What’s in the Middle of an Aereo? Technology versus the Copyright Act

The United States Supreme Court has long recognized the challenges that emerging technology can present in interpreting the Copyright Act:

This case calls not for the judgment of Solomon but for the dexterity of Houdini. We are here asked to consider whether and how a technical, complex and specific Act of Congress, the Copyright Act … applies to one of the recent products of scientific and promotional genius.[1]

The foregoing observation was written in 1968, and the author was Justice Abe Fortas. The product of genius: cable television. Justice Fortas was writing in dissent of the court’s opinion in Fortnightly Corporation v. United Artists Television Inc., which held that cable television did not infringe a copyright holder’s performance right as contained in the Copyright Act of 1909.[2]

Justice Fortas continued:

The novelty of the use, incident to the novelty of the new technology, results in a baffling problem. Applying the normal jurisprudential tools — the words of the Act, legislative history, and precedent — to the facts of the case is like trying to repair a television set with a mallet. And no aid may be derived from the recent attempts of Congress to formulate special copyright rules for CATV — for Congress has vacillated in its approach.[3]

The speed at which technology advances long ago outdistanced the ability of Congress to amend the Copyright Act in order to address new technologies in a way that promotes “the progress of science and useful arts.”[4] By the way, Congress — not the courts — is charged with deciding how to implement the Eighth Amendment’s grant.

In 2013, the United States Court of Appeals for the Second Circuit decided that the retransmission of broadcast television programs by Aereo Inc., through individual antennas, each of which was dedicated to one and only one subscriber at any given time did not violate the television program content owners’ exclusive right to perform the programs publicly.[5] On June 25, 2014, the Supreme Court of the United States reversed that decision.[6] The Supreme Court specifically found that Aereo’s “technologically complex service” infringes a copyright owner’s exclusive right “‘to perform the copyrighted work publicly.’”[7]

The two courts produced five separate opinions. One judge wrote a dissent to the primary opinion of the court of appeals. The same judge wrote a second dissent that accompanied the court of appeals’s denial of a motion for rehearing en banc. The Supreme Court was divided, and that opinion includes one dissent in which two justices in addition to the author joined.

The five opinions provide interesting insight into principles of statutory construction, such as the interpretation of the plain meaning of the Copyright Act and the legislative history that preceded its amendment in 1976. Perhaps more interesting, however, is whether the Supreme Court’s decision will have an effect on developing technologies and whether one can reasonably rely on courts to enforce statutes as they are written or, in the alternative, to reach arguably desirable outcomes notwithstanding the plain meaning of legislation.

The court of appeals described the technology implemented by Aereo in greater detail than the Supreme Court; the court of appeals described specifically how Aereo actually rebroadcasts television programs to its subscribers. Aereo subscribers can elect either to “Watch” or “Record” the television programs that Aereo rebroadcasts. In the “Watch” function, the transmission is “briefly delayed relative to the live television broadcast.”[8] Thus, the subscriber does not actually watch the television program live.

If the subscriber selects “Watch” but does not also select “Record” prior to the end of the program, the subscriber who selected “Watch” is not able to view that particular program in the future.[9] If the subscriber selects “Record,” Aereo’s system saves a copy for later viewing, but the subscriber can “begin playback of the program being recorded while the recording is being made.”[10] Subscribers can also choose to “Record” programs that will be broadcast in the future.[11]

The court of appeals noted that Aereo’s system allows subscribers to view programs on a computer, on mobile devices or on television, either through an internet-connected television or “a stand-alone device to connect their non-internet TVs to Aereo.”[12] The court of appeals observed that “Aereo’s system thus provides the functionality of three devices: a standard TV antenna, a DVR, and a Slingbox-like device.”[13]

The court of appeals next described the technical aspects of Aereo’s system:

Aereo has large antenna boards at its facility in Brooklyn, New York. Each of these boards contains approximately 80 antennas, which consist of two metal loops [each of which is] roughly the size of a dime. These boards are installed parallel to each other in a large metal housing such that the antennas extend out of the housing and can receive broadcast TV signals. Aereo’s facility thus uses thousands of individual antennas to receive broadcast television channels.[14]

Aereo’s system assigns one antenna to each subscriber who elects to “Watch” or “Record” any given television program. The program is saved on a different Aereo server “in a directory reserved for that Aereo user.”[15]

Finally, with respect to explaining the technology, the court of appeals focused on three components of Aereo’s system. First, the court noted that Aereo assigns individual antennas to each subscriber. Second, Aereo creates individual copies of each program for each subscriber who selects any given television show. Third, each individual copy of each television program is accessible only to the subscriber who selected that television program.[16]

The court of appeals summarized the controlling legal issue as “whether Aereo’s service infringes the plaintiffs’ public performance right under the Copyright Act.”[17] The court of appeals then explained its rationale.

The court of appeals began its analysis by recognizing certain definitions contained in the Copyright Act. First, the court of appeals recognized that 17 USC §106(4) sets forth the public-performance right; that section of the statute provides, in pertinent part:

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:

(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.[18]

Second, the court of appeals recited the Copyright Act’s definition of “perform”:

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.[19]

Third, the court of appeals recited the Copyright Act’s definition of “publicly” with respect to a performance:

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.[20]

The court of appeals then focused on the second clause of the definition of “publicly.” That section, known as the “Transmit Clause,” is the language within the Copyright Act upon which the outcome turned at the court of appeals.

The Second Circuit first explained the origin of the Transmit Clause. The Second Circuit discussed two cases that had been decided by the United States Supreme Court: Fortnightly Corp. v. United Artists Television Inc.[21] and Teleprompter Corp. v. Columbia Broadcasting System Inc.[22] As the Second Circuit recognized, both cases held that a “cable television system that received broadcast television signals via antenna and retransmitted those signals to its subscribers via coaxial cable did not ‘perform’ the copyrighted works and therefore did not infringe Copyright holders’ public-performance right.”[23] Both cases were decided under the 1909 Copyright Act; the 1909 Act had no Transmit Clause.

The court of appeals then noted that Congress responded to the Supreme Court’s decisions in Fortnightly and Teleprompter: Congress passed the 1976 Copyright Act. The Second Circuit wrote:

The Act responded to the emergence of cable television systems in two ways. First, it added the Transmit Clause. The legislative history shows that the Transmit Clause was intended in part to abrogate Fortnightly and Teleprompter and bring a cable television system’s retransmission of broadcast television programming within the scope of the public performance right. H.R. Rep. 94 – 1476, 1976 U.S.C.C.A.N. 5659, at 63 (1976) (“House Report”) (“[A] sing[er] is performing when he or she sings a song; a broadcasting network is performing when it transmits his or her performance (whether simultaneously or from [phonograph] records); a local broadcaster is performing when it transmits the network broadcast; a cable television system is performing when it retransmits the broadcast to its subscribers; and any individual is performing when he or she plays a phonorecord embodying the performance or communicates it by turning on a receiving set.”) Second, Congress recognized that requiring cable television systems to obtain a negotiated license from individual copyright holders may deter further investment in cable systems, so it created a compulsory license for retransmissions by cable systems.[24]

Plaintiffs in Aereo claimed that Aereo’s retransmission of television programs while those same programs are airing on broadcast television falls squarely within the Transmit Clause. In order to address that specific claim, the Second Circuit next turned to an earlier Second Circuit case, Cartoon Network LP LLLP v. CSC Holdings Inc. (Cablevision).[25]

In Cablevision, decided in 2008, defendant Cablevision intended “to market a new ‘Remote Storage’ Digital Video Recorder system (‘RS-DVR’), using a technology akin to both traditional, set-top digital video recorders, like TiVo (DVRs), and the video-on-demand (VOD) services provided by many cable companies.”[26] Plaintiffs in Cablevision — producers of copyrighted movies and television programs that they market to Cablevision — claimed that Cablevision’s RS-DVR infringed plaintiffs’ reproduction and public performance rights.[27]

The RS-DVR “allows Cablevision customers who do not have a stand-alone DVR to record cable programming on central hard drives housed and maintained by Cablevision at a ‘remote’ location.”[28] The RS-DVR splits the content sent by content providers into two separate streams: the first went to customers in real time, and the second was routed to a server that was able to store the program on a portion of a hard disk “allocated to that customer.”[29]

The court of appeals in Aereo, discussing the RS-DVR technology at issue in Cablevision, noted that “if 10,000 Cablevision customers wished to record the Super Bowl, Cablevision would create 10,000 copies of the broadcast, one for each customer.”[30] The Aereo court also noted that “[o]nly the customer who requested that the RS-DVR record the program could access the copy created for him; no other Cablevision customer could view this particular copy.”[31]

The court of appeals in Cablevision recognized that whether the customers were in the same place or capable of receiving the performance was legally irrelevant based on the plain language of the Transmit Clause.[32] The Cablevision court decided that the outcome-determinative issue was to identify who was capable of receiving the performance.[33] “Cablevision then decided that ‘capable of receiving the performance’ refers not to the performance of the underlying work being transmitted but rather to the transmission itself, since the ‘transmission of a performance is itself a performance.’”[34]

According to the court of appeals in Aereo, the Second Circuit in Cablevision rejected two alternative readings. First, the court rejected the view that a transmission to the public was the transmission of the underlying program.[35] The court of appeals reasoned that “to the public” would be superfluous because the potential audience for every copyrighted work is the public.[36] Second, Cablevision refused to aggregate all performances (a very slight variation on the preceding argument) and found that the Transmit Clause required courts to consider “only the potential audience of the ‘performance created by the act or transmission.’”[37]

Finally, according to the circuit court in Aereo, Cablevision considered the United States Court of Appeals for the Third Circuit’s opinion in Columbia Pictures Industries Inc. v. Redd Horne Inc., 749 F. 2d 154 (3rd Cir. 1984). In Redd Horne, a video store used the same copy of a videotaped movie to display to different customers at different times performances of that particular movie.[3]8 The Third Circuit found that the video store’s conduct was a public performance “because the same copy of the work, namely the individual video cassette, was repeatedly ‘performed’ to different members of the public at different times.”[39] Cablevision found, therefore, that the transmission to the RS-DVR was not a public performance because “each transmission of a program could be received by only one Cablevision customer, namely the customer who requested that the copy be created.”[40]

The court of appeals in Aereo explained that its detailed discussion of Cablevision was necessary because the decision established four “guideposts that determine the outcome of this appeal.”[41]

First and most important, the Transmit Clause directs courts to consider the potential audience of the individual transmission.[42] If that transmission is “capable of being received by the public” the transmission is a public performance; if the potential audience of the transmission is only one subscriber, the transmission is not a public performance, except as discussed below. Second, and following from the first, private transmissions — that is those not capable of being received by the public — should not be aggregated. It is therefore irrelevant to the Transmit Clause analysis whether the public is capable of receiving the same underlying work or original performance of the work by means of many transmissions.[43] Third, there is an exception to this no-aggregation rule when private transmissions are generated from the same copy of the work. In such cases, these private transmissions should be aggregated, and if these aggregated transmissions from a single copy enable the public to view that copy, the transmissions are public performances. Fourth and finally, “any factor that limits the potential audience of a transmission is relevant” to the Transmit Clause analysis.[44]

Applying those guideposts to the technology employed by Aereo, the Second Circuit in Aereo held:

We conclude that Aereo’s transmissions of unique copies of broadcast television programs created at its users’ request and transmitted while the programs are still airing on broadcast television are not “public performances” of the Plaintiffs’ copyrighted works under Cablevision.[45]

The court of appeals in Aereo rejected a number of plaintiffs’ arguments, focusing finally on “the undisputed fact that Aereo’s system was designed around the Cablevision holding.”[46] The court noted that “Aereo is not the first to design systems to avoid copyright liability.”[47]

Judge Chin wrote the dissent. Coincidentally, Judge Chin of the United States Court of Appeals for the Second Circuit is the same judge whose decision as a district-court judge was reversed by the Second Circuit in Cablevision.[48]

In the dissent in the Aereo, Judge Chin wrote, “Aereo’s ‘technology platform’ is … a sham. The system employs thousands of individual dime-sized antennas, but there is no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna.”[49] He then referred to Aereo’s system as a “Rube Goldberg-like contrivance, over engineered in an attempt to avoid the reach of the Copyright Act.”[50]

The dissent also noted that “Aereo purports to draw its infringement-avoidance scheme from this Court’s decision” in Cablevision.”[51] Later, the dissent noted that Aereo does not offer its subscribers the ability to “Watch” or “Record” programs broadcast from New Jersey, presumably because New Jersey is outside the Second Circuit.[52]

Regarding the dissent’s analysis of the Transmit Clause, the focus rests on that clause’s reference to “any device or process.” The dissent found that “Aereo’s system of thousands of antennas and other equipment clearly is a ‘device or process.’”[53] The dissent then assumed that each of Aereo’s subscribers receives an unique copy, but the dissent then departed from the majority opinion and found that the transmission nevertheless goes to the public based on the plain meaning of the word “public.”[54] The dissent concluded that a transmission to anyone other than one’s self or an intimate relation is necessarily to “the public.”[55] Thus, according to the dissent, the content that comprises the transmission is irrelevant.

The dissent then moved to the legislative history, noting that Congress, in passing the 1976 Copyright Act, “expressly rejected the outcome reached by the Supreme Court in Fortnightly and Teleprompter.”[56] “Congress made clear its intent to include within the Transmit Clause ‘all conceivable forms and combinations of wires and wireless communications media.’”[57]

Finally, the dissent addressed Cablevision, finding Aereo’s reliance on that case to be “misplaced.”[58] The dissent noted that Cablevision had a license to transmit; “[t]he lawsuit challenged only whether Cablevision needed additional licenses to allow its subscribers to record shows and play them back later through the RS-DVR system.”[59] The dissent also noted that “Cablevision subscribers were already paying for the right to watch television programs, and the RS-DVR gave them the additional option to ‘record’ the programs.”[60] “These differences undermine the applicability of Cablevision to Aereo’s system.”[61] The dissent then concluded that “Cablevision should not be extended to cover the circumstances presented in this case.”[62]

Plaintiffs-Appellants sought rehearing en banc, and the court of appeals denied that request.[63] Judge Chin wrote a second dissent, joined by Judge Wesley.[64] The dissent argued that Cablevision was wrongly decided, not that Aereo’s reliance on Cablevision was misplaced.[65] “Cablevision’s focus on whether the public is capable of receiving each individual transmission and the technicalities of how that transmission process works is incompatible with the statute.”[66]

The dissent concluded:

In my view, however, the system is a sham, as it was designed solely to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law purportedly created by Cablevision. Both the majority’s decision and Cablevision’s interpretation of the Transmit Clause are inconsistent with the language of the statute and congressional intent. This decision upends settled industry expectations and established law. It should not be permitted to stand, and the court should have taken this opportunity to clarify that Cablevision does not provide “guideposts” on how to avoid compliance with our copyright laws.[67]

The Supreme Court of the United States reversed the court of appeals’s decision.[68] “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 ‘publicly’?”[69]

Regarding whether Aereo “performs,” Aereo maintained that “[i]t does no more than supply equipment that ‘emulate[s] the operation of a home antenna and [digital video recorder (DVR)].’”[70] The Supreme Court noted that the language of the Copyright Act does not clearly distinguish between “performing” or “transmitting” as opposed to simply supplying equipment that allows others to “perform” or “transmit,” “[b]ut when read in light of its purpose, the Act is unmistakable: An entity that engages in activities like Aereo’s performs.”[71]

The Supreme Court first turned to Fortnightly, Teleprompter and the legislative history behind the Copyright Act of 1976. Regarding Fortnightly, the Supreme Court noted that the CATV provider did not edit the programs or originate programs of its own; a “subscriber ‘could choose any of the … programs he wished to view by simply turning the knob on his own television set.’”[72] “The court drew a line: ‘Broadcasters perform. Viewers do not perform.’”[73] The Supreme Court noted that its earlier decision in Fortnightly recognized that broadcasters select and procure programming, while CATV systems simply receive and carry the programming. “CATV providers were more like viewers,” and the CATV providers were simply providing amplifying equipment.[74]

Commenting on Teleprompter, the Supreme Court in Aereo considered a CATV provider that was located hundreds of miles away from its subscribers. “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.”[75] The Supreme Court then noted that its earlier decision in Teleprompter had observed that the “broadcaster exercises significant creativity in choosing what to air.”[76] The CATV provider, on the other hand, “makes an initial choice about which broadcast stations to retransmit but then ‘ “simply carr[ies], without editing, whatever programs [it] receives.”’”[77]

The Supreme court found that Congress enacted the 1976 Copyright Act to overrule Fortnightly and Teleprompter. “Congress enacted new language that erased the Court’s distinction between broadcaster and viewer, in respect to ‘perform[ing]’ a work.”[78] To “perform” a work under the new act “means ‘to show its images in any sequence or to make the sounds accompanying it audible.’”[79]

The Supreme Court also noted that the 1976 Act included the Transmit Clause and “a complex, highly detailed compulsory licensing scheme.”[80] The court then concluded that Congress intended to bring the activities of cable systems within the scope of the Copyright Act” and that “Aereo’s activities are substantially similar to those of the CATV companies that Congress amended the Act to reach.”[81]

Aereo argued that, unlike the systems in Fortnightly and Teleprompter that broadcast constantly, Aereo’s system remains “inert” until a subscriber selects a program. Thus, the subscriber, not Aereo, transmits the performance.[82] The court rejected that argument: “this difference means nothing to the subscriber. It means nothing to the broadcaster.”[83] “Aereo’s overwhelming likeness to the cable companies targeted by the 1976 amendments” caused the Supreme Court to reject Aereo’s argument based on the technological difference and to hold that Aereo performs.[84]

Turning to the second question of whether Aereo performs “publicly” within the context of the Transmit Clause, the court addressed Aereo’s claim that each subscriber received a unique transmission of a show from the individual antenna assigned only to that customer:

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’ regulatory objectives, why should any of these technological differences matter? They concern the behind-the-scenes way in which Aereo delivers television programming to its viewers’ screens. They do not render Aereo’s commercial objectives any different from that of cable companies. Nor do they significantly alter the viewing experience of Aereo’s subscribers.[85]

Regarding the language of the Transmit Clause, the court reasoned “[t]he fact that a singular noun (“a performance”) follows the word ‘to transmit’” does not mean that an entity cannot “transmit” to multiple subscribers through a set of actions.[86] The court explained that a person could send a message to several people either through individual emails or one email addressed to a number of people.[87] “By the same principle, an entity may transmit a performance through one or several transmissions, where the performance is of the same work.”[88] Therefore, the court concluded, “when an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it transmits a performance to them regardless of the number of discrete communications it makes.”[89]

The court found Aereo’s transmission of unique, personal copies to each subscriber unpersuasive. “The Act applies to transmissions ‘by means of any device or process.’ … And retransmitting a television program using user-specific copies is a ‘process’ of transmitting a performance.”[90]

The court then described its holding as “limited.”[91] The court reasoned that the enactment of the Transmit Clause based upon the results in Fortnightly and Teleprompter, and the similarity of those services to Aereo’s services, “informs our conclusion that Aereo ‘perform[s],’ but it does not determine whether different kinds of providers in different contexts also perform.”[92]

Justice Scalia wrote the dissent, which Justice Thomas and Justice Alito joined. The dissent concluded that “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.”[93]

The dissent then recognized the distinction between direct and secondary liability for copyright infringement and noted that “[t]he Networks claim that Aereo directly infringes their public-performance right.”[94] The critical question, according to the dissent, is “who does the performing” when Aereo’s “subscribers log in, select a channel, and push the ‘watch’ button.”[95]

The dissent observed that the “claim is governed by a simple but profoundly important rule: A defendant may be held directly liable only if it has engaged in volitional conduct that violates the Act.”[96] The dissent noted that the Act “defines ‘perform’ in active, affirmative terms.”[97] In addition, the dissent observed, “[e]very Court of Appeals to have considered an automated-service provider’s direct liability for copyright infringement has adopted that rule.”[98]

The dissent then compared video-on-demand with a copy shop to illustrate the point. In a copy shop, “the customer chooses the content and activates the copying function; the photocopier does nothing except in response to the customer’s commands.”[99] The copy shop cannot be found liable for direct copyright infringement. The copy shop can still be found liable for copyright infringement, but “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.”[100]

Video-on-demand services, on the other hand, choose the content. “That selection and arrangement by the service provider constitutes a volitional act directed to the copyrighted works and thus serves as a basis for direct liability.”[101]

The dissent concluded that Aereo was neither a copy shop nor a video-on-demand service. “Rather, it is akin to a copy shop that provides its patrons with a library card.”[102] Aereo “assigns each subscriber an antenna that — like a library card — can be used to obtain whatever broadcasts are freely available.”[103] Operating the service is a volitional act, “but, as is the case of the copy shop, that degree of involvement is not enough for direct liability.”[104] Aereo does not perform, the dissent concludes, because Aereo “does not make the choice of content.”[105] Aereo therefore cannot be liable for direct copyright infringement, but that does not mean that “Aereo’s service complies with the Copyright Act.”[106]

The Supreme Court’s review of Aereo’s actions was narrowly focused only on whether Aereo was liable for direct copyright infringement of plaintiffs’ public-performance right as a result of Aereo’s “Watch” function. “Affirming the judgment below would merely return this case to the lower courts for consideration of the Networks’ remaining claims.”[107]

The dissent then attacked the majority’s analysis. The dissent observed, in a section titled “Guilt by Resemblance,” that the majority’s conclusion is based on a syllogism: Congress amended the Copyright Act to overturn Fortnightly and Teleprompter, and Aereo resembles a CATV system, so “Aereo performs.”[108]

The dissent discussed what it calls “a trio of defects.”[109] First, the dissent was critical of the majority’s decision “to decide the case based on a few isolated snippets of legislative history.”[110] The dissent noted that those snippets come from a single report from a single committee in one House of Congress. “Little else need be said here about the severe shortcomings of that interpretative methodology.”[111]

Second, the dissent examined the differences in the systems at issue, on one hand, in Fortnightly and Teleprompter and, on the other hand, in Aereo. CATV systems “captured the full range of broadcast signals,” while Aereo’s system “transmits only specific programs selected by the user, at specific times selected by the user.”[112] Although the majority opinion dismissed that difference as legally insignificant, the dissent observed that, by the time that Teleprompter was decided, cable systems functioned as broadcasters, selling commercials, selecting specific programs and importing distant signals.[113]

Third, and perhaps most significantly, the dissent complained that the majority replaced the bright-line test of volitional conduct for determining whether a party has violated 17 U.S. C. § 106(4) with a “this-looks-like-cable-TV” test for determining liability for copyright infringement.[114] The dissent observed that the majority’s cable look-alike rule rendered a third of the majority’s opinion superfluous. If Congress’s intent in amending the Act in 1976 was to regulate cable TV services, and if section 106 (4) only reaches public performances, then Congress must have deemed cable TV services to be public performances. “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.”[115]

The dissent in Aereo also commented on the court’s role in interpreting statutes:

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 discussed at the outset, Aereo’s secondary liability for performance infringement is yet to be determined, as is its primary and secondary liability for reproduction infringement. 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 the Court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes.[116]


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.”[117]


A goal of the rule of law is to foster predictability. As Justice Fortas concluded his dissent in 1968, “[o]ur ax, being a rule of law, must cut straight, sharp and deep; and perhaps this is a situation that calls for the compromise of theory and for the architectural improvisation which only legislation can accomplish.”[118]

Technology may not be served at all by employing thousands of antennas to accomplish a task that could be accomplished using only one antenna, but an entrepreneur who develops a business plan that deliberately follows the rule of law should be entitled to rely on the “straight, sharp, and deep” cut that proper application of the Copyright Act should yield.


  1. Fortnightly Corporation v. United Artists Television Inc., 392 U.S. 390, 402 (1968).
  2. Id.
  3. Id. at 403.
  4. U.S. Const. art. I, § 8, cl. 8.
  5. WNET, Thirteen v. Aereo Inc., 712 F. 3d 676 (2d Cir. 2013), rev’d. and remanded sub nom. Am. Broad. Companies Inc. v. Aereo Inc., 134 S.Ct. 2498 (2014).
  6. Am. Broad. Companies Inc. v. Aereo Inc., 134 S.Ct. 2498 (2014).
  7. Id. at 2502 - 2503 (quoting 17 U. S. C. §106(4)).    
  8. Aereo Inc., 712 F. 3d at 681.
  9. Id.
  10. Id.
  11. Id.
  12. Id. at 682.
  13. Id.
  14. Id.
  15. Id.
  16. Id. at 682–83.
  17. Id. at 684.
  18. 17 U. S. C. § 106 (4)(2014).
  19. 17 U.S. C. §101(2014).
  20. Aereo, at 685 (quoting 17 U. S. C. § 101(2014)).
  21. Fortnightly, 392 U.S. at 402.
  22. Teleprompter Corp. v. Columbia Broadcasting System Inc., 415 U. S. 394, 94 S. Ct. 1129, 39 L. Ed. 2d 415 (1974).
  23. Aereo Inc., 712 F.3d at 685.
  24. Id.
  25. Cartoon Network LP LLLP v. CSC Holdings Inc., 536 F.3d 121 (2nd Cir. 2008).
  26. Cablevision, 536 F.3d at 123.
  27. Id.
  28. Id. at 124.
  29. Id.
  30. Aereo Inc., 712 F.3d at 686.
  31. Id.
  32. Id. at 687.
  33. Id.
  34. Id. (quoting Cablevision, 536 F.3d at 134).
  35. Id.
  36. Id.
  37. Id. (quoting Cablevision, 536 F.3d at 135-36).
  38. Id. at 688.
  39. Id.
  40. Id.
  41. Id. at 689.
  42. See id. at 135.
  43. See id. at 135-37.
  44. Id. (citing Cablevision, 536 F. 3d at 135 – 137).  
  45. Id. at 696.
  46. Id. at 693-94.
  47. Id. at 694.
  48. Twentieth Century Fox Film Corp. v. Cablevision Systems Corp., 478 F.Supp.2d 607 (S.D.N.Y. 2007).
  49. Aereo Inc.,712 F.3d at 696.
  50. Id. at 697.
  51. Id.
  52. Id. at 703.
  53. Id. at 698.
  54. Id. at 699.
  55. Id.
  56. Id. at 700.
  57. Id. at 701 (internal citation omitted).
  58. Id.
  59. Id.
  60. Id. at 702.
  61. Id.
  62. Id. at 703.
  63. WNET, Thirteen v. Aereo Inc., 722 F.3d 500, 501 (2nd Cir. 2013).
  64. Id.
  65. Id. at 506.
  66. Id. at 511.
  67. Id. at 513.
  68. Aereo Inc., 134 S. Ct. at 2498.
  69. Id. at 2504.
  70. Id.
  71. Id.
  72. Id.
  73. Id. at 2505.
  74. Id.
  75. Id.
  76. Id.
  77. Id. (quoting Fortnightly, 393 U. S. at 410).
  78. Id.
  79. Id. 2505-2506 (quoting 17 U. S. C. § 101).
  80. Id. at 2506.
  81. Id.
  82. Id. at 2507.
  83. Id.
  84. Id.
  85. Id. at 2508.
  86. Id. at 2509.
  87. Id.
  88. Id.
  89. Id.
  90. Id.
  91. Id. at 2510.
  92. Id.
  93. Id. at 2515.
  94. Id.
  95. Id.
  96. Id.
  97. Id.
  98. Id.
  99. Id. at 2513.
  100. Id. at 2514.
  101. Id. at 2513.
  102. Id. at 2514.
  103. Id.
  104. Id.
  105. Id.
  106. Id.
  107. Id. at 2515.
  108. Id.
  109. Id.
  110. Id.
  111. Id.
  112. Id.
  113. Id.
  114. Id. at 2516.
  115. Id.
  116. Id. at 2517.
  117. Id. at 2518 (quoting Sony Corp. of America v. Universal City Studios Inc., 464 U. S. 417, 456 (1984).
  118. Fortnightly, 392 U.S. at 408.

Tim Warnock TIM WARNOCK is a member of Riley Warnock & Jacobson PLC in Nashville. He is a member of the American Board of Trial Advocates. He has served as chair of the Federal Practice and Entertainment and Sports Law sections of the Tennessee Bar Association, and he submits this article on behalf of the Entertainment and Sports Law Section.

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