TV tantrums in America: a split over "public performance"

As a fan of the IPKat since law school some ten years ago, this guest Kat is honoured for the opportunity to offer up some mewsings of his own. As a North American purebred (with some distinctive Quebec markings), this Kat's morsels will focus primarily on the fun and foibles of the United States IP system -- starting with a colossal copy-fight brewing over the future of television.  

The magic antenna

Those who haven't been cat-napping in recent years will have discerned that TV shows are spreading to more and more places. While TV was once no more than a flickering beast that squatted in the living room, it now appears all around us -- on mobiles, on lap-top computers, on tablets and so on.

Seeking to spread around this visual buffet (too bad so much of it is junk food, sniffs Merpel), an American company called Aereo has set about to deliver real-time live television to all of these devices -- for one dollar a day. The service, which is for sale in New York, allows subscribers to pluck TV signals from the air and beam them directly to the device of their choosing wherever they happen to be.

Big broadcasters, needless to say, don't like this one bit and are suing to drive Aereo out of town.  The broadcasters, who have recently succeeded in extracting fees from cable companies who deliver their channels, say Aereo is violating their exclusive right to deliver a public performance under the Copyright Act. Nonsense, says Aereo, and points to its novel antenna system to say the TV beaming is not a public performance at all.

Aereo's "dime sized" antenna

So what trick does Aereo have up its sleeve? In short, what Aereo has done is to rig up a facility with thousands and thousands of wee antennae -- each of them dedicated to a single subscriber who, in Aereo's eyes, are receiving their own private transmission. This may be so in theory but what, asks the IPKat, do the judges have to say?

New York says yes, California says no

Looking to the definition section of the US Copyright Act, we find a passage that will define Aereo's fate:

To display a work publicly means
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Plain as day? Alas, no. Courts on America's east and west coast have lately come to very different understandings of what a "public performance" really means.

In Aereo's home town of New York, you see, the influential Second Circuit Court of Appeals offered a key pronouncement on "public performance" in 2008's Cartoon Network LP v. CSC Holdings (known as the Cablevision case). That case involved a new technology that lets TV viewers record shows on DVR devices located miles away on remote storage units. Even though the IPKat and his feline friends may all record the same episode of the Mickey Mouse Club, the fact they use discrete units to do so means the performance is private -- much as if they had used a VCR in their living room. 

If only the humans would
put on better shows..

Crucially, the Second Circuit rejected the idea that the "performance" in question was the underlying work or the original transmission. Instead, the appeals court said courts should look "downstream rather than upstream or laterally, to determine whether any link in a chain of transmissions made by a party constitutes a public performance." The judges in Cablevision also distinguished the remote DVR unit from other situations where courts had found infringement based on a "master copy" -- for instance, a hotel and video booth store that played the same tape to different customers.

But what about Aereo and its TV-everywhere service? Is the company not also streaming a master copy? Not at all, said a New York federal court in refusing to grant a preliminary injunction this summer, agreeing that Aereo's one-antenna per customer meant these are private performances. The court also rejected the broadcasters' call to distinguish the Aereo services from Cablevision because, unlike the DVR case, Aereo was streaming a live service. According to District Judge Alison Nathan, the Cablevision ruling did not spell out any time-shifting requirement for a performance to be private -- it was the individual transmission that mattered: Aereo has made substantial investments of money and human capital in its system, all in the reliance on the assumption that the Second Circuit meant what it said in Cablevision, rather than what it did not say."

The IPKat notes that, though the ruling comes preliminary injunction stage, Judge Nathan's words sound like a green light for Aereo to push forward with its TV plans. Apparently the company agrees: in mid-January the company announced it will soon switch on the service soon in 22 more cities.

But not so fast. On the heels of Aereo's victory in New York, a would-be competitor not-so-creatively named "AereoKiller" launched a rival service in California -- and was greeted by a similar lawsuit. This time, the broadcasters found a similar audience and, in late December, a California court ordered the would-be Aereo to shut down. And what of the marvel of the mini-antennas? The court was not impressed and rejected the idea that the law simply protected transmissions rather the shows in question:

That is not the only possible reading of the statute. The definition section sets forth what constitutes a public performance of a copyrighted work, and says that transmitting a performance to the public is a public performance. It does not require a "performance" of a performance. [...]  

People are interested in watching the performance of the work. And it is the public performance of the copyrighted work with which the Copyright Act, by its express language, is concerned. Thus, Cablevision 's focus on the uniqueness of the individual copy from which a transmission is made is not commanded by the statute. 

In a footnote, the court also invoked the great Judge Richard Posner to claim him as an ally who "has criticized the purely formalistic textual analytic approach to copyright cases involving alleged infringement of the performance right." (PDF of injunction ruling here)

TV, TV everywhere -- and barely time to think

The IPKat's head is by now spinning with all this talk of mini antennas (are these individual antennae technologically necessary - or just a clever dodge, wonders Merpel) and a "performance of a performance." For now, it appears Americans outside of California will soon be inundated with more television on more devices. And if the country's appeals courts split on the antenna question, the Aereo issue could eventually be ripe for the Supreme Court.