Associate Justice Antonin Scalia is not happy with the Supreme Court’s holding that Aereo performs, as he makes clear in his acerbic dissent in Aereo. Scalia mocks the Court’s “test-free, ad hoc, case-by-case evaluation,” and he claims that the Court “disregard[s] widely accepted rules for service-provider liability and adopt[s] in their place an improvised standard (‘looks-like-cable-TV’) that will sow confusion for years to come.” In his opinion, the “clear” answer is this: “Because Aereo does not select the programs viewed by its users, it does not perform.” This “straightforward, bright-line test of volitional conduct directed at the copyrighted work,” Scalia continues, is “settled jurisprudence.” But is Scalia’s “bright-line test” really so “clear”? In this post, I’ll explain why I think it’s not.
Scalia helpfully “boils down” the Court’s deduction as to why Aereo performs:
(1) Congress amended the Act to overrule our decisions holding that cable systems do not perform when they retransmit over-the-air broadcasts; (2) Aereo looks a lot like a cable system; therefore (3) Aereo performs.
One important nuance missing from Scalia’s syllogism is how “Congress amended the Act” to reach cable systems. Congress didn’t just add Section 111, which provides a statutory licensing scheme for secondary transmissions by cable systems. It also added the Transmit Clause to Section 101, which broadly defines what it means to “perform . . . a work publicly.” And while Scalia looks at Section 106(4), which grants an author the exclusive right “to perform the copyrighted work publicly,” he says not one word about the Transmit Clause. For a textualist such as Scalia, this is truly remarkable. Whether Aereo performs publicly is governed exclusively by the Transmit Clause, yet Scalia completely fails to engage its text or even to acknowledge its existence. Moreover, Scalia cites no case law whatsoever applying the Transmit Clause in a public performance case. These omissions are stunning.
Scalia instead focuses on precedent relating to the reproduction right, and he argues that, with a performance-by-transmission, only the party that makes the final selection of the particular content to be transmitted directly causes that performance to occur. This suffers from many flaws, not the least of which is that the reproduction right case law Scalia cites doesn’t translate well to the public performance right. The reproduction right case law looks at what happens after the content has already been supplied to the user, while the focus with the public performance right is how the content is supplied to the user in the first place. And while the reproduction right analysis may be indifferent to whether the service provider selects and supplies the content to be copied, the liability of the service provider with the public performance right, by contrast, turns on it.
Making things worse, Scalia has a strange notion that there’s only one performance when the content is transmitted from the service provider to the user who then subsequently receives and renders the content on a device:
When a subscriber selects a program, Aereo’s system picks up the relevant broadcast signal, translates its audio and video components into digital data, stores the data in a user-specific file, and transmits that file’s contents to the subscriber via the Internet—at which point the subscriber’s laptop, tablet, or other device displays the broadcast just as an ordinary television would. The result of that process fits the statutory definition of a performance to a tee: The subscriber’s device ‘show[s]’ the broadcast’s ‘images’ and ‘make[s] the sounds accompanying’ the broadcast ‘audible.’ § 101. The only question is whether those performances are the product of Aereo’s volitional conduct.
The proper view is that the transmission from the service provider to the user is one performance, and if the user happens to render that transmission on a device, that’s a second performance. With Aereo, we don’t care about this second performance-by-rendition on the user’s device, and it matters not whether the user privately performs the content, makes a copy of it, or distributes it publicly after he has received it. What we care about is the first performance, that is, the performance-by-transmission that supplies the user with the content in the first place. We want to know who directly causes this performance. While we may hold the user directly liable for whatever acts he engages in once he’s received the content, Scalia fails to recognize that the question in Aereo is who is responsible for supplying that content to the user in the first instance.
Scalia’s analysis starts on the right foot: “The Networks’ 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. See 3 W. Patry, Copyright § 9:5.50 (2013).” There’s hardly anything remarkable about the volitional conduct test. All it stands for is the obvious notion that, while copyright infringement is a strict liability tort, the defendant can’t be directly liable unless he causes the copying. As William Patry notes in the treatise entry cited by Scalia, the “requirement of volitional conduct . . . serves to ensure that there is a causal connection between the conduct in question and the person alleged to have violated the copyright owners’ Section 106 rights.” In other words, volitional conduct just means “causation,” in the tort-law sense of the word.
Scalia believes there’s a general bright-line rule under the volitional conduct test that turns on who selects the content: “In sum, Aereo does not ‘perform’ for the sole and simple reason that it does not make the choice of content.” Scalia claims this rule for the public performance right comes from three federal appellate opinions applying the volitional conduct test to the reproduction right, namely, CoStar, Cablevision, and Dish. This trilogy of cases, in turn, traces back to the famous pre-DMCA Netcom decision, where the district court said: “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.”
The CoStar court cites Netcom and adopts its holding:
But to 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.
As in Netcom, the CoStar court simply says that supplying the machine is not enough—there has to be “something more” such that the defendant’s conduct is “sufficiently close and causal” to the copying. And as with Netcom, the content at issue in CoStar is selected and supplied by the user, not by the service provider. Netcom and CoStar are indeed analogous to a copy shop because the user selects and supplies his own content to be copied on the machine, supplied by the service provider, that he operates. But that’s not what’s happening in the other two cases in Scalia’s trilogy, namely, Cablevision and Dish, where the service provider initially selects and the supplies the content from which the user subsequently makes his selection of what is to be copied.
The Second Circuit in Cablevision notes that Cablevision does more than simply supply a machine:
The district court also emphasized Cablevision’s “unfettered discretion in selecting the programming that it would make available for recording.” . . . This conduct is indeed more proximate to the creation of illegal copying than, say, operating an ISP or opening a copy shop, where all copied content was supplied by the customers themselves or other third parties.
Applying a newly-improvised standard, the Cablevision court holds that there is not enough volitional conduct on Cablevision’s part such that it is directly causing the copies to be made: “Nonetheless, we do not think it sufficiently proximate to the copying to displace the customer as the person who ‘makes’ the copies when determining liability under the Copyright Act.” The Ninth Circuit follows suit in Dish, finding that even though the service provider “decides how long copies are available for viewing,” “maintains the authority to modify the start and end times” of the recording, and does not allow the user to “stop a copy from being made once the recording has started,” it “does not mean that the system operator, rather than the user, cause[s] copies to be made.” But in neither case is it true that the service provider engages in no “volitional conduct directed at the copyrighted work,” as Scalia contends. In both cases, the content is first selected and supplied by the service provider.
These cases cited by Scalia—well, at least Cablevision and Dish—certainly do stand for the proposition that, by merely pushing a button, the user is the only party that directly causes the copy to be made—even if the service provider does everything else, such as design, build, and supply the machine that copies nothing other than the specific content it supplies. I don’t think this makes much sense, but I also don’t think it matters here: This who-pushes-the-button variation of the volitional conduct test only applies to the reproduction right. In fact, the Cablevision court explicitly warns that its test for the reproduction right “does not dictate a parallel conclusion” for the public performance right since the “rights vary in significant ways.” Strangely, Scalia cites neither this warning nor any of the Second Circuit’s lengthy discussion of the public performance right.
After his diversion through the reproduction right case law, Scalia himself curiously acknowledges that the public performance right operates differently. Scalia reasons that video-on-demand services and cable systems both perform because the signals that stand “ready to emerge” from the user’s device are the result of the service provider’s “affirmative, volitional steps to put them there.” One difference between them, of course, is that cable systems transmit the content before the user makes a selection, whereas there’s no transmission with video-on-demand services until after the user selects the content to be transmitted. But Scalia thinks that both types of services directly perform since there’s sufficient volitional conduct with each—and this is despite the fact that with both it’s the user who pushes the button. Thus, unlike with the reproduction right, who directly causes the performance to occur is not determined by who pushes the button.
Instead, Scalia confirms that, unlike with the reproduction right case law he cites, direct liability under the public performance right turns on the service provider’s actions vis-à-vis the particular content being transmitted. And while “cable systems started out essentially as dumb pipes that routed signals from point A to point B,” Scalia assures, that’s not the case today as cable systems now “deliberately select and import distant signals” such that they are “curators of content—more akin to video-on-demand services than copy shops.” Under Scalia’s view, even though cable systems don’t know which particular content those “distant signals” may contain, there is sufficient “volitional conduct directed at the copyrighted work[s]” being transmitted such that they publicly perform—just like video-on-demand services that do choose the particular content made available to the public.
Scalia thinks there’s a difference between cable systems that capture “the full range of broadcast signals” and ones that capture only certain signals. “So far as the record reveals,” he reasons, Aereo aligns with the former. But as the copyright gurus at Truth on the Market argue, Aereo doesn’t provide all of the broadcasts in a given area:
Aereo does not offer all the ATSC broadcasts transmitted over-the-air in the cities where the service is available. In New York, for example, Aereo claims to offer 16 channels (and several virtual sub-channels), but it doesn’t claim to offer such channels as WMBQ-CD, WDVB-CD, WNYZ-LP, or WASA-LD—all of which are broadcast over-the-air throughout central New York, according to AntennaWeb.
Moreover, it’s hard to see how this distinction matters: No matter how many signals Aereo provides, it takes the same “affirmative, volitional steps” to have the signals “ready to emerge” on the user’s device. And it makes little sense to say that a service which provides more signals somehow has less volitional conduct when it retransmits them. Furthermore, Section 111, which Scalia also conspicuously fails to consider, belies his argument that passive services do not publicly perform. For example, Section 111(a)(1) exempts “the relaying, by the management of a hotel, apartment house, or similar establishment, of signals transmitted by a broadcast station . . . to the private lodgings of guests or residents of such establishment.” If such passive relays were not public performances, there’d be no need for the exemption in the first place. And as the House Report to the 1976 Copyright Act clarifies, “any act by which” a performance “is transmitted, repeated, or made to recur would itself be a performance.” “Any act” includes acts both active and passive.
Needless to say, I don’t find Scalia’s dissent very persuasive. If anything, Scalia’s own standard strikes me as being “improvised” since it comes from the reproduction right case law that looks at what the user does with the content after it’s already been acquired. And why a textualist such as Scalia fails to address the Transmit Clause or even Section 111 is anyone’s guess. But the main problem with Scalia’s dissent, in my opinion, is that Scalia fails to recognize that whether Aereo performs has nothing to do with what the user does with the content once it’s been received. Like the public distribution and public display rights, the public performance right looks at the means by which the content is supplied to the user in the first place. It’s this performance-by-transmission by which the user is supplied the content that’s at issue, and this has nothing to do with the user’s subsequent performance-by-rendition, should there even be one.
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© 2014 Devlin Hartline. Licensed under the Law Theories Public License 1.0.