Aereo, and the Scope of the “Public Performance” Right
Aereo, and the Scope of the “Public Performance” Right
Aereo, and the Scope of the “Public Performance” Right

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    Copyright law doesn’t give rightsholders control of the “use” of their works. If it did, trying to use a copyrighted work would be like being trapped in the world of Philip K. Dick’s Ubik, where everything, including the door to your apartment, is coin operated. You’d need a license to read a book, a license to listen to music in your car, a license to watch a movie, or a license to receive broadcast signals. We don’t live in that phildickian world and you don’t need licenses for any of those things because copyright law doesn’t confer such broad rights. It allows copyright holders to control just certain uses of their works, as spelled out in 17 U.S.C. § 106:

    Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

    (1) to reproduce the copyrighted work in copies or phonorecords;

    (2) to prepare derivative works based upon the copyrighted work;

    (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

    (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

    (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

    (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

    The question in the Aereo case is whether Aereo is “publicly performing” copyrighted works when it rents individual antennas to customers to allow them to view over-the-air programming over the Internet. I say it isn’t, and so far the courts agree with me, but many people don’t, and it might be helpful to dig down on this controversy. This requires a closer look at the statute, which provides some definitions that spell out what the various exclusive rights granted by Section 106 actually mean.

    Of course, there are many interesting questions about the role of broadcasting and whether Aereo is consistent with the public policy that requires cable and satellite systems to pay to retransmit programming (it is), but the basic copyright question that the courts have been grappling with is distinct from those concerns. In this post all I’m addressing is whether an antenna rental service constitutes a public performance, not the broader policy questions that Aereo might raise.

    To help answer these sorts of technical copyright questions, in 17 U.S.C. § 101, the statute provides a definition of what it means to perform a work:

    To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

    This seems pretty straightforward. But remember, copyright holders don’t have the right to control “performances”–just “public” ones. This is the point of controversy in Aereo. Helpfully, statute also sets out what that means:

    To perform or display a work “publicly” means—

    (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

    (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

    Finally, the statute also specifies what a “transmission” is for copyright purposes:

    To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.

    Thus, the statute has laid out a number of activities that constitute a public performance:

    • To perform it in a public place
    • To transmit it to a public place
    • To transmit it to the public

    Many lawyers have stumbled on this last part of the of the definition of “publicly,” positing that a something like Aereo is “public” because various people use it (even though they are in “separate places” and might be use it at “different times”). And under the definition of “transmission,” they see “any device or process” and imagine this must include Aereo.

    But while some of the controlling definitions are broad, they are not broad enough to make the word “public” meaningless. Aereo does not publicly perform any copyrighted works because each of its transmissions has an audience of one–the individual subscriber. That is, there is only one person per transmission that is “capable of receiving the performance.” You can’t jump past that crucial language to the separate places/different times part, because doing so effectively deletes the “public” part of “public performance” out of the law. Similarly, you can’t “aggregate” various private perfomances together to creata a “public” performace, because again, this would change the meaning of the right granted by 17 U.S.C. § 106 from “public performance” to “performance.” If it was permissible to “aggregate” performances to make them public, cloud services like Dropbox might have to get “performance” licenses for enabling people to access their own private files, and even television or smartphone manufacturors might liable for infringment since users use their devices to privately perform copyrighted works. (This would depend further on how an analysis of “volition” plays out–even in the worst-case scenario you can’t aggregate together different performances that are by different performers. For that matter, it is likely that Aereo is not even making multiple private performaces–it is simply providing equipment its customers can use to create private performances. But this is a complex side issue that is not relevant to the main discussion of this post.)

    The kinds of uses of copyrighted works the broad language in the statute intends to cover are well-known. Broadcasters publicly perform because they create single transmissions that various members of the public can tune in to. (This is why the “separate places” language is in the statute.) Movie theaters publicly perform movies–and they would even if only one person at a time was actually in the theater. (“Open to the public” does not mean “open to crowds of people,” and if you were transmitting the movie to the one-person theater, you would still be covered by “same place…different times.”) Finally, a few courts have said that if you repeatedly, at different times, show the same copy of a work to individual members of the public, this is a “public performance.” (Aereo recites this rule, but it doesn’t apply in this case, since there is no “master copy” at issue. Frankly, this analysis is a bit of a stretch–it’s intended to make sure that various video-on-demand services have to obtain licenses. But while there are probably better ways to get to that result than via “aggregation”-type arguments, such as through a deeper analysis of what it means to be “open to the public” or simply noting that many such services already make reproductions of works, at least the “master copy” scenarios require there be some element of physical commonality between various private transmissions before they are grouped together and considered “public.” It’s not enough, in other words, for the various transmissions to merely be of the same “work.”)

    Some readings of the statute, such as the article I linked to earlier by Professor Jane C. Ginsburg or this one by Terry Hart, adopt a reading of the statute that in one way or the other eliminate the requirement of “public” from the public performance right. The way they do this is sometimes very subtle. For instance, Professor Ginsburg believes that the Second Circuit is wrong to see a “transmission” as a kind of “performance.” But the statute plainly sets out certain kinds of transmissions as public performances–that is, a “transmission to the public” is a kind of “public performance.” “Public performance” is the set, and “transmission to the public” is the subset. If Congress intended to grant copyright holders some new, standalone right to control “transmissions,” it would have done so in Section 106 alongside all of the other exclusive rights. And if copyright holders do have the right to control all transmissions, even private ones (even if they are only “retransmissions” of ongoing public performances), then all manner of uses of copyrighted works that today simply don’t even touch on copyright may require a license. In addition to the implications for Internet services and electronics manufacturers I mentioned earlier, the transmission of copyrighted works around your house for private use (using technologies like Apple’s AirPlay, or Sonos’s home music system) might now infringe copyright.

    I agree with the critics of the Aereo decision that it’s important to read the entire statute and give effect to all of its language. But the word “public” must be given real meaning as well. If transmissions are private then they are private. This is not evading the public performance right any more than not making reproductions evades the reproduction right. Even if you don’t like the result in Aereo, the consequences of reading the law to rule out private antenna rental services could be very wide-ranging, because it is difficult to see a way to do this that does not also grant copyright holders a new exclusive right to control all “transmissions” of their works, something they have never enjoyed.