ABC v. Aereo: Public Performance, and the Future of the Cloud. Seth D. Greenstein October 16, 2014

Transcription

1 ABC v. Aereo: Public Performance, and the Future of the Cloud Seth D. Greenstein October 16, 2014

2 Legal Issues Does a company that enables individual consumers to make private performances of recorded over-the-air television programming make a public or private performance? Where the technology provided is controlled by the individual, does Aereo or the consumer make the performance?

3 Policy Questions What is the future of private performance? How does the decision affect other cloud services such as music lockers? Are there limits to how consumers can benefit from digital technologies? Does efficiency affect fairness?

4 v. ABC, Inc. v. Aereo, Inc., 134 S.Ct (June 25, 2014) Broadcasters sought preliminary injunction against transmissions from copies of broadcast programming while broadcast in progress. Held: Aereo s transmission to an individual consumer of a copy of broadcast programming received by antenna and made by that consumer, infringes Section 106(4) public performance right.

5 U.S. Copyright Performance Rights 1856: First recognized a right of public performance Limited to dramatic compositions Private performance reserved to the people 1897: Right extended to public performances of musical compositions 1909: Added for profit condition

6 Case Law under 1909 Act Hotel system that transmitted unlicensed radio broadcasts of sound recordings to guest rooms made public performances (1931) Community television antenna system and cable TV systems did not make performances. Fortnightly Corp. v. United Artists Television, (1968) Teleprompter Corp. v. CBS (1974) Bright line: Broadcasters perform; viewers don t

7 Copyright Act of 1976 Defined performance to include cable transmission Enacted compulsory cable license Satellite compulsory license enacted 1988

8 Copyright Act of 1976 Transmit Clause defines to perform publicly to include (2) to transmit or otherwise communicate a performance or display of the work 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.

9 Fair Use under 1976 Act Sony Corp. v. Universal City Studios (1984): Affirmed consumer fair use privilege to time-shift broadcast television on a videocassette recorder for later viewing RIAA v. Diamond Multimedia (1999): calling place-shifting of MP3 files from computers to portable players a quintessential fair use

10 Rental as Performance Public performance In video store booth, whether employee or customer runs the VCR (1984) In hotel room where one copy used for seriatim transmissions to multiple hotel guests (1991) Private performance rental seriatim of same physical videodisc to multiple hotel guests for in-room viewing (1992)

11 Streaming as Public Performance icravetv.com (2000): preliminary injunction issued under U.S. copyright law against internet retransmission of over-the-air broadcast signals received in Canada from U.S. stations Warner Bros. v. WTV Systems (2011): transmissions to consumers of remote DVD rental

12 Streaming as Public Performance WPIX v. ivi.tv (2012): rejected claim that internet service that retransmitted overthe-air broadcast signals was a cable system that qualified for the Copyright Act compulsory license Deference to Copyright Office Which deferred to FCC

13 Common Thread One signal or one copy communicated to many Radio in hotel rooms Community antenna Cable TV TV over internet Movies in public spaces or over internet

14 Broadcasting Principles Airwaves are a public resource Over the air broadcasts delivered unencrypted Anyone with an antenna can watch local broadcast television without paying a license fee

15 Watching Free TV by Antenna

16 Video Recording

17 Slingbox

18 Home Video Technology

19 Cablevision Remote Storage DVR: Can You Move Recording to the Cloud?

20 Why Move to the Cloud? Benefits of cloud computing: Automated Self-service Highly economical as the costs of acquiring, maintaining, and upgrading sophisticated technologies are spread across all users. NIST Definition of Cloud Computing, Recommendations of the National Institute of Standards and Technology, at 2, U.S. Dept. of Commerce, Special Publ n , Sept. 2011,

21 Cloud Locker Services

22 Cartoon Network v. Cablevision (2008) Cable system that provided a remotely-located DVR did not publicly perform, where the transmission from a copied program was capable of being received only by the consumer who made that particular copy. Rejected requirement that a license was needed to the separate stream recorded by Cablevision for each consumer.

23 Can You Move Home Technology to the Cloud?

24 Enter

25 Business Concept Cloud-based DVR service controlled by the consumer Enable consumers to record over the air local television programming that they could ordinarily receive via antenna, and watch at their convenience live or later Watch on home TV, laptop, tablet, mobile phone Low monthly fee based on size of storage

26 Consumer Proposition: Buying vs. Renting a DVR + Antenna + Portability Up front purchase = $800+ Aereo = $8-12 per month Cost effective Cable subscription = $150+ per month Broadband + Aereo + Netflix = $50 per month

27 Works the same way as home equipment Receive locally available channels DVR always on Under consumer control what to record when to watch pause, rewind, fast forward Unique signal from antenna to consumer

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31 Under the Hood Accessible via normal web browser System inert until a consumer initiates action Individual antenna assigned to each consumer Individual DVR recording made by each consumer Consumer decides whether to record for later or watch now Copy accessible only by that consumer Geographically restricted No alteration to advertising Protected

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33 Reactions from Press TIME Magazine One of the 50 Best Websites of 2012 Slate.com: Using Aereo is a bit of a head-spin. Your browser really does become a TV set. The Wall Street Journal: [Aereo s] video quality is startlingly good. On more than one occasion, I completely forgot I was streaming video rather than watching a file stored on my ipad. If you're a fan of TV and want a better way to watch it on the go, Aereo is a pleasure.

34 Reaction from the Networks?

35 v.

36 v. Litigation History Second Circuit Filed March 2012 SDNY denied preliminary injunction, July 2012 Aereo enabled private performances Not meaningfully distinguishable from Cablevision Second Circuit affirmed, April 2013 En banc rehearing denied Cert. granted January 10, 2014 Argument date April 22, 2014

37 v. Litigation History cont d First Circuit: Hearst v. Aereo D. Mass. denied preliminary injunction October 2013 Appeal stayed Tenth Circuit: Nexstar, Sinclair v. Aereo D. Utah granted preliminary Injunction February 2014 Enjoined operation in 10 th Circuit Stayed further proceedings Tenth Circuit panel upheld stay 2-1

38 v. Question Presented: Whether Aereo publicly performs a copyrighted television program by transmitting, to each of multiple consumers, an individual copy made by that consumer for viewing while the broadcast is in progress?

39 v. Petitioner: Aereo makes public performances because it is essentially a retransmission service that Congress intended to be within Transmit Clause Act deemed community antennas and cable as public performances Overruled Fortnightly and Teleprompter Enacted statutory license not available to Aereo Cablevision inapplicable because Aereo unlicensed

40 v. Aereo: Aereo consumers make private performances from the cloud, by controlling technology just as they would at home. Consumer right to receive over the air broadcasts Right to record over the air broadcasts (Sony) Right to place-shift (Diamond Multimedia, Sling) Right to remotely locate technology for private performance (Cablevision)

41 v. Supreme Court Opinion June 25, 2014 Majority: Aereo performs copyrighted works publicly under the Transmit Clause Congress intentionally overturned Fortnightly and Teleprompter in the 1976 Act Transmit Clause clarifies that an entity that acts like a cable system makes a performance Subjected such entities to a complex compulsory licensing scheme

42 v. Aereo is like a community antenna system circa 1976 Not just an equipment provider or renter Technological differences irrelevant Performances of individual copies from individual antennas to individual subscribers irrelevant Congress intended to cover multiple transmissions of the same work to different people at different times

43 v. Aereo subscribers as a whole constitute the public Aereo communicates same images and sounds to large number of unrelated persons Consumers do not own or possess the underlying works Decision is not intended to interfere with emergence or use of other cloud technologies

44 v. Dissent: Aereo performs nothing Consumer volition: Aereo technology is inert until a consumer decides to record Suggested that Aereo might still be liable for reproductions

45 v. MHO The Court Got It Wrong (1) Basing decisions on what something is like rather than what something does Ignores the volitional role of consumer Unbalances Congress intent to preserve the right of private performance

46 v. MHO The Court Got It Wrong (2) Requiring that consumer own or possess the underlying work erroneous May own the copy, but not the work Irrelevant for over-the-air broadcasts that anyone can watch and record without any license or fee

47 v. MHO The Court Got It Wrong (3) Articulates no legal principle how or why other types of cloud services are unaffected E.g., streaming from locker services De-duplication permitted? What s left of Cablevision?

48 v. MHO Concerns Limits consumer access to beneficial digital technology Lawful in home, infringing in the cloud? Outlawing efficiency? Limits how consumers can exercise private conduct

49 What s Next? Remand to NY court Should injunction extend to record functions Is Aereo a cable system under Copyright Act, entitled to compulsory license? Federal Communications Commission Considering rulemaking to define or construe internet services that stream linear channels as entitled to retransmission consent and must carry

50 (Not Yet) The End Seth D. Greenstein