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An Analysis of the Public Performance Right in U.S. Copyright Law1 ntro!

uction Television broadcasters are currently challenging two services, Aereo and a copycat service, FilmOn (formerly Aereokiller), that retransmit live television broadcasts to paying customers over the Internet without obtaining a license The broadcasters argue that these services infringe their e!clusive right to "publicly perform# their copyrighted works, $% & ' ( ) $*+(,), because these services, like cable and satellite T- services, retransmit copyrighted content to multiple customers Aereo.s and FilmOn.s primary argument in defense is that these transmissions are not "to the public,# $% & ' ( ) $*$, because the systems are constructed so that each transmission is generated from a uni/ue copy made at the customer.s re/uest and is accessible only by that customer They ground this argument primarily in the 'econd (ircuit.s decision in Cartoon Network, LP, LLLP v. CSC Holdings, Inc., 01+ F 1d $2$ (2d (ir 2**3) ("Cablevision#) That decision held that (ablevision.s 4'56-4 system7which allows a subscriber to record licensed cable programming on a remote digital video recorder, and transmits that personal recording to the subscriber for later viewing7does not implicate the copyright owners. public performance right See id. at $1% As law professors who teach and write about copyright law, we wish to address a /uestion of statutory interpretation posed by these cases7a /uestion of broad significance to copyright owners, to the developers of e!isting and new transmission services, and to the consumers who use those services In the conte!t of television broadcasting, the broadcasters have taken the position that a service provider necessarily engages in a public performance whenever its service transmits the same television program to multiple members of the public 8e think that this interpretation7which we refer to as the

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"same underlying work# interpretation7is not supported by the language of the (opyright Act and would produce absurd results In addition, the broadcasters. arguments that the "same underlying work# interpretation is necessary to maintain meaningful distinctions between "performance# and "transmission,# and between public and private performances, are unfounded Finally, to the e!tent that the statute does not definitively resolve these issues, the applicable canon of statutory interpretation, as articulated by the 'upreme (ourt, strongly militates against the "same underlying work# interpretation "he Statutory ssues The Transmit (lause provides that a work is "publicly performed# whenever one "transmit;s< a performance of the work to the public, by means of any device or process, whether the members of the public capable of receiving the performance receive it in the same place or in separate places and at the same time or at different times # $% & ' ( )$*$ The plain language of the statute thus re/uires that a transmission be (a) the transmission of "a performance,# and (b) "to the public,# in order to fall within the statutory definition The public performance in/uiry therefore has two parts= identifying the "performance# that has been transmitted, and determining whether the transmission of that performance was "to the public # The Relevant Performance Is the Performance Created b the !ct of Transmission >y limiting the Transmit (lause to transmissions of "erformances, (ongress presumably meant to e!clude other transmissions7 transmissions, for e!ample, of co"ies of a work7from the category of

public performances 2 >ut what is the "performance# that must be transmitted in order to trigger the Transmit (lause.s coverage? 8hile the relevant language of the (opyright Act is, as the Cablevision court recogni@ed, "hardly a model of clarity,# 01+ F 1d at $1+, we believe that it does provide an answer to this /uestion 8here the underlying work (as here) is an audiovisual work, it is, according to the statutory definition, Aperform;ed<# when one "show;s< its images in any se/uence or ;makes< the sounds accompanying it audible # $% & ' ( ) $*$ There cannot be such a "showing# (nor, therefore, a AperformanceA) in an audiovisual transmission system unless and until the service provider actually transmits the content through the system That is, as the Cablevision court put it, "when (ongress speaks of transmitting a performance to the public, it refers to the performance created b the act of transmission # 01+ F 1d at $1+ (emphasis added) 1 The broadcasters argue, however, that Cablevision.s decision that the relevant "performance# is the "performance created by the act of transmission# erroneously conflates "performance# and "transmission #, They maintain that the Cablevision court read the Transmit (lause as if "performance# and "transmission# were interchangeable or synonymous, and thus focused erroneously on whether a transmission, rather than a

8hile it is clear from the statutory language that transmissions of copies are not "erformances of the underlying works, they may, of course, fall within other e!clusive rights belonging to the copyright holder e.g , the ) $*+($) reproduction right, see, e.g., Ca"itol Records v. Re#igi, Inc B1, F 'upp 2d +,* ('6CD 2*$1), or the ) $*+(1) distribution right, see $nited States v. !SC!P, +2% F 1d +, (2d (ir 2*$*) 1 The legislative history amply supports Cablevision.s focus on "the performance created by the act of transmission,# as opposed to the copyrighted "work# itself (or any performance "embodied# in that work) See E 4 4ep Co B,5$,%+, at +,5+0 ($B%+) ("a performance made available by transmission to the public at large is Fpublic. whenever the potential recipients of the transmission represent a limited segment of the public# (emphasis added))G E 4 4ep Co B*531, at 2B ($B+%) ("a performance made available by transmission to the public at large is Fpublic. where the transmission is capable of reaching different recipients at different times# (emphasis added))

On this point, the broadcasters repeatedly cite prominent academic commentators See Hane ( Iinsburg, Recent #evelo"ments in $S Co" right Law % Part II, Caselaw& '(cl)sive Rights on the 'bb?, 4eview Internationale du 6roit d.Auteur (Hanuary 2**B) (arguing that Cablevision "confused Fperformance. and Ftransmission,.# and that a "transmission does not itself Fperform. (as in Fplay. or Frender.) the workG it communicates a work so that its performance will be perceived as the member of the public receives the communication# (footnote omitted))G I *oldstein on Co" right ) % % 2, at %=$+3 (1d ed 2*$1 'upp ) (arguing that Cablevision erroneously treated "transmissions# and "performance# as synonymous, "where the Act clearly treats them as distinct J and different J operative terms#)

performance, is transmitted to the public This argument misses the mark, however First, it is e!plicit in the statute that "to transmit# a performance is one way to "perform a work Fpublicly .# Thus, (ongress itself established that a transmission of a performance can create a performance See $% & ' ( ) $*$ The /uestion is therefore whether that performance J the one created by the transmission J is communicated to the public 'econd, Cablevision does not, as the broadcasters contend, treat the terms "transmission# and "performance# as synonymous or render one of the terms redundant On the court.s interpretation, not all transmissions are performances (and, obviously, not all performances are transmissions) A transmission creates a performance if and only if the transmission effects a showing of the images A transmission is not a performance when it merely conveys a work (or a performance "embodied# in a work) that is not "shown# as part of the transmission, as with a download Thus, in the statutory phrase "transmit a "erformance of the work,# both the terms "transmit# and "performance# are necessaryG neither "transmit the work# nor "perform the work# would have the same meaning The +roadcasters ,ail to Identif the Relevant Performance. Although the broadcasters reKect the proposition that the relevant performance is the "performance created by the act of transmission,# they do not clearly identify a competing performance that, in their view, ought to be the subKect of the public performance in/uiry Instead, the broadcasters repeatedly assert, with little or no e!planation, that Aereo and FilmOn are engaged in public performances simply because they transmit television programming to the public They purport to find support for this claim in the language of the Transmit (lause concerning "whether the members of the public capable of receiving the performance L receive it in the same place or in separate places and at the same time or at different times # According to the broadcasters, this language means that different transmissions of the same television program "must be aggregated and viewed collectively as constituting a public performance # >rief for 9laintiffs5(ounter56efendants5

Appellants in -N'T v. !ereo, Co $252%3+5cv, 2*$2 8M ,11333*, 1, (2d (ir 'ept $,, 2*$2) 'ee 9etition for 4ehearing with 'uggestion for 4ehearing 'n +anc in !+C, Inc. v. !ereo, Co $253*%5cv 3 ("The FsameNdifferent times. and FsameNseparate places. language of the Transmit (lause L re/uires a retransmitter.s multiple transmissions to members of the public, even at the same or different times, to be aggregated and considered a performance Fto the public .#) This "aggregation# principle thus leads them to the untenable position (which we have referred to as the "same underlying work# interpretation) that there is a public performance whenever a service makes multiple transmissions involving the same underlying copyrighted work The Transmit (lause clearly re/uires that a "erformance of a work, not simply the underlying work, be transmitted to the public 'o what "performance# is it that the broadcasters maintain is being transmitted "to the public#? The broadcastersO repeated reference to the "separate places# and "different times# language does not answer that /uestion That language does not concern what a performance is (much less what the relevant "performance# is), but merely clarifies that a performance that is transmitted to the public is a public performance even if it is received by members of the public in different places or at different times That language does not somehow obviate the need to identify the relevant performanceG indeed, the language applies only if a performance of a work has been transmitted to the public It sometimes appears that the broadcasters agree with Cablevision that the relevant performance is the one created by the act of transmission, but argue that each such transmission5based performances must be "aggregated# and viewed collectively as a public performance whenever such transmissions involve the same underlying work >ut the statute provides no support for the claim that discrete transmissions that otherwise are not transmissions of a performance "to the public,# when aggregated together, somehow constitute a public performance The mere fact that each transmission involves the same underlying work cannot be the Kustification for the aggregation claimG that would simply

collapse the "performance# that is supposed to be the obKect of the public performance in/uiry into the work itself 9erhaps the idea behind the broadcastersO AaggregationA notion is the very different argument that interpreting "performance# to mean "the performance created by the act of transmission# is inconsistent with, and would effectively nullify, the "at different times# language This argument says that is impossible for "the performance created by the act of transmission# to be received by different members of the public "at different times,# $% & ' ( ) $*$, because any given transmission can be received only at one moment in time And it is said to follow from this that the relevant performance cannot be the one created by the act of transmission, as the statute contemplates that a performance can be received at different times >ut the "at different times# language is part of a clause that refers first to the members of the public "ca"able of receiving the performance# and must be understood in that conte!t The audience "capable# of receiving a performance (or "showing#) created by a transmission is not limited to those who actually receive any specific transmission For e!ample, it is generally accepted that video5on5 demand (-O6) services, which make recorded copyrighted content available for transmission to the public, are transmitting performances "to the public,# even though each -O6 transmission is actually received only by the customer who re/uested it The intuitive e!planation is that, although only one customer actually receives the particular transmission, any customer co)ld have ordered that transmission because the -O6 provider was offering to transmit (or "holding out#) recorded content "to the public#7a classic public performance In this way, the "at different times# language appears to be (ongress. way of providing that technologies like -O6, which offer to convey a "showing# of a given work to anyone willing to pay, do not cease to be "to the public# simply because the transmissions happen to be delivered at different times (rather than, say, at the same time to a group of people sitting together in

one place) 0 9ut another way, the language of the Transmit (lause, properly construed by the court in Cablevision, does not rule out the possibility of individuali@ed transmissions that are received "at different times# but are nonetheless public performances Finally, 9rofessor Ioldstein, whose treatise the broadcasters cite fre/uently in support of their position, claims that the relevant performance under the Transmit (lause is one that is "embodied# in the material being transmitted See I *oldstein on Co" right ) % % 2, at %=$+3 $ (1d ed 2*$1 'upp ) ("8hile (ablevision effected thousands of individual transmissions of a single cable program over space and time, onl a single "erformance was embodied in that "rogram, and it was that performance that was received by the public at different times and places #) (emphasis added) Ioldstein thus appears to believe that the relevant performance is one that is inde"endent of and "receding the transmission, although he, like the broadcasters, does not identify precisely what that "embodied# performance is The performance "embodied# in a television program could consist of the performance of the actors on the set reciting their lines, which, at least in many cases, does constitute a performance of an underlying copyrighted work (such as a copyrighted script) >ut such a performance cannot be the obKect of the Transmit (lause in/uiry for the simple reason that not all audiovisual works contain such embodied performances (onsider a sporting event The game itself is not a copyrightable work, see Nat.l +asketball !ss.n v. /otorola, Inc., $*0 F 1d 3,$ (2d (ir $BB%), and therefore there is no "performance of underlying copyrighted material# that can be "embodied# in the broadcast of the game If an "embodied# performance is the relevant

The phrase "the performance# in the Transmit (lause can be read to refer to the particular type or category of performance or "showing# offered by the service provider to the public and received by members of the public "at different times # This use of "the# to refer to a type or category is linguistically common For e!ample, one might say that "a parent has a special relationship with her first child, whether she has the child when she is 2* or when she is ,* # Eere, "the child# in the second clause has to be understood to refer to a type or category of child J a firstborn J not to one individual child, as a child born when the parent is ,* cannot be the same child as one that would have been born 2* years earlier 'imilarly, "the performance# can be used to refer to a type or category of performance, as opposed to one individual performance

performance under the Transmit (lause, then the broadcast of sporting events would not be covered by the Transmit (lause7an obviously absurd result, contrary to decades of copyright practice and precedent See id. Poreover, even where an audiovisual work or other recorded work contains an embodied performance of some underlying copyrighted work (e.g., a movie filmed from a copyrighted screenplay, or a "sound recording# containing the embodied performance of the underlying musical composition+), the mere transmission of such an underlying "embodied# performance cannot itself be a performance of the underlying work 8ere that the case, a digital download of a music file would be a "performance# simply because the download transmits the performance of the musical composition "embodied# on a sound recording (ourts have sensibly concluded, however, relying on Cablevision.s interpretation of the Transmit (lause, that while a digital download may involve the transmission of a co" , it does not transmit a "erformance of the underlying musical composition because transmitting the file embodying the underlying musical composition does not "perform# (i.e , "render# or "play,# $% & ' ( ) $*$) it See $nited States v. !SC!P, +2% F 1d +, (2d (ir 2*$*) (re/uiring that transmission of a work be "contemporaneously perceptible# in order to implicate public performance right) Mikewise, a T- program or other audiovisual work is performed when (and only when) its images are "shown,# not when some earlier "embodied# performance is transmitted without being "shown # As the foregoing shows, the "same underlying work# interpretation would lead to the absurd result that a seller of digital downloads would be engaged in a public performance whenever it transmits the same copyrighted song to multiple individuals The interpretation would produce other absurd results with potentially devastating conse/uences for many e!isting technologies in widespread use, as well as the

See 0 Pelville > Cimmer Q 6avid Cimmer, Nimmer on Co" right ) 2, *$, at 2,52 (2***) (e!plaining that copyright protection in music e!tends to two distinct aspects= the musical composition, and the "physical embodiment of a particular performance of the musical composition# contained on a "sound recording#)

development of new technologies If a service provider is necessarily engaged in a public performance whenever its system is used to transmit the same underlying work to multiple recipients, then "virtual locker# providers are engaged in unauthori@ed (and potentially infringing) public performances whenever two unrelated consumers happen to lawfully upload the same copyrighted song to their respective personal storage space and then stream the song back to themselves >ut no one7 including, it would seem, the broadcasters7seriously thinks that virtual locker services, or indeed any of the cloud5based storage and retrieval services offered by America.s leading technology companies (Apple, Picrosoft, Ama@on, Ioogle, etc ), are engaged in public performances Instead, the widely5held intuition, reflected in Cablevision.s statutory interpretation and holding, is that retrieving one.s own content from remote storage by means of a transmission is a /uintessentially private performance % Det the "same underlying work# interpretation compels the opposite conclusion "he Line #etween Public an! Pri$ate Performances The broadcasters claim that their "same underlying work# interpretation is necessary to maintain a meaningful distinction between public and private performances, in that otherwise service providers could turn obvious public performances into private ones simply by interposing separate copies into the transmission path In other words, they argue that, without the "same work# limitation, individuali@ed transmissions flowing from separate copies would invariably be treated as private performances because such transmissions are, by definition, received by one person only >ut as e!plained above, the fact that only one person act)all receives a transmission of a performance does not mean that only one person is ca"able of receiving that performance Thus, a -O6 provider

See, e.g., Hessica Mitman, Readers. Co" right, 03 H (opyright 'oc.y & ' A 120, 10* (2*$$) (arguing that Cablevision.s holding reflects the importance of protecting individuals. "liberty to perform and display copyrighted works privately, whether or not the copyright owner could make money from licensing the performance or display,# which in turn "ensure;s< individuals. liberty to choose how to read, see, and hear works to which gained lawful access#)

could not turn what is otherwise clearly a public performance into a private performance simply by assigning a separate copy for transmission to each customer The separate copies notwithstanding, the -O6 provider still would be offering to transmit a library of -O6 programming to the public >y contrast, in Cablevision, the transmission from the 4'56-4 to a particular customer was not offered to the public The original licensed broadcast was offered to the public, but the 4'56-4 recordings were not offered for transmission to any customer who wanted to view them= only a subscriber who chose to create his own recording could replay that self5made copy to himself at a later time It follows from the foregoing discussion that whether a transmission system is public or private does not turn solely on a "common copy#N#uni/ue copy# distinction To be sure, the use of common copies is typically associated with transmission systems that are generally regarded as public (e.g., video5on5demand)G and conversely, the use of uni/ue copies tends to be associated with systems where individuals transmit their own content to themselves (e.g., "virtual locker# services), which generally are regarded as private >ut there is no necessary connection between common copies and public performances on the one hand, or uni/ue copies and private performances on the other, and Cablevision does not say otherwise 9roperly understood, the Cablevision decision does not hold that ever individuali@ed transmission from a uni/ue copy is private As a result there is no need to adopt the "same underlying work# interpretation, which takes the e!treme (and unKustifiable) position that ever individuali@ed transmission of the same work by a transmitter to different people is necessarily public Ambiguity Shoul! be Resol$e! in %a$or of &ew "echnologies Rven if one argued that the language of the Transmit (lause does not definitively resolve these /uestions in connection with technologies that were entirely outside of (ongress. contemplation at the time it

enacted the statute, the 'upreme (ourt has articulated an interpretive canon that strongly militates against the "same underlying work# interpretation The "primary obKective of copyright is not to reward the labor of authors,# ,eist P)bl.ns, Inc. v. R)ral Tel. Serv. Co., ,BB & ' 1,*, 1,B ($BB$), but rather "the general benefits derived by the public from the labor of authors,# Son Cor". of !m. v. $niversal Cit St)dios, Inc., ,+, & ' ,$%, ,2B ($B3,) 8hen "technological change has rendered its literal terms ambiguous, the (opyright Act must be construed in light of this basic purpose,# and courts should be "reluctan;t< to e!pand the protections afforded by the copyright without e!plicit legislative guidance # Son , ,+, & ' at ,1$512 ($B3,)G see also >rief of Amici (uriae Intellectual 9roperty and (opyright Maw 9rofessors in 'upport of 6efendants5Appellants in !ereokiller, Co $15 00$0+ (Bth (ir Pay $+, 2*$1) (arguing that the burden should be on the copyright holder to ask (ongress to e!pand copyright protection when the application of the statute to new technological developments is unclear) 8e believe that the "general benefits derived by the public# from these new services are substantial, with the potential to greatly enhance the dissemination of, and the public.s access to, televised programming The choice to bring these new technologies into the ambit of the copyright holder.s e!clusive rights is (ongress. to make, after balancing the competing interests at stake The "same underlying work# interpretation would e!pand copyright protection to cover these new technologies, and deny these benefits to the public, without any indication of congressional intent to do so Conclusion Eowever the courts ultimately resolve the Aereo and FilmOn cases, we urge them not to do so by adopting the broadcasters. radical "same underlying work# construction of the Transmit (lause As e!plained, it is not supported by the te!t or the legislative history of the (opyright ActG it would produce absurd, counter5intuitive, and

destabili@ing resultsG it is not necessary to avoid the conclusion that an individuali@ed transmission from a separate copy is invariably privateG and it would inappropriately lead to a dramatic e!pansion of copyright protection without e!plicit legislative guidance >y contrast, Cablevision.s transmission5based construction of the Transmit (lause is faithful to the statutory te!t and the legislative history, and in accordance with widely5held intuitions that some transmissions7such as retrieval of one.s own content from a cloud5based storage system7cannot sensibly be regarded as public performances within the meaning of the (opyright Act