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NOS. 13-55156-cv(L), 13-55157-cv(CON), 13-55226-cv(XAP) and 13-55228-cv(XAP)

United States Court of Appeals for the Ninth Circuit

FOX TELEVISION STATIONS, INC.; TWENTIETH CENTURY FOX FILM CORPORATION; FOX BROADCASTING COMPANY, INC., Plaintiffs-Appellees, v. AEREOKILLER, LLC; ALKIVIADES DAVID; FILMON.TV NETWORKS, INC.; FILMON.TV, INC.; FILMON.COM, INC., Defendants-Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CASE NO. 2:12-CV-06921-GW-JC GEORGE H. WU, UNITED STATES DISTRICT JUDGE

BRIEF OF AMICI CURIAE THE COPYRIGHT ALLIANCE, THE ASSOCIATION FOR COMPETITIVE TECHNOLOGY, THE CENTER FOR INDIVIDUAL FREEDOM, AND VARIOUS PROFESSORS IN SUPPORT OF AFFIRMANCE

SANDRA AISTARS Executive Director COPYRIGHT ALLIANCE 1224 M Street, NW, Suite 101 Washington, DC 20005 (202) 540-2247

ELEANOR M. LACKMAN Counsel of Record MARY E. RASENBERGER NANCY E. WOLFF COWAN, DEBAETS, ABRAHAMS & SHEPPARD LLP 41 Madison Avenue, 34th Floor New York, New York 10010 (212) 974-7474

Attorneys for Amici Curiae

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CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amicus curiae The Copyright Alliance states that it does not have a parent corporation, and that no publicly held corporation owns 10% or more of amicus stock. Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amicus curiae The Association for Competitive Technology states that it does not have a parent corporation, and that no publicly held corporation owns 10% or more of amicus stock. Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amicus curiae The Center for Individual Freedom states that it does not have a parent corporation, and that no publicly held corporation owns 10% or more of amicus stock.

C-1

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TABLE OF CONTENTS Page CORPORATE DISCLOSURE STATEMENT .......................................... C-1 TABLE OF CONTENTS.............................................................................. i-ii TABLE OF AUTHORITIES ...................................................................... iii-v INTEREST OF AMICI ................................................................................... 1 SUMMARY OF ARGUMENT ...................................................................... 6 ARGUMENT .................................................................................................. 9 I. THIS COURT SHOULD AFFIRM THE DISTRICT COURTS PROPER RULING BELOW RATHER THAN FOLLOW THE SECOND CIRCUITS REASONING IN CABLEVISION ............................................. 9 A. The Cablevision Decision Is a Poor Blueprint for Copyright and Law Technology ......................................... 11 1. The Legal and Practical Impacts of Cablevision Have Been Looming Concerns for Creators of Expressive Works ..................................................................... 11 2. Leading Copyright Scholars Agree That The Cablevision Decision is Problematic .............. 14 a. The Ruling is Premised on Legal Error................................................................ 15 b. The Reasoning Leaves The Door Open to The Whittling Away of The Performance Right as New Technology Develops ..................................... 18
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B. The Reach of Cablevision Was Intended to Be Limited to Cable Retransmissions ...................................... 20 II. REVERSAL WOULD BENEFIT ONLY COMMERCIALLY MOTIVATED FREE-RIDERS, TO THE DETRIMENT OF INNOVATION AND CONSUMER OPTIONS .......................................................... 24 A. Aereokiller Is Not Innovation, It is Technological Regression ................................................... 24 B. Affirmance Promotes the Progress of Science and Useful Arts, and Benefits the Public ................................. 27 CONCLUSION ............................................................................................. 33 CERTIFICATE OF COMPLIANCE ............................................................ 34

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TABLE OF AUTHORITIES Page(s) CASES A&M Records Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) ........................................................... 28, 30 American Broadcasting Cos., Inc. v. Aereo, Inc., 874 F. Supp. 2d 373 (S.D.N.Y. 2012) ......................................... 22, 23, 29 American Geophysical Union v. Texaco, 802 F. Supp. 1 (S.D.N.Y. 1992), affd, 60 F.3d 913 (2d Cir. 1994) ....... 26 Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) ............................................................ passim Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 749 F.2d 154 (3d Cir. 1984) .................................................................... 11 Fox Television Stations, Inc. v. BarryDriller Content Sys., PLC, --- F. Supp. 2d ---, 2002 WL 6784498 (C.D. Cal. Dec. 27, 2012) ........... 9 Golan v. Holder, 132 S. Ct. 873 (2012).............................................................................. 26 Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985)................................................................................. 26 Herbert v. Shanley Co., 242 U.S. 591 (1917) ................................................................................ 26 Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005)................................................................................. 28 United States v. ASCAP, 1992 WL 142749 (S.D.N.Y. June 12, 1992) ........................................... 12 United States v. Broadcast Music, Inc., 316 F.3d 189 (2d Cir. 2003) .................................................................... 25 WNET, Thirteen v. Aereo, Inc., 12-2786-cv, 2013 WL 1285591 (2d Cir. Apr. 1, 2013) .............. 23, 24, 25
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STATUTES & RULES 17 U.S.C. 101 ............................................................................................. 17 17 U.S.C. 110(5)(A) .................................................................................. 12 Fed. R. App. P. 29(b) ...................................................................................... 1 Fed. R. App. P. 29(c)(5).................................................................................. 1 U.S. Const. art. I, 8, cl. 8.............................................................................. 6 OTHER AUTHORITIES Adam Mosoff, How Copyright Drives Innovation in Scholarly Publishing 13-25 George Mason University Law and Economics Research Paper Series ............................................................................................. 26 Brief of Amicus Curiae Copyright Alliance, Cable News Network, Inc. v. CSC Holdings, Inc., No. 08-448, 2008 WL 4887717 (U.S. Nov. 5, 2008) .............................. 13 Brief of the United States as Amicus Curiae, Cable News Network, Inc. v. CSC Holdings, Inc., No. 08-448, 2009 WL 1511740 (U.S. May 29, 2009) ................................................................... 20, 21, 22 Brief of Various Professors as Amicus Curiae, Cable News Network, Inc. v. CSC Holdings, Inc., No. 08-448, 2008 WL 4819896 (U.S. Nov. 5, 2008) .............................. 18 Eric Schmidt, Conversation with Eric Schmidt hosted by Danny Sullivan, Search Engine Strategies Conference (Aug 9, 2006) ............... 32 James Grimmelmann, Why Johnny cant Stream: How video copyright went insane, ARS TECHNICA (Aug. 30, 2012) .......................................... 25 H.R. Rep. No. 94-1476, reprinted in 1976 U.S.C.C.A.N 5659 .............. 10, 12 Jane C. Ginsburg, Recent Developments in U.S. Copyright Law Part II, Caselaw: Exclusive Rights on the Ebb? Colum. Pub. L. & Legal Theory Working Papers, No. 08158 (2008) ..................................... passim

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Jeffrey Malkan, The Public Performance Problem In Cartoon Network LP v. CSC Holdings, Inc., 89 OR. L. REV. 505 (2010) ...... 16, 17 Paul Goldstein, Goldstein on Copyright, (2011 Supp.) .................... 14, 16, 19 Raymond T. Nimmer, Law of Computer Technology, (2013)..................... 11

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Pursuant to Federal Rule of Appellate Procedure 29(b), amici curiae the Copyright Alliance, the Association for Competitive Technology, the Center for Individual Freedom, and various professors listed herein (collectively, Amici) respectfully submit this brief in support of appellees Fox Television Stations, Inc., Twentieth Century Fox Film Corporation and Fox Broadcasting Company, Inc. (the Fox Parties), and NBCUniversal Media, LLC, Universal Network Television, LLC, NBC Subsidiary KNBCTV, LLC, American Broadcasting Companies, Inc., Disney Enterprises, Inc., CBS Broadcasting, Inc., CBS Studios, Inc., Open 4 Business Productions, LLC, Big Ticket Television, Inc., Telemundo Network Group, LLC and WNJU-TV Broadcasting, LLC (the NBC Parties) (the Fox Parties and NBC Parties, collectively, Appellees). This brief is submitted on motion.1 INTEREST OF AMICI The Copyright Alliance is a nonprofit, nonpartisan 501(c)(4) membership organization dedicated to promoting and protecting the ability of creative professionals to earn a living from their creativity. It represents
1

Pursuant to Federal Rule of Appellate Procedure 29(c)(5), no counsel for any party authored this brief in whole or in part, and no party or counsel for any party made a monetary contribution intended to fund the preparation or submission of this brief. Only amici curiae made such a monetary contribution. Some Copyright Alliance members are, or are affiliates of, Appellees in this matter. Some may join other amicus briefs in support of Appellees.

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the interests of individual authors from a diverse range of creative industries including, for example, writers, musical composers and recording artists, journalists, documentarians and filmmakers, graphic and visual artists, photographers and software developers and the small businesses that are affected by the unauthorized use of their works. The Copyright Alliances membership encompasses these individual artists and creators, creative union workers, and small businesses in the creative industry, as well as the organizations and corporations that support and invest in them. Those affected by the reach of copyright law, including the law that applies to television retransmission, extend far beyond the names of the parties involved in the present appeal. For example, even the lengthy credits displayed during a broadcast television program may not come close to fully capturing all of the names of those who provided writing, directing, design, recording, engineering, photography and editing contributions to make that program available for customers to enjoy. Similarly, those who invest in others creation of copyrighted works, and the means of distributing them, must be protected from free-riding. The concept of innovation is of fundamental importance to the Copyright Alliance. Just like the patent laws encourage the development of technology, the copyright laws spur the development of the creative works 2

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for the benefit of public consumption through ensuring that those who contribute to creative works are fairly compensated for their efforts. The Copyright Alliance encourages the development of new technologies that may be used to bring licensed works to the public in new ways, even if those new ways disrupt traditional business models. However, regardless of the ways in which technology and business evolve, the Copyright Alliances primary dedication is to ensuring that the policies in the Constitution and Congress directions in the Copyright Act continue to provide meaningful protections to authors whose works may be publicly performed or displayed, and to the investments made to commercialize those works. The Copyright Alliance submits this brief to help the Court

appreciate how Judge Wus principled decision is consistent with those policies and directions. The Copyright Alliance also submits this brief to help the Court understand the negative impacts of reversal to all of those who rely on the public performance and public display rights including if reversal is premised on errors made in a decision of another circuit. The Association for Competitive Technology (ACT) is an international grassroots advocacy and education organization with more than 5,000 small and medium sized software and mobile-app companies, including more than 4,000 based in the United States. ACT was founded in 3

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1998 by independent software developers concerned about how the interactions between major companies and policymakers affected small and medium sized developers. ACT is a registered 501(c)(6) non-profit

organization in the United States. Specifically, the institutional purpose of ACT, as detailed in its U.S. charter documents, is directly related to the benefit of the application developer community by enhanc[ing] public understanding of the high quality of its members products and services and its members commitment to innovation and technological advancement. The mobile-app industry has grown from non-existent just five years ago to a $20 billion-dollar industry today. The industry continues to grow rapidly and is projected to reach $100 billion by 2015. And those software developers who contribute to the growth of the industry increasingly rely on their public performance right. A strong, and globally consistent,

application of the public performance right is fundamental to the industrys ability to ensure that it (like other copyright-reliant U.S. export industries) can compete in the global, networked world. Thus, for reasons similar to those of the Copyright Alliance, ACT submits this brief to encourage the Court to follow the policies and objectives of this countrys copyright law and affirm the decision below accordingly.

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The Center for Individual Freedom (the Center) is a 501(c)(4) nonprofit organization with the mission to protect and defend individual freedoms and rights guaranteed by the U.S. Constitution, including, but not limited to, property rights, free speech rights, privacy rights, and freedom of association. Toward those ends the Center undertakes a wide variety of publications and programs, and since its founding in 1998, the Center has filed numerous briefs before state and federal courts, including the United States Supreme Court, on behalf of fundamental Constitutional rights. The instant case squarely raises issues of particular importance to the Center, namely the constitutional protection of intellectual property rights as specifically set forth in Article I, Section 8 of the Constitution and the fundamental importance of protecting property rights, the rule of law and free markets. The various professors who join this brief are professors who teach, research, and have an interest in the theory, law and practice of copyrights, property rights, and contracts.2 The professors have no other stake in the outcome of this case, but are interested in ensuring that copyright law

The professors are Adam Mossoff, Raymond Nimmer, Mark Schultz, Christal Sheppard, Jon Simson and Lionel Sobel. Their biographies are appended to the accompanying Motion for Leave to File Amicus Brief. 5

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develops in a way that best promotes creativity, innovation and competition in the digital world. SUMMARY OF THE ARGUMENT The district courts decision advances the underlying goal of this countrys copyright law: [t]o promote the Progress of Science and useful Arts . . . . U.S. Const. art. I, 8, cl. 8. Reversal here would promote neither. Instead, blessing the system crafted and offered by appellants LLC, Alkiviades David, FilmOn.TV Networks, Inc.,

Aereokiller,

FilmOn.TV, Inc. and FilmOn.com, Inc. (Appellants) would promote lawyer-created and judicially blessed technological inefficiencies designed to help only those seeking to maximize their profits, to the detriment of innovation in technology and innovation in creative expression. When

technologies designed to exploit judicially-created loopholes in the Copyright Act cut creators from established licensing structures, those providers of expressive works are harmed and no longer incentivized to come together to make the same types of works that the public enjoys. If those who invest in the production and distribution of creative works cannot be assured that their interests will be protected regardless of whether those works are distributed through old, traditional models or new, disruptive

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ones the array of works that will be offered to the public will suffer. Put simply, if Appellants win, everyone else loses. This Court should reject the invitations of Appellants and their amici to extend a legally flawed and factually limited case, Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (Cablevision), involving a cable operators remote storage DVR, to a contrived retransmission system that purports to be based on the holding in that case. Plenty of reasons exist that should encourage this Court not to follow Cablevision here. As a fundamental matter, Cablevisions interpretation of the public performance right has been criticized by members of academia as inherently flawed and potentially far-reaching in ways that conflict with Congress intent. Even then-Solicitor General Elena Kagan questioned the court of appeals interpretation of the public performance right. It would be error for this Court to similarly misinterpret the law. As a practical matter, the consequences to the Copyright Alliances members of applying Cablevisions interpretation of the public performance right have threatened and do threaten to have broad impact on those who rely on strong rights of public performance and public display. The

concluding statements of the Cablevision decision and the Solicitor 7

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Generals brief to the Supreme Court of the United States quieted the fears of the copyright community five years ago: both expressly recognized that Cablevisions holding was limited to Cablevisions remote-storage DVR. Nonetheless, the Second Circuits application of Cablevision under principles of stare decisis to the Aereo system, and the arguments in the case at bar, have reignited the fears that the Cablevision decision threatens to not be as limited as the Second Circuit and Solicitor General had opined. In the wake of the troubling rulings from the Second Circuit, the district courts decision below marked a welcomed shift away from the cloud that Cablevision left behind. Judge Wus ruling was not only correct, it was a win for sound statutory interpretation, Congressional intent and well-established copyright policy. The ruling properly accounts for the

fundamental principle that those who profit from public redistribution of copyrighted works must not cut out the works creators from due compensation. In the same vein, affirmance would be a victory for all involved: for the incentivization against of creation and copyright for the

commercialization,

insulated

for-profit

free-riding;

encouragement of technological developments that focus on delivering the best product possible, not on designing systems engineered by lawyers; for the expansion of consumer choice through the robust growth and 8

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diversification of efficient and licensed distribution systems; and, finally, for sound and reasoned statutory interpretation which correctly construes the scope of the transmit clause consistent with the foregoing and the overall statutory framework of the Copyright Act. ARGUMENT I. THIS COURT SHOULD AFFIRM THE DISTRICT COURTS PROPER RULING BELOW RATHER THAN FOLLOW THE SECOND CIRCUITS REASONING IN CABLEVISION As detailed more fully in Appellees briefs, Judge Wus decision is consistent with the law of this Circuit and with the statutory framework of the 1976 Copyright Act. See Fox Parties Br. at 20-25; NBC Parties Br. at 23-28. The district court properly followed and reconciled the facts of this case with a ruling from this Circuit. See Fox Television Stations, Inc. v. BarryDriller Content Sys., PLC, --- F. Supp. 2d ---, 2002 WL 6784498, at *4 (C.D. Cal. Dec. 27, 2012) (hereinafter, Op.) (citing On Command Video Corp. v. Columbia Pictures Industries, 777 F. Supp. 787 (N.D. Cal. 1991)). Moreover, it correctly understood the distinction between performances of works that are wholly private, and those that relate to a public, commercial enterprise. See id. at *5 (recognizing that cable systems are commercial enterprises whose basic retransmission operations are based on the carriage of copyrighted program material and . . . copyright royalties should be paid 9

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by cable operators to the creators of such programs, and analogizing to Aereokiller) (quoting H.R. Rep. No. 94-1476, at 89 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5704). Aereokiller is clearly a commercial

enterprise engaged in unlicensed retransmissions of copyrighted material, and those facts easily resolve to the holding that Judge Wu reached. Appellants only justification for their makeshift system is that it purportedly rests on the Second Circuits Cablevision decision a decision that is not even binding on this Court, was wrongly decided in the first place, and should be strictly limited to its facts. Judge Wu correctly rejected attempts to use Cablevision to condone Aereokiller. See Op. at *2 ([T]he Ninth Circuits precedents do not support adopting the Second Circuits position on the issue. Instead, the Court would find that Defendants

transmissions are public performances, and therefore infringe Plaintiffs exclusive right of public performance.). On appeal, the Court may also review the underlying authority and come to its own conclusions, just as Judge Wu did. And just as Judge Wu did, it can reach those conclusions without regard to the Second Circuits ruling. If the Court does so, it will affirm.

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A.

The Cablevision Decision Is a Poor Blueprint for Copyright Law and Technology 1. The Legal and Practical Impacts of Cablevision Have Been Looming Concerns for Creators of Expressive Works

Appellants and their amici have urged this Court to follow Cablevision a decision that raised significant concerns across a large part of the copyright community.3 Copyright owners were understandably

worried about letting specific technology drive a ruling that conflicted with the technology-neutral performance right. See Raymond T. Nimmer, Law of Computer Technology 15:6 (2013), available at Westlaw LCOMTECH (court took a restrictive view of the case that combined an emphasis on the technology Cablevision used with an apparent desire to enable cable entities to control this type of delayed viewing . . . .). In reaching its result, the Cablevision decision overlooked the fact that a work can be publicly performed in ways other than from a single copy like the system in Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 749 F.2d 154 (3d Cir. 1984). In conclusory fashion, the court of appeals rejected the lower courts careful reliance on On Command, even though that ruling had not been disturbed in nearly 20 years. Cablevision, 536 F.3d at 139. And, rather than taking into account the types of policies and directions that Judge Wu The relevant facts of Cablevision are more fully detailed in Fox Parties Br. at 9-11. 11
3

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did in the ruling below, the Cablevision court concerned itself with the possibility that a hapless customer that sends a recorded program to another room of his house might be sued for copyright infringement even though copyright law and policy already reflect a much more nuanced approach than the court of appeals strained hypothetical scenario suggests.4 The rulings unjustified deviation from certain well-settled principles of copyright law provoked concern from a broad group of representatives from the creative community. Thirty-six amici including software

creators, photographers, book publishers, sports leagues, distributors, guilds, music publishers, academic presses, record companies, performing rights organizations and professors, including some of Amici in eight amicus briefs, urged the Supreme Court to grant certiorari and reverse the court of appeals holding. The expansive reaction was a clear symptom of a

potentially serious problem.

See, e.g., H.R. Rep. No. 94-1476, at 63 (Certain other performances and displays, in addition to those that are private, are exempted or given qualified copyright control under sections 107 through 118.); 17 U.S.C. 110(5)(A) (public performance and display exemptions pertaining to reception of performances on a single receiving apparatus of a kind commonly used in private homes); cf. United States v. ASCAP (In re Muzak), 1992 WL 142749, at *7 (S.D.N.Y. June 12, 1992) (commercial establishments that further communicate licensed broadcasts to the public require separate license). 12

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Among other concerns, the petitioners and their amici pointed out that the court of appeals decision could undercut the goals of copyright law and financially disadvantage and disincentivize the countless individuals and industries that rely on the performance right. At the same time, the ruling could lead to another policy shift: one that incentivizes the development of delivery services in a way that is designed to game the copyright licensing system, rather than develop better means of delivery. See, e.g., Brief of Amicus Curiae Copyright Alliance, Cable News Network, Inc. v. CSC Holdings, Inc., No. 08-448, 2008 WL 4887717, at *11, *13 (U.S. Nov. 5, 2008). In other words, the petitioners and their amici were worried that Cablevision would open the door to the same genre of gimmickry that Appellants ask the Court to bless today. In a case premised on a synthetic technological architecture that is purportedly sanctioned by the Cablevision ruling, it is no surprise that the Copyright Alliance again, joined by the other Amici, is voicing similar concerns about the broader effects of excluding certain technological structures from the framework of copyright law. Yet, five years of

hindsight, reflection and judicial rulings confirm that the Cablevision petitioners and their amici were not crying wolf. Those thousands of creators and investors in creative works, for whom the Copyright Alliance 13

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spoke, had legitimate cause for concern then, just like they will if the decision below is not affirmed now. 2. Leading Copyright Scholars Agree That The Cablevision Decision Is Problematic Analysis from the academic community has echoed the Copyright Alliances arguments that Cablevision could have a devastating impact on copyright owners. See 2 Paul Goldstein, Goldstein on Copyright, 7.7.2, at 7:168.1 (2011 Supp.) (Goldstein) (Cablevision effectively closed off a critical aspect of the transmit clauses intended embrace . . . .); Jane C. Ginsburg, Recent Developments in U.S. Copyright Law Part II, Caselaw: Exclusive Rights on the Ebb? Colum. Pub. L. & Legal Theory Working Papers, No. 08158, (2008), (Ginsburg) available ([T]he at Second

http://lsr.nellco.org/columbia_pllt/08158

Circuits recent decision in Cartoon Networks v. CSC Holdings, if followed, could substantially eviscerate the reproduction and public performance rights.). Academia has identified two categories of problems: error in the court of appeals interpretation of the law, and the potential impacts on other cases, parties and distribution methods as a result of Cablevisions precedential effect.

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a. The Ruling is Premised on Legal Error While the consequences of the holding have gathered attention, the misreading of the law itself has become a lightning rod for academic criticism. The courts main error which Judge Wu properly avoided is both simple and glaring. The court started out properly enough, with the meaning of publicly as defined in the statute. Cablevision, 536 F.3d at 134. Based on its reading, the court asked whether, under the Transmit Clause of the definition, Cablevision transmit[s] . . . . a performance . . . of the work . . . to the public. Id. From there, the court opined that it is relevant to discern who is capable of receiving the performance being transmitted. Id. Yet, instead of answering the question, the court took a detour through a variety of legislative history and never came back to where it had started. By the time it had finished reciting that history, the court had reframed the question completely, concluding that the law directed the court to examine who precisely is capable of receiving a particular transmission of a performance, id. at 135 rather than the performance being transmitted under its prior formulation, id. at 134 (emphases added). As leading commentators have directly pointed out, the court of appeals confusion in assessing the plain language of the statute led to a 15

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result that Congress did not intend. The principal error in the courts application of the transmit clause was that it substituted the word transmission for the word performance in the phrase capable of receiving the performance . . . . Jeffrey Malkan, The Public Performance Problem In Cartoon Network LP v. CSC Holdings, Inc., 89 OR. L. REV. 505, 553 (2010) (Malkan). The statute does not say capable of receiving the transmission, id., and [t]here can be little doubt that the [ ] word it in the definition refers to performance or display, not transmission, which in fact appears only as a verb, and not a noun, in the definition. Goldstein, at 7:168. [T]he transmit clause specifies that members of the public must be capable of receiving the performance, not capable of receiving the transmission. Malkan, at 536 (emphases added). Having rewritten the definition, the Cablevision court proceeded to reinforce its original error by treating performance and transmission as synonymous and interchangeable. The problem is, they are neither. See Goldstein, at 7:168 (The error in the Second Circuits construction of the transmit clause was to treat transmissions and performance as synonymous, where the Act clearly treats them as distinct and different operative terms.); see also Ginsburg, at 26 (making same observation). The law makes the receipt of the performance outcome-determinative, not 16

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the receipt of the transmission that conveys or otherwise communicates the performance. Moreover, even though the transmit clause refers, as Judge Walker put it, to the performance created by the act of transmission, a transmission and a performance remain, technically and legally, two distinct things. Malkan, at 536. Accordingly, although a transmission of a performance is a type of performance, the two words are not interchangeable or reversible. Id. at 531 (emphasis added).5 The nature and extent of the courts error manifests itself in other material ways, including that its statutory construction cannot be reconciled with the intended meaning of the public, i.e., a group of persons not otherwise connected via familial or socially familiar relationship. Cablevision said that, under the transmit clause, we must examine the potential audience of a given transmission by an alleged infringer to determine whether that transmission is to the public. Cablevision, 536 The definition of perform to which the Cablevision court did not give any meaningful consideration helps to explain the difference. To perform a work can include reciting it, playing it or rendering it; in the case of a performance of a work preserved in a motion picture or other audiovisual format, to perform can mean showing that audiovisual works series of related images in any sequence or making the sounds accompanying it audible. See 17 U.S.C. 101. In other words, it is representational. In contrast, the term transmit is spatial: it hews to the nature of the performances travel from one place to a distant location. See id. (to transmit a performance . . . is to communicate [that performance] by any device or process whereby images or sounds are received beyond the place from which they are sent.). 17
5

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F.3d at 137. But rather than narrowing the universe of the public, the phrase members of the public capable of receiving the performance is designed to be broad: its role is to clarify that a transmission is still to the public even if its receipt is individualized. Ginsburg, at 26 (emphasis added). See also Op. at *4 (The statute provides an exclusive right to transmit a performance publicly, but does not by its express terms require that two members of the public receive the same transmission.). Or, as eight professors argued in their brief in support of certiorari, [I]t is quite clear that Cablevision offered delayed performances to the public (its entire customer base) and transmitted the performance via its RS-DVR system. According to the Court of Appeals, each of these were [sic] private performances. But that wrongly ignores the system as a whole. Brief of Various Professors as Amicus Curiae, Cable News Network, Inc. v. CSC Holdings, Inc., No. 08-448, 2008 WL 4819896, at *13 (U.S. Nov. 5, 2008). b. The Reasoning Leaves The Door Open to The Whittling Away of The Performance Right as New Technology Develops Commentators have also expressed their concern about the practical effects of interpreting the transmit clause as the Cablevision court did. In particular, the court of appeals interpretation excises from the law entire categories of transmissions clearly intended to fall within the broad scope of

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the performing right including those where the delivery requires two transmissions in order to communicate that performance to the recipients (for example, because those two individuals are located in different places or prefer to stream the program at different times). See Ginsburg, at 26 (While such a performance could be transmitted simultaneously to differently located recipients, recipients differently situated in time cannot receive the same transmissions.). The courts interpretation thus reads non simultaneous receipt out of the statute. Id. If Cablevisions misreading viewing the transmission of a performance as if it were itself the performance were followed, it would entirely undermine Congresss intention in formulating the public performance right as it had drafted, lest this technology displace traditional, compensated instances of public and broadcast performance with uncompensated private ones. Goldstein, at 7:168 (emphasis added). Professor Goldsteins observation is directly on point here: Congress intention was not to have uncompensated

technologies such as Aereokiller replace traditional, compensated instances of public performance such as cable and satellite retransmission. Just like in antitrust law, copyright law does not choose between competitors. That these commentators observations mirror Amicis concerns underscores the potential jurisprudential and practical problems of adopting 19

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Cablevisions abridgement of the public performance right. Perhaps the Second Circuit may have found a device or process worth excluding from the performance right, but particularly in the age of rapid technological growth where new models compete to outpace traditional models, the bleeding cannot be allowed to continue. Therefore, before making the same errors the Second Circuit did, this Court should pause to consider whether Appellants contrived system merits the same type of judicial carve-out to the performance right, notwithstanding Congress express intention to avoid them. B. The Reach of Cablevision Was Intended to Be Limited to Cable Retransmissions For a

The plaintiffs in the Cablevision petitioned for certiorari.

variety of traditional reasons, the Solicitor General recommended that certiorari be denied. But that did not mean that she thought that the

Cablevision holding on the performance right was correct. Rather, her view was that creators and other copyright owners need not be worried because the Second Circuit expressly limited its decision to the facts of the case. The Solicitor Generals brief expressly recognized that the court of appeals reasoning contained errors. It noted that some aspects of the Second Circuits reasoning on the public-performance issue are problematic . . . . Brief of the United States as Amicus Curiae, Cable News Network, 20

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Inc. v. CSC Holdings, Inc., No. 08-448, 2009 WL 1511740, at *22 (U.S. May 29, 2009) (U.S. Cablevision Br.). This included the fact that [s]ome language in the court of appeals opinion could be read to suggest that a performance is not made available to the public unless more than one person is capable of receiving a particular transmission. Id. at 20

(emphasis in original); see also id. at *6 (observing that language in the decision could be read to endorse overly broad, and incorrect, propositions about the Copyright Act). The Solicitor General also expressly recognized the specific concerns of the Copyright Alliance and others, observing that [s]uch a construction could threaten to undermine copyright protection in circumstances far beyond those presented here, including with respect to VOD services or situations in which a party streams copyrighted material on an individualized basis over the Internet. Id. at *20-21. But in her view, those predictions would never come to pass. The Second Circuit simply resolved a narrow question about a discrete technology in the terms that it had been framed by the parties and was careful to tie its actual holdings to the facts of this case. Id. at *19, *6. The Second Circuits words were indeed limiting: This holding, we must emphasize, does not generally permit content delivery networks to avoid all copyright liability by making copies of each item of content and associating one unique copy with each subscriber to the network, or by giving 21

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their subscribers the capacity to make their own individual copies. Cablevision, 536 F.3d at 139. And the Solicitor General reiterated what the Cablevision court had said: the court of appeals analysis of the publicperformance issue should not be understood to reach VOD services or other circumstances beyond those presented in this case. U.S. Cablevision Br. at *20-21.6 Like the petitioners and their amici, commentators remained skeptical. See, e.g., Ginsburg, at 27 (Cablevisions potential for eviscerating the public performance right may be even greater than the Second Circuits pious wish portends.). With respect to Appellants inspiration, Aereo, they would appear to have been right. Despite argument from Cablevision itself that Cablevision should not be expanded to Aereo, the Aereo district court did it anyway. Finding that while the plaintiffs ordinarily would have

received an injunction but for Cablevision, Cablevisions express holding regarding the meaning of . . . the transmit clause required it to follow the Second Circuits interpretation and deny the injunction. American

Broadcasting Cos., Inc. v. Aereo, Inc., 874 F. Supp. 2d 373, 375 (S.D.N.Y.

Neither the Second Circuits nor the Solicitor Generals observations give due consideration to the fact that VOD and other television licenses, including the statutory cable licenses in Section 111 of the Copyright Act, are based wholly or primarily on the public performance right. 22

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2012). On appeal, the Second Circuit was bound by the lower courts factual record and stare decisis. See WNET, Thirteen v. Aereo, Inc., 122786-cv, 2013 WL 1285591, at *4, *13 (2d Cir. Apr. 1, 2013). The Second Circuit was hoist on its own petard and, as the dissent observed, the majoritys decision provide[d] a blueprint for others to avoid the Copyright Acts licensing regime altogether. Id. at *22. This Court has an antidote in hand. Like the district court below, this Court is not bound to follow statutory interpretations from other circuits. It may go back to the language and come to its own conclusions. And as the Aereo dissent practically exhorts, it is particularly important that it do so here. Having seen the potential onslaught of new copyright-avoiding

business models that [the Cablevision decision] might inspire, Ginsburg, at 27, including the factitious system at issue before the Court, the Court has plenty of reasons to come to its own conclusions (including those Appellees have described) rather than make the same mistakes the Cablevision court did.

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II.

REVERSAL WOULD BENEFIT ONLY COMMERCIALLY MOTIVATED FREE-RIDERS, TO THE DETRIMENT OF INNOVATION AND CONSUMER OPTIONS A. Aereokiller Is Not Innovation, It Is Technological Regression

Systems such as Aereokiller, FilmOn and ivi engage in public performances by taking broadcast signals and transmitting them over the Internet. See, e.g., WNET, Thirteen, 2013 WL 1285591, at *16 (Aereo is doing precisely what cable companies, satellite television companies, and authorized Internet streaming companies do they capture over-the-air broadcasts and retransmit them to customers except that those entities are doing it pursuant to statutory or negotiated licenses, for a fee.). The only difference with Aereokiller is that it makes hundreds of intermediate copies in the process of retransmission. These copies do not make the system operate better, faster, more cheaply or more efficiently. Rather, they are technological inefficiencies shamelessly designed to exploit what Appellants believed was a loophole in the law or, more accurately, a legal ruling that extends only to the Second Circuit. This pretext was obvious to the panel in the Aereo case, which at oral argument never heard any technological justification for its inefficient model only that Aereo had followed the assembly instructions that the Cablevision panel purportedly engineered. See Oral Argument in WNET v. 24

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AEREO Incorporated, 12-cv-2786 (2d Cir.), Dkt. #243.

The dissent

described Aereos platform of thousands of individual dime-sized antennas as a sham and called out the system for what it is: a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law. WNET, Thirteen, 2013 WL 1285591, at *15.7 By and large, it is the repertoire of copyrighted works available that motivates a consumer to pay for a service. See United States v. Broadcast Music, Inc. (Application of Music Choice), 316 F.3d 189, 195 (2d Cir. 2003) (The customer pays the retail price because the customer wants the music, not because the customer wants to finance the laying of cable or the launching of satellites.). Systems like Appellants charge their customers for their service, but they cut authors and other creators out of the equation. This is fundamentally wrong. The legions of authors and other contributors Even those who have suggested that Cablevision reached the right result have drilled down on the technological waste involved in systems like Appellants. By way of example, in a piece on Aereo for the pro-technology blog Ars Technica, Professor James Grimmelmann described the design as willfully perverse, one that makes no technical sense, wast[es] resources, and drive[s] up costs. James Grimmelmann, Why Johnny cant stream: How video copyright went insane, ARS TECHNICA (Aug. 30, 2012), http://arstechnica.com/tech-policy/2012/08/why-johnny-cant-streamhow-video-copyright-went-insane/. Thousands of tiny antennas are a ridiculous way of capturing over-the-air TV. Storing a permanent copy rather than a buffer just large enough for streaming is a pessimization, not an optimization. Id. 25
7

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and investors in the works that give the service its value are owed compensation. See, e.g., Herbert v. Shanley Co., 242 U.S. 591, 595 (1917) (Holmes, J.) (If music did not pay it would be given up. If it pays it pays out of the publics pocket. Whether it pays or not the purpose of employing it is profit and that is enough.). Those who invest in the works commercialization and dissemination are also owed protection from free-riding on their investments. See

generally, e.g., Adam Mosoff, How Copyright Drives Innovation in Scholarly Publishing, 13-25 George Mason University Law and Economics Research Paper Series, available at http://ssrn.com/abstract=2243264. As the Supreme Court recently recognized, the promotion of Progress encompasses giving incentives toward making works available. Golan v. Holder, 132 S. Ct. 873, 888 (2012) ([I]nducing dissemination as opposed to creation was viewed as an appropriate means to promote science.); see also Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 557 (1985) (By establishing a marketable right to the use of ones expression, copyright supplies the economic incentive to create and disseminate ideas.) (emphasis added); American Geophysical Union v. Texaco, 802 F. Supp. 1, 16 (S.D.N.Y. 1992) (Copyright protection is vitally necessary to the

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dissemination of scientific articles . . . [It] is essential to finance the publications that distribute them.), affd, 60 F.3d 913 (2d Cir. 1994). Notwithstanding all of these principles, Appellants believe they should be entitled to keep all the profit for themselves. The message that this sends to subscribers is that Appellants would rather spend that money on glue and boards than develop better services that acknowledge and encourage the creation of copyrighted works for Appellants customers to enjoy. This short-sighted business plan has nothing in common with what the public interest compels or what the public itself as consumers of technology and cultural expression wants, namely, innovation and sound investments in both the sciences and the useful arts. B. Affirmance Promotes the Progress of Science and Useful Arts, and Benefits The Public

In contrast to incentivizing the development of creative ways to avoid paying compensation for the distribution and enjoyment of copyrighted works, incentivizing innovation and investment in creative works is proconsumer, pro-public, and pro-Progress. It will encourage the

development of new works and legal methods for distributing them. This outcome is not merely what the Framers had in mind, it makes logical sense. It is in the interest of those who use copyrighted works to have them available. A clever new way to distribute works of authorship 27

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will have little chance of survival if the incentives to creators of those works, and to those who invest in commercialization of such works, are whittled away to the point that no new expressive works are created. See MetroGoldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 929 n.8 (2005) (warning against overstating the mutual exclusivity of the respective values of supporting creative pursuits through copyright protection and promoting innovation in new communication technologies). In other

words, creative and technological innovation thrive when the relationship between the two is symbiotic. When it becomes parasitic, they die. These principles are nothing new to this Court, which 12 years ago shut down a novel, Internet-based system for distributing copyrighted works without authorization. See A&M Records Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). Since then, consumers have spent billions of dollars on legal sales of music over the Internet via the iTunes stores and other sites that were allowed to develop without competition from those who do not follow the rules or policies of copyright law. The situation is no different in the context of new, cord-cutting television distribution systems, both paid and unpaid. Licensed Internet and mobile services such as Netflix, Hulu, MobiTV and even Appellees own online channels have flourished and thrived. See American Broadcasting 28

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Cos., 874 F. Supp. 2d at 404 (noting the numerous other methods through which the public can lawfully receive access to Plaintiffs content and rejecting argument that public has the right to access broadcast television from Aereos particular service). The income earned from these licensed distribution systems translates into financial support for those to whom those distributed works owe their existence: from the producers who invest in the works, to the writers, actors, photographers, set designers, editors and others who provide their creative authorship, to the songwriters and recording artists that lend their talents to soundtracks. Particularly in an age where the present and future business of copyright dissemination, especially via the Internet, is increasingly focused on dissemination via performance (including through services such as Spotify and Rdio), the ability to reap benefits from the performing right needs to be cautiously protected so that Progress can furthered. If unlicensed services such as Aereokiller are permitted to circumvent the need for payments to rights holders, it will cut into the cable business and other licensed legitimate businesses, which pay significant royalties to contributors whose works are used in the broadcasts those businesses retransmit. Cable, satellite and other licensed services have worked in

partnership with creators to build businesses that benefit the public interest, 29

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and that return compensation to creative workers in a variety of ways. Songwriters are paid for the performance of their works in cable broadcasts, union workers are paid residuals, and productions are greenlit on the basis of understanding how various elements of the work will be paid for through licensed distribution. More broadly, because copyright protection

incentivizes the commercialization of copyrighted works, it spurs investment in giving the public a variety of new ways to enjoy those works: copyright law gives these investors the ability to reap a return on their investments in creation and distribution of expressive works. All of these arrangements and their underlying goals are subverted if services like Aereokiller are allowed to pursue their license-avoiding schemes. Even where new services may disrupt or entirely supplant

traditional models, the change in delivery method does not justify subverting the framework of copyright law. To ensure that the prolific growth of these licensed distribution methods are not undercut by shams like Aereokiller, the Court need only take a page from its decision in Napster, and reaffirm its precedent of rejecting invitations to recast piracy as innovation. For the foregoing reasons, a healthy relationship between copyright and technology is central to Amicis interests. It therefore comes as a

surprise that some of Appellants amici have proffered the argument that 30

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affirmance will damage the development of cloud locker technologies. Although cloud hosting and storage existed and grew even before Cablevision cut back a significant part of the performance right, these amici say that investment in cloud technologies has grown more robustly since Cablevision was handed down. In essence, Appellants amici are asking the Court to believe that a singular decision from the Second Circuit involving an add-on cable service is the primary reason for a surge in investment in a wide variety of technologies that include cloud computing, and that this is a reason to give amnesty to Appellants unlicensed system. See Brief of Amicus Curiae of Aereo, Inc., Dkt. #20-2, at 23-24 (Mar. 22, 2013); Brief of Amicus Curiae of the Computer & Communications Industry Assn, Dkt. #22, at 6-8 (Mar. 22, 2013). Those arguments miss the mark. First of all, several of the cloud locker services Appellants amici mention operate successfully under license notwithstanding Cablevision. No reason exists to prevent Aereokiller from similarly seeking to obtain licenses. Moreover, among other foundational problems, amicis theory also suffers a logical flaw: correlation does not equal causation.8
8

Putting aside the general principle that the Internet itself has operated as a cloud service for over 50 years, some of the most well-known services that rely on cloud computing (including Google, Yahoo!, eBay and Amazon) were established long before 2008. See, e.g., Eric Schmidt, Conversation with Eric Schmidt hosted by Danny Sullivan, Search 31

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Fundamentally, using buzzwords to invoke a type of technology that many members of the public (including the Copyright Alliances members) use does not demonstrate how Aereo, Aereokiller or other retransmission services are in fact the same thing as cloud lockers legally or factually. To any reasonable observer, cloud lockers used to remotely store and retrieve lawfully owned copies of documents and other works are a far cry from a concocted system designed to retransmit a networks copy of a program to various members of the public at large. And it is quite telling that just like the litigants have been unable to explain the technological basis for the Aereokiller design their amici have no explanation for how or why the future of cloud computing hangs on the existence of Appellants sub-optimal redistribution system, apart from serving as stalking horse for dialing back copyright protection to its weakest level in over 35 years. Those amicis silence says enough.

Engine Strategies Conference (Aug. 9, 2006), http://www.google.com/press/podium/ses2006.html (describing companies that have benefited from cloud computing). 32

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CONCLUSION For the reasons set forth above, and for those set forth in Appellees brief, amici curiae respectfully requests that the decision below be affirmed. Dated: New York, New York May 3, 2013 s/ Eleanor M. Lackman Eleanor M. Lackman Counsel of Record Mary E. Rasenberger Nancy E. Wolff COWAN DEBAETS ABRAHAMS & SHEPPARD LLP 41 Madison Avenue, 34th Floor New York, New York 10010 Tel: (212) 974-7474 Sandra Aistars Executive Director COPYRIGHT ALLIANCE 1224 M Street, NW, Suite 101 Washington, DC 20005 Tel: (202) 540-2247 Attorneys for Amici Curiae

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CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6909 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), as counted by Microsoft Word 2007, the word processing software used to prepare this brief. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2007, Times New Roman, 14 point. s/ Eleanor M. Lackman Eleanor M. Lackman Attorneys for Amici Curiae Dated: May 3, 2013

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CERTICATE OF SERVICE I hereby certify that on May 3, 2013, I electronically filed the foregoing Brief of Amici Curiae The Copyright Alliance, The Association for Competitive Technology, the Center for Individual Freedom, and Various Professors in Support of Affirmance with the Clerk of the Court of the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. s/ Kersuze Morancy