Aereo Petitioners Focus on Who Supplies the Content

Cross-posted on the Copyhype blog.

The petitioners have filed their reply brief in the Aereo appeal, and I’m thrilled to see their focus on who supplies the content—a standard for differentiating cloud computing sheep from goats that I’ve been advocating (see here and here).

Right out of the gate, the petitioners note that Aereo supplies the content:

Congress could hardly have been clearer that it did not want technological advances (or, in Aereo’s case, gimmicks) to undermine its basic policy judgment that a third party should not be able to build a business model out of supplying performances of the copyrighted works of others to the public without authorization.1

And the petitioners point out that this makes Aereo different than other cloud computing services:

Nor is there any merit to Aereo’s suggestion that its service is indistinguishable from legitimate cloud computing services. There is an obvious difference between providing storage for content that the end-user independently possesses and making the content itself available to anyone who pays a fee.2

Aereo is not just like any other cloud computing service. Aereo’s subscribers utilize its service to obtain content in the first instance—content that Aereo itself supplies via its tens of thousands of tiny antennae. It doesn’t matter how Aereo supplies the content (uploads, cameras, antennae, etc.). It matters whether Aereo supplies the content. And obviously it does—that’s the very service Aereo provides. Subscribers pay Aereo eight or twelve bucks a month because they want the content Aereo supplies. Without that content, there is no Aereo. In fact, the only content available on Aereo’s service is the content that Aereo itself supplies.

This concept of who the supplies the content is nothing new. If I buy and download a song from iTunes, there is no doubt that iTunes is publicly distributing the content that it supplies. If I use Spotify to stream one of my favorite songs, there is no doubt that Spotify is publicly performing the content that it supplies. And if I look up a law review article on Westlaw, there is no doubt that Westlaw is publicly displaying the content that it supplies. And the fact that I press a button to initiate things doesn’t change the public nature of the distribution, performance, or display.

The difference between all of these services and the kind of passive cloud computing service that Aereo erroneously likens itself to is that these services supply the content in the first instance. Aereo is nothing like, say, Microsoft’s OneDrive, where I have been saving drafts of this post. Aereo instead—like iTunes, Spotify, and Westlaw—supplies the content to members of the public who wish to obtain that content in the first place.

An amicus brief supporting Aereo, filed by a group of thirty-six intellectual property and copyright law professors, argues that Aereo’s service is just like Sony’s VCR:

The Aereo system is the functional equivalent of the Sony Betamax: consumers use it to record television programs for subsequent playback to themselves.3

In their opinion, Aereo lacks the necessary volitional conduct to be held directly liable:

As in Sony, consumers are using a technology to record copyrighted works for their later enjoyment. As in Sony, consumers make every specific decision about how to use the technology. They choose which television programs to record, for how long to record them, when to watch those programs later, for how long to watch them, and when to discard previously stored programs. Consumers call all of the shots. On the present record, if anyone here is a direct infringer, it is the consumers. Aereo lacks the necessary “aspect of volition” to be held directly rather than secondarily liable.

This rule—the “volitional conduct” doctrine—has an impeccable pedigree. Every Court of Appeals to have considered the volitional conduct doctrine has adopted it. In addition, District Courts in another three circuits have endorsed the doctrine.4

I wholeheartedly agree that the volitional conduct test has an “impeccable pedigree” and that it should be applied here to determine whether Aereo is a direct infringer. Properly understood, the volitional conduct test simply looks at the actions taken by the defendant that brought about the particular copying (in the broad sense) at issue. The test, in other words, is causation. And the notion that liability turns on causation is not some special rule applicable only to copyright infringement. It’s foundational to tort law generally.

As with all torts, the question is whether the defendant’s tortious conduct was the legal cause—a term of art—of the violation of the plaintiff’s legal right:

The words “legal cause” . . . denote the fact that the causal sequence by which the actor’s tortious conduct has resulted in an invasion of some legally protected interest of another is such that the law holds the actor responsible for such harm unless there is some defense to liability.5

In order for the defendant’s conduct to be the legal cause of the injury,6 “the act or omission must be a substantial factor in bringing about the harm.”7 “Substantial” denotes “the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause.”8 The law is not interested in all conduct that brings about the injury, i.e., the factual causes of the injury. Indeed, such causes could conceivably “stretch back to the dawn of human history.”9 The law instead focuses on proximate causation, which is “shorthand for a concept: Injuries have countless causes, and not all should give rise to legal liability.”10

But where to draw the line between those factual causes that are proximate and those that are not? As with perhaps all line drawing, there’s a certain arbitrariness to it:

What we do mean by the word ‘proximate’ is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics.11

I take a less cynical view, but I think the arbitrariness is easy to misunderstand. There’s nothing arbitrary about holding a defendant liable for an injury that he factually caused. The arbitrariness comes from not holding a defendant liable for an injury, even though he factually caused it. And the reason proximate causation analysis is somewhat arbitrary in nature is because it has to be:

[T]he infinite variety of claims that may arise make it virtually impossible to announce a black-letter rule that will dictate the result in every case. Instead, previously decided cases identify factors that circumscribe and guide the exercise of judgment in deciding whether the law affords a remedy in specific circumstances.12

Since it’s impossible to create a rule that encompasses every possible way of causing an injury, it’s left to the courts to fashion the contours of the proximate causation analysis. This common law tradition applies in copyright law as it does in all tort law. Copyhype’s ever-brilliant Terry Hart has identified a list of factors that courts have considered while analyzing causation, such as the location of the equipment and who supplies the content. These factors are relevant because they go to whether the defendant is a substantial cause of the copying.

This proximate causation analysis should not be misperceived as a balancing test, such as the one employed when a court determines whether a given use by a defendant is fair. These factors are not relevant because they’ve survived some ad hoc or categorical balancing of the plaintiff’s and defendant’s interests. They are relevant, where applicable, because they represent commonly-occurring conduct by a defendant that goes to whether the defendant caused the copying at issue to occur.

Getting back to the amicus brief submitted by the thirty-six intellectual property and copyright law professors, I think their analogy between Sony’s VCR and Aereo’s service is unpersuasive because the volitional conduct with each is significantly different. Of course, Sony concerned the reproduction right, while Aereo concerns the public performance right. But, more fundamentally, Sony’s liability was ultimately analyzed under the rubric of indirect infringement—and not direct infringement as we have here with Aereo—because Sony’s conduct was sufficiently remote such that it was not directly causing the copying at issue.

While we may tend to think of Sony as a contributory liability case, the fact is that the copyright owner plaintiffs also argued for direct liability in the district court. In support of this claim, the plaintiffs cited Elektra,13 a case that is eerily on point here with Aereo. There, the defendants operated a store where blank tapes, coin-operated tape-duplicating machines, and prerecorded copyrighted works were offered to the public for in-store use. The district court found that the plaintiffs had demonstrated a strong likelihood of success on the merits as to their claim for direct infringement.

But, in analyzing the legality of the VCR, the district court in Sony found Elektra inapposite because the “involvement of the defendants in the infringing activity” there “was much more substantial and direct than that alleged against defendants here.”14 And central to this finding was the fact that Sony did not supply the content:

“Defendants Sony and Sonam manufacture and market the Betamax and blank tapes. They do not, however, loan or otherwise provide the copyrighted work.”15

Thus, even though the defendants in Elektra and Sony both supplied the blank tapes and the copy machines, the cases were distinguishable because, among other things, the defendants in Sony did not also supply the content.

Later in the litigation, this factor was also invoked by the Supreme Court: “Petitioners in the instant case do not supply Betamax consumers with respondents’ works; respondents do.”16 Other factors, such as “the range of [the VCR's] potential use” and the fact that Sony was not “in a position to control the use of copyrighted works by others” played a part in the Court’s analysis as well.17 The Court found it relevant that Sony’s only contact with the users of its VCRs happened at the point of sale. Subsequent to that sale, Sony maintained no direct control over the allegedly infringing activity of those users.

Aereo thus stands in stark contrast to Sony. Like the defendants in Elektra, Aereo does more than simply supply the modern equivalent of blank tapes and copy machines—Aereo supplies the content as well. And unlike Sony’s VCR, Aereo’s service does not have a wide range of potential uses. In fact, the only content that can be reproduced and performed with Aereo’s service is the content that Aereo itself supplies. Moreover, in contrast to Sony, Aereo maintains an ongoing relationship with its subscribers, retaining direct control over its entire service at all times. These differences are significant, and they’re relevant here because they go to causation.

The Aereo petitioners similarly rebut the Sony argument in their reply brief:

Aereo nonetheless attempts to liken itself to a . . . VCR manufacturer, insisting that it is not performing because the user “presses the button to make the recording[]” that Aereo uses to retransmit broadcast television. But Aereo ignores . . . the multiple features that distinguish its examples – including that the . . . VCR manufacturer suppl[ies] only the equipment for copying content, while users supply the content.18

The petitioners point out that a VCR is worthless without access to content, and in contrast to Sony’s VCR, “the whole point of Aereo’s service is to provide access to the content.”19 The petitioners note that Aereo markets itself as providing a means of watching live television, and the only content available with Aereo’s service is the content that Aereo itself supplies. By arguing that it’s just like a VCR—or even a remote DVR for that matter—the petitioners remind us that Aereo “elides the question of where the content being recorded came from.”20

Furthermore, as the petitioners rightly indicate:

[W]ithout the content the antenna receives, Aereo’s DVR functionality would be useless. And where a service like Aereo provides the users with content, it cannot coherently argue that the user is the only one performing that content.21

This is the same rule that applies with services such as iTunes, Spotify, and Westlaw, mentioned above. These services are the ones publicly distributing, performing, or displaying the content because the content made available to the public is supplied by the services themselves. And the same holds true for Aereo:

Because Aereo is offering not just a piece of equipment, but an integrated service that includes access to copyrighted content, its efforts to suggest that it is a mere equipment supplier and only its subscribers perform are doomed.22

This case isn’t about the legality of a DVR or even of the cloud itself. The petitioners are not challenging the notion that time-shifting is fair use or that legally-possessed content can be stored and accessed in the cloud. The petitioners instead are simply arguing that Aereo is a direct infringer because Aereo itself supplies the content to its subscribers. By doing so, Aereo’s conduct is sufficiently proximate such that it has substantially caused the performance to occur. What Aereo does with the content it supplies is no different than what iTunes, Spotify, and Westlaw do—except for the fact that those services have licenses to supply the content, of course.

Follow me on Twitter: @devlinhartline

  1. Reply Brief for Petitioners, American Broadcasting Companies, Inc. v. Aereo, Inc., No. 13-461, 2014 WL 1430768 at *1 (U.S. April 14, 2014). []
  2. Id. at *3. []
  3. Brief of 36 Intellectual Property and Copyright Law Professors as Amici Curiae in Support of Respondent, American Broadcasting Companies, Inc. v. Aereo, Inc., No. 13-461, 2014 WL 1348474 at *1 (U.S. April 2, 2014). []
  4. Id. at *6 (internal citations omitted). []
  5. Restatement (Second) of Torts § 9 (1965). []
  6. An “injury” is simply the “violation of another’s legal right, for which the law provides a remedy.” Black’s Law Dictionary (9th ed. 2009). []
  7. Restatement (Second) of Torts § 9, cmt. a (1965). []
  8. Restatement (First) of Torts § 431 (1934). []
  9. Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 191 F.3d 229, 235 (2d Cir. 1999). []
  10. CSX Transp., Inc. v. McBride, 131 S.Ct. 2630, 2637 (2011). []
  11. Palsgraf v. Long Island R. Co., 248 N.Y. 339, 352 (1928) (Andrews, J., dissenting); but see Laborers Local 17, 191 F.3d at 235 (“Proximate cause is an elusive concept, one always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent.”) (internal quotations and citations omitted). []
  12. Associated Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 535-37 (1983). []
  13. Elektra Records Co. v. Gem Elec. Distributors, Inc., 360 F.Supp. 821 (E.D.N.Y. 1973). []
  14. Universal City Studios, Inc. v. Sony Corp. of Am., 480 F.Supp. 429, 458 (C.D. Cal. 1979). []
  15. Id. []
  16. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 436-37 (1984). []
  17. Id. at 437. []
  18. Reply Brief for Petitioners, supra note 1, at *16. []
  19. Id. at *17. []
  20. Id. []
  21. Id. at *18. []
  22. Id. []
Posted in Copyright Theory | Tagged , , , , , , | 1 Comment

An Unhelpful Amicus: Section 230 Precludes the Injunction, Except That it Doesn’t

I’ve been reading through the amicus briefs in Garcia v. Google, which the Ninth Circuit has conveniently gathered for those interested, and I came across what I think must be one of the least helpful arguments ever made by a “friend of the court.” Mind-bogglingly so.

The brief argues—with what I presume is a straight face—that the injunction in Garcia, a federal question copyright case, is precluded by Section 230. At the same time, however, the brief admits that Section 230 doesn’t actually apply.

The Ninth Circuit solicited amicus briefs:

The court grants leave pursuant to Federal Rule of Appellate Procedure 29(a) to any amicus wishing to file a brief bearing on the petition . . . .

How an argument about Section 230 has any “bearing on the petition,” I truly don’t know. Google’s petition for rehearing en banc, unsurprisingly, makes no mention of Section 230, instead simply arguing that the Ninth Circuit applied the wrong preliminary injunction standard.

It’s a well-worn truism that “by the nature of things an amicus is not normally impartial.”1 But the impartiality displayed here goes far beyond any pretense of assisting the court.

The brief asserts that “here the law explicitly restricted those [remedies] that could be imposed on intermediaries like Google.” And claimed among the applicable remedy-restricting laws is Section 230. This is not some makeweight argument thrown in at the end. This is the brief’s lead argument.

The brief maintains, quite correctly:

Section 230 is therefore unequivocal in the immunity it provides intermediaries, decreeing that, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” § 230(c)(1).

That’s precisely what Section 230 says, but it also says that Section 230 doesn’t apply in copyright cases: “Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.”2

And, remarkably, the brief admits as much in the associated footnote:

While Section 230’s immunity is unequivocal there are a few exceptions to its applicability, including for claims involving intellectual property. § 230(e)(2). However, even if Garcia’s copyright claim were valid, the principles underlying Section 230 remain central to the present dispute.

This is the argument that rebuts itself. Over the course of two pages, the brief goes from claiming that “here the law explicitly restricted” the injunction to an admission that the law in question doesn’t even apply—and explicitly so. I would say you can’t make this stuff up, but apparently you can.

Undeterred by its own contradiction, the brief tries to salvage things by claiming that it’s nevertheless the “principles underlying Section 230” that preclude the injunction here. What legal support is cited for this curious proposition? None, naturally. And surely none exists.

Why would the principles that underlie a statute that explicitly does not limit the law pertaining to intellectual property preclude an injunction in a copyright case? Policy reasons can inform the scope and nature of the relief, no doubt, but that’s a different animal than claiming that Section 230 outright precludes the injunction.

Incredibly, and without hint of irony, the brief continues:

Because Section 230 puts user-generated content beyond the reach of court orders for deletion, plaintiffs often try to bypass its reach by recasting their state law claims, for which intermediaries would be immune from requirements to take it down, as intellectual property claims, for which intermediaries are not. . . . . [B]ecause this exemption clearly applies to federal copyright claims it has become very easy for people to censor content they don’t like by simply by framing their displeasure as a copyright claim, however speciously, because doing so targets the intermediary’s un-immune Achilles heel.

I have to chuckle at this because, if anything, the brief is trying to bypass the reach of copyright law by recasting the copyright claim in terms of Section 230. Otherwise, that pesky “un-immune Achilles heel” would support the injunction, I suppose.3

So, here you go, Ninth Circuit! Enjoy this wonderful assistance from this “friend of the court”: Section 230 explicitly precludes the injunction, except for the fact that Section 230 explicitly does not apply. That should clear things right up.

  1. Strasser v. Doorley, 432 F.2d 567, 569 (1st Cir. 1970). []
  2. 47 U.S.C.A. § 230(e)(2) (West 2014). []
  3. See 17 U.S.C.A. § 502(a) (West 2014) (“Any court having jurisdiction of a civil action arising under this title may . . . grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.”). []
Posted in Copyright Theory | Tagged , , | Leave a comment

Does Double Jeopardy Forestall Auernheimer’s Retrial?

The news came out last week that Andrew “weev” Auernheimer’s CFAA and identity fraud convictions have been vacated by the U.S. Court of Appeals for the Third Circuit for improper venue.1

Auernheimer had been convicted in the U.S. District Court for the District of New Jersey, but the problem with this, according to the Third Circuit, is that none of the essential elements of the crimes had taken place in New Jersey. Auernheimer and his alleged co-conspirator operated out of Arkansas and California, respectively, and the servers they accessed were located in Texas and Georgia.

After hearing of the Third Circuit’s vacatur on procedural grounds, I immediately wondered whether the government would simply prosecute Auernheimer in the proper venue. Apparently, though, Auernheimer’s lawyers think this would amount to unconstitutional double jeopardy.

As reported by Ars Technica:

The defendant’s attorney, Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation, said in an e-mail that a “retrial is barred by double jeopardy.” If the authorities do seek a second trial, he said, “we will raise precisely that.”

Auernheimer even mentioned the double jeopardy argument in a tweet:

In case you can’t read it, it says: “I have already forbidden @TorEkelandPC from filing a double jeopardy motion. I will attack the CFAA again.” Tor Ekeland is the law firm that represents Auernheimer. The notion here is that he’d rather not win on a technicality—even though, of course, he’s out of jail and able to tweet because he won on a technicality.

The government has now consented to the dismissal of the indictment against Auernheimer in New Jersey, but the government makes clear that it believes that Auernheimer can still be prosecuted in another district where venue is proper:

Consenting to this dismissal does not preclude the Government from continuing this prosecution in another venue.

So who’s right? I’m certainly no expert on double jeopardy, but I think that the government is correct to assert that it can still prosecute Auernheimer in the proper venue.

As the Supreme Court stated in Burks:

The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials.2

In other words, if the government fails to produce adequate evidence to prove an element of the crime, then the defendant is acquitted and the government doesn’t get another bite at the apple. But this has nothing to do with a conviction being vacated because of a procedural error.

The Supreme Court in Burks continued:

The principle that [the Double Jeopardy Clause] does not preclude the Government’s retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence. . . . In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case.3

And this is the problem for Auernheimer. His conviction was vacated because the district court had committed “an error in the proceedings leading to conviction,” not because of any “evidentiary insufficiency.”

In fact, the U.S. Court of Appeals for the Eleventh Circuit has rejected the very claim that Auernheimer is making here:

This appeal raises the question of whether it violates the double jeopardy clause to retry a defendant whose criminal conviction was reversed because of improper venue. We hold that reversal because of improper venue is not the same as reversal for insufficient evidence to support a conviction, which would bar a retrial, and that retrial is permitted here. . . . [T]he proper approach to the application of Burks to this case is to determine whether proof of venue goes to the merits of the charge, or is more like the procedural rulings which do not involve double jeopardy.4

The Eleventh Circuit held that proof of venue is procedural in nature and does not go to the merits, thus making double jeopardy inapplicable when reversal is based on improper venue.

The U.S. Court of Appeals for the Tenth Circuit has endorsed a similar view:

Venue is, of course, unlike the substantive facts which bear on guilt or innocence in the case. Venue is wholly neutral; it is a question of procedure, more than anything else, and it does not either prove or disprove the guilt of the accused.5

The Tenth Circuit went on to note that “the Fifth Amendment protects against twice being prosecuted and punished for the same offense following an acquittal or conviction on the merits.”6

And this gets to the heart of why I think Auernheimer’s retrial would not be forestalled by double jeopardy. Retrials are often constitutionally permissible after procedural errors, such as improper jury instruction or improper admission of evidence.7 These retrials do not raise double jeopardy concerns because they do not arise after the defendant obtained an acquittal on the merits.

The problem for Auernheimer is that he was not acquitted; his conviction was vacated on a procedural technicality, i.e., on the sole ground that venue did not lie in New Jersey. But having his conviction vacated for improper venue is not an acquittal on the merits, so it seems to me that double jeopardy does not apply and the government is free to prosecute Auernheimer again in the proper venue.

  1. See United States v. Auernheimer, No. 13-1816, 2014 WL 1395670 (3d Cir. Apr. 11, 2014). []
  2. Burks v. United States, 437 U.S. 1, 11 (1978) (internal citations and footnote omitted). []
  3. Id. at 14 (internal citations and quotations omitted) (brackets and italics in original). []
  4. Haney v. Burgess, 799 F.2d 661, 662-63 (11th Cir. 1986). []
  5. Wilkett v. United States, 655 F.2d 1007, 1011 (10th Cir. 1981); see also United States v. Miller, 111 F.3d 747, 749 (10th Cir. 1997) (“Although venue is a right of constitutional dimension, and has been characterized as an element of every crime, this court and others have consistently treated venue differently from other, substantive elements of a charged offense.”) (internal citations and quotations omitted). []
  6. Id. at 1013. []
  7. See 4 Constitutional Rights of the Accused 3d § 29:29 (“A successful appeal of a conviction on the ground of a procedural error committed during the course of the prosecution normally will not bar retrial on the same charges.”) (gathering cases). []
Posted in Constitutional Theory | Tagged , , , | Leave a comment

While Cloud Defenders Fret, Aereo Petitioners and Amici Defend the Cloud

To Project DisCo’s Matt Schruers, the Aereo appeal “puts the cloud at risk” because everything the petitioners say about Aereo pertains to all cloud services just the same. To his mind, the petitioners “insist that ‘any device or process’ that transmits works to the public makes a public performance, each of which must be licensed.” He thinks that whatever the petitioners say about Aereo “applies with equal force to cloud storage like Dropbox, SkyDrive, iCloud, and Google Drive,” and the “anti-Aereo rationale doesn’t distinguish between Aereo and the cloud.” For Schruers, any decision against Aereo, especially on the petitioners’ own terms, would be super-scary for the cloud—the DMCA, apparently, notwithstanding.

Schruers’ suggestion that the petitioners’ position would be injurious to the cloud stems from the argument that the Transmit Clause, which says that it’s a public performance to transmit a performance of a work “to the public” even if it can be received “at different times,” implies that multiple asynchronous transmissions should be aggregated together as constituting the same public performance. It’s easy to see how this view would be mischievous: If you and I both save our legally-acquired personal copies of the same work to the same cloud service for later playback, then why wouldn’t our subsequent individual transmissions be aggregated together as constituting the same public performance on the service provider’s part?

The fault with this line of reasoning is that the aggregation theory is only scary if the petitioners are actually arguing that multiple transmissions from the same service provider should always be aggregated together. The fact is that they are not. There’s only two mentions of the aggregation theory in the petitioners’ opening merits brief before the Supreme Court. The first is this:

That Aereo uses multiple transmissions to transmit the same performance to members of the public is immaterial as well, as Congress expressly contemplated the use of multiple transmissions when it provided that an alleged infringer is transmitting a performance to the public regardless of whether members of the public receive the performance “at the same time or at different times.” . . . Two members of the public who receive a performance “at different times” necessarily receive it by way of separate transmissions.

And then later in the brief, the petitioners attack the Second Circuit’s reading of the Transmit Clause:

One glaring problem with the Second Circuit’s construction is that it renders a significant part of the language from which it is purportedly derived entirely superfluous. Congress said explicitly that an alleged infringer is transmitting a performance to the public even when “members of the public capable of receiving the performance or display receive it . . . at different times.” . . . Of course, it is essentially impossible for two people to receive the same transmission of a performance “at different times.” Accordingly, even the Second Circuit was forced to acknowledge that its reading of the transmit clause renders that language superfluous.

The petitioners are not arguing, as Schruers suggests, that all transmissions of the same performance by the same cloud service provider should be aggregated together. They are instead saying that Aereo can’t escape liability through the simple expedient of using multiple asynchronous transmissions. In other words, it’s not necessarily true that each transmission is private because it is receivable “at different times.” Its asynchronous nature doesn’t automatically detract from its public nature, and it can be “to the public” even when each member of the public can receive an individualized transmission “at different times.”

More importantly, the petitioners point out that the doomsayers’ fears about the cloud are misplaced:

Contrary to Aereo’s alarmist suggestions, a decision from this Court reaching the same conclusion need not threaten the future of “cloud computing” technology, or any of the readily distinguishable services to which Aereo attempts to analogize itself. There is an obvious difference between a service that merely stores and provides an individual user access to copies of copyrighted content that the user already has legally obtained, and a service that offers the copyrighted content itself to the public at large.

Thus, even the petitioners, whom Schruers thinks are gunning for the cloud, acknowledge that there’s a simple way to differentiate legal from illegal cloud service providers—and this turns on who supplies the content. When the cloud service is used to store and stream content that the subscriber has legally obtained in the first place, the cloud service provider is not a direct infringer. And when the cloud service provider itself is supplying the very content at issue, it’s a direct infringer. The implication for Aereo is obvious: Aereo’s subscribers aren’t using its service to store and stream content they have already legally acquired; they instead are using Aereo’s service to acquire that content in the first place. Since Aereo itself supplies the very content at issue—and does so without license—it’s a direct infringer of the public performance right.

This is the same point I made in my last post about Aereo, where I explained why I think the cloud will be safe even if Aereo is shut down. This is, of course, in large part due to the DMCA—the immunity-granting statute that many cloud doom-and-gloomers conspicuously fail to mention. But, more fundamentally, I argued that there is a difference between a service provider which is a passive conduit, supplying only dumb pipes used by others to infringe, and a service provider which is an active participant, taking affirmative steps to bring about the particular copying at issue. It’s quite simple to find that Aereo is an active participant—and thus a direct infringer of the public performance right—without finding that other cloud service providers are in the same boat. The way to arrive at this conclusion is by application of the only bright-line rule that exists for separating passive conduits from active participants, namely, whether the service provider itself supplies the very content at issue.

A quick recap of my argument is this: One way to publicly perform a work is by transmission of a performance of the work to the public. Whether the transmission is to the public depends on the identites of the sender and the receiver, since only then can we determine whether that relationship is public or private. When a performance of a work is transmitted from a service to a subscriber, sometimes the identity of the sender is the service provider and sometimes it’s the subscriber. When the service provider is a passive conduit, the identity of the sender is the subscriber and it’s a private performance. And when the service provider is an active participant, the identity of the sender is the service provider and it’s a public performance.

So how do we distinguish passive conduits from active participants? Simple. When a service provider allows a subscriber to access content which the subscriber has legally acquired in the first place, that service provider is a passive conduit. On the other hand, when a service provider itself supplies the very content at issue to the subscriber, that service provider is an active participant. Note how the pieces fit together: In order to establish whether a service provider is a passive conduit or an active participant, we look at that service provider’s volitional conduct in causing the transmission to occur. When the service provider itself supplies the very content at issue, its volitional conduct is sufficient to find that it is the identity of the sender. Assuming the receiver is a member of the public, the transmission is a public performance.

By suggesting that liability for cloud service providers turns on who supplies the content, the petitioners have a far more nuanced reading of the Transmit Clause than Schruers gives them credit for.  And, properly understood, the petitioners’ views are far less scary for the cloud than Schruers admits. Moreover, the amicus briefs submitted by the United States (“the government”), the Center for Democracy and Technology (“the CDT”), and the BSA | The Software Alliance (“the BSA”), which Schruers cites as reasons why we should all be worried about the cloud’s fate, all point out the same simple approach for distinguishing passive conduits from active participants.

In the government’s amicus brief, the distinction is made between services providers which supply the content and those which do not:

Reversal of the judgment below need not threaten the legality of cloud computing. One function of cloud-computing services is to offer consumers more numerous and convenient means of playing back copies that the consumers already lawfully acquired. A consumer’s playback of her own lawfully-acquired copy of a copyrighted work to herself will ordinarily be a non-infringing private performance, and it may be protected by fair-use principles as well.

Respondent’s service, by contrast, enables subscribers to gain access to copyrighted content in the first instance—the same service that cable companies have traditionally provided. Unlike cable companies, however, respondent does not pay licensing fees to the copyright holders. A decisions holding that respondent publicly performs the broadcast programs it transmits to paying subscribers will not threaten the use of different technologies that assist consumers in hearing or viewing their own lawfully-acquired copies of copyrighted works.

To his credit, Schruers does confirm that the government presents this simple dichotomy: “The USG’s rationale is that as long as a consumer has lawfully acquired media in the first place, no cloud service need worry that someone will demand a license.” But then Schruers quickly tries to dismiss this argument by alluding to some other, albeit unnamed, amici whom he claims disagree. Furthermore, he takes issue with the government’s choice of words in saying that Aereo’s loss “need not threaten the legality of cloud computing.” He notes that the government “conspicuously does not argue that it will not threaten the cloud.” This argument is unpersuasive to begin with, and it’s undercut by the fact that just three sentences later the government explicitly says that a decision against Aereo “will not threaten the use of different technologies that assist consumers in hearing or viewing their own lawfully-acquired copies of copyrighted works.”

Schruers notes that the CDT “argued that an ‘overly broad view of the public performance right would chill the promise and progress of cloud computing.’” This is no doubt true. Should the Supreme Court’s interpretation of the Transmit Clause be overly broad, the cloud would be endangered. But what the CDT doesn’t do is wave its hands in the air and say that we should all be panic-stricken for the cloud. The CDT instead offers an interpretation of the Transmit Clause which recognizes the simple dichotomy between passive conduits and active participants.

As the CDT amicus brief puts it:

[W]hen a user accesses her own digital files (whether music, video, text, or software) over the Internet, the resulting transmission should not be treated as a public performance within the meaning of the Copyright Act. Thus, when a consumer uses a cloud-based service like an online backup or storage locker for his lawful copies of copyrighted works, the later transmission of those copies back to himself, in a manner not accessible to others, does not constitute an exercise of the public performance right.

The Court should take care not to analyze the present case in a manner that would undercut, ignore, or reject this crucial principle regarding one-to-one transmissions of personal copies. In particular, it should avoid any suggestion that the transmission to users of their own, lawfully acquired personal copies constitutes public performance.

It should be mentioned that Schruers is certainly cognizant of this argument, for the second paragraph is a verbatim transcription of what Schruers himself argued in an amicus brief before the Court of Appeals for the District of Columbia Circuit in the Aereo-copycat FilmOn X appeal. Note too how the CDT’s argument tracks that of the petitioners and the government—what matters is whether the content was legally acquired by the subscriber in the first place. But the CDT brief is even more nuanced than that, and its argument tracks my own in claiming that whether the service provider is the identity of the sender depends on the volitional conduct test, which uses a proximate causation analysis to determine who directly causes the transmission to occur.

As the CDT explains:

When a computer system is used to reproduce or perform a work in a way that may infringe, direct liability is reserved for parties whose volitional conduct is sufficiently proximate to the infringement. Where the key volitional conduct lies with the computer system’s users, the legal responsibility of the computer system is analyzed under principles of secondary liability. ***

The Cablevision case applied the volitional conduct test to the act of copying. On the facts of that case, the court held that the user engages in the volitional conduct that causes a specific program to be recorded. Users therefore were deemed to be the ones who “do” the copying. . . . The Second Circuit expressly declined to reach the question of whose volitional conduct triggers the subsequent playback, because it held the resulting performances to be private in any event. . . . That made the volitional conduct question moot. But as a general matter, volitional conduct is an important additional element of public performance analysis. [footnote 9] ***

[footnote 9] Following Cablevision, the court below did not consider the issue of volitional conduct: who here is performing the broadcasts, the users or Aereo? Petitioners simply assume that Aereo is the volitional actor. But if the users are the volitional actors, the Petitioners have effectively conceded in the context of their discussion of the “hapless customer” that no public performance would occur. ***

In short, the volitional conduct requirement draws the line between (a) volitional actors whose overt acts incur direct responsibility for infringement and (b) providers of tools or instrumentalities, who may be secondarily liable for the acts of others, in appropriate circumstances.

With the exception of the footnote, this argument is also a verbatim copy of Schruers’ own argument in the FilmOn X appeal. The CDT, via Schruers, hits the nail on the head when it points out that whether Aereo—or any other cloud service provider, for that matter—is a direct infringer depends on the remoteness of its volitional conduct in bringing about the transmission.

Schruers’ claim about the BSA amicus brief is even more off-kilter. Schruers states:

The Business Software Alliance similarly argued that “[t]ransmissions between a provider of cloud storage services and individual users are thus outside the scope of the Transmit Clause [of the Copyright Act]” and that a “contrary interpretation of the Transmit Clause would be fatal for cloud computing.”

Those quotes are pulled out of context. The BSA actually says this:

Pursuant to the Transmit Clause’s plain terms, a private transmission that is initiated by the user who stored the content and is accessible only to that user cannot violate the Transmit Clause. Transmissions between a provider of cloud storage services and individual users are thus outside the scope of the Transmit Clause.

A contrary interpretation of the Transmit Clause would be fatal for cloud computing. Cloud networks would be unable to function if every user-directed transmission implicated the Transmit Clause.

The BSA does not merely state that any transmission from a cloud service provider to its subscriber is beyond the Transmit Clause’s reach. It specifically is limiting its argument to “a private transmission that is initiated by the user who stored the content and is accessible only to that user.” This tracks the argument made by the petitioners, the government, and the CDT—and it tracks Schruers’ own argument made elsewhere. The BSA agrees that too broad a reading of the Transmit Clause would be disastrous for the cloud, but it sees this as an opportunity to urge the Supreme Court to adopt a narrower reading.

Adopting the volitional conduct approach, the BSA continues:

Direct liability for copyright infringement requires a volitional act. In the context of cloud-based data storage service—where the storage and transmission of data result from volitional acts performed solely by the user, and the provider of the storage service merely executes the user’s commands—the absence of any volitional act by the provider precludes imposition of direct liability for infringement and bars liability for any infringing acts by its users. [footnote 3]

[footnote 3] A different situation would be presented if a cloud services provider does not simply store data for users and transmit that data as requested by a user, but rather stores a work on its own initiative and offers access to the public generally or to its “subscribers” (or stores the work at the request of a user but transmits the work at the request of persons other than that user).

The BSA too thinks that whether the service provider is a passive conduit or an active participant turns conclusively on who supplies the content. When the subscriber supplies content to himself, the performance is private. But when the service provider itself “stores a work on its own initiative and offers access to the public generally,” the performance is public.

Schruers is no doubt correct to be concerned about the Supreme Court adopting too broad a reading of the Transmit Clause. But where he misses the boat is in his suggestion that a blow to Aereo necessarily means lights out for the cloud. The petitioners’ argument is not so broad as to imperil the cloud—and, in fact, they defend it. Moreover, as the amicus briefs submitted by the government, the CDT, and the BSA all point out, a simple dichotomy exists between passive conduits and active participants which turns on who supplies the content. Schruers here presents the Aereo appeal as an all-or-nothing battle for the cloud, but the truth is that a loss for Aereo needn’t mean any such thing. While other doom merchants have picked up on his argument, one can’t help but think that their strategy is to distract attention away from Aereo itself.

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Posted in Copyright Theory | Tagged , , , , , , | 38 Comments

Why Aereo Should Lose and Why it Doesn’t Matter for the Cloud

Cross-posted on the Copyhype blog.

With Aereo’s upcoming oral argument before the Supreme Court, I’ve got tens of thousands of tiny antennae on the mind. The novelty—and, of course, the absurdity—of Aereo’s service makes it one of the more interesting copyright puzzles. Most of the issues with Aereo are repetitive of the issues with Cablevision, and debate abounds over whether the number of source copies matters and whether multiple transmissions should be aggregated. I’ve come to view these issues as red herrings. But there’s another red herring that I’d rather discuss here, and that’s whether a decision against Aereo would be the death knell to the cloud. After all, performances are transmitted from Aereo’s service to members of the public just like they are from some cloud computing services. So why shouldn’t we worry?

In my last post about Aereo, I unconcernedly claimed: “This case isn’t about the future of cloud computing companies—those services are protected by the DMCA.” Why we shouldn’t worry about the cloud is certainly in large part answered by the DMCA, but I want to take it a step deeper and show that, even without the DMCA, some cloud computing companies would not incur liability when content is transmitted from their services to members of the public. The key to understanding why such cloud computing companies are not infringers is the key to understanding why Aereo is an infringer, and this turns on application of the volitional conduct test—a test codified in DMCA, but which is applicable in any context where the Transmit Clause is implicated. The volitional conduct test provides us with a way to separate the Aereo-like goats from the cloud computing sheep.

Under the Transmit Clause, it is a public performance to (1) transmit a performance of a work (2) to the public.1 There is no doubt that a performance of a work is being transmitted with Aereo’s service, so (1) is not at issue. The issue is whether this transmission is “to the public,” which is a term of art. Whether a transmission is “to the public” does not depend on the place to which it is sent, and a transmission to a private place can be “to the public” nonetheless. What makes it “to the public” is the relationship between the sender and the receiver, and this relationship, naturally, depends on the identity of each party. When the relationship between the sender and the receiver is a public one, the transmission is a public performance. And when the relationship between the sender and the receiver is a private one, the transmission is a private performance.

In Aereo,2 the Second Circuit focused on the receiver for each transmission, concluding that when there is a one-to-one relationship between the source copy and the receiver, the performance is private—even if we presume that Aereo is the sender. I think this makes no sense. If Aereo is the sender and the subscriber is the receiver, then that relationship is a public one and the transmission is a public performance. The Second Circuit’s reliance on there being a unique source copy for each receiver was misplaced, for the Transmit Clause cares only about who is transmitting to whom. It says nothing about a source copy—and in fact no source copy is even needed to publicly perform via transmission.3 The issue is simply who is directly causing the transmission to occur. Until we know who is transmitting to the receiver, that is, until we identify the sender, we can’t know whether the relationship between the sender and the receiver is a public one such that it’s “to the public.”

Without fair use or the DMCA to fall back on, the Aereo appeal squarely presents the issue of who is directly causing the transmission when a performance of a work is transmitted from Aereo’s service to the subscriber. In other words, the case boils down to who is the direct performer in this scenario. If the subscriber is the direct performer, then the performance is private since the sender and the receiver are the same party and the transmission therefore is not “to the public.” If Aereo is the direct performer, then the performance is public since the relationship between the sender and the receiver is a public one and the transmission therefore is “to the public.” And whether Aereo is the direct performer turns on the volitional conduct test: Is Aereo’s volitional conduct sufficient such that it directly causes the transmission? I think the answer is clearly “yes,” and how I get there is by utilizing the only bright-line rule under the volitional conduct test.

The genesis of the volitional conduct test is the famous Netcom decision,4 penned in 1995 by District Judge Ronald M. Whyte of the Northern District of California. Pre-DMCA, Judge Whyte was faced with deciding the liability of Netcom, an internet service provider, for infringement taking place utilizing its system. Critically, “Netcom was not itself the source of any of the infringing materials on its system,”5 and the issue was whether it could be a direct infringer of the reproduction right nonetheless. Judge Whyte held that it could not: “Although copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party.”6 Since “such copies are uploaded by an infringing user,” Judge Whyte continued, Netcom’s actions were not a direct infringement of the reproduction right.7

Judge Whyte acknowledged that copyright infringement is a strict liability tort, meaning that neither knowledge nor intent to infringe need be shown. However, strictly applying that strict liability to reproductions occurring in cyberspace “would hold the entire Internet liable for activities that cannot reasonably be deterred.”8 Grounded in the policy argument that “it does not make sense to adopt a rule that could lead to the liability of countless parties whose role in the infringement is nothing more than setting up and operating a system that is necessary for the functioning of the Internet,” Judge Whyte proposed a dichotomy between a passive conduit, which provides only dumb pipes used by others to copy, and an active participant, which takes affirmative steps to bring about the copying.9 And central to Judge Whyte’s holding that Netcom was a passive conduit was the fact that it was the users who uploaded the content to Netcom’s service in the first place.

The key to understanding Netcom and its progeny is to recognize that the volitional conduct test is not used to determine whether a service provider should be held directly liable in the first place. Instead, a service provider seeks Netcom immunity because, without it, it would otherwise be a direct infringer. The volitional conduct test is perhaps best understood in terms of causation: Even though, because of strict liability, every service provider that is the cause-in-fact of the copying is thereby a direct infringer, certain service providers are nevertheless not directly liable for the copying because their actions are sufficiently remote. Perhaps the leading iteration of the volitional conduct test comes from the Fourth Circuit in CoStar:

[T]o establish direct liability under §§ 501 and 106 of the Act, something more must be shown than mere ownership of a machine used by others to make illegal copies. There must be actual infringing conduct with a nexus sufficiently close and causal to the illegal copying that one could conclude that the machine owner himself trespassed on the exclusive domain of the copyright owner.10

The volitional conduct test has also been adopted by the Second and Ninth Circuits,11 as well as by several district courts.12 In fact, Congress baked Netcom immunity under the volitional conduct test right into the DMCA.13 For example, Section 512(c) grants a qualifying service provider immunity “for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.”14 The Second Circuit in YouTube and the Ninth Circuit in Shelter Capital read this language very broadly, finding that even transcoding and indexing user-submitted content to facilitate its public playback was protected by the safe harbor.15 While Section 512(c) protects a service provider for many automated acts that occur after a user uploads content to the service, the one thing it doesn’t provide immunity for is content supplied by the service provider itself.

How the volitional conduct test operates in the cloud is demonstrated in the Hotfile case, where the district court stated:

Thus, the law is clear that Hotfile and [the owner] are not liable for direct copyright infringement because they own and manage internet facilities that allow others to upload and download copyrighted material. . . . [T]he website merely allows users to upload and download copyrighted material without volitional conduct from Hotfile or [the owner]. . . . [N]othing in the complaint alleges that Hotfile or [the owner] took direct, volitional steps to violate the plaintiffs’ infringement. There are no allegations, say, that Hotfile uploaded copyrighted material. Therefore, under the great weight of authority, the plaintiffs have failed to allege direct copyright infringement.16

Because neither Hotfile nor the owner had engaged in sufficient volitional conduct, by, for example, uploading the infringing content at issue, the district court found that they could not be held directly liable for the infringement that occurred. Contrasted with Hotfile is Tasini,17 where the Supreme Court held that a database provider was directly liable for violating the public distribution right for content that it had supplied and made available as part of its publicly-accessible database. Because the database provider had supplied the infringing content at issue, this was a sufficient condition for finding that it was a direct infringer.

The import of all this is that where the service provider itself supplies the infringing content that is publicly distributed, displayed, or performed, that service provider can claim neither Netcom immunity nor DMCA immunity. Supplying the infringing content is sufficient for finding that the service provider has directly caused the infringement to occur—but it’s not necessary for such a finding. In other words, if the service provider itself supplies the infringing content, then it is a direct infringer. But sometimes the service provider can also be a direct infringer even if it did not supply the infringing content. This happens when the service provider engages in other volitional conduct “with a nexus sufficiently close and causal to the illegal copying,” to borrow the Fourth Circuit’s phrase, such that it is not only the factual cause of the copying, but the legal cause as well.

For example, in Megaupload, the district court found that the plaintiff had alleged that Kim Dotcom’s infamous website “serves as more than a passive conduit, and more than a mere ‘file storage’ company.”18 Several facts, including Megaupload’s reward program where it paid users to upload content, meant that Megaupload had possibly crossed the line from being a passive conduit to being an active participant in the infringement. Similarly, in Usenet, the district court found that the bulletin board service was “not merely a ‘passive conduit’ that facilitates the exchange of content between users who upload infringing content and users who download such content.”19 The “active measures” and “active steps” engaged in by the defendants “transformed [them] from passive providers of a space in which infringing activities happened to occur to active participants in the process of copyright infringement.”20

Like all proximate causation analysis, the volitional conduct test involves both art and science, and courts engaging in it typically juggle somewhat-vague concepts of foreseeability and temporality with normative decisions about social justice.21 As Dean William Prosser, author of Prosser on Torts and Reporter for the Restatement (Second) of Torts, put it, proximate causation is “our more or less inadequately expressed ideas of what justice demands.”22 Exactly how much volitional conduct it takes for a service provider to cross the line from passive conduit to active participant, no one can say. The analysis is, necessarily, somewhat arbitrary. The only bright-line criteria that exists under the volitional conduct test is that of who supplies the infringing content. When it’s the service provider itself, the volitional conduct on the part of the service provider is sufficient to find it directly liable.

This past week, District Judge Dale A. Kimball of the District of Utah found that the plaintiffs were likely to succeed on the merits against Aereo because it “provid[es] paying customers with retransmission of copyrighted works.” And this gets to the heart of why Aereo should lose before the Supreme Court. Aereo has crossed the line from being a passive conduit to being an active participant because it supplies the very content that is available using its service. Presumably, this is at least part of the reason why Aereo does not argue that Section 512(c) gives it DMCA immunity. Aereo cannot maintain that the content residing on its service is “by reason of the storage at the direction of a user” because the content comes from Aereo itself. The subscriber doesn’t go to Aereo to upload the content he already has to the cloud; the subscriber goes to Aereo to get the content he wants but doesn’t yet have—content which Aereo itself supplies.

The reason why Aereo, and not the subscriber, is the direct performer is simple. Because of copyright’s strict liability nature, every party that is the cause-in-fact of the copying is a direct infringer unless some other doctrine absolves that party from direct liability. The volitional conduct test uses a proximate causation analysis to determine whether a party’s actions are sufficiently remote such that it should not be held directly liable for the infringement. While the metes and bounds of the volitional conduct test are imprecise, to say the least, there is one bright-line rule: When the service provider itself supplies the very content at issue, that service provider’s actions can never be sufficiently remote to absolve it of direct liability. Because Aereo itself supplies the very content at issue—by implementing and making available its system of tens of thousands of tiny antennae that receive and retransmit performances—Aereo is the identity of the sender. And since the relationship between the sender (Aereo) and the receiver (the subscriber) is a public one, the transmission is a public performance.

The argument that it is Aereo’s subscriber, and not Aereo itself, who is the sender is untenable. The Transmit Clause was enacted to capture any service doing exactly what Aereo does, namely, retransmitting a broadcast to the public by any means possible. The petitioners in Aereo do a great job of traversing the history of the Transmit Clause in their opening brief before the Supreme Court, but the short version is this: The Supreme Court had held in a pair of cases that a community antenna television system or a cable system that captured an over-the-air broadcast and retransmitted it to the public was not engaged in a public performance.23 Congress enacted the Transmit Clause to legislatively overrule these two cases, and the words Congress chose, namely, “any device or process” used to transmit a performance, leave no doubt that its concern was with the function of the device or process utilized to make the transmission—not the underlying technical details of the device or process itself.24

Aereo’s argument boils down to it claiming that, even though the Transmit Clause on its face applies to “any device or process” that transmits a performance to the public, its particular device or process is somehow so special under-the-hood that the Transmit Clause doesn’t reach it. The problem with this argument is that the Transmit Clause means what it says, and it’s no answer to say that Aereo is simply doing for a subscriber what he could do for himself. This was the Supreme Court’s reasoning in the two cases the Transmit Clause was enacted to overrule. And even if we accept the argument that Aereo’s subscribers are really lessees of its equipment, the outcome is the same. The test is volitional conduct, and the conduct that matters is the conduct that Aereo itself has actually engaged in. If Aereo’s own actions are sufficient to find it directly liable absent any lease relationship, then its own actions are necessarily sufficient to find it directly liable even with the lease relationship. Because unless there is also some agency relationship between Aereo and its subscriber—for example, if Aereo were the subscriber’s employee—then Aereo’s own actions are only attributable to itself.

Cloud computing companies need not be worried about the outcome of the Aereo appeal because these service providers will continue to be protected by Netcom immunity under the volitional conduct test or by DMCA immunity. Assuming such service providers are protected by the DMCA, there’s an expansive amount of volitional conduct they can engage in without losing their safe harbor. How much volitional conduct they can engage in without losing Netcom immunity is less clear, but what is clear is that when a service provider itself supplies the very content at issue, there is no immunity under either the volitional conduct test or the DMCA. If Aereo loses before the Supreme Court, as I believe they should, it won’t negatively affect cloud computing companies because there is no reason for the Court to look any further than the fact that Aereo supplies the very content at issue. If anything, the Court’s decision will further cement into place the one bright-line rule that there is with the volitional conduct test, and this clarity in the law will redound to the cloud.

Special thanks to Terry Hart and Jonathan Greenfield for their valuable feedback in drafting this post.

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  1. See 17 U.S.C.A. § 101 (West 2014) (“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. *** 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.”). []
  2. See WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013). []
  3. For example, live performances and television broadcasts can be captured and transmitted to the public even though the sender possesses no source copy. []
  4. See Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F.Supp. 1361 (N.D. Cal. 1995). []
  5. Id. at 1367. []
  6. Id. at 1370. []
  7. Id. at 1371. []
  8. Id. at 1372. []
  9. Id. []
  10. CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544, 550 (4th Cir. 2004). []
  11. See Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008); Fox Broad. Co., Inc. v. Dish Network L.L.C., Case No. 12-cv-57048, 2014 WL 260572 (9th Cir. Jan. 24, 2014). []
  12. See, e.g., Field v. Google Inc., 412 F.Supp.2d 1106 (D. Nev. 2006); Playboy Enterprises, Inc. v. Webbworld, Inc., 991 F.Supp. 543 (N.D. Tex. 1997); Playboy Enterprises, Inc. v. Russ Hardenburgh, Inc., 982 F.Supp. 503 (N.D. Ohio 1997); Disney Enterprises, Inc. v. Hotfile Corp., 798 F.Supp.2d 1303 (S.D. Fla. 2011). []
  13. See, e.g., H.R. Rep. 105-551(I), at *11 (“As to direct infringement, liability is ruled out for passive, automatic acts engaged in through a technological process initiated by another. Thus, the bill essentially codifies the result in the leading and most thoughtful judicial decision to date: Religious Technology Center v. Netcom On-line Communications Services, Inc., 907 F. Supp. 1361 (N.D. Cal. 1995).”); ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 622 (4th Cir. 2001) (“[T]he ultimate conclusion on this point is controlled by Congress’ codification of the Netcom principles in Title II of the DMCA.”). []
  14. 17 U.S.C.A. § 512(c) (West 2014). []
  15. See Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 39 (2d Cir. 2012); UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1016 (9th Cir. 2013). []
  16. Disney Enterprises, Inc. v. Hotfile Corp., 798 F.Supp.2d 1303, 1308 (S.D. Fla. 2011) (internal citations and paragraph break omitted). []
  17. New York Times Co., Inc. v. Tasini, 533 U.S. 483 (2001). []
  18. Perfect 10, Inc. v. Megaupload Ltd., Case No. 11-cv-0191, 2011 WL 3203117, at *4 (S.D. Cal. July 27, 2011). vacated pursuant to settlement, 2011 WL 10618723 (S.D. Cal. Oct. 11, 2011). []
  19. Arista Records LLC v., Inc., 633 F.Supp.2d 124, 149 (S.D.N.Y. 2009). []
  20. Id. (internal quotations, citations, and brackets omitted). []
  21. See Mark Bartholomew & Patrick F. McArdle, Causing Infringement, 64 Vand. L. Rev. 675, 703 (2011). []
  22. Id. (internal quotations and footnote omitted). []
  23. See Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968); Teleprompter Corp. v. Columbia Broad. Sys., Inc., 415 U.S. 394 (1974). []
  24. See, e.g., H.R. Rep. No. 94-1476, at *63 (1976) (A performance occurs “either directly or by means of any device or process, including . . . any sort of transmitting apparatus, any type of electronic retrieval system, and any other techniques and systems not yet in use or even invented.”); id. at *64 (“The definition of ‘transmit’ . . . is broad enough to include all conceivable forms and combinations of wires and wireless communications media, including but by no means limited to radio and television broadcasting as we know them. Each and every method by which the images or sounds comprising a performance . . . are picked up and conveyed is a ‘transmission,’ and if the transmission reaches the public in [an]y form, the case comes within the scope of clause[] (4) . . . of section 106.”). []
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