opinion of Blackmun, J.); see also Brief for
CBS, Inc., as
Amicus Curiae, O. T. 1982, No. 81–1687, p. 2
(arguing that VCRs “directly threatened” the bottom line
of “[e]very broadcaster”).
The Networks make similarly dire predictions about
Aereo. We are told that nothing less than “the very exist-
ence of broadcast television as we know it” is at stake.
Brief for Petitioners 39. Aereo and its
amici dispute those
forecasts and make a few of their own, suggesting that a
decision in the Networks’ favor will stifle technological
innovation and imperil billions of dollars of investments in
cloud-storage services. See Brief for Respondents 48–51;
Brief for BSA, The Software Alliance as
Amicus Curiae 5–
42
Cite as: 573 U. S. ____ (2014)
13
SCALIA, J., dissenting
13. We are in no position to judge the validity of those
self-interested claims or to foresee the path of future
technological development. See
Sony,
supra, at 430–431;
see also
Grokster, 545 U. S., at 958 (BREYER, J., concur-
ring). Hence, the proper course is not to bend and twist
the Act’s terms in an effort to produce a just outcome, but
to apply the law as it stands and leave to Congress the
task of deciding whether the Copyright Act needs an
upgrade. I conclude, as the Court concluded in
Sony: “It
may well be that Congress will take a fresh look at this
new technology, just as it so often has examined other
innovations in the past. But it is not our job to apply laws
that have not yet been written. Applying the copyright
statute, as it now reads, to the facts as they have been
developed in this case, the judgment of the Court of Ap-
peals must be [affirmed].” 464 U. S., at 456.
I respectfully dissent.
43
Art. 4(2)(2)
___________________
OPINION
___________________
1.
2.
1
44
2
45
28 July 2016
1
46
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 Writ Of Certiorari To The United States
Court Of Appeals For The Second Circuit
----------------- -----------------
BRIEF OF AMICI CURIAE INTERNATIONAL
FEDERATION OF THE PHONOGRAPHIC
INDUSTRY (IFPI); ASOCIACIÓN MEXICANA
DE PRODUCTORES DE FONOGRAMAS Y
VIDEOGRAMAS (AMPROFON); ASSOCIATION
LITTÉRAIRE ET ARTISTIQUE INTERNATIONALE
DU CANADA (ALAI CANADA); AUSTRALIAN
COPYRIGHT COUNCIL (ACC); BRITISH
COPYRIGHT COUNCIL (BCC); CANADIAN
MEDIA PRODUCTION ASSOCIATION (CMPA);
INTERNATIONAL CONFEDERATION OF
MUSIC PUBLISHERS (ICMP); INTERNATIONAL
CONFEDERATION OF SOCIETIES OF AUTHORS
AND COMPOSERS (CISAC); INTERNATIONAL
FEDERATION OF ACTORS (FIA); INTERNATIONAL
FEDERATION OF MUSICIANS (FIM); MUSIC
CANADA; SOCIETY OF COMPOSERS, AUTHORS
AND MUSIC PUBLISHERS OF CANADA (SOCAN);
INTERNATIONAL COPYRIGHT SCHOLARS,
ET AL., IN SUPPORT OF PETITIONERS
----------------- -----------------
DAVID O. CARSON
STEVEN MASON*
IFPI
MCCARTHY TÉTRAULT LLP
10 Piccadilly
TD Bank Tower, Ste. 5300
London W1J0DD
Toronto, ON
United Kingdom
Canada M5K 1E6
(+44) (020) 7878 7900
(416) 601-7703
xxxxx.xxxxxx@xxxx.xxx
xxxxxx@xxxxxxxx.xx
*
Counsel of Record
Counsel for Amici Curiae
[Additional Amici Listed On Inside Cover]
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
47
ADDITIONAL INTERNATIONAL ASSOCIATIONS
ALLIANCE OF CANADIAN CINEMA,
TELEVISION AND RADIO ARTISTS (ACTRA);
INTERNATIONAL FEDERATION OF FILM
PRODUCERS ASSOCIATIONS (FIAPF);
INTERATIONAL VIDEO FEDERATION (IVF);
SOCIETIES’ COUNCIL FOR THE COLLECTIVE
MANAGEMENT OF PERFORMERS’ RIGHTS (SCAPR)
INTERNATIONAL COPYRIGHT SCHOLARS
PROFESSOR F. JAY DOUGHERTY,
DR. MIHÁLY FICSOR, PROFESSOR YSOLDE
GENDREAU, PROFESSOR JUSTIN HUGHES,
PROFESSOR MARSHALL LEAFER,
PROFESSOR SILKE VON LEWINSKI,
PROFESSOR VICTOR NABHAN AND
PROFESSOR BARRY SOOKMAN (ADJ.)
48
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................
ii
INTERESTS OF
AMICI CURIAE .......................
1
SUMMARY OF ARGUMENT ..............................
2
ARGUMENT ........................................................
6
I.
THE
CHARMING BETSY DOCTRINE
REQUIRES CAUTION IN DEVIATING
FROM TREATY COMMITMENTS ...........
6
II.
THE DECISION BELOW PLACES THE
UNITED STATES IN VIOLATION OF
ITS MULTILATERAL TREATY COMMIT-
MENTS
...................................................... 9
III. THE DECISION BELOW PLACES THE
UNITED STATES IN VIOLATION OF
ITS BILATERAL AND REGIONAL
AGREEMENTS ......................................... 21
IV.
THE UNITED STATES ADOPTED A
TECHNOLOGY-NEUTRAL PATH
PRIOR
TO ENTERING INTO THE INTERNA-
TIONAL AGREEMENTS ........................... 26
V.
INTERNATIONAL CASE LAW CON-
FIRMS THE BREADTH OF THE
TRANSMIT CLAUSE ................................ 31
CONCLUSION ..................................................... 38
APPENDIX
LIST OF
AMICI CURIAE ................................... App. 1
49
ii
TABLE OF AUTHORITIES
Page
CASES:
Abbott v. Abbott, 560 U.S. ___, 130 S. Ct. 1983
(2010) ....................................................................... 31
Benz v. Compania Naviera Hidalgo, S.A., 353
U.S. 138 (1957) .......................................................... 7
Cartoon Network LP, LLLP v. CSC Holdings,
Inc., 536 F.3d 121 (2d Cir. 2008),
cert. den.
sub nom., Cable News Network v. CSC Hold-
ings, Inc., 129 S. Ct. 2890 (2009) .................. 6, 35, 36
Eldred v. Ashcroft, 537 U.S. 186 (2003) ............. 8, 9, 29
Fortnightly Corp. v. United Artists Tel., Inc.,
392 U.S. 390 (1968) ........................................... 27, 38
Golan v. Holder, 585 U.S. ___, 132 S. Ct. 873
(2012) ............................................................... 8, 9, 12
Harper & Row Pubs., Inc. v. Nation Ent., 471
U.S. 539 (1985) ........................................................ 27
Luigi Bormioli Corp. v. United States, 304 F.3d
1362 (Fed. Cir. 2002) ................................................. 7
Maximov v. United States, 373 U.S. 49 (1963) ............ 8
Murray v. Schooner Charming Betsy, 6 U.S. (2
Cranch) 64 (1804) ...................................... 6, 8, 23, 33
Subafilms, Ltd. v. MGM-Pathe Commc’ns Co.,
24 F.3d 1088 (9th Cir. 1994) (en banc) ..................... 8
Sumitomo Shoji America, Inc. v. Avagliano,
457 U.S. 176 (1982) ................................................... 8
Teleprompter Corp. v. Columbia Broad. Sys.,
Inc., 415 U.S. 394 (1974) ................................... 27, 38
50
iii
TABLE OF AUTHORITIES – Continued
Page
Twentieth Century Music Corp. v. Aiken, 422
U.S. 151 (1975) .................................................. 27, 38
Vimar Seguros y Reaseguros, SA v. M/
V Sky
Reefer, 515 U.S. 528 (1995) ................................. 7, 21
WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2d
Cir. 2013) ....................................................... 6, 35, 39
Zicherman v. Korean Air Lines Co., 516 U.S.
217 (1996) .................................................................. 8
INTERNATIONAL CASES:
ITV Broadcasting Ltd. and other companies v.
TVCatchup Ltd., 2013 ECR I-___, [2013] 3
C.M.L.R. 1 (Case C-607-11, CJEU) .................. 31, 33
National Rugby League Investments Pty. Ltd. v.
Singtel Optus Pty. Ltd. [2012] FCAFC 59
(Austl.) ..................................................................... 36
NHK (Japan Broadcasting Corporation), et al.
v. Nagano Shōten Co. Ltd. [Sup. Ct.] January
18, 2011, Case No. 653 (ju) of 2009, 65-1
Minshū 121 (Japan), unofficial translation
available at http://www.softic.or.jp/en/cases/
manekiTV.pdf .......................................................... 36
OSA – Ochranný svaz autorský pro práva k
dílům hudebním o.s. v. Léčebné lázně
Mariánské Lázně a.s., [2014] ECR 1-___
(Case C-466/12, CJEU, February 27, 2014) ........... 34
Robertson v. Thomson Corp., 2006 SCC 43
(Canada) .................................................................. 37
51
iv
TABLE OF AUTHORITIES – Continued
Page
Rogers Communications Inc. v. Society of
Composers, Authors and Music Publishers of
Canada, 2012 SCC 35 (Canada) ..... 34, 35, 36, 37, 38
Sociedad General de Autores y Editores de
Espana (SGAE) v. Rafael Hoteles SA, [2006]
ECR I-11519, [2006] All ER (D) 103 (CJEU) ..... 33, 34
Svensson and others v. Retriever Sverige AB,
[2014] ECR I-___ (Case C-466/12, CJEU,
February 13, 2014) .................................................. 33
Telstra Corporation Limited v. Australasian
Performing Right Association (1997), 146
ALR 649 (Austl.) ..................................................... 36
STATUTES AND RULES:
17 U.S.C. §101 (2012) .........................................
passim
17 U.S.C. §102 (2012) ................................................. 28
17 U.S.C. §106 (2012) ..................................... 12, 15, 24
17 U.S.C. §110 (2012) ................................................. 11
17 U.S.C. §118 (2012) ................................................. 11
19 U.S.C. §3311(a) (2012) ........................................... 21
19 U.S.C. §3805(a)(1)(C) ............................................. 24
19 U.S.C. §3805(a)(2)(A) ............................................. 24
Berne Convention Implementation Act of 1988,
Pub. L. 100-568, 102 Stat. 2853 ....................... 12, 21
Digital Millennium Copyright Act, Pub. L. 105-
304, 112 Stat. 2860 (1998) ................................ 20, 21
52
v
TABLE OF AUTHORITIES – Continued
Page
Dominican Republic-Central America-U.S. Free
Trade Agreement Implementation Act, Pub.
L. 109-153, 119 Stat. 462 (2005) ............................. 25
U.S.-Australia Free Trade Agreement Imple-
mentation Act, Pub. L. 108-286 §101(a)(2),
118 Stat. 919 (2004) ................................................ 25
U.S.-Bahrain Free Trade Agreement Imple-
mentation Act, Pub. L. 109-169, 119 Stat.
3581 (2006) .............................................................. 25
U.S.-Chile Free Trade Agreement Implementa-
tion Act, Pub. L. 108-177, 117 Stat. 909
(2003) ....................................................................... 25
U.S.-Jordan Free Trade Area Implementation
Act, Pub. L. 107-143, 115 Stat. 243 (2001) ............. 25
U.S.-Korea Free Trade Agreement Implemen-
tation Act, Pub. L. 112-141, 125 Stat. 428
(2011) ....................................................................... 25
U.S.-Morocco Free Trade Agreement Imple-
mentation Act, Pub. L. 108-302, 118 Stat.
1103 (2004) .............................................................. 25
U.S.-Oman Free Trade Agreement Implemen-
tation Act, Pub. L. 109-283, 120 Stat. 1191
(2006) ....................................................................... 25
U.S.-Panama Trade Promotion Agreement
Implementation Act, Pub. L. 112-143, 125
Stat. 497 (2001) ....................................................... 25
53
vi
TABLE OF AUTHORITIES – Continued
Page
U.S.-Peru Trade Promotion Agreement Imple-
mentation Act, Pub. L. 110-138, 121 Stat.
1455 (2007) .............................................................. 25
U.S.-Singapore Free Trade Agreement Imple-
mentation Act, Pub. L. 108-178, 117 Stat.
948 (2003) ................................................................ 25
Uruguay Round Agreements Act, Pub. L. 103-
465, 108 Stat. 4809 (1994) ...................................... 21
INTERNATIONAL AGREEMENTS:
Agreement on Trade-Related Aspects of Intel-
lectual Property Rights, Apr. 15, 1994, 1869
U.N.T.S. 299, 33 I.L.M. 81 ...................................... 12
Berne Convention for the Protection of Literary
and Artistic Works, Sept. 9, 1886 (Paris Text
1971, as amended Sept. 28, 1979), 828
U.N.T.S. 221 ....................................................
passim
Dominican Republic-Central America-U.S. Free
Trade Agreement, Aug. 5, 2004, K.A.V. 7157 ......... 24
Free Trade Agreement, U.S.-Australia, May 18,
2004, K.A.V. 7141 ................................ 2, 3, 23, 24, 25
Free Trade Agreement, U.S.-Bahr., Sept. 14,
2004, K.A.V. 6866 .............................................. 23, 24
Free Trade Agreement, U.S.-Chile, June 6,
2003, K.A.V. 6375 .................................................... 23
Free Trade Agreement, U.S.-Jordan, Oct. 24,
2000, K.A.V. 5970 .................................................... 23
54
vii
TABLE OF AUTHORITIES – Continued
Page
Free Trade Agreement, U.S.-Morocco, June 15,
2004, K.A.V. 7206 .............................................. 23, 24
Free Trade Agreement, U.S.-Oman, Jan. 19,
2006, K.A.V. 8673 .............................................. 23, 24
Free Trade Agreement, U.S.-Sing., May 6,
2003, K.A.V. 6376 .............................................. 23, 24
Free Trade Agreement, U.S.-S. Kor. (Feb. 10,
2011), http://www.ustr.gov/trade-agreements/
free-trade-agreements/korus-fta/final-text ...... 23, 24
North American Free Trade Agreement, Dec. 17,
1992, H.R. Doc. No. 103-159, vol. 1 ..... 2, 3, 21, 22, 23
Trade Promotion Agreement, U.S.-Pan. June
28, 2007, K.A.V. 9546 ........................................ 23, 24
Trade Promotion Agreement, U.S.-Peru, Apr.
12, 2006, K.A.V. 8674 ........................................ 23, 24
WIPO Audiovisual Performances Treaty, (Jun.
24, 2012), http://www.wipo.int/treaties/en/text.
jsp?file_id=295837 ................................................... 14
WIPO Copyright Treaty art. 8, Dec. 20, 1996,
S. Treaty Doc. 105-17 (1997), 36 I.L.M. 65.....
passim
WIPO Performances and Phonograms Treaty,
arts. 10, 14, Dec. 20, 1996, S. Treaty Doc.
105-17 (1997), 36 I.L.M. 76 .............................
passim
55
viii
TABLE OF AUTHORITIES – Continued
Page
INTERNATIONAL LEGISLATION:
Directive 2001/29/EC of the European Parlia-
ment and of the Council of 22 May 2001 on
the harmonisation of certain aspects of copy-
right and related rights in the information
society, 2001 O.J. (L.167) 10 ............................. 32, 33
MISCELLANEOUS:
William Belanger,
U.S. Compliance with the
Berne Convention, 3 Geo. Mason L. Rev. 373
(1995) ....................................................................... 11
David O. Carson,
Making the Making Available
Right Available: 22nd Annual Horace S.
Manges Lecture, February 3, 2009, 33 Colum.-
VLA J.L. & Arts 135 (2010) .................................... 19
Mihály Ficsor,
Copyright in the Digital Envi-
ronment, WIPO/CR/KRT/05/7 (Feb. 2005),
http://www.wipo.int/edocs/mdocs/arab/en/wipo_
cr_krt_05/wipo_cr_krt_05_7.doc ............................. 14
Mihály Ficsor,
The Law of Copyright and the
Internet (2002) ....................................... 14, 17, 18, 19
Mihály Ficsor,
The WIPO ‘Internet Treaties’ and
Copyright in the “Cloud,” ALAI Congress, Kyoto
(Oct. 16-18, 2012), http://bit.ly/1fnP0WX ............... 30
Final Report of the Ad Hoc Working Group on
U.S. Adherence to the Berne Convention, 10
Colum.-VLA J.L. & Arts 513 (1986) ....................... 11
56
ix
TABLE OF AUTHORITIES – Continued
Page
Ysolde Gendreau,
Intention and Copyright
Law, in F. Pollaud-Dulian, ed., in
Internet
and Copyright Law (Perspectives on Intellec-
tual Property Law series, vol. 5) (1999) ................. 22
Jane C. Ginsburg,
Aereo in International
Perspective: Individualized Access and U.S.
Treaty Obligations, Media Inst., Feb. 18,
2014, http://www.mediainstitute.org/IPI/2014/
021814.php ........................................................ 19, 30
Jane C. Ginsburg,
The (New?) Right of Making
Available to the Public, in
Intellectual Prop-
erty in the New Millennium: Essays in Hon-
our of William R. Cornish 234 (D. Vaver & L.
Bently, eds. 2004) .................................................... 37
Jane C. Ginsburg,
Recent Developments in U.S.
Copyright Law – Part II, Caselaw: Exclusive
Rights on the Ebb?, Revue Internationale du
Droit d’Auteur 37 (2008) ................................... 17, 19
Jane C. Ginsburg,
WNET v. Aereo: The Second
Circuit Persists in Poor (Cable)Vision, Media
Instit., Apr. 23, 2013, www.mediainstitute.
org/IPI/2013/042313.php ........................................... 5
Paul Goldstein & P. Bernt Hugenholtz,
Inter-
national Copyright (2013) ...............................
passim
H.R. Rep. No. 94-1476 (1976) .............................
passim
H.R. Rep. No. 100-609 (1988) ..................................... 29
H.R. Rep. No. 105-551 (1998) ......................... 12, 13, 20
57
x
TABLE OF AUTHORITIES – Continued
Page
Silke von Lewinski,
International Copyright
Law and Policy (2008) ................................ 11, 18, 22
Jörg Reinbothe & Silke von Lewinski,
The
WIPO Treaties 1996 (2002) ................... 13, 15, 17, 18
Sam Ricketson & Jane C. Ginsburg,
Interna-
tional Copyright and Neighbouring Rights –
The Berne Convention and Beyond (2006) .....
passim
S. Rep. No. 94-473 (1975) ............................................. 4
S. Rep. No. 105-190 (1998) ......................................... 20
Staff of House Comm. on The Judiciary, 89th
Cong., 1st Sess.,
Copyright Law Revision
Part 6: Supplementary Report of The Register
of Copyrights on the General Revision of the
U.S. Copyright Law (Comm. Print 1965) ............... 27
Statement of Administrative Action, U.S.-
Australia Free Trade Agreement, http://waysand
means.house.gov/media/pdf/australia/hr4579saa.
pdf ............................................................................ 25
J.A.L. Sterling,
World Copyright Law (2008) ............ 17
U.S. Dep’t of Commerce,
Copyright Policy,
Creativity, and Innovation in the Digital
Economy (July 2013), http://www.uspto.gov/
news/publications/copyrightgreenpaper.pdf .......... 19
WCT Notification No. 10, Ratification by the
United States of America, http://www.wipo.int/
edocs/notdocs/en/wct/treaty_wct_10.html .............. 20
58
xi
TABLE OF AUTHORITIES – Continued
Page
WIPO Committee of Experts,
Basic Proposal
for the Substantive Provisions of the Treaty
on Certain Questions Concerning the Protec-
tion of Literary and Artistic Works to Be
Considered by the Diplomatic Conference,
WIPO/CRNR/DC/4 (Aug. 30, 1996), www.
wipo.int/edocs/mdocs/diplconf/en/crnr_dc/crnr_
dc_4.pdf .............................................................. 13, 15
WIPO,
Guide to the Copyright and Related
Rights Treaties Administered by WIPO and
Glossary of Copyright and Related Rights
Terms (Nov. 2003), http://www.wipo.int/export/
sites/www/freepublications/en/copyright/891/
wipo_pub_891.pdf ........................... 11, 13, 14, 16, 18
59
1
INTERESTS OF AMICI CURIAE1
This brief is filed by a number of international
and foreign associations with economic or profes-
sional stakes in the proper interpretation of copyright
law, including international copyright treaties, and
by a number of scholars engaged in researching,
writing and teaching about international copyright
law issues. More detailed descriptions of each of the
amici may be found in the Appendix.
Amici wish to bring to the attention of the Court
a number of international treaties and other agree-
ments into which the United States has entered.
These commitments impose obligations on the United
States that must be taken into account when inter-
preting domestic copyright law. International rights
holders – including the associations joining this brief
– rely upon the rights guaranteed by the interna-
tional agreements, which provide a legal framework
that promotes the creation and dissemination of
copyright works worldwide.
Amici include associa-
tions based in Canada and Mexico, parties to the
1 No counsel for a party (and no party) authored this brief
in whole or in part or made a monetary contribution intended to
fund the preparation or submission of this brief. No person other
than
amici or their counsel made a monetary contribution to the
preparation or submission of this brief.
Amici von Lewinski (a
legal scholar based outside the United States) and the British
Copyright Council rely on counsel and other
amici in relation to
the U.S. law discussed in Part I, but directly endorse the
submissions set out in Parts II to IV. The parties have consented
to the filing of this brief.
60
2
North American Free Trade Agreement discussed
herein, and Australia, a party to the U.S.-Australia
Free Trade Agreement discussed herein, as well as
associations representing authors, performers and
rightholders internationally and scholars from vari-
ous countries.
----------------- -----------------
SUMMARY OF ARGUMENT
Copyright law is an increasingly harmonized
international system supported by bilateral, regional
and multilateral treaties. These treaties help creators
and businesses in the United States disseminate
copyright works worldwide. They also reflect an
agreement among the treaty parties on the minimum
standards for copyright protection of works.
One of the most important underpinnings of this
international system is technological neutrality.
Starting in the 1990s, the United States negotiated
important bilateral, regional and multilateral treaties
and trade agreements in the knowledge that new
communications technologies were transforming the
ways in which copyright works were consumed. With
an eye to the unpredictability of these technologies,
these treaties were drafted to apply reliably and
comprehensively to the provision of access to content,
regardless of the specific mechanism used to deliver
it. These treaties were entered into by the Executive
Branch, ratified by the Senate and implemented by
domestic legislation. The trade agreements were
61
3
entered into by the Executive Branch, approved in
public laws enacted by both Houses of Congress, and
signed by the President. In each case, Congress
confirmed its satisfaction that the scope of the domes-
tic copyright law fulfilled international standards.
Numerous international agreements provide a
right of communication to the public, which applies
even when the technology used to effect the transmis-
sions enables members of the public to access works
or performances of works “from a place and at a time
individually chosen by them.” WIPO Copyright
Treaty art. 8,
Dec. 20, 1996, S. Treaty Doc. 105-17
(1997), 36 I.L.M. 65 (“WCT”); WIPO Performances
and Phonograms Treaty arts. 10, 14, Dec. 20, 1996, S.
Treaty Doc. 105-17 (1997), 36 I.L.M. 76 (“WPPT”);
Free Trade Agreement, U.S.-Australia, art. 17.5, May
18, 2004, K.A.V. 7141. The North American Free
Trade Agreement requires the United States to
ensure that the term “public” includes “any aggrega-
tion of individuals intended to be the object of, and
capable of perceiving, communications or perform-
ances of works”
even if those individuals engage with
the works “at the same or different times or in the
same or different places.” North American Free Trade
Agreement, art. 1721(2), Dec. 17, 1992, H.R. Doc. No.
103-159, vol. 1 (“NAFTA”) (definition of “public”).
These agreements render the particular method of
transmission irrelevant.
Even before the treaties were executed, this core
concept of technological neutrality was long embed-
ded in U.S. copyright law. Passed in 1976 to reverse
62
4
technology-specific outcomes reached by this Court in
a trio of cases under the prior copyright statute, the
definitions section of the Copyright Act confirms that
to perform or display a work “publicly” means,
inter
alia:
to transmit or otherwise communicate a per-
formance 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 re-
ceive it in the same place or in separate
places and at the same time or at different
times.
17 U.S.C. §101 (2012) (defining “To perform or display
a work ‘publicly’ ”).
The definition of “transmit” – to communicate a
performance or display – in what has become known
as the “Transmit Clause,” was intended to be “broad
enough to include all conceivable forms and combina-
tions of wired or wireless communications media.”
H.R. Rep. No. 94-1476, at 64 (1976). “Each and every
method by which the images or sounds comprising a
performance or display are picked up and conveyed is
a ‘transmission,’ and if the transmission reaches the
public in any form, the case comes within the scope of
clauses (4) or (5) of section 106.” S. Rep. No. 94-473,
at 61 (1975).
As has been observed by respected commentators,
the decision of the Second Circuit neglected to consider
important elements of this statutory definition. By
63
5
following its prior, incorrect test of examining “who
precisely is ‘capable of receiving’ a particular trans-
mission of a performance,” the Second Circuit read
out the “at different times” criterion from the Act. It
also ignored the “by means of any device or process”
language that is at the heart of the technologically
neutral definition of the Transmit Clause.2 In doing
so, the Second Circuit failed to construe the public
performance right consistently with the treaty obliga-
tions of the United States. These obligations require
protection for the transmissions of performances to
the public even when they are delivered by numerous
separate transmissions.
The highest courts of America’s major trading
partners have construed these treaties in analogous
cases. They have recognized that these treaties
anticipated and dealt with services that claim as
“private” a series of performances delivered to the
public at large. Such decisions have closed the door
to all “Rube Goldberg-like contrivances” (Pet. App.
40a, dissent of Judge Chin) that seek to bypass the
communication to the public right by using point-to-
point technologies.
2 Jane C. Ginsburg,
WNET v. Aereo: The Second Circuit
Persists in Poor (Cable)Vision, Media Inst., Apr. 23, 2013,
www.mediainstitute.org/IPI/2013/042313.php.
64
6
The Petitioners have extensively described how
the Second Circuit’s decisions in
Cablevision3 and
Aereo have misconstrued the Copyright Act. This brief
does not repeat their arguments. The purpose of this
brief is to describe how the technology-specific out-
come in
Cablevision and
Aereo is fundamentally at
odds with the international treaty commitments en-
tered into by the United States and with its domestic
legislative history, each of which demonstrates the
understanding that existing public performance
rights comply with those obligations.
----------------- -----------------
ARGUMENT
I. THE
CHARMING BETSY DOCTRINE RE-
QUIRES CAUTION IN DEVIATING FROM
TREATY COMMITMENTS
More than two hundred years ago, Chief Justice
Marshall articulated what has become a fundamental
canon of U.S. statutory construction: “an Act of Con-
gress ought never to be construed to violate the law of
nations if any other possible construction remains.”
Murray v. Schooner Charming Betsy, 6 U.S. (2
Cranch) 64, 118 (1804). This principle extends to
avoidance of conflict with the treaty commitments of
the United States. “If the United States is to be able
3
Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536
F.3d 121 (2d Cir. 2008),
cert. den. sub nom., Cable News Network
v. CSC Holdings, Inc., 129 S. Ct. 2890 (2009) (“
Cablevision”).
65
7
to gain the benefits of international accords and have
a role as a trusted partner in multilateral endeavors,
its courts should be most cautious before interpreting
its domestic legislation in such manner as to violate
international agreements.”
Vimar Seguros y Reasegu-
ros, SA v. M/
V Sky Reefer, 515 U.S. 528, 539 (1995);
Benz v. Compania Naviera Hidalgo, S.A., 353 U.S.
138, 147 (1957) (cautioning against courts “run[ning]
interference in such a delicate field of international
relations * * * [without] the affirmative intention of
Congress clearly expressed.”). The same canon ap-
plies to trade agreements.
Luigi Bormioli Corp. v.
United States, 304 F.3d 1362, 1368 (Fed. Cir. 2002).
Such
an approach is especially appropriate in
interpreting domestic copyright law, which has gone
through a process of increasing harmonization with
international treaty standards over the years. As this
Court recently recognized in rejecting a constitutional
challenge to legislation that removed foreign copy-
rights from the public domain, Congress has “adopted
measures to ease the transition from a national
scheme to an international copyright regime” and
“ensured that most works, whether foreign or domes-
tic, would be governed by the same legal regime,” as
part of a “trend toward a harmonized copyright
regime.” In doing so, “Congress determined that U.S.
interests were best served by our full participation in
the dominant system of international copyright
protection. Those interests include ensuring exem-
plary compliance with our international obligations,
securing greater protection for U.S. authors abroad,
66
8
and remedying unequal treatment of foreign au-
thors.”
Golan v. Holder, 585 U.S. ___, ___, ___, 132
S. Ct. 873, 891, 893, 894 (2012).
See also Eldred v.
Ashcroft, 537 U.S. 186, 205-206 (2003);
Subafilms,
Ltd. v. MGM-Pathe Commc’ns Co., 24 F.3d 1088, 1097
(9th Cir. 1994) (en banc) (cautioning that an impolitic
approach might “undermine Congress’s objective of
achieving effective and harmonious copyright laws
among all nations”).
The clear import of treaty language controls this
Court’s assessment.
Maximov v. United States, 373
U.S. 49, 54 (1963) (holding that it is “particularly
inappropriate for a court to sanction a deviation from
the clear import of a solemn treaty * * * when, as
here, there is no indication that application of the
words of the treaty according to their obvious mean-
ing effects a result inconsistent with the intent or
expectations of its signatories”). It is
also settled that
the Executive Branch’s interpretation of a treaty “is
entitled to great weight.”
Sumitomo Shoji America,
Inc. v. Avagliano, 457 U.S. 176, 184-185 (1982).
Last, a treaty’s drafting and negotiating history
and the post-ratification understanding of the con-
tracting parties may serve as aids to its interpreta-
tion.
Zicherman v. Korean Air Lines Co., 516 U.S.
217, 226 (1996).
As described below, the Second Circuit’s interpre-
tation of the Transmit Clause cannot be squared with
the 210-year old
Charming Betsy doctrine. While
amici believe that the language of the Transmit
67
9
Clause unambiguously leads to the conclusion that
Aereo’s transmissions are public performances, the
treaty obligations entered into by the United States
on multiple occasions would require the same conclu-
sion even if the statutory text was ambiguous.
II. THE DECISION BELOW PLACES THE
UNITED STATES IN VIOLATION OF ITS
MULTILATERAL TREATY COMMITMENTS
This Court has acknowledged that copyright
involves an international system in which the United
States is now a full partner. Since the 1970s, a delib-
erate Congressional and Executive Branch policy has
allowed the United States to “ ‘play a leadership role’
in the give-and-take evolution of the international
copyright system.”
Eldred, 537 U.S. at 195, 205-206
n. 13;
Golan, 585 U.S. at ___, 132 S. Ct. at 879-883.
The first international treaty commitment of the
United States bearing examination arises under Arts.
11, 11
bis, 11
ter, 14,
and 14
bis of the Berne Conven-
tion.4 Each of these articles contains language de-
signed to capture innovations in technology. Article 11
grants authors of dramatic, dramatico-musical and
musical works the exclusive right of authorizing “(i)
the public performance of their works, including such
public performances
by any means or process; [and]
4 Berne Convention for the Protection of Literary and
Artistic Works, Sept. 9, 1886 (Paris Text 1971, as amended Sept.
28, 1979), 828 U.N.T.S. 221.
68
10
(ii) any communication to the public of the perform-
ance of their works.” (Emphasis added.) The second
part of the right is understood to encompass “any
technology by which a performance can be transmit-
ted other than broadcasting.”5
Art.
11
bis(1) of Berne grants authors an exclusive
right of authorizing:
(i) the broadcasting of their works or
the communication thereof to the public
by
any other means of wireless diffusion of
signs, sounds or images;
(ii) any communication to the public by
wire or by rebroadcasting of the broadcast of
the work, when this communication is made
by an organization other than the original
one;. . . . 6
Art.
11
bis(1)(ii) encompasses both cable retrans-
mission (communication to the public by wire) and
rebroadcasting (communication to the public by
wireless means “over the air” of broadcast works in
all cases where such secondary communication
(transmission) is made “by an organization other
than the original one.”) As a result, a third party’s
5 Paul Goldstein & P. Bernt Hugenholtz,
International
Copyright 327 (2013);
see also Berne Art. 11
ter (covering recita-
tions of literary works through communications technologies).
6 Emphasis added. Art. 11
ter(1) contains,
mutatis mutandis,
the same provisions on public recitation of literary works and
the communication to the public of such recitations as Art. 11(1).
69
11
retransmissions of broadcasts come within the scope
of the Berne rights.7
Separately, Art. 14(1)(ii) gives authors a right to
authorize “the public performance and communica-
tion to the public by wire” of cinematographic adapta-
tions and reproductions of their works. Under Art.
14
bis(1) of Berne, the owner of copyright in a cine-
matographic work such as a television program or
movie must also be given the same rights as the
author of an original work.8
The committee convened by the State Depart-
ment in 1988 to study Berne implementation raised
no questions as to the compliance of the existing U.S.
law with these requirements.9
7 Sam Ricketson & Jane C. Ginsburg,
International Copy-
right and Neighbouring Rights – The Berne Convention and
Beyond 12.37-12.51 (2006); Silke von Lewinski,
International
Copyright Law and Policy 5.144 (2008).
8 WIPO,
Guide to the Copyright and Related Rights Treaties
Administered by WIPO and Glossary of Copyright and Related
Rights Terms 89 (Nov. 2003) (“WIPO Guide”); Ricketson &
Ginsburg,
supra note 7 at 12.32, 12.40.
9 The Committee reported that the only conflicts involving
Art. 11
bis were (i) an exemption for instructional television
transmissions granted under 17 U.S.C. §110(2) and (ii) a public
broadcast compulsory license imposed under 17 U.S.C. §118.
See William Belanger,
U.S. Compliance with the Berne Convention, 3
Geo. Mason L. Rev. 373, 395-396 (1995);
Final Report of the Ad
Hoc Working Group on U.S. Adherence to the Berne Convention,
10 Colum.-VLA J.L. & Arts 513, 519-520, 526-527 (1986).
70
12
In passing the Berne Convention Implementa-
tion Act of 1988, Pub. L. 100-568, 102 Stat. 2853,
Congress declared, “The amendments made by this
Act, together with the law as it exists on the date of
the enactment of this Act, satisfy the obligations of
the United States in adhering to the Berne Conven-
tion.”
Id. §2(3) (
quoted in Golan, 132 S. Ct. at 879).
Given this unambiguous statement, it must be taken
that the Executive Branch and Congress were satis-
fied that sections 101 and 106 fulfilled the Berne
broadcasting, retransmission, and communication
rights.
The United States became a party to Berne in
1989. By ratifying the TRIPs Agreement in 1994, the
United States imported this Berne obligation into the
WTO dispute settlement regime, giving “teeth” to
Berne’s requirements.10
Golan, 132 S. Ct. at 881.
The United States’ alignment with the interna-
tional community was taken a step further when it
acceded to the WIPO Copyright Treaty (“WCT”). A
key purpose of the WCT was to ensure adequate
worldwide protection of copyrighted works “at a time
when borderless digital means of dissemination
[were] becoming increasingly popular.” H.R. Rep. No.
105-551, at 9 (1998). The WCT also strengthened
legal frameworks enabling rights holders to fight
10 Agreement on Trade-Related Aspects of Intellectual
Property Rights, art. 9(1) Apr. 15, 1994, 1869 U.N.T.S. 299, 33
I.L.M. 81 (requiring compliance with Arts. 1 through 21 of Berne).
71
13
“pirates who aim to destroy the value of American
intellectual property.”
Id. at 10.
In Article 8, the WCT provided for a “technologi-
cally neutral and all-encompassing” communication
to the public right that united the scattered Berne
rights and applied regardless of the means by which
the communication is made or the nature of the
protected work.11 It was agreed that the right had to
be “technologically neutral” in order to support evolv-
ing delivery models enabled by advances in technol-
ogy in order to avoid being rendered obsolete by any
particular change in communications technology.12
It also had to apply consistently to different kinds
of works which Berne treated under separate head-
ings.13
A “main achievement” of the WCT was its inclu-
sion within the authors’ communication to the public
right of a right of “making available to the public of
11 Ricketson & Ginsburg,
supra note 7 at 12.54, 12.17,
12.43, 12.46-12.51; Goldstein & Hugenholtz,
supra note 5, at
335.
12 Ricketson & Ginsburg,
supra note 7 at 12.59; Jörg
Reinbothe & Silke von Lewinski,
The WIPO Treaties 1996 109
(2002); WIPO Guide, at 208; WIPO Committee of Experts,
Basic
Proposal for the Substantive Provisions of the Treaty on Certain
Questions Concerning the Protection of Literary and Artistic
Works to Be Considered by the Diplomatic Conference, WIPO/
CRNR/DC/4 at 10.10-10.11, 10.14 (Aug. 30, 1996) (“Basic
Proposal”).
13 Basic Proposal at 10.05, 10.09; Ricketson & Ginsburg,
supra note 7, at 12.43, 12.56.
72
14
their works in such a way that members of the public
may access these works from a place and at a time
individually chosen by them.”14 This “making avail-
able” right was crafted to be broad enough to enable
rightholders to control all means of making works
available over the Internet and other digital tech-
nologies, including by making available access to
streams, downloads, and other hybrid or future forms
of consumption by members of the public from differ-
ent places and at different times.15 It was intended to
cover
any process of providing public
access to works,
14 Goldstein & Hugenholtz,
supra note 5 at 335 (celebrating
the second portion of Article 8 as “one of the treaty’s ‘main
achievements,’ that for many countries has charted new territo-
ry by securing the right to control individualized, interactive
uses of copyrighted works”); Ricketson & Ginsburg,
supra note 7
at 12.54, 12.43, 12.46-12.51. Analogous rights were granted for
fixed performances and sound recordings in Arts. 10 and 14 of
the WPPT and in Art. 10 of the WIPO Audiovisual Performances
Treaty (Jun. 24, 2012), http://www.wipo.int/treaties/en/text.
jsp?file_id=295837, which the United States has signed but not
yet ratified. Art. 6 of the WCT relates to the making available of
tangible copies of an author’s work; it is not relevant to the
online setting. Art. 15 of the WPPT gives performers and
producers of phonograms a right to equitable remuneration for
the broadcasting or communication to the public of phonograms.
15 WIPO Guide, at 208-209; Basic Proposal at 10.05, 10.10-
10.11; Mihály Ficsor,
Copyright in the Digital Environment,
WIPO/CR/KRT/05/7 ¶59 (Feb. 2005); Mihály Ficsor,
The Law of
Copyright and the Internet 496-499 (2002); Goldstein &
Hugenholtz,
supra note 5, at 335-336.
73
15
including through numerous discrete transmissions
to individual members of the public.16
This purpose was fulfilled by Article 8 of the
WCT,17 which provided:
Without prejudice to the provisions of Arti-
cles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii),
14(1)(ii) and 14bis(1) of the Berne Conven-
tion, authors of literary and artistic works
shall enjoy the exclusive right of authorizing
any communication to the public of their
works, by wire or wireless means, including
the making available to the public of their
works in such a way that members of the
public may access these works from a place
and at a time individually chosen by them.
16 Basic Proposal at 10.10-10.11; Reinbothe & von Lewinski,
supra note 12, at 108-110; Ricketson & Ginsburg,
supra note 7,
at 12.58; Goldstein & Hugenholtz,
supra note 5, at 335.
17 The WPPT, which enumerates rights of producers and
performers of phonograms (the term used to describe what are
called phonorecords under U.S. law), also provides for a right of
making available, using similar language to the “making
available” language in Art. 8 of the WCT, but provides for a
separate right of equitable remuneration for communication to
the public. WPPT, Arts. 10, 14, and 15. To the extent that the
words “perform . . . publicly” in 17 U.S.C. §106(6) (establishing
the right to perform sound recordings publicly “by means of a
digital audio transmission”) have the same meaning as the
identical words in 17 U.S.C. §106(4) (establishing the right to
perform certain other kinds of words publicly), the WPPT plays
the same role in interpreting the section 106(6) right that the
WCT and Berne play in interpreting the section 106(4) right.
74
16
Article 8 removed any doubt remaining under
Berne as to coverage for on-demand transmissions of
performances: it required all member states to extend
the communication to the public right to all such
transmissions, even if the recipients were separated
both in space and in time. Article 8 also put to rest
any doubts as to whether member states must cover
on-demand digital technologies. It required member
states to provide coverage regardless of whether
members of the public are separated in space or in
time.18 It also covered interactive transmissions that
are initiated by users of a service.19
A leading international copyright scholar suc-
cinctly describes the broad, technologically neutral
nature of the right:
The making available right targets on-
demand transmissions (whether by wire or
wireless means), for it makes clear that the
members of the public may be separated both
in space and in time. The technological
means of ‘making available’ are irrelevant;
the right is expressed in technologically neu-
tral terms. The right covers offering the work
to members of the public on an individual-
ized basis; “the public” includes subsets of
the general public, such as aficionados of
tango music, or members of a particular
performer’s fan club. As is clear from the
18 Ricketson & Ginsburg,
supra note 7, at 12.54-12.61.
19
WIPO Guide at 207-208.
75
17
formulation “such a way that members of the
public
may access” (emphasis supplied), the
right is triggered when the public is invited
to access, rather than when any member of
the public in fact
has accessed. Equally im-
portantly, the right applies to the “work”; it
is not limited to “performances” of the work.
Thus it covers making the work available
both as download and as a stream.20
Professors Reinbothe and von Lewinski confirm
that “the wording and also purpose of Article 8 WCT
* * * aims at covering
all situations involving an
individual time and place of access.” (Emphasis
added.) They conclude that it makes “no difference”
whether one uses “push-technology” or “pull-
technology,” each of which is fully covered under the
broad meaning of communication to the public.21
Together, the Berne Convention and WCT cover
all aspects of the Aereo service. The “Watch” function
in which performances are streamed to members of
the public over the Internet is a communication to the
public which is required to be protected under Berne
and through the opening clause of WCT Art. 8. The
20 Jane C. Ginsburg,
Recent Developments in U.S. Copyright
Law – Part II, Caselaw: Exclusive Rights on the Ebb?, Revue
Internationale du Droit d’Auteur 37 (2008);
see also Ricketson &
Ginsburg,
supra note 7, at 12.50; Goldstein & Hugenholtz,
supra note 5, at 335.
21 Reinbothe & von Lewinski,
supra note 12, at 110.
See also
Ficsor,
The Law of Copyright and the Internet at 405; J.A.L.
Sterling,
World Copyright Law 9.33 (2008).
76
18
“making available” wording in the latter part of WCT
Art. 8 removes any doubt that the “Record” function
is covered, as it permits members of the public to
access works from a place and at a time individually
chosen by them, at the convenience of the person
receiving the transmission.22
Member states may comply with the obligation to
provide a making available right through a variety of
means. They may do so either by including it as part
of their communication rights, by having a separate
free standing right of making available, or, for those
countries like the United States which have applied
the distribution right to transmissions of digital
copies, through a combination of a right of public
performance and a right to digitally distribute copies.
This “umbrella solution” was adopted at the urging of
the United States during the drafting period.23
The United States took the path of implementing
the communication to the public right, including the
making available right, by using its existing public
performance and distribution rights, depending on
22 Pet. App. 7a (describing Aereo’s functions); Ricketson &
Ginsburg,
supra note 7, at 12.40 (confirming Berne 11
bis, 14 and
14
bis application to retransmissions), 12.51-12.52 and 12.56-
12.61 (confirming WCT application to on-demand digital trans-
missions of broadcasts); von Lewinski,
supra note 7, at 5.138,
17.72-17.78; Goldstein & Hugenholtz,
supra note 5, at 335-336.
23 Ricketson & Ginsburg,
supra note 7, at 12.59; Ficsor,
The
Law of Copyright and the Internet at 4.130, 4.135, 4.140;
Reinbothe & von Lewinski,
supra note 12, at 108; WIPO Guide
at 209.
77
19
the circumstances surrounding a particular commu-
nication. It thereby avoided having to amend the
Copyright Act
to establish a new right of making
available for works.24
There is compelling evidence that both Congress
and the Executive Branch were satisfied that Article
8 was fully consistent with U.S. law. While the WCT
and WPPT were ratified by the required two-thirds
majority of the Senate, the President could not de-
posit instruments of ratification with WIPO until the
U.S. enacted domestic legislation implementing the
treaties.
See S. Treaty Doc. No. 105-17, at III (1997).
Accordingly, it was necessary for both the House
and the Senate to hold extensive hearings, draft
legislation, and commission committee reports.
While the Senate Report confirmed that “[w]ith
this constant evolution in technology, the law must
adapt in order to make digital networks safe places to
disseminate and exploit copyrighted materials,” it did
not recommend any changes to exclusive rights in
24 Ginsburg,
Recent Developments, supra note 21, at 37; U.S.
Dep’t. of Commerce
, Copyright Policy, Creativity, and Innovation
in the Digital Economy 14-16 (July 2013); Ficsor,
The Law of
Copyright and the Internet at 496-504; David O. Carson
, Making
the Making Available Right Available: 22nd Annual Horace S.
Manges Lecture, February 3, 2009, 33 Colum.-VLA J.L. & Arts
135, 143-148, 150-151 (2010); Jane C. Ginsburg,
Aereo in
International Perspective: Individualized Access and U.S. Treaty
Obligations, Media Inst., Feb. 18, 2014 (“
U.S. Treaty Obliga-
tions”).
78
20
order to implement the WCT’s “broad right of com-
munication to the public that includes the Internet.”
S. Rep. No. 105-190, at 2, 10 (1998). Rather, as the
House Report confirmed, “The treaties do not require
any change in the substance of copyright rights or
exceptions in U.S. law.” H.R. Rep. No. 105-551, at 9.
Based on these conclusions, Congress enacted the
WIPO Copyright and Performances and Phonograms
Treaties Implementation Act of 1998 as part of the
Digital Millennium Copyright Act of 1998, 105 Pub.
L. 304, §§101-105, 112 Stat. 2860 (1998). President
Clinton then deposited with WIPO ratifications of the
WCT and WPPT on September 14, 1999.25
As with Berne, TRIPs, and the bilateral and
regional treaties discussed directly below, the United
States’ accession to the WCT and WPPT required a
Presidential determination, ratified by the Senate,
that United States law fulfilled all treaty obligations.
None of the domestic enactments altered the public
performance right or the distribution right – nor did
the United States add an explicit right of communica-
tion to the public or making available right – reflect-
ing the determination of Congress and the Executive
Branch that no legislative amendments were neces-
sary to implement that obligation.
See generally
25 Ratification by the United States of America, WCT
Notification No. 10, http://www.wipo.int/edocs/notdocs/en/wct/
treaty_wct_10.html
79
21
Digital Millennium Copyright Act, Pub. L. 105-304,
112 Stat. 2860 (1998); Uruguay Round Agreements
Act, Pub. L. 103-465, 108 Stat. 4809 (1994); Berne
Convention Implementation Act of 1988, Pub. L. 100-
568, 102 Stat. 2853 (1988).
Under the principle stated by this Court in
Vimar
Seguros, 515 U.S. at 539, these determinations
should be assigned great weight because they link to
binding commitments with numerous international
partners. They are not merely domestic in nature, but
also have significant international repercussions.
III. THE DECISION BELOW PLACES THE
UNITED STATES IN VIOLATION OF ITS BI-
LATERAL AND REGIONAL AGREEMENTS
The United States is also bound internationally
by a series of bilateral and regional treaty commit-
ments similar in scope to its WCT commitment.
The first of these is the North American Free
Trade Agreement
(NAFTA), concluded with Canada
and Mexico in 1992, signed into law on December
8, 1993, and effective January 1, 1994.
See 19 U.S.C.
§3311(a), approving NAFTA and the statement of
administrative action submitted to the Congress on
November 4, 1993.
NAFTA’s intellectual property chapter extends
Arts. 11, 11
bis, 11
ter, 14 and
14
bis of Berne by requiring
all parties to protect any communication of works to
the public. The NAFTA protection applies to:
80
22
any aggregation of individuals intended to be
the object of, and capable of perceiving,
communications or performances of works,
regardless of whether they can do so at the
same or different times or in the same or
different places, provided that such an ag-
gregation is larger than a family and its im-
mediate circle of acquaintances or is not a
group comprising a limited number of indi-
viduals having similarly close ties that has
not been formed for the principal purpose of
receiving such performances and communi-
cations of work.
NAFTA art. 1721(2) (defining “public”);
see also art.
1705(2)(c) (requiring that authors be provided the
right to authorize or prohibit the communication of a
work to the public).
By focusing on communication of a work to an
“aggregation of individuals
intended to be the object of *
*
* communications or performances of works”
regardless of whether those individuals are separated
in time or space, NAFTA makes it clear that what
counts is the communication to such individuals, and
not the technological methods used to do so. (Empha-
sis added.) Further, it clarified that the relevant
“public” need not be vast in size.26 It applies as an
26
See Ysolde Gendreau,
Intention and Copyright Law in
Internet and Copyright Law 1, 18 (1999) (explaining that
NAFTA looks to the communicator’s intention to reach out to
“small groups of listeners or watchers in more or less private
surroundings,” which together “form a public.”); von Lewinski,
(Continued on following page)
81
23
independent international commitment of the United
States, which should not be departed from under the
Charming Betsy canon.
After NAFTA, and following its accession to the
WCT and WPPT on September 14, 1999, the United
States engaged in a series of bilateral Free Trade
Agreements (FTAs), each requiring the parties to
provide a communication to the public right, includ-
ing a making available right. For example, the 2005
U.S.-Australia FTA requires the parties to provide an:
exclusive right to authorise or prohibit the
communication to the public of their works,
by wire or wireless means, including the
making available to the public of their works
in such a way that members of the public
may access these works from a place and at a
time individually chosen by them.27
supra note 7 at 11.11 (confirming that NAFTA was the first
multilateral treaty specifically capturing on-demand uses and
similar interactive communications within the communication
right); 5.147 (explaining why “public” should not be undermined
by a narrow interpretation).
27 Free Trade Agreement, U.S.-Austl. Art 17.5, May 18, 2004,
K.A.V. 7141. Similar FTAs requiring provision of the making
available right have also been concluded with Bahrain, Sept. 14,
2004, K.A.V. 6866; Chile, Jun. 6, 2003, K.A.V. 6375; Jordan, Oct.
24, 2000, K.A.V. 5970; Morocco, Jun. 15, 2004, K.A.V. 7206;
Oman, Jan. 19, 2006, K.A.V. 8673; Panama, Jun. 28, 2007,
K.A.V. 9546; Peru, Apr. 12, 2006, K.A.V. 8674; Singapore, May 6,
2003, K.A.V. 6376 and South Korea, Feb. 10, 2011, http://
www.ustr.gov/trade-agreements/free-trade-agreements/korus-fta/
final-text. In 2004, the U.S. also negotiated a making available
(Continued on following page)
82
24
The U.S.-Australia FTA also provided that “nei-
ther Party may permit the retransmission of televi-
sion signals (whether terrestrial, cable, or satellite)
on the Internet without the authorisation of the right
holder or right holders, if any, of the content of the
signal and of the signal.”28 There is no question that
retransmission technologies such as Aereo are en-
compassed within this treaty obligation.
Each of these FTAs required review by the Ex-
ecutive Branch and Congress of whether sections 101
and 106 of the Copyright Act provided the agreed-
upon making available right. Before FTAs enter into
force, the President must present to Congress (1) the
final legal text of the FTA, (2) a statement of any
administrative action proposed to implement the
FTA, (3) proposed implementing legislation that
conforms U.S. law to the agreement, and (4) an
explanation as to how the implementing bill and
proposed administrative action will change or affect
existing law. 19 U.S.C. §§3805(a)(1)(C), (a)(2)(A).
right in Art. 15.6 of the Dominican Republic-Central America-
U.S. Free Trade Agreement (CAFTA-DR), K.A.V. 7157, entered
into with Costa Rica, El Salvador, Guatemala, Honduras,
Nicaragua and the Dominican Republic.
28 U.S.-Australia FTA at Art. 17.4.10(b). Similar prohibi-
tions exist in the Bahrain FTA at 14.4.10(b); South Korea FTA at
18.4.10(b); Morocco FTA at 15.5.10(b); Oman FTA at 15.4.10(b);
Panama FTA at 15.5.10(b); Peru FTA at 16.7.9; Singapore FTA
at 16.4(2)(b); CAFTA-DR at 15.5.10(b).
83
25
In respect of the U.S.-Australia FTA, the Presi-
dent confirmed that “No statutory or administrative
changes will be required” to implement the Intellec-
tual Property Rights chapter dealing with
, inter alia, the making available right and the prohibition
against the unauthorized retransmission of television
signals on the Internet.29 Congress then passed, and
the President signed, the U.S.-Australia Free Trade
Agreement Implementation Act, in which Congress
approved the President’s statement of administrative
action containing the assurances with respect to
making available. Pub. L. 108-286 at §101(a)(2), 118
Stat. 919 (2004). Like approvals have been provided
in respect of the other bilateral FTAs requiring that a
making available right be embodied in domestic law.30
29
Statement of Administrative Action, U.S.-Austl. Free Trade
Agreement, http://waysandmeans.house.gov/media/pdf/australia/
hr4579saa.pdf at 25-26.
30
See §101(a)(2) of: U.S.-Bahrain Free Trade Agreement
Implementation Act, Pub. L. 109-169, 119 Stat. 3581 (2006);
U.S.-Chile Free Trade Agreement Implementation Act, Pub. L.
108-177, 117 Stat. 909 (2003); U.S.-Jordan Free Trade Area
Implementation Act, Pub. L. 107-143, 115 Stat. 243 (2001); U.S.-
Korea Free Trade Agreement Implementation Act, Pub. L. 112-
141, 125 Stat. 428 (2011); U.S.-Morocco Free Trade Agreement
Implementation Act, Pub. L. 108-302, 118 Stat. 1103 (2004);
U.S.-Oman Free Trade Agreement Implementation Act, Pub. L.
109-283, 120 Stat. 1191 (2006); U.S.-Panama Trade Promotion
Agreement Implementation Act, Pub. L. 112-143, 125 Stat. 497
(2001); U.S.-Peru Trade Promotion Agreement Implementation
Act, Pub. L. 110-138, 121 Stat. 1455 (2007); U.S.-Singapore Free
Trade Agreement Implementation Act, Pub. L. 108-178, 117
Stat. 948 (2003); Dominican Republic-Central America-U.S. Free
(Continued on following page)
84
26
Consequently, Congress has now enacted and the
President has signed numerous laws recording Presi-
dential confirmations that then-existing U.S. law
provided a required making-available right. These
confirmations should also be given deference.
IV.
THE UNITED STATES ADOPTED A TECH-
NOLOGY-NEUTRAL PATH PRIOR TO EN-
TERING INTO THE INTERNATIONAL
AGREEMENTS
Long before U.S. accession to the aforementioned
international obligations, Congress faced the problem
raised by Aereo and defined the exclusive copyright
rights in technology-neutral terms so that they would
continue to apply in the face of dramatic technological
developments. The technologically neutral norms
reflected in the agreements were adopted in United
States copyright reforms before the United States
made those commitments.31
Trade Agreement Implementation Act, Pub. L. 109-153, 119
Stat. 462 (2005).
31 This reform effort dates at least to 1965, when a Report of
the Register of Copyrights noted:
Obviously no one can foresee accurately and in detail
the evolving patterns in the ways author’s works will
reach the public 10, 20, or 50 years from now. Lacking
that kind of foresight, the bill should, we believe,
adopt a general approach aimed at providing compen-
sation to the author for future as well as present uses
of his work that materially affect the value of his
copyright. * * * A real danger to be guarded against is
(Continued on following page)
85
27
As this Court has recognized, the Copyright Act
of 1976 was “the culmination of a major legislative
reexamination of copyright doctrine.”
Harper & Row
Pubs., Inc. v. Nation Ent., 471 U.S. 539, 552 (1985).
One important trigger for this legislative re-
examination involved
Fortnightly Corp. v. United
Artists Tel., Inc., 392 U.S. 390 (1968) and
Telepromp-
ter Corp. v. Columbia Broad. Sys., Inc., 415 U.S. 394
(1974), where this Court found that cable-television
systems retransmitting distant broadcast television
programs were not engaging in performances.
See
also Twentieth Century Music Corp. v. Aiken, 422 U.S.
151 (1975). Congress viewed these decisions as a
“narrow construction of the word ‘perform’ in the 1909
statute,” which was “completely overturned by the
present bill and its broad definition of ‘perform’ in
section 101.” H.R. Rep. No. 94-1476, at 86-87.
While spurred chiefly by the
Fortnightly, Tele-
prompter and
Aiken trilogy, Congress was mindful of
earlier cases in which unanticipated technological
advances had led to gaps in protection.
that of confining the scope of an author’s rights on the
basis of the present technology so that, as the years go
by, his copyright loses much of its value because of un-
foreseen technical advances.
Staff of House Comm. on The Judiciary, 89th Cong., 1st Sess.,
Copyright Law Revision PART 6: Supplementary Report of The
Register of Copyrights on the General Revision of the U.S.
Copyright Law, 13-14 (Comm. Print 1965).
86
28
In confirming that “Copyright protection subsists
in any tangible medium of expression, now known or
later developed” under §102(a), the House Report
explained that:
This broad language is intended to avoid the
artificial and largely unjustifiable distinc-
tions, derived from cases such as
White-
Smith Publishing Co. v. Apollo Co., 209 U.S.
1 (1908), under which statutory copy-
rightability in certain cases has been made
to depend upon the form or medium in which
the work is fixed.
H.R. Rep. No. 94-1476, at 52.
The expansive §101 definition of “perform” under
the 1976 Act reflected the Berne Art. 11 provisions
protecting performances “by any means or process,”
the Berne Art. 11
bis, Art. 14 and Art. 14
bis rights
of communication to the public, and anticipated
the WCT Art. 8 commitment to give rightholders
the exclusive right of communication to the public
including making available to the public of works “in
such a way that members of the public may access
these works from a place and at a time individually
chosen by them.” It did so by confirming that per-
formances of works may be rendered “
either directly
or by means of any device or process, whether the
members of the public capable of receiving the per-
formance or display
receive it in the same place or in
separate places and at the same time or at different
times.”
(Emphasis added.) Likewise, the definition of
the verb “transmit” confirmed that a performance or
87
29
display can be communicated “
by any device or proc-
ess whereby images or sounds are received beyond the
place from which they are sent.”32 (Emphasis added.)
The legislative history further confirms that, as of
1976, technological neutrality was desired, with the
House Report confirming that the term “any device or
process” was meant to capture “any sort of transmit-
ting apparatus,” including “techniques and systems
not yet in use or even invented.”33
The Second Circuit misinterpreted the Transmit
Clause including by failing to construe it in accordance
with the United States’ treaty obligations. According
to a leading scholar:
Thus, “to transmit or otherwise communicate
a performance or display of the work . . . to
the public, by means of any device or proc-
ess” means to communicate the work in a
way that members of the public can immedi-
ately listen to or view its performance,
whether or not they are separated in space
32 This Court has previously observed that even before the
United States acceded to Berne in 1989, the 1976 Copyright Act
brought United States law into compliance with Berne stan-
dards in some respects.
See Eldred, 537 U.S. at 195 (1976 Act
aligned United States law with Berne with respect to term of
copyright protection), 206 n.13 (isolationist approach rejected);
see also H.R. Rep. No. 100-609, at 21 (1988), confirming that “It
can safely be stated that Congress drafted and passed the 1976
Act with a ‘weather eye’ on Berne. * * * [M]any obstacles to
adherence were removed by the 1976 revision and a willingness
to modify further our laws in order to join the Union.”
33 H.R. Rep. No. 94-1476, at 63-64.
88
30
or time. The Second Circuit deviated from
the international norm by incorrectly read-
ing “whether the members of the public ca-
pable 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” as a limitation on the scope of the
communication, rather than as confirmation
of the coverage of individualized transmis-
sions. The court compounded the error by
rewriting “it” to mean a particular transmis-
sion from a particular copy of a performance,
rather than adhering to the grammatical ref-
erent, the statutory phrase performance of
the work – that is, a communication that
permits the members of the public to view or
listen to the work as it is being communi-
cated to them. Only the latter reading of “it”
corresponds to the scope of the right in both
the U.S. statute and the WCT.34
In reviewing this case, this Court should thus
appreciate that the concept of technological neutrality
is a principle that was not only embraced by the
United States through treaties, but was also long ago
embedded within U.S. law as the result of a deliber-
ate Congressional determination.
34 Ginsburg,
U.S. Treaty Obligations;
see also Mihály Ficsor,
The WIPO ‘Internet Treaties’ and Copyright in the “Cloud” 17-18
ALAI Congress, Kyoto (Oct. 16-18, 2012), http://bit.ly/1fnP0WX
89
31
V.
INTERNATIONAL CASE LAW CONFIRMS
THE BREADTH OF THE TRANSMIT
CLAUSE
In interpreting treaty text or to support its
reading, the Court may also turn to authorities from
foreign jurisdictions that have confronted the ques-
tion before the Court.
Abbott v. Abbott, 560 U.S. ___,
130 S. Ct. 1983, 1993-1994, 2007 (2010). Such deci-
sions have been rendered in the European Union and
Canada, each with direct reference to the multilateral
treaties that also bind the United States.
In
the
TVCatchup case, the Court of Justice of
the European Union (CJEU) considered a service that
permitted its users to receive, via the Internet, ‘live’
streams of free-to-air television broadcasts. As in this
case, viewers could obtain access only to content
which they were already legally entitled to watch. As
well, the defendant’s server allowed only a “one-to-
one” connection for each subscriber whereby each
individual subscriber established his or her own
internet connection to the server and every data
packet sent by the server onto the internet was
addressed to only one individual subscriber.
Case
C-607-11,
ITV Broadcasting Ltd. v. TVCatchup Ltd.,
2013 ECR I-___, [2013] 3 C.M.L.R. 1 (CJEU),
¶9-10,
18(2)(a).
90
32
The CJEU was called upon to interpret Art. 3(1)
of the InfoSoc Directive,35 which incorporates Art. 8 of
the WCT by requiring that:
Member States shall provide authors with
the exclusive right to authorize or prohibit
any communication to the public of their
works, by wire or wireless means, including
the making available to the public of their
works in such a way that members of the
public may access them from a place and at a
time individually chosen by them.
It also considered Recital 23 to the Directive,
which explains that the right of communication to the
public:
should be understood in a broad sense cover-
ing all communication to the public not pre-
sent at the place where the communication
originates. This right should cover
any such
transmission or retransmission of a work to
the public by wire or wireless means, includ-
ing broadcasting.
(Emphasis added.)
The CJEU noted that a terrestrial broadcast was
being converted into technical means different from
that of the original communication, an act that would
35 Directive 2001/29/EC of the European Parliament and of
the Council of 22 May 2001 on the harmonisation of certain
aspects of copyright and related rights in the information
society, 2001 O.J. (L.167) 10.
91
33
require permission if to a “public.”
Id. at
¶26, 39.36 It
rejected the view that the “one-to-one” nature of the
transmissions could convert a “public” activity into a
plurality of individual and private communications.
In construing the term “public,” it held that
regard must be paid to “the cumulative effect of mak-
ing the works available to potential recipients * * * it
is in particular relevant to ascertain the number of
persons who have access to the same work at the
same time and successively.”
id at
¶33. Accordingly:
it is irrelevant whether the potential recipi-
ents access the communicated works through
a one-to-one connection. That technique does
not prevent a large number of persons having
access to the same work at the same time.
Id. at
¶34.
In so concluding, the CJEU relied on its earlier
Rafael Hoteles decision. This decision is notable
because it concludes, in harmony with
Charming
36 At ¶39, the CJEU found that when a broadcast is re-
transmitted using a “different technical means” – that is,
different than the means originally used to transmit it, such as
from terrestrial to Internet – it is not necessary to consider
whether the retransmission reaches a “new public.” This
distinguishes
TVCatchup from the recent CJEU decision in Case
C-466/12,
Svensson v. Retriever Sverige AB, 2014 ECR I- ___
(February 13, 2014), a linking case involving the “same technical
means,” where the CJEU found at ¶24 that providing an
ordinary hyperlink to a file posted at a website by the copyright
holder made the file available to the public, but not a “new
public.”
92
34
Betsy,
that “Community legislation must, so far as
possible, be interpreted in a manner that is consistent
with international law, in particular where its provi-
sions are intended specifically to give effect to an
international agreement.” Case 306/05,
Sociedad
General de Autores y Editores de Espana (SGAE) v.
Rafael Hoteles SA, [2006] ECR I-11519, [2006] All ER
(D) 103 (CJEU),
¶35. With that principle in mind, the
CJEU held that the communication to the public
right “must be interpreted broadly” in order to protect
authors and allow them to obtain “an appropriate
reward for the use of their works.”
Id. at ¶36. It
considered the cumulative economic effects of making
the works available to potential television viewers,
and refused to interpret Article 8 of the WCT in a way
that would render it “meaningless.”
Id. at ¶39, 43, 50-
51.
In February, the CJEU again affirmed a broad
and technologically neutral interpretation of the
communication to the public right, confirming that
“the concept of ‘communication’ must be construed as
referring to any transmission of the protected works,
irrespective of the technical means or process used.”
Case C 351/12,
OSA –
Ochranný svaz autorský pro
práva k dílům hudebním o.s. v. Léčebné lázně
Mariánské Lázně a.s., [2014] ECR 1-___ (February 27,
2014).
Similarly, the Supreme Court of Canada recently
construed Article 8 of the WCT in the broadest possible
terms. In
Rogers Communications Inc. v. Society of
Composers, Authors and Music Publishers of Canada,
93
35
2012 SCC 35, the Supreme Court of Canada was
called upon to decide whether music streamed on
demand by separate transmissions to individual
subscribers over the Internet was a communication to
the public.37
The appellants in
Rogers adopted the
Cablevision/
Aereo position of contending that “each transmission
must be analyzed on its own, as a separate transac-
tion, regardless of whether another communication of
the same work to a different customer may occur at a
later point in time.”
Id. at ¶27.
The Supreme Court of Canada unanimously
rejected this stance. It concluded that viewing the
question from the perspective of the recipient of each
transmission would “produce arbitrary results,” and
thus create an incentive to avoid copyright simply by
executing a task serially rather than through a mass
transmission. In its view, “If the nature of the activ-
ity in both cases is the same, albeit accomplished
through different technical means, there is no justi-
fication for distinguishing between the two for
copyright purposes.”
Id. at ¶29;
see also ¶40. “Focus-
ing on each individual transmission loses sight of the
true character of the communication activity in
question and makes copyright protection dependent
37 A stream is a transmission of data that allows the user to
listen to or view the content transmitted at the time of the
transmission, resulting only in a temporary copy of the file on
the user’s hard drive.
Id. at ¶1.
94
36
on technicalities of the alleged infringer’s chosen
method of operation.”
Id. at ¶30.38
38 Although the Supreme Court of Canada declined to follow
Cablevision, partly on the basis of differences between the
Canadian communication right and the U.S. Transmit clause,
id. at
¶50-51, the Court clearly rejected the arguments based on
Cablevision that would prevent individual transmissions of the
work from being communications that are to “the public.” The
Rogers decision focuses on “the true character of the communica-
tion activity in question,” and rejected an approach that did not
provide “principled” copyright protection.
Id. at ¶30, 40. It is also
noteworthy that the Japanese Supreme Court also rejected the
“one to one” argument in the “Maneki TV” case,
NHK (Japan
Broadcasting Corporation), et al. v. Nagano Shōten Co. Ltd. (65-
1 Minshū 121, Case No. 653 (ju) of 2009, January 18, 2011). It
found that one-to-one transmissions of television programming
over the Internet to individual customer’s personal viewing
devices were to the “public” under Article 23 of the Japanese
Copyright Act which grants the author “the exclusive right to
effect a public transmission of his work (including, in the case of
automatic public transmission, making his work transmitta-
ble).”
In Australia, the Full Court of the Federal Court adopted a
similar position in
National Rugby League Investments Pty. Ltd.
v. Singtel Optus Pty. Ltd. [2012] FCAFC 59, although its ruling
was based on the reproduction right. It ruled that a communica-
tions provider was jointly and severally liable with its subscrib-
ers for infringement of the reproduction right by recording free
to air television programs which were then used to transmit the
programming for viewing at the time and place of the subscrib-
er’s choosing on a mobile device or personal computer.
See
Telstra Corporation Limited v. Australasian Performing Right
Association (1997), 146 ALR 649, 656-659, 686-695 (High Court
of Australia found music on hold was “to the public” even though
it was transmitted to each caller individually by means of his or
her mobile telephone and could be received in private or domes-
tic circumstances.).
95
37
In so concluding, the Court considered the obliga-
tions flowing between the United States and Canada
via the Canada-U.S. Free Trade Agreement, which
required both parties to implement a technologically
neutral communication to the public right to deal
with evolutions in cable technologies.
Id. at ¶37. In
remarkably similar language to the House and Sen-
ate reports in the 1976 U.S. reform, the Court af-
firmed that “the
Copyright Act should continue to
apply in different media, including more technologi-
cally advanced ones. . . . [I]t exists to protect the
rights of authors and others as technology evolves.”
Id. at ¶39, citing
Robertson v. Thomson Corp., 2006
SCC 43 at ¶49.
Although Canada was not a WCT member at the
time of the
Rogers decision, the Court also assessed
whether its approach was consistent with its norms.
It concluded that the WCT “resolves an ambiguity as
to whether the old communication to the public rights
[under the Berne Convention] accommodated or
excluded ‘pull technologies’ ” and made it clear that it
“targets on-demand transmissions” regardless of
whether members of the public are “separated both in
space and in time.”
Id. at ¶46, 48.39 Accordingly, the
39 In so concluding, the Supreme Court of Canada cited
Ricketson & Ginsburg,
supra note 7 at 12.57, and Jane C.
Ginsburg,
The (New?) Right of Making Available to the Public, in
Intellectual Property in the New Millennium: Essays in Honour
of William R. Cornish, 234, 246 (David Vaver and Lionel Bently,
eds. 2004).
96
38
Supreme Court was satisfied that its interpretation
was consistent with an agreement which Canada had
signed but not yet ratified.
The import of the
Rogers decision is twofold. The
first crucial point is that it locates technological
neutrality in treaty commitments with the United
States that tracked the 1976 reforms that reversed
Fortnightly,
Teleprompter and
Aiken. This is another
instance in which the doctrine of technological neu-
trality was an innovation
exported by the United
States to its trading partners, and not vice-versa. The
second crucial point is the clear unwillingness of the
Canadian Supreme Court to accept a situation “where
the existence of copyright protection depends merely
on the business model that the alleged infringer
chooses to adopt rather than the underlying commu-
nication activity.”
Id. at ¶40. Faced with the same
problem, and with international comity in mind, this
Court should adopt the same solution.
----------------- -----------------
CONCLUSION
Aereo’s use of thousands of antennas to make
over-the-air broadcasts available to members of the
public does not transform them into private perform-
ances merely because they are accessed by members
of the public at a time or place of their choosing.
When all is said and done, Aereo’s audience is the
general public, notionally anyone able to pay to have
broadcasts streamed over the Internet
.
97
39
The statutory language in the Copyright Act, its
legislative history, and treaty history make clear that
Congress intended to enact a broad technologically
neutral public performance right that would not leave
open the loophole argued for by Aereo. It did so by
clarifying that a public performance may be made by
transmitting or otherwise communicating a perform-
ance of a work “by means of any device or process”
regardless of whether the members of the public
“receive it in the same place or in separate places and
at the same time or at different times.” That is the
only conclusion that is consistent with the United
States’ international obligations. Viewed against this
entire backdrop, the Second Circuit’s decision in
Aereo cannot stand.
Respectfully submitted,
DAVID O. CARSON
STEVEN MASON*
IFPI
MCCARTHY TÉTRAULT LLP
10 Piccadilly
TD Bank Tower, Ste. 5300
London W1J0DD
Toronto, ON
United Kingdom
Canada M5K 1E6
(+44) (020) 7878 7900
(416) 601-7703
xxxxx.xxxxxx@xxxx.xxx
xxxxxx@xxxxxxxx.xx
*
Counsel of Record
Counsel for Amici Curiae
98
App. 1
------------------------------------
APPENDIX
------------------------------------
LIST OF AMICI CURIAE
This
amicus brief is joined by the following interna-
tional copyright scholars and associations:
International Copyright Scholars*
Amicus Professor F. Jay Dougherty is a tenured
professor at Loyola Law School Los Angeles, and
Director of its Entertainment & Media Law Institute.
He teaches Copyright Law and is the author of pub-
lished articles on the subject in the U.S., Europe and
China, as well as an article about comparative right
of publicity laws, among others. He teaches Interna-
tional Copyright & Neighboring Rights at the Loyola
International IP Institute in London, and interna-
tional and comparative Entertainment Law at the
Munich Intellectual Property Law Center, and in
Paris and London. He is the Co-Editor in Chief of the
Journal of the Copyright Society of the USA, and co-
author of an Entertainment Law casebook. A former
President of the Los Angeles Copyright Society, he
has also been a Trustee of the Copyright Society of
the USA.
* Affiliations are listed for identification purposes only.
99
App. 2
Amicus
Dr. Mihály Ficsor was Assistant Director
General of the World Intellectual Property Organiza-
tion (WIPO) during the preparation and adoption of
the WIPO Copyright Treaty and WIPO Performances
and Phonograms Treaty and played a decisive role in
the working out and adoption of the provisions on a
technology-neutral general right of communication to
the public. Since then he has published a number of
books and articles on this topic. Dr. Ficsor is cur-
rently the Chairman of the Central and Eastern
European Copyright Alliance (CEECA), a professional
organization with permanent observer status at
WIPO. The Alliance’s objective is to promote well-
balanced but effective copyright protection in that
part of Europe where the creators and small- and
medium-size producers are particularly vulnerable to
online infringements.
Amica Professor Ysolde Gendreau has been a
professor at the Faculty of Law of the Université de
Montréal since 1991, where she teaches intellectual
property law and competition law. Her main field of
expertise is copyright law, especially comparative and
international issues. She is a member of the Bar of
Quebec. She has also taught at McGill University,
Université de Paris II, Université de Paris XII, Uni-
versité de Nantes, Université de Strasbourg III,
Université de Lyon 2, University of Victoria (summer
programme in Victoria and Oxford), University of San
Diego (summer programme in Florence), and Monash
University (Australia). She has published extensively,
both in Canada and abroad. Among her more recent
100
App. 3
publications are contributions to two books she has
edited:
A Shifting Empire: 100 Years of the Copyright
Act 1911 (2013) (edited with U. Suthersanen) and
Langues et droit d’auteur/
Language and Copyright
(2009) (edited with A. Drassinower). She has been the
President of ATRIP (Association for the Advancement
of Teaching and Research in Intellectual Property)
(2003-2005) and of ALAI Canada (2006-2011). She is
a member of the Executive Committee of ALAI and
an associate member of the International Academy of
Comparative Law.
Amicus Justin Hughes is the William H. Hannon
Professor of Law at Loyola Law School in Los Ange-
les, where he teaches intellectual property and inter-
national trade courses. From 2002 until 2013, he
taught at Cardozo Law School in New York, where he
remains a Senior Lecturer and Co-Director of the
SIPO-Cardozo Program. From 2009 until 2013,
Professor Hughes also served as Senior Advisor to the
Undersecretary of Commerce for Intellectual Prop-
erty. In that capacity, he was chief negotiator for the
U.S. at the Diplomatic Conferences that completed
the Beijing Treaty on Audiovisual Performances
(2012) and the Marrakesh Treaty to Facilitate Access
to Printed Works for the Blind (2013).
Amicus Professor Marshall Leaffer is Distin-
guished Scholar in Intellectual Property Law and
University Fellow at Indiana University School of
Law. He received his J.D. at the University of Texas
and his LLM in Trade Regulation at New York Uni-
versity Law School. In addition to his law review
101
App. 4
articles, he is the author of
Copyright Law: Cases and
Materials (2013),
Understanding Copyright (2010),
and
International Treaties on Intellectual Property (1997). Before becoming a full time teacher, Professor
Leaffer practiced trademark law in New York City
with American Home Products Corporation, and the
firm of Haseltine, Lake and Waters. He also served in
the United States government as Attorney-Advisor in
the United States Patent and Trademark Office, and
as staff member with the General Counsel of the
United States Copyright Office. He represents the
United States on the International Executive Board
of the Association Littéraire Artistique Internationale
(ALAI), a non-governmental organization that de-
fends authors’ rights worldwide.
Amica Professor Silke von Lewinski is tenured at
the Max Planck Institute for Innovation and Compe-
tition, Department of Intellectual Property and
Competition Law, Munich and specializes in interna-
tional and European copyright law. She is also Ad-
junct Professor at Franklin Pierce Center for
Intellectual Property at the University of New Hamp-
shire Law School, Concord, New Hampshire. Her
book publications include
The WIPO Treaties 1996
(2002) (with J. Reinbothe); the treatise
International
Copyright Law and Policy (2008);
European Copy-
right Law (2010) (with M. M. Walter et al.); and, as
editor,
Copyright throughout the World (2008, with
annual updates). Dr. von Lewinski is also an Adjunct
Professor at the Munich Intellectual Property Law
Center, Munich. She has been a visiting professor at
102
App. 5
many universities worldwide, including Paris XI,
Toulouse 1; Université Laval, Québec, and University
of Melbourne. She was the first Walter Minton Visit-
ing Scholar at Columbia University School of Law,
New York; the First Distinguished Visitor to the
Intellectual Property Research Institute of Australia
(IPRIA); and The Hosier Distinguished Visiting IP
Scholar, DePaul University, Chicago, July 2005.
Professor von Lewinski frequently has been an expert
consultant for the European Commission, in particu-
lar regarding the WIPO Diplomatic Conference 1996
(preparation, and member of the EC delegation).
Amicus Professor Victor Nabhan has taught at
Laval University (Canada) as a full-time professor
since 1999. His areas of expertise are intellectual
property, contract law and consumer protection. He
has advised the Canadian Government with respect
to the drafting of four revisions of the Copyright Act,
as well as the Quebec Ministry of Culture on copy-
right matters. From 1999-2005, he served as a WIPO
consultant, assisting a number of developing coun-
tries in drafting their copyright laws in compliance
with TRIPS and/or WCT and WPPT. Since 2005, he
has been a guest professor at the University of Otta-
wa (Canada), Osgoode Hall Law School (Toronto),
Institut des Études Politiques (Paris) and Notting-
ham University (UK). He also acts as a consultant
with different organizations and developing coun-
tries. He is Counsel with the law firm of Kimbrough
and Associés (Paris) and Chairman of ALAI (Associa-
tion Littéraire et Artistique Internationale). He has
103
App. 6
authored a number of articles and publications and
has exhibited as an occasional artist.
Amicus Professor Barry Sookman is the author of
the leading six-volume treatise,
Sookman: Computer,
Internet and E-Commerce Law (1999-2013);
Copy-
right: Cases and Commentary on the Canadian and
International Law, co-authored with Steven Mason
(2013);
Intellectual Property Law in Canada: Cases
and Commentary, co-authored with Steven Mason
and Daniel Glover (2012);
Computer, Internet and
E-Commerce Terms: Judicial, Legislative and Techni-
cal Definitions (2001-2013); and
Sookman: Computer
Law: Acquiring and Protecting Information Technol-
ogy (1989-1999). He is a contributing author to other
books including Gordon Henderson
Copyright Law in
Canada (1994). He is a senior partner with McCarthy
Tétrault LLP and is the former head of its Intellec-
tual Property Group. He is also an adjunct Professor
of intellectual property law at Osgoode Hall Law
School in Toronto, Canada.
International Associations
Amicus International Federation of the Phono-
graphic Industry (IFPI) represents the recording
industry worldwide, with a membership comprising
some 1300 record companies in 66 countries and
affiliated industry associations in 55 countries. IFPI’s
mission is to promote the value of recorded music,
campaign for the rights of record producers and
expand the commercial uses of recorded music
104
App. 7
worldwide. IFPI also represents the recording indus-
try before courts, national legislatures, executive
authorities and international organizations.
Amicus
Alliance of Canadian Cinema, Television
and Radio Artists (ACTRA) is the national organiza-
tion of professional performers working in the Eng-
lish-language recorded media in Canada. ACTRA
represents the interests of 22,000 members across
Canada – the foundation of Canada’s highly ac-
claimed professional performing community.
Amicus Asociación Mexicana de Productores de
Fonogramas y Videogramas (Amprofon) represents,
coordinates and defends the rights and common
interests of producers of phonograms and videograms
in Mexico; it is an IFPI member. Amprofon conducts
the necessary negotiations and arrangements with
national and foreign authorities, as well as with
international organizations for the benefit of its
members, regarding any matter of general or particu-
lar nature involving the interests of all or some of its
members. The association studies and addresses
issues related to promoting the development of the
recording industry and fostering the development of
music culture. It cooperates with the Government of
Mexico in the regulatory process to protect the intel-
lectual property rights of phonogram producers. Its
members comprise 13 major and independent re-
cording companies, having over 70% of the Mexican
market.
105
App. 8
Amicus Association Littéraire et Artistique
Internationale du Canada (ALAI Canada) is the
Canadian branch of ALAI, an international organiza-
tion founded in Paris in 1878 by La Société des Gens
de Lettres de France under the sponsorship of Victor
Hugo. ALAI’s efforts gave rise to the Berne Conven-
tion signed on September 9, 1886, established in view
of protecting literary and artistic works. The Cana-
dian branch was founded in 1978. ALAI’s purpose is
to promote and protect copyright as well as to study
questions regarding the protection and applicability
of copyright. ALAI Canada holds conferences and
seminars. As well, it publishes and distributes docu-
ments dealing with copyright. These activities com-
bine a strict scientific analysis with a practical
approach to the various topics considered. They are
available to specialists as well as to the public at
large.
Amicus Australian Copyright Council (ACC) is an
independent, non-profit organization. Founded in
1968, it has 24 members consisting of associations
representing professional artists and content creators
working in Australia’s creative industries and Austra-
lia’s major copyright collecting societies. In addition
to providing advice and information on copyright, the
ACC is an advocate for Australian copyright owners.
Amicus British Copyright Council (BCC) is a not-
for-profit organization that provides a forum for
discussion of copyright law and related issues at UK,
European and International levels. The BCC is
independent, receives no government funding and is
106
App. 9
the only organization of its kind in the UK. The BCC
aims to provide an effective, authoritative and repre-
sentative voice for the copyright community. It repre-
sents those who create, hold interests in or manage
rights in literary, dramatic, musical and artistic
works, films, sound recordings, broadcasts and other
material in which there are rights of copyright or
related rights; and those who perform such works.
In the UK the BCC is consulted by government
departments, agencies and regulators. It follows
copyright developments in the European Union and is
an NGO Observer Member of the World Intellectual
Property Organization. It maintains links with simi-
lar bodies in other countries.
Amicus Canadian Media Production Association
(CMPA) represents the interests of Canadian screen-
based media companies engaged in the production
and distribution of Canadian English-language
television programs, feature films, and new media
content in all regions of Canada. The CMPA is also a
founding member of the Canadian Retransmission
Collective (CRC), which collects and distributes
copyright royalties pursuant to a Canadian Copyright
Board-approved tariff when Canadian independently-
produced programs in over-the-air broadcast signals
are retransmitted into distant Canadian markets by
Canadian cable, satellite and telecommunications
companies.
Amicus International Confederation of Societies
of Authors and Composers (CISAC) is the umbrella
organization representing collective management
107
App. 10
organizations for authors worldwide. Founded in
1926, CISAC is a non-governmental, not-for-profit
organization based in Paris, France, with regional
offices in Hungary, Chile, Burkina Faso and China.
CISAC counts 227 authors’ societies as its members.
These societies are based in 120 countries, including
the US. Together, CISAC societies around the world
represent over 3 million creators from all artistic
disciplines including music, film, literature, drama
and visual arts. The majority of royalties collected by
CISAC societies on behalf of creators come from
public performance and communication rights (75% of
all royalties collected, for all categories of repertoire,
around the world), hence CISAC’s and its members’
interests in these proceedings.
Amicus International Confederation of Music
Publishers (ICMP) is the world trade association
representing the interests of the music publishing
community internationally. Constituent members of
ICMP are music publishers’ associations from Europe,
Middle East, North and South America, Africa and
Asia-Pacific. Included are the leading independent,
multinational, and international companies and
regional and national music publishers, mainly small
and medium enterprises, throughout the world. As
the voice and point of reference of music publishers,
and the community of composers and songwriters,
ICMP’s mission is to increase copyright protection
internationally, encourage a better environment for
the music business, and act as an industry forum for
consolidating global positions.
108
App. 11
Amicus International Federation of Actors (FIA)
represents some 80 trade unions, guilds and associa-
tions in more than 70 countries around the world
voicing the interests of professional performers in the
audiovisual sector. FIA serves as a membership forum
to promote good practices and as an advocate of
performers’ social and economic rights internation-
ally. FIA campaigns vigorously for the intellectual
property rights of performers as they serve to en-
hance their livelihood and protect their reputation.
Amicus
International Federation of Film Produc-
ers Associations (FIAPF) is a trade organization
dedicated to the defense and promotion of the legal,
economic and creative interests of film producers
throughout the world. FIAPF’s members are 33
national producers’ organizations from 28 countries
from Africa, Asia-Pacific, Europe, North and Latin
America.
Amicus International Federation of Musicians
(FIM), founded in 1948, is the international organiza-
tion for musicians’ unions, guilds and professional
associations, with about 70 members in 60 countries
throughout the world. FIM’s main objective is to
protect and further the economic, social and artistic
interests of musicians represented by its member
unions. To achieve that objective, FIM engages in a
number of activities, including the promotion of
national and protective legislation and other initia-
tives in the interests of musicians, working with
collecting societies administering performers’ rights,
working with other international organizations in the
109
App. 12
interests of member unions and of the profession, and
close collaboration with the World Intellectual Prop-
erty Organization (WIPO), which administers the
Berne Convention for the Protection of Literary and
Artistic Works, the WIPO Copyright Treaty and the
WIPO Performances and Phonograms Treaty, as well
as with the International Labour Office (ILO) and
UNESCO.
Amicus International Video Federation (IVF)
unites associations representing companies active in
all segments of the film and audiovisual sector in
Europe. Their activities include the development,
production, and distribution of films and audiovisual
content as well as the publication of film and audio-
visual content on digital media and in online chan-
nels.
Amicus Music Canada is a non-profit trade
association that represents major music companies
in Canada and a number of the leading Canadian
independent recording and music distribution com-
panies. Music Canada’s members are engaged in all
aspects of the recording industry, including the manu-
facture, production, promotion and distribution of
music. Music Canada member companies actively
develop and nurture Canadian talent throughout the
world. Music Canada also works with some of the
leading recording studios, live music venues, concert
promoters, managers and artists in the promotion
and development of its members’ music.
110
App. 13
Amicus Societies’ Council for the Collective
Management of Performers’ Rights (SCAPR) is an
international organization focused on the develop-
ment of the practical cooperation between sound
recording and audiovisual performers’ collective
management organizations. Founded in 1986 and
with 50 collective management organization members
from 40 countries, SCAPR’s primary aim is to develop
strategies, formats, and administrative systems to
improve the exchange of data and performers’ rights
payments across borders.
Amicus Society of Composers, Authors and Music
Publishers of Canada (SOCAN) is a not-for-profit
organization that represents the Canadian perform-
ing rights of millions of Canadian and international
music creators and publishers. SOCAN is proud to
play a leading role in supporting the long-term suc-
cess of its more than 100,000 Canadian members, as
well as the Canadian music industry. SOCAN licenses
more than 125,000 businesses in Canada and distrib-
utes royalties to its members and peer organizations
around the world. SOCAN also distributes royalties
to its members for the use of Canadian music around
the world in collaboration with its peer societies.
111
Doc.5
(CNECT)
From:
<
@ifpi.org>
Sent:
05 August 2016 17:49
To:
(CNECT);
(CNECT);
(CNECT)
Cc:
Olivia Regnier; Frances Moore;
Subject:
of Copyright Directive
Attachments:
ifpi advice 5.8.16 final.pdf; Note
s.docx; Annex - National cases citing
Recital 27 Copyright Directive.docx; 0609_001.pdf
Art.4(2)(2)
Dear ladies,
I attach several papers
:
•
Updated opinion
•
IFPI note
and an annex to the note with examples of national case – law citing
Recital 27
•
Extract from the “Commentary of the WIPO treaties” by Reinbothe and Lewinski where they
explain the notion of mere physical facilities in the WCT
FYI, we will share these materials with
from the cabinet on a confidential basis.
Do not hesitate to let us know if you wish to discuss this.
Kind regards,
IFPI – representing the recording industry worldwide
European Regional Office |
Square de Meeûs 40
| 1000 Brussels
| Belgium
| T: +32 (0)2 511 9208
|
@ifpi.org
www.ifpi.org
www.pro-music.org
@IFPI_org
1
112
2
113
Art.4.(2)(2)
___________________
OPINION
___________________
1.
2.
3.
114
4.
115
4.6.1.
5.
1
116
7.
117
118
119
8.11.
5 August 2016
120
Art.4(2)(2)
Note
05 August 2016
1
121
o
2
122
3
123
ANNEX – National cases citing Recital 27 of the Copyright Directive 2001/29/EC
Court
Parties
Reference to Recital 27
ES
Madrid Civil Court of Appeal, 14
Telecinco v YouTube
No specific reference to Recital 27 but Youtube submitted that it was only
January 2014, No. 11/2014
operating a technical infrastructure but court seemed to implicitly reject this
argument. It held that even if YouTube’s claim that it only provided a technical
infrastructure was correct, this would not automatically result in YouTube’s liability
being limited by to the E-Commerce safe harbours. Ultimately, Youtube’s liability
was rejected because it was entitled to safe harbour protection.
BE
Brussels First Instance Court, 13
SABAM v Belgacom
Only reference to physical facilities in Para 44 – no further assessment.
March 2015 No. 13/12839/A
UK
High Court, 20 February 2012,
Dramatico
Reference to physical facilities but no detailed consideration.
[2012] EWHC 268 (Ch)
Entertainment Ltd v
British Sky
Finding of infringement by The Pirate Bay and its users.
Broadcasting Ltd
UK
High Court, 18 July 2011, [2011]
ITV Broadcasting Ltd “43 Given the broad meaning which the Directive requires to be given to
EWHC 1874 (Pat)
v TV Catchup Ltd
“communication to the public”, it seems that any limitations on the natural
meaning of the expression need to be kept within tight bounds.”
“49 Thirdly, TVC do not in the Court’s judgment merely provide technical means to
ensure or improve reception in the catchment area of the broadcast. The service
which TVC provide is an alternative service to that of the original broadcaster,
including its own advertising content, and which is in competition with the service
provided by the original broadcaster. It is operated for profit. It is intended to
attract its own public audience. Its activities are therefore, in this Court’s view an
independent exploitation, of the works and other subject matter. They are not
merely supportive of the original exploitation of the work.”
NL
Court of Appeal of Amsterdam,
Stichting
“4.7 Techno Design cannot be deemed to be a kind of ISP (an internet service
Fifth Division for Civil Matters,
Bescherming
provider), as its actions go considerably further than those of an ISP. That means
Case No.1157/04, 15 June 2006
Rechten
that it does not qualify for the same protection as an ISP, in view of its significance
124
Entertainment
in society. In the words of the “Agreed Statement” to Art.8 of the WIPO Copyright
Industrie Nederland
Treaty:
(BREIN) v Techno
Design “Internet
“It is understood that the mere provision of physical facilities for enabling or
Programming” B.V.
making a communication does not in itself amount to communication within the
meaning of this Treaty or the Berne Convention. It is further understood that
nothing in Article 8 precludes a Contracting Party from applying Article 11 bis (2)”.
Techno Design's actions were most certainly not restricted to the passive role
reflected in Art.8. After all, Techno Design not only made it possible for its music-
loving visitors to communicate with other music-lovers, but it also manipulated the
data it had compiled in such a way that it greatly simplified its visitors' search for
mp3 music files. It furthermore gave its visitors the necessary information on those
files.”
UK
High Court, 13 November 2013,
Paramount Home
Site-blocking action against two sites enabling access to content on third party, and
[2013] EWHC 3479 (Ch)
Entertainment
providing search facilities in respect of the content. Links to content are supplied
International Ltd,
by registered users of the websites or by the operators of the websites. Users who
Sony Pictures Home
wish to access content via one of the websites are provided with a number of these
Entertainment Ltd,
links in response to searches or when browsing. Clicking on a link enables the user
Twentieth Century
to view a stream of the chosen content on an embedded player.
Fox Film Company
Ltd, Universal
Summarising CJEU case law:
Pictures (UK) Ltd,
“(9) Mere provision of physical facilities does not as such amount to
Warner Bros.
“communication”: SGAE at [46].
Entertainment UK
Ltd, Disney
(10) Nevertheless, the installation of physical facilities which distribute a signal and
Enterprises, Inc v
thus make public access to works technically possible constitutes
British Sky
“communication”: SGAE at [46]–[47], Organismos (C-136/09) at [39]–[41].”
Broadcasting Ltd,
British
Held: The host sites communicate the claimants’ works to the public and that the
Telecommunications operators of the websites in the case are jointly liable.
Plc, Everything
125
Everywhere Ltd,
Talktalk Telecom
Ltd, Telefónica UK
Ltd, Virgin Media Ltd
NO
Supreme Court of Norway, 10
Nowaco v Get AS
The case concerned the liability of a Norwegian cable operator (GET AS) for the
Mary 2016
transmission of TV broadcasts that it received via encrypted secure fibre
Case no. 2015/1101
connection from the broadcaster SBS. GET AS argued that it was not retransmitting
any content to the public and that the entire copyright clearance was in the
responsibility of the broadcaster. The Supreme Court held that GET’s involvement
is not limited to providing the broadcaster SBS with mere technical broadcasting
assistant, i.e. GET was not just providing technical means for SBS to communicate
content. In addition, the Supreme Court held that GET’s cable network were
“primary broadcasting” activities, i.e. it was not a retransmission of SBS broadcasts.
Lastly and importantly, the Court held that both SBS and GET were jointly liable for
the rights clearance by the broadcaster SBS.
126
127
Document Outline