Aereo Brief

8/12/2019 Aereo Brief

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No. 13-461

IN THE Supreme Court of the United States

__________

A MERICAN BROADCASTING COMPANIES , INC ., ET AL ., Petitioners ,

v.

A EREO , INC . F /K / A B AMBOOM L ABS , INC .,Respondent .

__________

On Writ of Certiorarito the United States Court of Appeals

for the Second Circuit __________

BRIEF FOR RESPONDENT __________

BRENDA M. COTTER GENERAL COUNSELD ANIEL BROWN DEPUTY GENERAL COUNSEL

A EREO , INC .280 Summer Street4th FloorBoston, MA 02210(617) 861-4290

March 26, 2014

D AVID C. F REDERICK Counsel of Record

A ARON M. P ANNER BRENDAN J. CRIMMINS C AITLIN S. H ALL K ELLOGG , H UBER , H ANSEN ,

TODD , E VANS & F IGEL ,P.L.L.C.

1615 M Street, N.W.Suite 400Washington, D.C. 20036(202) 326-7900([email protected])

(Additional Counsel Listed On Inside Cover)


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R. D AVID H OSP M ARK S. P UZELLA F ISH & R ICHARDSON P.C.One Marina Park DriveBoston, MA 02210-1878(617) 542-5070

S ETH D. G REENSTEIN CONSTANTINE C ANNON LLPOne Franklin Square1301 K Street, N.W.Suite 1050 EastWashington, D.C. 20005(202) 204-3500


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QUESTION PRESENTEDWhether Aereo perform[s] . . . publicly, under

101 and 106 of the Copyright Act, 17 U.S.C. 101, 106, by supplying remote equipment thatallows a consumer to tune an individual, remotelylocated antenna to a publicly accessible, over-the-airbroadcast television signal, use a remote digital videorecorder to make a personal recording from thatsignal, and then watch that recording.


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CORPORATE DISCLOSURE STATEMENTPursuant to Rule 29.6 of the Rules of this Court,

respondent Aereo, Inc. states the following: Aereo, Inc. has no parent corporation. USANi

LLC, a subsidiary of IAC/InterActiveCorp, a publiclytraded company, owns 10% or more of Aereo, Inc.sstock.


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TABLE OF CONTENTSPage

QUESTION PRESENTED .......................................... i

CORPORATE DISCLOSURE STATEMENT ............ ii

TABLE OF AUTHORITIES ...................................... vi

INTRODUCTION ....................................................... 1

STATEMENT OF THE CASE .................................... 3

1. Copyright and the Public Spectrum ................ 3

2. Competition Law and RetransmissionConsent ............................................................. 6

3. Home Recording and Fair Use ........................ 8

4. Aereos Equipment ........................................... 9

5. The District Court Decision ........................... 13

6. The Court of Appeals Decision ...................... 16

SUMMARY OF ARGUMENT .................................. 17

ARGUMENT ............................................................. 22

I. AEREO DOES NOT PUBLICLY PER-FORM COPYRIGHTED WORKS .................. 22

A. The Transmissions From AereosEquipment Are Not Public Perfor-

mances ....................................................... 22B. Aereos Users Transmit A New Per-

formance From A Recording Of TheBroadcast, Not The Same Perfor-mance Embodied In The Broadcast ......... 27

1. The playing of a copy is a perfor-mance distinct from the perfor-mance from which the copy wasmade ..................................................... 27


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2. Aereos users do not receive theperformances embodied in broad-casters transmissions ......................... 29

3. Section 111 reflects the distinc-tion between the performanceembodied in a broadcasterstransmission and a performancefrom a recording of the broadcast ....... 34

4. There is no justification for dis-regarding the fact that all trans-missions using Aereos equipmentare derived from individual record-ings ....................................................... 36

5. Rejection of petitioners misread-

ing of the statute would not affectthe copyright liability of video-on-demand systems .................................. 37

II. AEREOS USERS, NOT AEREO, PER-FORM BY USING THE EQUIPMENT ....... 40

A. Aereo Does Not Meet The StatutoryStandard For Direct Infringement ........... 40

B. This Courts Cases Confirm AereoCannot Be Liable For Direct Infringe-ment .......................................................... 41

C. Aereos Provision Of Remote Equip-ment To Consumers Does Not Ren-der It Directly Liable For Infringe-ment .......................................................... 42

D. The Governments Integrated Sys-tem Argument Is Unpersuasive .............. 44

E. The Supposed Analogy Between Aereo And Cable Systems Has NoMerit .......................................................... 46


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III. CONSIDERATIONS OF COPYRIGHTPOLICY STRONGLY SUPPORT THEDECISION BELOW ....................................... 47

A. Any Statutory Ambiguity Should BeResolved Against Liability ....................... 47

B. Nothing In The Copyright Act Sug-gests That Congress Would HaveWanted Petitioners To Be Able ToExtract Copyright Royalties Here ............ 51

CONCLUSION .......................................................... 55

STATUTORY ADDENDUM ..................................... 1a


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TABLE OF AUTHORITIESPage

CASES

Adams v. Burke , 84 U.S. (17 Wall.) 453 (1873) ....... 53

Aro Mfg. Co. v. Convertible Top ReplacementCo. , 377 U.S. 476 (1964) ...................................... 54

Buck v. Debaum , 40 F.2d 734 (S.D. Cal. 1929) ........ 54

Buck v. Jewell-La Salle Realty Co. , 283 U.S.191 (1931) ............................................................ 54

Cartoon Network LP, LLLP v. CSC Holdings,Inc. , 536 F.3d 121 (2d Cir. 2008), cert.denied , 557 U.S. 946 (2009) .................... 13, 14, 15,

17, 27, 36, 39,41, 42, 43, 45, 50

Columbia Pictures Indus., Inc. v. Aveco, Inc. ,800 F.2d 59 (3d Cir. 1986) ................................... 39

CoStar Grp., Inc. v. LoopNet, Inc. , 373 F.3d544 (4th Cir. 2004) .................................... 41, 42, 43

Disney Enters., Inc. v. Hotfile Corp. , 798 F.Supp. 2d 1303 (S.D. Fla. 2010) ........................... 43

Fortnightly Corp. v. United Artists Television,Inc. , 392 U.S. 390 (1968) ........................ 4, 5, 46, 54

Fox Broad. Co. v. Dish Network, L.L.C. , No. 12-57048, 2014 WL 260572 (9th Cir. July 24,2013) ..................................................................... 41

Hearst Stations Inc. v. Aereo, Inc. , Civil ActionNo. 13-11649-NMG, 2013 WL 5604284(D. Mass. Oct. 8, 2013) .......................................... 7

Kirtsaeng v. John Wiley & Sons, Inc. , 133 S.Ct. 1351 (2013)................................................ 53-54

Maracich v. Spears , 133 S. Ct. 2191 (2013) ............. 48


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Metro-Goldwyn-Mayer Studios Inc. v. Grokster,Ltd. , 545 U.S. 913 (2005) .................... 19, 41, 42, 48

Office of Communication of United Church ofChrist v. FCC , 359 F.2d 994 (D.C. Cir. 1966 ........ 3

Parker v. Google, Inc. , 242 F. Appx 833(3d Cir. 2007) ....................................................... 41

Playboy Enters., Inc. v. Russ Hardenburgh,Inc. , 982 F. Supp. 503 (N.D. Ohio 1997) ............. 42

Religious Tech. Ctr. v. Netcom On-Line Com-munication Servs., Inc. , 907 F. Supp. 1361(N.D. Cal. 1995) ................................................... 43

Sony Corp. of Am. v. Universal City Studios,Inc. , 464 U.S. 417 (1984) ............................... 7, 8, 9,

19, 20, 37, 41,42, 47, 48, 50, 52

Teleprompter Corp. v. Columbia Broad. Sys.,Inc. , 415 U.S. 394 (1974) ................................4, 5, 6

Turner Broad. Sys., Inc. v. FCC :

512 U.S. 622 (1994) ...................................... 3-4, 52

520 U.S. 180 (1997) .................................................. 7

United States v. ASCAP , 485 F. Supp. 2d 438(S.D.N.Y. 2007), affd , 627 F.3d 64 (2d Cir.

2010), cert. denied , 132 S. Ct. 366 (2011) ......29, 32United States v. Paramount Pictures, Inc. ,

334 U.S. 131 (1948) ............................................. 53

WPIX, Inc. v. ivi, Inc. , 691 F.3d 275 (2d Cir.2012), cert. denied , 133 S. Ct. 1585 (2013) ......... 34


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TREATIES, STATUTES, AND REGULATIONS

Berne Convention for the Protection of Liter-ary and Artistic Works, revised at ParisJuly 24, 1971, as amended Sept. 28, 1979,25 U.S.T. 1341 ..................................................... 39

World Intellectual Property OrganizationCopyright Treaty, Dec. 20, 1996, 36 I.L.M.65 .......................................................................... 39

Cable Television Consumer Protection andCompetition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 ................................. 7, 8, 21, 55

2(a)(19), 106 Stat. 1462-63 ................................. 8

Copyright Act of 1856, ch. 169, 11 Stat. 138 .............. 5

Copyright Act of 1897, ch. 4, 29 Stat. 481 ................. 5Copyright Act of 1909, ch. 320, 35 Stat. 1075 ........ 4, 5

1(c)-(e), 35 Stat. 1075-76 ..................................... 5

Copyright Act of 1976 (17 U.S.C.) ..................... passim

17 U.S.C. 101 .............................. 5, 14, 17, 23, 26,27, 30, 31, 37, 40

17 U.S.C. 106 ................................................ 5, 40

17 U.S.C. 106(1) ................................. 8, 13, 33, 36

17 U.S.C. 106(3) ................................................ 3317 U.S.C. 106(4) ......................... 13, 22, 33, 39, 40

17 U.S.C. 109(a) ................................................ 31

17 U.S.C. 111 ..................... 5, 6, 18, 34, 35, 46, 52

17 U.S.C. 111(a) ................................................ 35

17 U.S.C. 111(c) ...........................................34, 35

17 U.S.C. 111(d) ...........................................34, 52


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17 U.S.C. 111(d)(3) ........................................... 5-6

17 U.S.C. 111(e) ................................................ 35

17 U.S.C. 111(e)(1)(B) ....................................... 35

17 U.S.C. 111(e)(4) ............................................ 35

17 U.S.C. 111(f )(2) ............................................ 34

17 U.S.C. 111(f )(3) ............................................ 34

17 U.S.C. 114(d)(1)(B)(i)-(ii) ............................... 6

17 U.S.C. 115 ...............................................19, 33

17 U.S.C. 115(c)(1) ............................................ 33

17 U.S.C. 115(c)(3) ............................................ 33

17 U.S.C. 115(d) ................................................ 33

17 U.S.C. 122(a) ................................................ 5317 U.S.C. 501(a) ................................................ 40

17 U.S.C. 506 .................................................... 48

Digital Millennium Copyright Act, Pub. L. No.105-304, 112 Stat. 2860 (1998) ........................... 43

47 U.S.C. 325(b) ................................................... 7, 8

47 U.S.C. 325(b)(1) ............................................. 8, 55

47 U.S.C. 534(a)) ...................................................... 7

47 U.S.C. 534(b)(10) ................................................. 7

37 C.F.R. 201.17 ..................................................... 34

47 C.F.R. 76.62(a) ..................................................... 7

47 C.F.R. 76.64 ......................................................... 7

47 C.F.R. 76.66(a)(2) .............................................. 34


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LEGISLATIVE MATERIALS

Copyright Broadcast Programming on theInternet: Hearing Before the Subcomm. onCourts and Intellectual Property of the H.Comm. on the Judiciary , 106th Cong. (2000) ...... 34

Copyright Law Revision: Hearings Before theSubcomm. on Patents, Trademarks, andCopyrights of the S. Comm. on the Judici-ary , 93d Cong. (1973) ............................................. 6

H.R. Conf. Rep. No. 102-862 (1992) ........................... 8

H.R. Conf. Rep. No. 106-464 (1999) ........................... 6

H.R. Rep. No. 90-83 (1967) ....................................... 26

H.R. Rep. No. 94-1476 (1976) .............. 5, 21, 40, 52, 53

H.R. Rep. No. 105-551, pt. 1 (1998) .......................... 43

S. Rep. No. 102-92 (1991) ..................................... 8, 21

S. Rep. No. 104-128 (1995) ......................................... 6

ADMINISTRATIVE MATERIALS

57 Fed. Reg. 3284 (Jan. 29, 1992) ............................ 34

p. 3292 .................................................................. 34

OTHER MATERIALS

About Dyle, http://www.dyle.tv/about/mcv/ ............. 48

Christina Bohannan & Herbert Hovenkamp,Creation without Restraint (2012) .................48, 53

Brief for the United States, United States v. ASCAP , 627 F.3d 64 (2d Cir. 2010) (Nos.09-0539-cv(L), et al.) (filed Aug. 10, 2009),2009 WL 7481343 ............................... 29, 31, 32, 33


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Brief for the United States as Amicus Curiae,Cable News Network, Inc. v. CSC Holdings,Inc. , 557 U.S. 946 (2009) (filed May 29,2009), 2009 WL 1511740 .................... 38, 44, 45, 50

Brief for the United States in Opposition, ASCAP v. United States , 132 S. Ct. 366(2011) (No. 10-1337) (filed July 12, 2011),2011 WL 2908556 ...........................................32, 33

2 Paul Goldstein, Goldstein on Copyright (3d ed. Supp. 2013) .............................................. 38

Mem. for the United States as Amicus Curiae,Fortnightly Corp. v. United Artists Televi-sion, Inc. , 392 U.S. 390 (1968) (No. 618)(filed Jan. 31, 1968) ............................................. 54

Nielsen, Any Way You Watch It: Nielsen ToIncorporate Mobile Viewing Into TV Rat-ings And Dynamic Digital Ratings (Oct. 28,2013), available at http://www.nielsen.com/us/en/newswire/2013/any-way-you-watch-it-nielsen-to-incorporate-mobile-viewing.html ........ 7

2 Melville B. Nimmer & David Nimmer,Nimmer on Copyright (rev. ed. 2013) ...........23, 28,

35, 53

Note, Tilling the Vast Wasteland: The Case forReviving Localism in Public Interest Obli-

gations for Cable Television , 126 Harv. L.Rev. 1034 (2013) ................................................. 7-8

3 William F. Patry, Patry on Copyright (2012) ........ 42

U.S. Copyright Office, http://www.copyright.gov/legislation/archive ............................................... 48


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US News, CBS Says Aereo Cant Stifle Broad-cast Profits (Feb. 13, 2014), available at http://www.usnews.com/news/articles/2014/02/13/cbs-says-aereo-cant-stifle-broadcast-profits ................................................................... 55


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INTRODUCTION Aereo provides convenient and inexpensive tech-

nology that allows consumers to make and watchpersonal recordings of local over-the-air broadcasttelevision programs using an individually assigned

antenna and a digital video recorder (DVR). Peti-tioners do not dispute that (i) the content at issue isdelivered for free over the public airwaves with theirauthorization and (ii) any consumer with an antennais entitled to receive, watch, and make a personalrecording of that content. The evolution of tech-nology from a black-and-white television connectedto a rabbit-ear antenna and a Betamax to a high-definition television connected to a digital antennaand DVR has not changed those core principles. Thiscase simply concerns the next technological step:allowing a consumer to access broadcast program-ming using an Internet-connected device coupledwith a remotely located, individually assigned antennaand segregated video storage.

Petitioners ask this Court to ignore Aereos specifictechnology and find that Aereos system violates theCopyright Act. But this Courts jurisprudence recog-nizes copyright as a limited grant of exclusive rightsand mandates technical and analytical precision inany application of those exclusive rights.

As this case comes to the Court, petitioners con-tend only that use of Aereos technology violates theirright to perform . . . publicly their works. Thatclaim fails for two reasons. First, the Second Circuitcorrectly interpreted the Transmit Clause to extendliability only to transmissions made available to thepublic. The one-to-one transmissions from Aereosequipment individual transmissions from personalrecordings created from data received by individualantennas do not constitute public performances.


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Second, with Aereos technology, the performanceembodied in each transmission is the users playingof her personal recording not the performancepetitioners transmit to the public. The Copyright

Act makes clear that the act of playing a recording is

a performance distinct from any performance fromwhich the recording is made. Because the perfor-mance embodied in each transmission from Aereosequipment the users playing of her recording isavailable only to the individual user who created thatrecording, the performance is private, not public.

Petitioners assert that a ruling for Aereo would beunfair because it would allow Aereo to avoid payingcopyright royalties which petitioners imply cablesystems pay. As a threshold matter, broadcastershave never been able to claim copyright royaltieswhen a consumer accesses or makes a personalrecording of their programming using an antenna orrecording device. Moreover, under the Copyright

Act, petitioners have no right to royalties at all forretransmissions of their content within the originalbroadcast market. Congress exempted even cablesystems from any obligation to compensate copyrightholders when they retransmit broadcast program-ming already available to cable subscribers over theair. Petitioners analysis flows from a false narrativeabout Congresss intent.

Moreover, petitioners construction of the statuteimperils the cloud computing industry. Their posi-tion depends on aggregation of all the individualtransmissions and individual performances of aprogram by consumers using Aereos system. Thataggregation would turn all cloud storage providersinto infringers. The government acknowledges thevery real threat posed by petitioners arguments, butits proffered solution to examine the lawfulness of


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Broad. Sys., Inc. v. FCC , 512 U.S. 622, 663 (1994).Pursuant to that agreement, petitioners disseminateprogramming using over-the-air signals that can bereceived by anyone with an antenna. See JA411-12.That programming includes copyrighted material

licensed to petitioners on terms reflecting that it willbe made available to the entire public within rangeof petitioners signals. See Teleprompter Corp. v.Columbia Broad. Sys., Inc. , 415 U.S. 394, 408 (1974).

For decades, petitioners audience could receivetheir programming only with a home antenna tunedto receive their signals. That changed with theadvent of community antennas (early cable sys-tems), which enhanced viewers ability to receivelocal broadcast signals by allowing them to connectdirectly to a shared antenna positioned for improvedsignal clarity. See Fortnightly Corp. v. United ArtistsTelevision, Inc. , 392 U.S. 390, 392 (1968). The legal-ity of community antennas was tested in Fortnightly ,in which copyright holders claimed those antennasinfringed their right, under the Copyright Act of1909, to perform . . . publicly their copyrightedworks. Id. at 395. The 1909 Act, however, containedno definition of perform . . . publicly, and this Courtconcluded that community antennas did not performat all because they simply conveyed local program-ming that ha[d] been released to the public. Id. at 400-01. Because it ruled cable systems did notperform, the Court did not consider whether theyperformed to the public.

The Court revisited community antennas in Tele- prompter , which differed from Fortnightly in oneimportant respect: the cable system importeddistant signals from broadcasters so far away . . .that neither rooftop nor community antennae locatedin or near the locality could normally receive [them].


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415 U.S. at 401. Because that function allowed cablesubscribers to receive copyrighted programming thathad not been released to them , id. at 410, thebroadcasters argued that Fortnightly should notextend to such cable systems. As in Fortnightly ,

however, the Court concluded that the systemstransmissions were not performances under the 1909 Act. Id. at 410-15. It noted that any distortion inthe market for copyrighted works caused by distantsignal importation must be left to Congress. Id. at414.

Congress accepted that invitation in the Copyright Act of 1976 (1976 Act). To respond to the concernthat transmissions might make a work available toan audience to which the copyright holder had notagreed to release it, Congress specified that one whotransmit[s] . . . a performance or display of [a] work. . . to the public should be treated as perform[ing]the work publicly. 17 U.S.C. 101. 1 Congressrecognized, however, that the public availability ofbroadcast programming made it a special case: acable systems retransmission of programming withinthe original broadcast market does not injure thecopyright owner, who contracts with the [broad-caster] on the basis of his programming reaching[its audience] and is compensated accordingly. H.R.Rep. No. 94-1476, at 90 (1976). Consequently, Con-gress enacted a broadcast-specific provision, 111,which allows a copyright holder to claim royaltiesonly when a cable system retransmits a broadcast ofa work to a distant audience. 17 U.S.C. 111(d)(3).

1 Congress has always preserved an individuals right toperform privately copyrighted works. See Copyright Act of 1856,ch. 169, 11 Stat. 138; Copyright Act of 1897, ch. 4, 29 Stat. 481;Copyright Act of 1909, ch. 320, 1(c)-(e), 35 Stat. 1075, 1075-76;17 U.S.C. 106.


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Under 111, copyright holders cannot claim royaltiesfor retransmissions of local or national (network) pro-gramming. Id. 2

Since 1976, Congress has amended the copyrightlaws repeatedly, but always preserved that basic

balance of interests. In 1995, when Congress createda digital performance right in sound recordings,it exempted retransmissions of broadcast radiowithin 150 miles of the original broadcast, see id. 114(d)(1)(B)(i)-(ii), to permit retransmitters . . . tooffer retransmissions to their local subscribers of allradio stations that the retransmitter [can] pick upusing an over-the-air antenna. S. Rep. No. 104-128, at 20 (1995). And, in 1999, Congress enacted17 U.S.C. 122, which allows satellite systems toretransmit a broadcasters signals in-market withoutpaying copyright royalties. Satellite carriers shouldnot pay to retransmit such content, Congressconcluded, because the works have already beenlicensed and paid for with respect to viewers in thoselocal markets. H.R. Conf. Rep. No. 106-464, at 92-93 (1999).2. Competition Law and Retransmission Consent

Petitioners receive approximately 90 percent oftheir revenues from sales of broadcast time to adver-tisers. See NAB Br. 20. The price advertisers will

2 The broadcasters lobbied for that provision. After Tele- prompter , CBSs General Counsel told Congress that cabletelevision systems should have a copyright exemption forretransmission of television broadcasts . . . within the normalcoverage area of the [originating] station, . . . [given] the expec-tation of the broadcaster, and those who license his use of theirprogram material, that the broadcast . . . signal will reach theentire public in [that] area. Copyright Law Revision: Hearings

Before the Subcomm. on Patents, Trademarks, and Copyrightsof the S. Comm. on the Judiciary , 93d Cong. 578 (1973) (state-ment of Columbia Broadcasting System, Inc.).


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pay depends on the size of a programs audience,as measured by Nielsen. See Sony Corp. of Am. v.Universal City Studios, Inc. , 464 U.S. 417, 452-53& n.36 (1984). The larger the audience, the morepetitioners can charge advertisers. See Turner Broad.

Sys., Inc. v. FCC , 520 U.S. 180, 208-09 (1997). 3 Petitioners derive most of their remaining reve-

nues from retransmission fees required, not by theCopyright Act, but by a cable-specific competitionstatute, the Cable Television Consumer Protectionand Competition Act of 1992, Pub. L. No. 102-385,106 Stat. 1460 (Cable Act). See NAB Br. 21 n.55.The Cable Act allows broadcasters either to requirecable companies to retransmit their broadcast pro-gramming (must-carry) or to prohibit them fromdoing so (retransmission consent). See 47 U.S.C. 325(b), 534(a), (b)(10); 47 C.F.R. 76.62(a), 76.64;JA307. 4 In large markets, broadcasters generally in-voke the second option and use the right to withholdtheir signals to extract retransmission fees. Note,Tilling the Vast Wasteland: The Case for RevivingLocalism in Public Interest Obligations for Cable

3 When the district court ruled, Nielsen did not yet measureviewership through platforms like Aereos just as it did not,for years, measure viewership through DVRs. See JA632-33.In late 2013, however, Nielsen announced that it would beginincorporating such viewership into its ratings for the 2014-2015television season. See Nielsen, Any Way You Watch It: NielsenTo Incorporate Mobile Viewing Into TV Ratings And Dynamic

Digital Ratings (Oct. 28, 2013); see also D.C. Bar Assn Br. 7n.5; Hearst Stations Inc. v. Aereo, Inc. , Civil Action No. 13-11649-NMG, 2013 WL 5604284, at *8 (D. Mass. Oct. 8, 2013)(Hearsts claim that WCVB will not be able to measure viewerswho access its programming through Aereo is simply not true.).

4 Prior to 1992, cable systems generally were required tocarry the signals of local broadcasters without any payment.See JA304.


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Television , 126 Harv. L. Rev. 1034, 1050-51 (2013).Cable companies must pay those fees regardless ofwhether the broadcasters signals are retransmittedfrom local or distant markets, and regardless ofwhether they carry copyrighted content. See gener-

ally 47 U.S.C. 325(b).In the Cable Act, Congress noted that cable sys-

tems appropriate[ly] retransmitted local broadcast-ers signals without . . . any copyright liability, butthat a competitive imbalance between the 2 indus-tries had resulted from cable systems new practiceof compet[ing] with local broadcasters for program-ming, audience, and advertising. 2(a)(19), 106Stat. 1462-63; JA318-19. To restore competitive[ ]balance, Cable Act 2(a)(19), 106 Stat. 1462-63,Congress gave broadcasters the right to withholdtheir signals from cable providers, but not a generalproperty right in those signals. See 47 U.S.C. 325(b)(1). Congress also noted that it had beencareful to distinguish broadcasters interest in theirsignals and the interests of copyright holders in theprogramming contained on the signal. S. Rep. No.102-92, at 36 (1991) (JA321). It emphasized that[t]he principles that underlie the compulsory copy-right license of section 111 . . . are undisturbed bythis legislation, H.R. Conf. Rep. No. 102-862, at 76

(1992), and that the Act was not intended to affectFederal copyright law, S. Rep. No. 102-92, at 84.3. Home Recording and Fair Use

In Sony , owners of copyrights for programsbroadcast on the public airwaves sued to enjoinSonys distribution of video tape recorders (VTRs)used by consumers to record programming for time-shifted viewing a practice the plaintiffs claimedinfringed their right, under 17 U.S.C. 106(1), to


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reproduce their works. 464 U.S. at 419-20. ThisCourt held that Sony was not liable for contributoryinfringement because there was no direct infringe-ment: consumers creation of recordings was a non-infringing fair use, as it merely enable[d] a viewer

to see . . . a work which he had been invited towitness in its entirety free of charge. Id. at 450.The Court noted that, to the extent time-shiftingexpands public access to freely broadcast televisionprograms, it yields societal benefits. Id. at 454.4. Aereos Equipment

a. Aereo is a technology company that makesavailable to consumers two types of equipment:antennas and DVRs. See JA167, 170, 592. 5 Using

Aereos equipment, a consumer can record and watch

free local broadcast television programming. See Pet. App. 62a; JA199, 427-28, 435, 593. 6 Aereos equipment differs from traditional anten-

nas and DVRs in that it is remotely located and ac-cessible via the Internet cloud, rather than locatedin the users home. See Pet. App. 62a; JA560, 716; cf .BSA Br. 7. Like other cloud computing companies,

Aereo capitalizes on widespread access to high-speedInternet connections. See Pet. App. 63a-64a; BSABr. 2.

5 After Sony , VTRs were replaced by DVRs. Forty-five per-cent of American households now use a DVR. See JA635.

6 Aereo imposes several geographic controls to ensure con-sumers can make and access their recordings only when theyare physically located within the original broadcast area. Thoseinclude: confirming a home address within the market throughcredit card checks, see JA562, 739; IP address verification, seeid. ; further checks using GPS, cell tower triangulation, andother methods, see id .; and reminders that Aereos Terms of Useprohibit attempting to access a recording outside the originalbroadcast area, see JA563-64, 740-42; see also JA593-94.


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A user accesses Aereos equipment by logging intoher account on an Internet-connected device, suchas an iPhone or tablet. See Pet. App. 62a; JA428,560-61. A DVR guide containing programminginformation for the broadcast channels available in

her market then appears. See Pet. App. 62a; JA428,560-61. That guide allows the user to select aprogram broadcast for free over-the-air reception andto record and play it back in the same manner as ahome-based DVR. See Pet. App. 62a-63a.

The user can schedule a future recording by press-ing Record within the guide. See id. For a programcurrently airing, the user can press Record to makeand save a recording (which can be watched later orwhile the program is still airing) or press Watch tomake a recording and begin playing it while laterportions are still being copied. See id. The usersselection of a program activates and tunes an anten-na assigned solely to that user, which picks up thesignal for the local station broadcasting the program.See id. at 65a; JA432-33. 7 The users remote DVRhard drive then records an individual copy of thedata received by the antenna assigned to her, in thesame manner as a home-based DVR. See Pet. App.6a-7a. She can then view that recording over theInternet by pressing Play. See id. at 7a, 66a;

JA233, 580. Aereos equipment does not receive orrecord any broadcast programming except in responseto user commands; when not in use by consumers, itis dormant. See JA429, 566, 576.

7 Hundreds of these miniature antennas can be stored ina single housing. See Pet. App. 67a-68a; JA430, 566, 569-70.In factual findings unchallenged on appeal, the district courtdetermined that each antenna could be used only by a singleuser at any given time and that each antenna functionsindependently. Pet. App. 71a, 73a.


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A user who selects a currently airing program torecord and watch experiences a delay of at leastseveral seconds, and up to several minutes, beforethe program appears on her device. See JA201, 230,582, 686. That delay occurs because the user is

watching the playback of her personal recording even when she watches it while the program is stillairing and later portions of the recording are stillbeing made. 8 A consumer using Aereos DVR orany other DVR cannot watch content simultaneouslywith the over-the-air broadcast. See Pet. App. 66a;JA429, 561, 582, 858. 9 And to switch to a new pro-gram, the consumer must start the recording processover, by navigating to the guide, selecting a program,pressing Watch, pressing Play, and then waitingfor enough of the program to be recorded to beginplayback. See JA233, 580.

The Watch and Record modes work in the sameway, see Pet. App. 67a; JA560-61: the users selec-tion of a program causes a personal recording tobe made from the data received by the individualantenna. See Pet. App. 6a-7a. The user then watchesthe program by playing her recording. See JA169,432-33, 560, 582. The two modes differ only in that arecording made in Watch mode is not permanentlyretained in storage unless the user later presses

Record. See Pet. App. 5a, 67a; JA237, 560-61, 580.

8 The recording is necessary to enable the consumer to pauseand rewind currently airing television exactly like an in-homeDVR. See Pet. App. 29a-30a & n.15.

9 When a consumer presses Watch, she receives a message:Please note: When you press Watch you will start recordingthis show, allowing you to pause and rewind the program. Youmay notice a slight delay as a result. JA506; see also JA507.


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From beginning to end, the data received by anantenna are available only to the individual user.See Pet. App. 8a, 65a; JA432-34, 469, 560, 577-80,858-59. The digital recording can be accessed andplayed only by that user; it cannot be further copied

or transferred. See Pet. App. 8a, 65a; JA469, 560,578-79. Even if two users record and watch the sameprogram at essentially the same time, they will nevershare an antenna or recording just as two neigh-bors each using a rooftop antenna and in-home DVRwould not. See JA180-81, 579, 584.

b. The district courts factual findings establishthat Aereos equipment is functionally equivalent tohome-based equipment, but less expensive and moreefficient. First, it enables a consumer not physicallyproximate to the equipment to access the samefunctionalities over the Internet, using a variety ofdevices, from anywhere within her home televisionmarket. See Pet. App. 63a-64a; JA221. Second, aconsumer need not purchase and install multiplepieces of equipment (including an antenna, DVR, andtelevision) or dedicate space at home to it; she simplypurchases access to equipment already installedelsewhere. See Pet. App. 64a; BSA Br. 10; JA221,493. Third, like all cloud-based platforms, Aereoallows some of the same physical equipment to be

used independently by multiple consumers, whichdecreases waste and cost. See BSA Br. 7-8. Forinstance, although an Aereo antenna can never beused by multiple consumers at the same time, asingle antenna can be independently operated bydifferent consumers at different times. See Pet. App.64a-65a. 10 Fourth, Aereos equipment can be serviced

10 Some of Aereos antennas, however, are static[ally](permanently) assigned to particular users. See Pet. App. 64a.


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and maintained more cheaply and efficiently thanhome-based equipment; if it breaks down, it canbe replaced with little or no interruption. See BSABr. 10.5. The District Court Decision

a. Petitioners brought suit against Aereo andsought a preliminary injunction on the sole groundthat Aereo directly infringed their right to perform. . . publicly the copyrighted content they broadcastfor public reception. 17 U.S.C. 106(4). 11 Theydeclined to assert, as a basis for that injunction, anyclaim that Aereo violated their right to reproduce. . . in copies the programming, id. 106(1), or anycontributory or vicarious theory of infringement. See JA820, 823, 826 (Our claim is based on . . . the pub-

lic performance right, as distinguished from makingcopies, which is a reproduction right.). Following 11weeks of discovery, the district court held a two-dayevidentiary hearing. See Pet. App. 61a.

The district court denied petitioners motion, rely-ing on the Copyright Acts text, its legislative history,and Cartoon Network LP, LLLP v. CSC Holdings,Inc. , 536 F.3d 121 (2d Cir. 2008) ( Cablevision ), cert.denied , 557 U.S. 946 (2009). Cablevision concerneda cable provider that offered subscribers a remotestorage DVR (RS-DVR) located at Cablevisionsfacility. Id. at 124-25. Cablevisions RS-DVR, like

Aereos equipment, allowed a consumer to create apersonal recording of programming on a remote harddrive. Id. at 124. Only the user who created therecording could access and play it. Id. at 135.

11 Petitioners asked the district court to enjoin only consum-ers use of Aereos equipment to watch a recording of a broad-cast program while it airs (the same functionality availablewith a traditional DVR). See Pet. App. 15a n.9, 61a; JA 824.


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The copyright holders in Cablevision sought aninjunction, arguing that Cablevision infringed theirreproduction right and engag[ed] in unauthorizedpublic performances of their works through the play-back of the RS-DVR copies. Id. at 134. After the

district court granted the injunction, the Second Cir-cuit reversed. It first determined that consumers,not Cablevision, created the allegedly infringing cop-ies, rejecting the argument that Cablevision could bedirectly liable for infringement because it designed,owned, and maintained the equipment. Id. at 131.

To address the claim that Cablevision performedpublicly, the Second Circuit turned to the Copyright

Acts definition: [t]o perform . . . publicly means. . . to transmit . . . a performance . . . of the work . . .to the public. Id. at 134 (quoting 17 U.S.C. 101).The court concluded that to transmit . . . a perfor-mance is one way to perform the work a trans-mission of a performance is itself a performance. Id.To determine whether the transmission was a public performance, the court examined whether the trans-mission was to the public who precisely [was]capable of receiving the transmission. Id. at 135(quoting 17 U.S.C. 101). It held that, because eachRS-DVR playback transmission is made to a singlesubscriber using a single unique copy produced by

that subscriber, . . . such transmissions are not per-formances to the public. Id. at 139.b. The district court below found that Aereos

equipment fell within the core of what Cablevisionheld lawful based on three facts: (1) each time auser records a program, a unique copy is saved toDVR storage accessible only to that user; (2) eachtransmission is made from such a copy; and (3) eachtransmission from a unique copy is made solely tothe subscriber who requested it; no other subscriber


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is capable of accessing that copy and no transmis-sions are made from that copy except to the subscriberwho requested it. Pet. App. 83a-84a (footnote omit-ted).

The district court rejected petitioners argumentthat it should ignore whether a consumers playbackof her copy is a performance to the public andinstead look back . . . to the point at which Aereosantennas obtain the broadcast content. Id. at 85a-86a. It noted that Cablevision had rejected the sameargument, finding a dividing line between thetransmissions made by the content providers andthe transmissions made by consumers using Cable-visions equipment. Id. at 86a. It concluded that theindividual antennas were not necessary to its findingof non-infringement; however, because each antennafunctions independently, Aereo had a strongercase than Cablevision given that each copy . . . iscreated from a separate stream of data. Id.

After determining that Aereos equipment was notused to transmit to the public, the district courtdeclined to address whether Aereo could be helddirectly liable for infringement notwithstanding thatit is the user, rather than Aereo, that controls theoperation of Aereos system and makes the perfor-mances at issue. Id. at 60a n.1. The courts factualfindings, however, establish that Aereo merelyallows users to access free, over-the-air broadcasttelevision through antennas and hard disks locatedat Aereos facilities. Id. at 62a. By press[ing] theRecord button, the user schedule[s] a recording ofa program that will be broadcast at a later time orthat is currently being aired. Id. at 63a. Alterna-tively, users can direct Aereos system to begin arecording and then immediately begin playback. Id.


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Thus, from the users perspective, Aereos system issimilar in operation to . . . a [DVR] . . . although

Aereo users access their programming over theinternet. Id. Aereo effectively rents to its usersremote equipment comparable to what these users

could install at home. Id. at 74a-75a. 12 6. The Court of Appeals Decision

The Second Circuit affirmed. It rejected petition-ers claim that the individual transmissions shouldbe aggregated and viewed collectively as constitut-ing a public performance. Pet. App. 25a-26a. [W]ecannot accept . . . that Aereos transmissions to a sin-gle Aereo user, generated from a unique copy createdat the users request and only accessible to that user,should be aggregated. Id. at 26a-27a. The court

also rejected petitioners attempt to criticize Aereofor choosing a business model that complied withcopyright law, noting that Aereo was not alone indesigning its system around Cablevision , as manycloud computing services . . . have done the same.Id. at 32a-33a.

Like the district court, the Second Circuit did notaddress whether Aereo could be directly (rather thancontributorily or vicariously) liable for infringementbased on actions performed by its users. It too, how-ever, emphasized that users not Aereo control theequipments operation: If the user selects Watch,the program he selected begins playing . . . . [T]heuser [also] can select the Record button, which willcause Aereos system to save a copy of the program.Id. at 4a-5a.

12 The court also cautioned that any description of Aereoas providing a service or of Aereo doing any particularacts should not be viewed as a decision that Aereo controls thesystems operation. Pet. App. 60a n.1.


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Judge Chin, whose decision as a district judge wasreversed in Cablevision , dissented. Without address-ing the district courts factual findings, Judge Chinasserted that Aereo still is transmitting . . . pro-gramming to the public. Id. at 44a.

The Second Circuit denied petitioners request forrehearing en banc. See id. at 127a-128a.

SUMMARY OF ARGUMENTI. Aereo does not publicly perform copyrighted

works. The Transmit Clause defines [to] perform. . . publicly, in pertinent part, as to transmit . . . tothe public such that members of the public arecapable of receiving the performance. 17 U.S.C. 101. For two independent reasons, Aereos technol-ogy enables completely lawful private performances,

not infringing public performances.First, the Second Circuit correctly interpreted the

Transmit Clause to extend liability only to transmis-sions to the public. Under the Clauses plain text,as the government concedes, the transmission of aperformance is itself a performance. U.S. Br. 26(internal quotations omitted). And a transmission isa public performance only if it is available to thepublic. 17 U.S.C. 101. Aereos equipment facili-tates only one-to-one transmissions: individualtransmissions from individual recordings createdfrom separate streams of data, made possible bythe ubiquitous nature of over-the-air broadcasting.Those transmissions do not constitute publicperformances. Each one is available to no one butthe consumer who used Aereos equipment to createa personal recording of the broadcast program sheselected and to play that recording over the Internet.There is no statutory basis for petitioners request


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that multiple private performances be aggregatedinto a public performance.

Second, even if one accepts petitioners view thatthe performance referenced in the Transmit Clauseis not the transmission itself, but the performanceembodied in the transmission, their claim still fails.When an Aereo user plays her personal recording of abroadcast work and views its images and sounds overthe Internet, the performance she transmits andreceives is that playback not the broadcasters priorperformance. The Copyright Act makes clear thatplaying a recording is a performance separate fromthe one from which the recording is made a positionthat the government consistently (and correctly) hasembraced in its treatment of performances fromdownloaded digital copies.

That distinction is further supported by 111,which distinguishes between retransmitting the performance . . . embodied in a [broadcasters] trans-mission as when a cable system simply passeson the broadcasters signal and transmitting theprogram (work) from a recording as when a cablesystem transmits the broadcast work from a video-tape. 17 U.S.C. 111 (emphasis added). Because

Aereos technology cannot be used to transmitcontent other than from a users personal recording,it does not transmit the performance embodied inpetitioners broadcasts.

Petitioners repeatedly ask (at 6, 8, 19, 35) theCourt to disregard these technical details, andassert (at 19, 25, 30) that the user-created anduser-controlled copies around which Aereos systemis built are gratuitous even though they arefunctionally indispensable. Instead, they argue ( e.g. ,at 23, 25), the Court should treat users playing of


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copies as a mere device or process for transmittingpetitioners performances. The government reacheseven further, asserting (at 26-27) that transmissionsfrom Aereos equipment contain all underlyingperformance[s]. Both positions, however, would

lead to untenable results. They would require, forinstance, treating all downloads as performances (aresult the government repeatedly has disclaimed).They also would undermine the 115 compulsorylicense for digital distributions of sound recordings,because one who distributed a copy under a statutorylicense to do so would nonetheless be guilty ofperforming the work by distributing it.

II. This Court should affirm for the additionalreason that Aereos users not Aereo create, play,and transmit their recordings of broadcast contentand therefore perform within the meaning of theCopyright Act. It is well settled that, to imposedirect liability under the Copyright Act, the allegedinfringer must engage in affirmative (volitional)action that renders the copyrighted work capable ofbeing perceived. This Courts decisions in Sony Corp.of America v. Universal Studios, Inc. , 464 U.S. 417(1984), and Metro-Goldwyn-Mayer Studios Inc. v.Grokster, Ltd. , 545 U.S. 913 (2005), confirm thatbedrock principle. Because the undisputed facts

found below establish that nothing goes into or comesout of Aereos equipment except in response to ausers commands, Aereo cannot be directly liable forinfringement.

The government acknowledges (at 18-19) that theidentity of the person who directs that a perfor-mance occur is relevant to the scope of direct liabil-ity and that ownership of the physical equipmentdoes not always determine who performs a copy-


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righted work. But it errs in contending (at 20-21)that the integrated nature of Aereos equipmenttransforms Aereo into a direct infringer. That posi-tion is inconsistent with the governments acknowl-edgement here and elsewhere that systems tech-

nologically indistinguishable from Aereos do notdirectly infringe, and it would permit strict liabilityto be imposed on cloud computing companies that failto monitor perfectly their users actions.

III. Considerations of copyright policy stronglysupport affirmance. First, any ambiguity in thestatute must be resolved against liability. The Con-stitution delegates to Congress the power to balancethe rights of authors and societys interest in the freeflow of ideas, and accordingly this Court has beenreluctan[t] to expand the protections afforded bythe copyright without explicit legislative guidance.Sony , 464 U.S. at 431.

That reluctance is especially appropriate here,because petitioners position would limit consumersaccess to local over-the-air broadcasts. It also wouldexpose a wide variety of cloud computing businessesto strict, and potentially ruinous, liability. Petition-ers refuse to acknowledge this issue, asserting (at 46)only that [t]here is an obvious difference between

Aereo and other cloud-based providers. The govern-ment, to its credit, acknowledges the problem, but itsproposed solution to treat a consumers streamingof her own lawfully acquired copy [as] a private per-formance, U.S. Br. 32 (emphasis added) is unsus-tainable. As this case comes to the Court, petitionershave not pursued much less proved any claimthat the personal recordings made by Aereos usersare unlawful, and the government has acknowledgedthat they are presumptively lawful under fair-use


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principles. E.g. , id. at 33. Moreover, the governmentoffers no statutory basis for its position that public-

performance liability should turn on whether thecopy from which the performance is made waslawfully acquired.

Finally, nothing in the Copyright Act suggests thatCongress would have wanted petitioners to be able toextract copyright royalties here. Because petitionersfree, over-the-air broadcasts are supposed to beaccessible to the entire public, they are not entitledto royalties when a consumer uses an antenna andDVR to access the content carried by their signals.

And, under the Copyright Act, no one even cableand satellite companies must pay copyright royal-ties to retransmit a broadcasters signal within thebroadcasters market. Congress codified that prin-ciple in the 1976 Act, and has repeatedly affirmed it,relying each time on the fact that in-market retrans-missions do[ ] not injure the copyright owner. H.R.Rep. No. 94-1476, at 90 (1976).

Without ever acknowledging the difference, peti-tioners repeatedly refer, not to copyright royalties,but to the retransmission fees some cable systemspay under the Cable Act. Those fees are not a crea-ture of copyright law and are not paid to copyrightholders except insofar as certain broadcasters, likepetitioners, happen to wear two hats. Congress wascareful to distinguish copyright royalties from re-transmission fees, S. Rep. No. 102-92, at 36 (1991)(JA321), and warned that the Cable Act should notbe construed to affect Federal copyright law, id. at84. Petitioners primary reliance on retransmissionfees to justify their copyright analysis shows just howfar afield they are from any result Congress wouldhave intended.


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ARGUMENTI. AEREO DOES NOT PUBLICLY PERFORM

COPYRIGHTED WORKS Although a performance occurs when a consumer

uses Aereos technology, that performance isprivate and therefore lawful; petitioners contraryarguments have no merit.

A. The Transmissions From Aereos Equip-ment Are Not Public Performances

The Second Circuit correctly concluded that, todetermine whether an accused infringer publicly performs by means of a transmission, the relevantperformance is the transmission itself. Because eachtransmission from Aereos equipment is availableonly to a specific user, each is a private performance.

And, because the statute does not restrict privateperformances, the Court should affirm.

1. The Copyright Act grants to creators theexclusive right, in the case of literary, musical,dramatic, and choreographic works, pantomimes,and motion pictures and other audiovisual works, toperform the copyrighted work publicly. 17 U.S.C. 106(4). It further specifies:

To perform or display a work publicly means (1) to perform or display it at a place open to

the public or at any place where a substantialnumber of persons outside of a normal circle of afamily and its social acquaintances is gathered;or

(2) to transmit or otherwise communicate aperformance or display of the work to a placespecified by clause (1) or to the public, by meansof any device or process, whether the members ofthe public capable of receiving the performance


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or display receive it in the same place or in sepa-rate places and at the same time or at differenttimes.

Id. 101. The statute thus indicates that to trans-mit . . . a performance . . . of [a] work is itself to per-form. See 2 Melville B. Nimmer & David Nimmer,Nimmer on Copyright 8.14[B][1], at 8-190 (rev. ed.2013) ([T]he act of broadcasting a work is itself aperformance of that work.). The government con-cedes that the Transmit Clause . . . make[s] clearthat the transmission of a performance is itself aperformance. U.S. Br. 26 (citation omitted).

Not all performances of copyrighted works infringe;the copyright holders exclusive right is to performpublicly. The act of transmitting is not necessarily

a public performance, because the transmission maybe available to only a particular individual. See Pet.Br. 37; U.S. Br. 5. If a parent uses Skype to live-stream data that convey the sounds and images ofa school play to a spouse out of town, the parentis performing privately, because only the spousecan receive the transmission. See 2 Nimmer onCopyright 8.14[C][2], at 8-192.6 ([i]f a transmission is only available to one person, then it clearly fails toqualify as public).

The statute provides that a transmission is a publicperformance if it is to the public that is, ifmembers of the public [are] capable of receiving theperformance. 17 U.S.C. 101. Because to trans-mit is one way to perform, the performance thatthe public must be capable of receiving is the trans-mission itself.

2. That reading is consistent with the Actscareful distinction between private and public perfor-mance, because it requires a copyright holder to show


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that the accused infringer not someone else madethe transmission available to the public. Preciselybecause perform is broadly defined, Congress choselanguage focusing on the public nature of the chal-lenged transmission itself, not some other perfor-

mance whether a prior performance by a broad-caster or a later performance by the viewer. Cf. U.S. Br. 5 (noting that perform is defined broadlyenough to include even the act of turning on a televi-sion). That reading is further supported by theTransmit Clauses distinction between transmissionsto a public place i.e., a place specified by clause(1) and transmissions to the public . Under peti-tioners reading, the cross-reference to Clause (1) inClause (2) is superfluous, because every transmissionto a public place is also a transmission to thepublic.

The Second Circuits construction correctly imposesliability only on those who perform publicly. A thea-ter companys performance of Rent in a locked andempty theater would not be a public performance,but, if it were broadcast to the public live, thetransmission would be a public performance. If atransmission encoding the images and sounds werefurther transmitted by Defendant A to Defendant B,that would be a private performance; if Defendant B

retransmitted the sounds and images to the public,that transmission would be a public performance. Ineach case, the audience capable of receiving a partic-ular transmission is what determines whether thetransmission is a public performance.

3. As both courts below correctly found, Aereosequipment enables only private performances, becauseeach transmission is available only to a specific user.See supra pp. 10-12. An individual antenna receivesa broadcast signal only when activated and tuned by


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the user; the antenna picks up a separate stream ofdata (Pet. App. 86a); and the consumer records thatdata stream to private electronic storage. When theuser decides to watch the program, she transmitsthose data only to herself; she cannot download the

program or transmit it to anyone else. See supra p. 12; U.S. Br. 7 (Respondents system is engineeredto ensure that the data streams and recordings asso-ciated with each user remain separate.).

A public performance does not occur simplybecause many of Aereos users record and watchthe same program. As the Second Circuit correctlyobserved, nothing in the Transmit Clause authorizesthe aggregation of private transmissions . . . notcapable of being received by the public. Pet. App.22a. Moreover, it is not surprising that thousandsof strangers may use Aereos antennas and DVRsto watch the same broadcast program without anytransmission to the public. Broadcasters transmittheir programming to the public using a signalthat can be received by anyone with appropriateequipment. Aereos users simply use an individualantenna and DVR to make and play a recordingof that over-the-air programming. The equipmentsremote location does not alter the individual charac-ter of each transmission. If Aereo rented, installed,

and maintained thousands of separate roof-topantennas and in-home DVRs, it would have the samecopyright status.

4. Petitioners incorrectly assert (at 32-33) that Aereos construction of the statute cannot be recon-ciled with the different times language of theTransmit Clause. The statute provides that atransmission is a public performance if membersof the public [are] capable of receiving the perfor-mance, regardless of whether they receive it . . . at


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the same time or at different times. 17 U.S.C. 101.The evident purpose of that language is to ensurethat liability turns on the potential not the actual recipients of any given transmission.

Although a particular transmission (whether to onerecipient or many) cannot be received at differenttimes, it does not follow that members of the publiccannot be capable of receiving a transmission atdifferent times. For example, in the case of storeddata made available to the public on demand, thepotential audience for a transmission includes anymember of the public even though only one personmight request and receive a particular transmission.See Cablevision Br. 9 ([W]hat matters is the poten-tial audience for a transmission at the time theservice provider holds out its content and offers totransmit it, before any particular transmission issent.). The legislative history discusses that scenarioin explaining the different times language:

A performance made available by transmissionto the public at large is public even though . . .the transmission is capable of reaching differentrecipients at different times, as in the case ofsounds or images stored in an information sys-tem and capable of being performed or displayedat the initiative of individual members of the

public.H.R. Rep. No. 90-83, at 29 (1967) (emphasis added).

Transmissions made using Aereos system are notpublic under this standard, because the system doesnot contain stored content members of the public canrequest; rather, each stored copy is available only tothe user who created it.


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B. Aereos Users Transmit A New Perfor-mance From A Recording Of The Broad-cast, Not The Same Performance Embod-ied In The Broadcast

Because Cablevision was governing precedent, theSecond Circuit had no occasion to consider additionalreasons why the Transmit Clause forecloses petition-ers public-performance claim. But, even acceptingpetitioners view that the performance referencedin the Clause is not the transmission, but the per-formance embodied in the transmission, their claimstill fails. The transmission made by an Aereo useris generated from her individual recording of broad-cast programming, not the broadcast itself. Theperformance embodied in the transmission is thusthe playing of that individual recording. Thatperformance is never transmitted to the public,because it can be transmitted only to the user whocreated the copy and initiated the playback.

1. The playing of a copy is a performancedistinct from the performance fromwhich the copy was made

The Copyright Act provides that [t]o perform awork means to recite, render, play, dance, or act it,either directly or by means of any device or processor, in the case of a motion picture or other audio-visual work, to show its images in any sequence orto make the sounds accompanying it audible. 17U.S.C. 101. 13 A performance of an audiovisualwork is thus the act of sequentially showing a portionof its images or making the sounds accompanying it

13 An audiovisual work is a work[] that consist[s] of aseries of related images which are intrinsically intended to beshown by the use of machines . . . together with accompanyingsounds. 17 U.S.C. 101.


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audible. Accord 2 Nimmer on Copyright 8.14[B][1],at 8-190.

This definition makes clear that each new act ofshowing a work is a separate performance, becauseeach makes the works images and sounds percepti-ble. That is true even where multiple performancesare derived from the same copy of a work. For exam-ple, if two individuals each bought a DVD of a copy-righted movie and each played back her personalcopy, each would perform the copyrighted work. Ifonly one person purchased the DVD, watched it, andthen lent it to a friend to watch, there would still betwo separate acts of showing, and thus two distinctperformances. A broadcaster could perform a movieby showing its images and sounds to the audience bymeans of a transmission; an individual could recordthe movie and play it the next day, thereby separate-ly performing the work. See id. 8.18[A], at 8-208.21(One performance occurs at the time [a] renditionis recorded. . . . It is clear under the present Act thatif and when the [recording] thus created is playedan additional performance of the same renditionoccurs, which will constitute an infringement if it isunauthorized and is public.).

Those principles do not change simply because therecording is made with a DVR. Using current DVRtechnology, a separate performance of a movie broad-cast on television can begin before the broadcast isfinished, because the DVR can be used to play backearlier portions of the recording while continuing torecord later portions. See JA429. In other circum-stances as well, an individual who obtains a copy ofdigital content can perform the work shortly afterreceiving it. For example, a consumer who down-loads a song often may begin to play the copy being


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downloaded even before the download is complete.See United States v. ASCAP , 485 F. Supp. 2d 438,446 (S.D.N.Y. 2007), affd , 627 F.3d 64 (2d Cir. 2010),cert. denied , 132 S. Ct. 366 (2011); JA487. Neverthe-less, because the performance is rendered by playing

the downloaded copy, the purchaser is performingand the seller is not. See Brief for the United Statesat 24, United States v. ASCAP , Nos. 09-0539-cv(L), etal. (2d Cir. filed Aug. 10, 2009) (U.S. 2d Cir. ASCAP Br.), 2009 WL 7481343.

2. Aereos users do not receive the per-formances embodied in broadcasterstransmissions

When a consumer plays a personal recording using Aereos DVR and transmits it to her device, the

performance transmitted is the playback, not thebroadcasters prior performance of the program.With Aereos technology, a consumer first sendsa command that activates an individual antenna toaccess a broadcast transmission for the selectedprogram and then makes a recording from the datareceived by that antenna. The user then plays thatrecording and streams that performance to herselfover the Internet. Even in Watch mode when auser is watching a program live she is watchingthe playback of her individual recording. See JA429.That playback, not the broadcast, supplies the sequenceof images and sounds that is transmitted.

As with the two friends who each play a DVDstraight through, the difference between the usersplayback and the broadcasters performance may notbe apparent when the user simply plays her record-ing without interruption as it is being made. Thedifference becomes obvious, however, the moment theuser hits pause (or rewind): the user controls the


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images and sounds she receives it is her act ofshowing that she views through a transmission from

Aereos equipment to her device. See Pet. App. 28a-29a. 14 Even where she chooses to play the recordingwithout employing those capabilities, her act of

pressing Play causes the works images to be shownand renders its sounds audible. See supra pp. 10-11;Pet. App. 29a n.14 (because the Aereo user can exer-cise such control if he wishes to, . . . the copy Aereossystem generates is not merely a technical link in aprocess of transmission). Because the user is theonly person capable of receiving a transmission ofher playback, there is no public performance.

Moreover, because the playing of a recording isitself a performance, the two steps of (1) making arecording from a first performance, and (2) trans-mitting a playback of that recording cannot be treatedas a device or process for retransmitting the firstperformance. See 17 U.S.C. 101 (defining trans-mit to include the use of any device or process to

14 The users ability to pause and rewind conclusively rebutspetitioners repeated assertion (at 19, 25, 30) that the copies aregratuitous. They are, in fact, fundamental to the user experi-ence. See Pet. App. 30a n.15. The act of copying also meaning-fully affects the users experience. As with any other DVR,

a delay occurs as compared with receipt of a performance overthe air. There is always the risk of hearing cheers from thenext apartment moments before the big play. And Aereos tech-nology does not readily facilitate channel surfing: becauseprogramming is not constantly transmitted (as with broadcastand cable), the user must return to the DVR guide, select a newprogram, and make a new recording before she can watch thenew program. Quite different from the virtually instantaneouschange of channels on a television, the Aereo user has to takethose additional steps and wait for the recording to be gener-ated before she is able to view the new program by playing therecording.


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communicate a performance . . . whereby imagesor sounds are received beyond the place from whichthey are sent). The Transmit Clause makes clearthat a single performance is embodied in a transmis-sion, by using the indefinite article a in the first

part of the Clause and the definite article the in thesecond part. The definition of perform confirmsthat reading. A performance is not a sequenceof images and sounds that is the definition of anaudiovisual work , see supra note 13 but rather thetransitory act of showing them.

Any other interpretation leads to absurd results.For instance, if a distributor makes multiple copies ofa DVD from a master copy, then sells them by mailto consumers, in some sense it communicate[s], 17U.S.C. 101, the contents of the performance fromwhich the master copy is made. But the distributionof the DVDs merely makes it possible for the recipi-ents to perform the work themselves it is not adevice or process by which the distributor publiclyperforms the work. Cf . U.S. 2d Cir. ASCAP Br. 21(Amazon.com . . . does not publicly perform a copy-righted work whenever it mails a compact disccontaining that work, notwithstanding that a digitalcopy has been transmitted or otherwise communi-cated.); Menell Br. 8 (It is absurd to suppose that

under the current Act it has become necessary forprivate purchasers of phonorecords to obtain a per-forming rights license from ASCAP or BMI beforethey may lawfully play such phonorecords withintheir homes.) (internal quotations omitted). A con-trary interpretation also would undermine the stat-utes first sale provision, which entitles the ownerof a particular copy to sell it without the authorityof the copyright owner. 17 U.S.C. 109(a).


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The incongruity of the governments reading isparticularly pronounced when copies of copyrightedcontent are distributed through transmissions i.e.,downloads. The government consistently has takenthe position that distribution through downloads is

not a performance. See U.S. Br. 7 n.2. As it hasexplained, when a song is downloaded, the purchaserobtains a fixed copy of the song and then performsthe copy. The digital music vendor does not performthe song by transmitting the data embodied in theconsumers copy. See U.S. 2d Cir. ASCAP Br. 24;Brief for the United States in Opposition at 9,

ASCAP v. United States , No. 10-1337 (U.S. filedJuly 12, 2011) (U.S. Cert. ASCAP Br.), 2011 WL2908556 (Performance of the work occurs only when(and if) the recipient undertakes the subsequent actof playing the disc or downloaded music file, e.g. , in astereo at home (a private performance) or throughthe sound system of a theater (a public perfor-mance).). On petitioners theory here, however, thevendors transmission could be treated as a deviceor process for communicating the performancefrom which the copy is made as their ownamici acknowledge. 15 See Cablevision Br. 16 ([o]npetitioners theory, . . . [a] download of a recorded

15 The government attempts to distinguish the copiesmade using Aereos equipment by suggesting (at 7 n.2) that

[o]rdinarily a work contained in a downloaded copy cannotbe seen or heard during the download process. That positionis contrary to the expert testimony in this case, see JA429;moreover, in ASCAP , the government successfully defended thedistrict courts judgment that the mere fact that a customersonline purchase is conveyed to him in a piecemeal manner, eachsegment of which is capable of playback as soon as the trans-mission is completed, does not change the fact that the trans-action is a data transmission rather than a musical broadcast.

ASCAP , 485 F. Supp. 2d at 446.


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performance . . . would constitute a public perfor-mance).

For similar reasons, treating the creation andplayback of an Aereo users fixed copy as a processfor transmitting an underlying performance wouldundercut the compulsory license for digital distribu-tion of sound recordings in 115(c)(3). That provi-sion grants any person a compulsory license under 106(1) and 106(3) only to distribute music files(phonorecords) to the public through downloads.17 U.S.C. 115(c)(1), (3). 16 As the governmentargued in ASCAP , if a download could be treated as adevice or process for transmitting the performancefrom which the file is made, music vendors wouldneed to negotiate separate performance licensesunder 106(4) which would destroy the utility ofthe compulsory license provisions. See U.S. 2d Cir.

ASCAP Br. 28. Congress could not have intendedthat result.

16 Section 115 specifies that the compulsory license is avail-able regardless of whether the digital transmission is also apublic performance of the sound recording. 17 U.S.C. 115(d).

As the government explained in opposing certiorari in ASCAP ,that clarification addresses transmissions from which a perfor-mance may be directly perceived at the same time a fixed copyis separately saved to the purchasers device. See U.S. Cert.

ASCAP Br. 14. The fact that the statute contemplates digitaltransmissions of sound recordings that are not public perfor-mances is contrary to the logical consequence of petitionerstheory.


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3. Section 111 reflects the distinctionbetween the performance embodiedin a broadcasters transmission and aperformance from a recording of thebroadcast

The distinction between retransmission of a broad-casters performance and transmission of a perfor-mance from an individual copy of the broadcast isstrongly reinforced by 111, which draws that verydistinction. Section 111 establishes the rules to gov-ern secondary transmissions of primary transmis-sions such as television broadcasts. It establishesthe compulsory license for retransmission of broad-casts to distant markets and makes clear that cablesystems can retransmit local broadcasts for free.See 17 U.S.C. 111(c), (d). 17 The section generallydefines secondary transmission as the simul-taneous[] retransmission of broadcast signals. Id. 111(f )(2). 18 And it indicates that, when a broadcastsignal is simply passed through by a cable system toits subscribers, what is contained in the secondary

17 Petitioners do not argue that Aereo is a cable systemunder 111, and Aereo is not one. The Copyright Office repeat-edly has refused to treat Internet-based platforms as cable sys-tems under 111 on the ground that they are not facilit[ies]-based providers. 17 U.S.C. 111(f)(3); see Copyright Broadcast

Programming on the Internet: Hearing Before the Subcomm. onCourts and Intellectual Property of the H. Comm. on the Judici-ary , 106th Cong. 25-26 (2000) (statement of Marybeth Peters,The Register of Copyrights); 57 Fed. Reg. 3284, 3292 (Jan. 29,1992) (codified at 37 C.F.R. 201.17); WPIX, Inc. v. ivi, Inc. , 691F.3d 275, 283 (2d Cir. 2012), cert. denied , 133 S. Ct. 1585 (2013).

18 The Federal Communications Commission (FCC) defines[s]econdary transmission as the further transmitting of aprimary transmission simultaneously with the primary trans-mission. 47 C.F.R. 76.66(a)(2).


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transmission is the performance . . . embodied in[the] primary transmission, id. 111(a), (c).

Section 111(e), however, also includes a limitedcategory of secondary transmissions that arenonsimultaneous because they are derived from theplayback of a videotape (broadly defined to includeany reproduction of the images and sounds of aprogram or programs broadcast by a televisionbroadcast station, id. 111(e)(4)). The statute refersto the content transmitted through such a non-simultaneous secondary transmission not as thetransmission of a performance . . . embodied in [the]primary transmission, id. 111(a), but as thecopyrighted program, episode, or motion picturevideotape, id. 111(e)(1)(B). The statute uses thatdifferent formulation precisely because the playbackof a videotape is not the same performance as theone embodied in the primary transmission it is anew and different performance. 19 Accord 2 Nimmeron Copyright 8.18[A], at 8-208.28-.29 ([I]f a cabletelevision system recorded on video tape a programpicked up off the air, and thereafter transmitted thetape over its cable facilities, . . . there was an origi-nated program and hence a performance by the fur-ther transmission over the cable facilities.). Because

Aereos equipment does not ever transmit broad-

cast content other than from an individual usersreproduction, it never transmits the performanceembodied in the broadcast.

19 The governments discussion (at 23-27) of 111 ignoressecondary transmissions from recording media.


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4. There is no justification for disregard-ing the fact that all transmissionsusing Aereos equipment are derivedfrom individual recordings

Neither petitioners nor the government can disputethat the performance transmitted by an Aereouser is the playback of her recording. Accordingly,petitioners public-performance claim fails.

a. The government argues (at 26-27) that trans-missions to Aereos users contain[] the prior broad-cast performance. To the extent the governmentstheory conflates the performance from a copy withthe performance from which the copy is made, it doesnot avoid any of the problems of petitioners theory.Moreover, the government acknowledges (at 33) that

the playback of a copy is not a public performancein the case of a remote-storage DVR (like the one inCablevision ). In the respects germane to the govern-ments test, however, Aereos technology works thesame way as Cablevisions. Id . Indeed, the sameexpert who testified for Cablevision in that case testi-fied below that the only pertinent difference betweenthe systems was the manner in which Cablevisionscontent was split and copied to make . . . multiplesubscriber recordings. JA436. The governmentoffers no evidence of a material distinction betweenCablevisions RS-DVR and Aereos.

b. The distinction between performance from acopy and pure retransmission reflects the practicalreality that 106(1) also gives the copyright ownerthe right to prevent unlawful copying . Aereostechnology permits consumers only to make personalcopies of local broadcast television a quintessential


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fair use under Sony Corp. of America v. UniversalStudios, Inc. , 464 U.S. 417 (1984). 20

By contrast, if petitioners had a legitimate chal-lenge to the use of Aereos system to copy their copy-righted works, they would not need to rely on their(unavailing) public-performance theory at all. Thiscase, however, does not involve the use of an Aereo-like system to access HBO programming, see MenellBr. 29, or the substitution of new commercials forthose included in the broadcasts, see id. at 28-29.Such hypotheticals present copyright reproductionright issues very different from the actual technologyat issue in this case.

5. Rejection of petitioners misreadingof the statute would not affect the

copyright liability of video-on-demandsystems A ruling in Aereos favor would not allow video-on-

demand (VOD) companies like Hulu and Netflix toprovide copyrighted content without paying royalties.The Transmit Clause requires consideration ofwhether the public any broader audience thana normal circle of a family and its social acquaint-ances is capable of receiving a performance.17 U.S.C. 101. The only person capable of receivinga performance from a personal recording housed in

Aereos DVR is the user who created the recording. A VOD system that uses a master copy, by contrast,transmit[s] . . . to the public, id. , because anyonemay elect to receive a performance (the playback of

20 See JA830-31 (counsel for petitioners acknowledging thatpetitioners would not seek a preliminary injunction based onthe reproduction right because [t]here are two cases, bothauthoritative, its the Supreme Court and the Second Circuit,that specifically address the question of time shifting).


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the master copy). And a VOD system cannot avoidliability by making individual copies for viewerswithout implicating the copyright owners reproduc-tion right. See Brief for the United States as AmicusCuriae at 21, Cable News Network, Inc. v. CSC Hold-

ings, Inc. , No. 08-448 (U.S. filed May 29, 2009) (U.S.Cablevision Br.), 2009 WL 1511740 ([T]he legalityof [such a system] would be suspect at best, because[the VOD subscriber] would be not simply time-shifting but instead copying programs that he wasnot otherwise entitled to view.).

One commentator, analyzing Clause (1), has notedthat

[r]eal property law, which confers the right toexclude on some occupiers of land . . . , offers a

useful benchmark . . . . Whether a place is opento the public effectively turns on whether theviewer or listener can exclude the public from theparticular space in which he is viewing or listen-ing to the performance.

2 Paul Goldstein, Goldstein on Copyright 7.7.2.2.a(3d ed. Supp. 2013). By analogy, as the governmentpreviously has acknowledged, the performancestransmitted using Aereos equipment are not publicbecause no user may ever access the recording madeby another. U.S. Cablevision Br. 21 (By limiting itsholding to circumstances in which [each transmissionwould be made solely to the person who had previ-ously made that unique copy], the Second Circuitsustained the legality of respondents [system] with-out casting doubt on the widespread premise that

VOD and similar services involve public perfor-


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mances.). 21 By contrast, it would not make a differ-ence if a VOD provider actually transmitted a per-formance from a master copy only to a single user,if such a performance were available to anyone whorequested it. See , e.g. , Columbia Pictures Indus., Inc.

v. Aveco, Inc. , 800 F.2d 59, 63 (3d Cir. 1986); Cable-vision Br. 9 (A hotel offers rooms to the publicbecause anyone willing to pay can occupy a room even though, once a particular guest pays . . . , he isthe only one who can use it. The same is true for[VOD] and Netflix.). 22

21 Implicitly, this is why courts and commentators havefocused on whether a single copy is used to transmit seriatim tomultiple viewers it is strong evidence that the audience is notconstrained to an individual or a normal circle of a family andits social acquaintances. See Cablevision , 536 F.3d at 138.

22 Petitioners also halfheartedly suggest (at 44) that a rulingin Aereos favor might place the United States out of compliance

with its international obligations. But the internationalagreements that petitioners cite, like 17 U.S.C. 106(4), ex-pressly relate only to public performance[s]. Berne Conven-tion for the Protection of Literary and Artistic Works art. 11,revised at Paris July 24, 1971, as amended Sept. 28, 1979, 25U.S.T. 1341; see id. (communication to the public of the per-formance); World Intellectual Property Organization CopyrightTreaty art. 8, Dec. 20, 1996, 36 I.L.M. 65, 70 (making availableto the public). A ruling that Aereos equipment enables only

private performances would not be in tension with those agree-ments. Notably, the government appears not to share petition-ers concern its brief makes no mention of international law.


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II. AEREOS USERS, NOT AEREO, PERFORMBY USING THE EQUIPMENT

This Court should affirm for the additional reasonthat Aereos users, not Aereo, play and transmitthe recordings of broadcast content and thereforeperform within the meaning of the Copyright Act.Petitioners assert only a claim for direct infringe-ment here not claims for contributory or vicariousinfringement. The statutory text and this Courtsdecisions demonstrate that direct liability for infringe-ment may be imposed only on one who engages involitional conduct that directly implicates a copy-right owners exclusive rights. By contrast, defen-dants like Aereo, which allegedly supply the meansfor another to infringe, can be held liable only on acontributory theory, and only if the other elements ofsuch a claim are proved.

A. Aereo Does Not Meet The Statutory Stan-dard For Direct Infringement

The Copyright Act imposes direct liability for in-fringement on one who violates any of the exclusiverights of the copyright owner as provided by section[]106, 17 U.S.C. 501(a) here, the right to performthe copyrighted work publicly, id. 106(4). 23 Toperform a work, one must recite, render, play,dance, or act it, show its images in any sequence or. . . make the sounds accompanying it audible, ortransmit a performance of the work, id. 101 that is, engage in affirmative action that renders thecopyrighted work capable of being perceived.

23 Section 106s [u]se of the phrase to authorize is intendedto [address] the liability of contributory infringers. H.R. Rep.No. 94-1476, at 61 (1976) (emphasis added).


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that consumers would use them in a manner allegedto infringe the respondents copyrights. 464 U.S. at434. The Court described this question as one ofthe scope of liability for parties . . . who have notthemselves engaged in the infringing activity . Id. at

435 (emphasis added). Similarly, in Grokster , theCourt held that one who intentionally induc[es] orencourag[es] direct infringement by distribut[ing] adevice with the object of promoting its use to infringecopyright is contributorily liable for the resultingacts of infringement by third parties. 545 U.S. at930-31, 936-37.

The focus on the scope of contributory liabilityin these cases makes clear that strict liability isreserved for the actor who directly engages in con-duct prohibited by 106. See , e.g. , CoStar , 373 F.3dat 546 (analyzing Sony ); Playboy Enters., Inc. v. RussHardenburgh, Inc. , 982 F. Supp. 503, 513 (N.D. Ohio1997) (same). The cases also illustrate that the doc-trine of contributory liability stands ready to provideadequate protection to copyrighted works in casesinvolving intentional facilitation. Cablevision , 536F.3d at 132; see 3 William F. Patry, Patry on Copy-right 9:5.50, at 9-23 (2012) ([t]he requirementof volitional conduct does not undermine the strictliability nature of copyright).

C. Aereos Provision Of Remote EquipmentTo Consumers Does Not Render It Direct-ly Liable For Infringement

Relying on the statutory text and this Courtsprecedents, federal courts have rejected attempts toimpose direct liability on those who merely provideequipment used by others in an allegedly infringingmanner. These lower court cases persuasively rejectthe argument that direct liability can be premised on


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ownership, operation, or maintenance of equipmentused for an infringing activity. CoStar , 373 F.3d at551; see Cablevision , 536 F.3d at 131 ([T]he personwho actually presses the button to make the record-ing[] supplies the necessary element of volition, not

the person who manufactures, maintains, or . . . ownsthe machine.); Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc. , 907 F. Supp. 1361,1368 (N.D. Cal. 1995).

Lower court cases likewise support the sound prin-ciple that direct liability is inappropriate where adefendant programs equipment to respond auto-matically to a user command that results in allegedinfringement. CoStar , 373 F.3d at 550; Cablevision ,536 F.3d at 131-32; Disney Enters., Inc. v. HotfileCorp. , 798 F. Supp. 2d 1303, 1309-10 (S.D. Fla. 2010)([C]ourts have repeatedly held that the automaticconduct of software, unaided by human intervention,is not volitional. ); Netcom , 907 F. Supp. at 1368-69.These courts have emphasized that this limitationis especially important in light of the expansiveliability that might otherwise result from networkedcommunications and storage systems. CoStar , 373F.3d at 551; see Netcom , 907 F. Supp. at 1369.

Post- Sony amendments to the copyright law con-firm that these judicial interpretations are consistent

with Congresss intent. For instance, in the DigitalMillennium Copyright Act, Congress enacted a seriesof safe harbors that codified, in the context of Inter-net service providers, the leading and most thought-ful judicial decision on the distinction betweendirect infringement and secondary liability theNe

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