Note this post was updated the same day it was posted around 9 p.m. my time to address issues raised in one of the comments. I had reversed the polarity on Teleprompter and forgotten that Cablevision pretermitted (i.e., punted) the performance issue on grounds that the performance of a copy of a program earmarked and segregated for the subscriber wasn’t a public performance.
Outlier or Game Changer?
So the Supreme Court handed down its decision in American Broadcasting Cos. v. Aereo, Inc. on the first day of my vacation because, of course it did. It was building up to be perhaps the most significant Supreme Court decision on copyright law in several years. Sure, last year’s Kirtsaeng case could have had far-reaching effects—the “parade of horribles”—but, in the end, all the Court was doing was unknotting a small, terribly-drafted part of the Copyright Act that related to imports. Boring! By contrast, Aereo forced the Court to examine some fundamental concepts of copyright law, could have had far-reaching effects (especially on “cloud computing”), and involved something everybody gets: watching television!
Oh, and once again, a decision I blogged about—and described as “so wrong (yet so right)”— has been reversed. But unlike last time, I feel no need to eat humble pie.
But I’ve been back from vacation for a while, and still I’m only just now writing about Aereo? Honestly, it’s taken me a while to digest it. It’s easy enough to understand on its face: Congress deliberately wrote the current Copyright Act of 1976 to make 60’s and 70’s era CATV systems illegal, and Aereo so closely resembles a CATV system that it, too, must be illegal. There are lots of reasons why that reasoning is or isn’t flawed, but that’s beside the point. A lawyer criticizing the Supreme Court (which can be fun sometimes) is bit like shouting at the wind.
Technical vs. Squishy
What’s been hard is fitting this decision into the overall structure of copyright law. Although Aereo involved a fundamental question of copyright law—what does it mean to cause an infringement?—the Court deliberately ran away from that question. Perhaps my problem is that, ever since I started teaching copyright law, I see copyright law as systematic, because that’s the way you teach it. And that’s the way you analyze it, when you are working on a copyright case. And Aereo just doesn’t fit. So the question becomes: is Aereo an outlier, or is it a harbinger of some broader change to the structure of copyright law?
For the most part, copyright law is a technical law, and like any technical law, it often leads to anomalous results. By “technical” law, I mean the law mostly consists of a series of discrete factual issues, what lawyers might call “bright lines.” On any given issue, you have a good idea on what side of the bright line you stand (assuming sufficient facts). The challenge is working through the thicket of rules in the correct way—and figuring out what those rules are in the first place, where there is disagreement among courts or just plain confusion. You also have to resist your intuition or some inherent sense of justice (in your analysis—not in your opening statement!). You have to trust where the analysis leads, which doesn’t always make sense.
For example, you don’t need a license to read or lend a book, but you do need a license to load software into RAM. So, while a bookstore can’t take back a book it sold you, Amazon can prevent you from accessing books on your Kindle that you bought (but don’t really “own”).1Amazon quickly restored the disabled files after a good deal of media attention. This makes sense only to a copyright lawyer. A painstaking reproduction of an Old Master receives no copyright protection, but a chance photograph or film of an important historical event does. We put up with these counter-intuitive results because we desire consistency: that, once we work our way through the thicket of definitions and rules, we’ll all arrive at the same place.
The opposite of a technical law is a “rule of reason.” These are squishy concepts, often necessary because bright line rules just aren’t up to the task of arriving at fair results. You wouldn’t just be getting the odd anomalous result, but you are getting lots of weird and manifestly unfair results. Such rules are capable of taking into account many factors, weighing them, and hopefully arriving at a just result. We usually leave it to the jury to figure these things out. If, for example, you swerve to miss a cat crossing the road, hit a lamppost, which falls through somebody’s front window, the jury will have to figure out, first, whether it was reasonable for you to swerve out of the way of the cat and whether you did do reasonably. How fast were you going, were paying attention, what was the weather like, what precautions did you take because of the weather, how cute was the cat, are jury members cat or dog lovers, etc.? Then the jury will have to determine whether you’re responsible for the damage to the window: is a broken window a reasonably foreseeable result of hitting a lamppost with such-and-such force? While it might be nice to have a rule stating that you cannot be liable for falling lampposts if you were traveling the speed limit or less, because that would be an easy rule to apply, such a rule wouldn’t be a very fair to the homeowner if, say, you were driving like a moron.
The problem with squishy rules like these is that they are difficult to apply consistently and, thus, results of such rules are difficult to predict. You often don’t know whether what you did was right or wrong until the jury returns a verdict—which is a bit too late if you were wondering how to conduct yourself legally in the first place. You can see the trade-offs here: you can certain but at the cost of anomalies, or you can have flexible but at the cost of consistency.
Copyright law, although mostly a technical law, has its fair share of flexible rules. In fact, two of its most important concepts are very, very squishy, indeed. Fair use is notoriously flexible, inconsistently applied and difficult to predict the outcome of, but no set of technical rules would lead to consistently fair results. Substantial similarity, which is a requirement for copyright infringement, requires a jury to determine whether you took too much of what is too important to the underlying work (the so-called “quantitative/qualitative” analysis). How much is too much, and what is important to the underlying work? Ask the jury.
The question that Aereo leaves us with is: is there a third major squishy concept in copyright law?
Zeno’s Aereo
By now, you probably know how Aereo works, so you can skip the next couple paragraphs if you want. Imagine if you had a friend in New York city whose apartment gets great TV reception, but you live far enough out of town that you can’t get New York TV stations only crummy Albany ones2Actually, as I’m coming to understand the service, if you were in the Albany market, you wouldn’t be able to receive New York programming. This strikes me as a fairly significant fact that’s left out of the majority opinion and the dissent’s opinion, and most of the discussion about it. It is mentioned but doesn’t play much of a role in the lower court decision. somewhere you can’t get TV signals very well. You place a TV antenna in your friend’s apartment, run the signal through a digitizer, buffer the digital output on your friend’s computer, then stream the stored output over the internet through a little gate through your friend’s firewall, a gate that you and you alone have the credentials to access. Your friend doesn’t want her computer streaming your content all the time, so you rig it so the computer only receives and streams the content when you tell it to through the gateway. Oh, and to cut down on bandwidth, you don’t want to receive ALL the content all the time, only the content you’re watching, so you install a TV tuner on your friend’s computer that you can change the channel and output to the streaming device only the content on that channel.
Now let’s say that you’re friend is enterprising. She has purchased lot and lots of antennas, and because the signal strength is so strong, she discovers the antennas don’t have to be very big. (Maybe she moved somewhere with an even better signal.) She rents the antennas to you and other customers, for a fee. Each antenna has its own tuner and digitizer, and the output is kept carefully segregated so only the antenna’s “owner” (renter, really) can access it. [Edited to add: Somehow (maybe using IP geolocation?), she only allows customers who are in the New York City TV market.]3Gosh, why would she set up such a convoluted system? Wouldn’t it just be easier to constantly make copies of each channel and play those back on demand? Guess not. She actually has more customers than antennas, but that’s OK because not all customers are using their antennas at the same time, so she sets up a system that assigns a random antenna to a customer when the customer demands access. A given customer might end up using multiple different antennas over time, only “renting” a particular antenna for the period in which the customer is seeking access.
From the customer’s point of view, the experience isn’t quite the same thing as just watching TV. For one thing, unless you have an Apple TV, Roku or some other interface between your computer and your TV, you can’t watch it on your TV, just on your computer. But, hey, in the YouTube age, the computer is the new TV, right? But, still, you get the same content that your friend gets, for just a few bucks a month. Your friend stands to get very rich. She just needs to invest in the equipment and keep it running. She doesn’t have to pay for the content. Who knew there was a market for “free” over the air TV?
From the perspective of rights holders, it’s clear as day that Aereo is illegal. Aereo is making money from content without compensating the rights holders, so it’s got to be illegal.4Rights owners often feel this way even when the conduct is manifestly legal. They typically hate secondary markets, for example, even though maybe they shouldn’t, and they’ve hated libraries since pretty much forever. Some of the analysis is roughly the equivalent of Calvin yelling at Hobbes, “You can’t do that!”, but more seriously, they argue that Aereo is violating the “public performance” right.
What Was Hip in the 1960’s and 70’s
The public performance right has a couple of strange wrinkles. First, it (along with the public display right) is limited to public uses of the copyrighted work (more on that later). Second, along with the display right, it’s the only right that can (potentially) be simultaneously violated directly by two entirely different parties. This is because, when a signal carrying a copyrighted work (like a TV show) is transmitted, both the transmitter and the recipient are said to be “performing” the work at the same time.5When you’re watching a play, the actors are the ones “performing” the work, and the audience is off the hook. You can see why: what if you happened on a street performance?
It wasn’t always like this. It used to be that only the broadcaster was said to “perform” the transmitted work. How it got to be like this is actually central to the Supreme Court’s reasoning in Aereo, so let’s go back in time to the 1960’s and 70’s…
Back then, it was not uncommon for communities to have little or no access to television. What they would do is go some place where the signal strength was high (and preferably there were a lot of channels, like five or even six!), set up a big antenna there, run some cable back to the community, then amplify and divide the signal among subscribers, and run more cable to the subscribers’ homes. The subscribers would normally pay a modest subscription fee to make all this possible, and they’d have access to whatever the community’s antenna picked up. (This was all analog, obviously.) This was known as “community access television” or “CATV”. It was also the precursor of cable TV systems.
Twice—in a 1968 case called Fortnightly and again in a 1974 case called Teleprompter—broadcasters brought copyright suits against CATV operators all the way to the U.S. Supreme Court, on grounds that the operators were infringing their performance right in the broadcasts by re-broadcasting them. Both times, the Supreme Court held that broadcasters perform transmitted works, not viewers, but CATV systems were more like viewers than broadcasters because they did not choose what to broadcast6”…do not select the programs to be viewed…” Interesting phrasing. but were mere conduits. It did not matter whether the CATV operators were really commercial enterprises, selling their content to people outside of the “community” or cross-selling their content to other CATV operators.
Removal of a Defense Does Not Automatically Create Liability
As luck would have it for the broadcasters, in the 1960’s and 70’s, Congress was waist deep in drafting a brand new copyright act—the Copyright Act of 1976, which is the one in effect today. Congress absolutely wanted to overturn Fortnightly and Teleprompter. At the same time, Congress looked with favor up on the nascent cable industry, which had been relying on Fortnightly and Teleprompter. So Congress crafted a compromise:
- The definition of “perform” would be written so that transmitted works are performed by both the broadcaster and the viewer, so it no longer mattered whether CATV operators were viewers or broadcasters, but
- A cable company won’t have to negotiate with every copyright owner, but instead will have a defense against claims of copyright infringement so long as it pays a statutorily-defined royalty (plus some other terms and conditions)7A commentator who understands this better than I do points out that if the cable company is rebroadcasting a program in the same market as the original broadcast, the cable company wouldn’t even have to pay a royalty, [edit: beyond a certain minimum], the idea being the copyright holder would already have been compensated. Further, Aereo is designed to shut off once you leave the relevant market. [Edit: Anyway, see the comments.]. This defense is known as § 111.
Here’s how the committee in charge with drafting the Copyright Act of 1976 put it:
In general, the Committee believes that cable systems are commercial enterprises whose basic retransmission operations are based on the carriage of copyrighted program material and that copyright royalties should be paid by cable operators to the creators of such programs. The Committee recognizes, however, that it would be impractical and unduly burdensome to require every cable system to negotiate with every copyright owner whose work was retransmitted by a cable system. Accordingly, the Committee has determined to maintain the basic principle of the Senate bill to establish a compulsory copyright license for the retransmission of those over-the-air broadcast signals that a cable system is authorized to carry pursuant to the rules and regulations of the FCC.
But not all performances are infringing. The performance must be public. This is why it’s not such a big deal when you turn on your TV set at home and watch with your family and friends. You’re “performing” the TV show, but you’re not doing so publicly. This is important.
Will-Power and Causation
So Aereo is a broadcaster of copyrighted TV shows, and therefore, must be publicly performing those TV shows, right? Well, not quite. All Congress did was deliberately overturn Supreme Court decisions that, in effect, immunized CATV systems from direct copyright liability. In other words, Congress effectively removed that immunity, but CATV systems aren’t copyright infringers simply because the broadcaster-viewer distinction had been removed. They must do something to the copyrighted work in question. And that something is “volitional conduct.”
All “torts” (bad acts that the law will redress, like copyright infringement or negligence) have some sort of causation element because you can’t really be at fault for causing harm if you didn’t somehow bring about the harm. It’s always been understood that copyright law requires a more stringent showing of cause than other torts, perhaps because direct infringement doesn’t have an intent or knowledge requirement. Under a normal causation standard, you’d be liable for just lending your camera to a friend who, unbeknownst to you, was planning to use it to pirate a movie. Since you can infringe copyright unwittingly, your ignorance of your friend’s intent would be no excuse.8Compare this situation to one in which you lend your friend your car. If you know your friend was drunk at the time, you’d be liable for any accident he got into, because it would be reasonably foreseeable that drunk drivers cause car accidents. If, by contrast, your friend wasn’t drunk but later got drunk without your knowledge, you wouldn’t be liable because you’d lack that knowledge requirement. So what saves you is that you didn’t do enough to cause the eventual infringement.
But how much is too much? Recently, in a lower-court decision called Cablevision9Decided by the same court that the Supreme Court reversed in Aereo., volitional conduct was defined as actually carrying out the infringing act. In that case, the defendant was a cable company that provided its customers a service that essentially duplicated the functionality of a DVR system, except it was in-house (i.e., remote from the customer). The court held that the cable company didn’t engage in volitional conduct when its equipment copied the copyrighted programs10Which rendered the resulting playback private, allowing the court to punt the performance issue. It seems to me, by its own definition of “volitional conduct,” the customer was also the one causing the performance when he or she requested playback., even though the cable company set everything up for the customer, it was still the customer, not the cable company, who decided whether and when to use the service, what programs to copy, and when to watch the program (privately).
I call this the “Who pressed the button?” theory of volitional conduct, and while it is strict, it has the virtue of being easy to apply. Find the person who pressed the button (or the equivalent), and you’re done—there’s your direct infringer. It’s a really technical rule (and fits in with copyright’s many other highly technical rules), and like all technical rules, it will lead to anomalies—hopefully not too many or too bad (or too annoying to those with lots of pull with Congress). We have to expand this definition a little bit, though, because we also know that you’re a direct infringer if you command, direct or force someone else to perform the infringing act, e.g., a boss telling an employee to make illegal copies of a newsletter, say.
I Happened to Notice that the House Is Currently Unoccupied, the Back Door Is Unlocked, and There Is a Fortune in Jewelry Upstairs. I’m Not Saying You Should Rob the House, of Course…
But what about an invitation to infringe? Let’s say I have discovered a new song that I really like, purchase it (legally) and download it to my MP3 player (again, legally). I then offer my player to anyone I know, encouraging them to listen to the song I love. I don’t limit myself to just friends and family but offer the song to co-workers, neighbors, a guy on the bus—enough people that the performance can’t be regarded as private.11The Aereo court specifically contemplated that you can perform something publicly by a series of private performances. I think this is crazy because it equate a “performance” with the work itself. But there it is. I don’t force anyone to listen to it; I’m not even very insistent. I just tell them it’s a great song and they can listen to it on my player if they want.
Like me in this hypothetical, Aereo (and Cablevision) don’t “push the button”; they don’t command you to push the button; but they invite you to.12Again, this hypothetical normally doesn’t create a practical problem because if it isn’t direct infringement, it’d certainly be contributory infringement. But in this unusual situation, it wouldn’t be contributory infringement because the people we’re inviting to listen or watch aren’t themselves direct infringers. Does that cross some kind of line? And if there’s a “line,” where do we draw it?
Perhaps volitional conduct just isn’t the law? After all, it has never been formally endorsed by the Supreme Court. Terry Hart, the Director for Legal Policy for the Copyright Alliance13Essentially a lobbying organization for copyright holders, so his view isn’t exactly unbiased., has argued for some time that volitional conduct is, in fact, just short-hand for a more fundamental concept called “proximate causation.” Remember my hypothetical about the falling lamppost? The question about whether you should be liable for the damage to the window is an example of proximate causation. Hart’s argument is that copyright law should be treated like any other kind of tort, and torts (especially those without intent or knowledge requirements, known as “strict liability” torts) are limited (or extend out) to “proximate causation,” which is basically defined as: whatever is a reasonably foreseeable14It is an old joke among lawyers that on a clear day, you can foresee forever. consequence of a (bad) act.
The great advantage of using proximate causation is that lawyers are very familiar with the concept. We learn it in our first year of law school15For fun, sneak up to your lawyer friends, whisper “Palsgraf” in their ear, and be prepared for hilarity that will ensue., and we never stop using the concept. The great disadvantage of using proximate causation is that nobody really understands it. It’s a jury question, and juries are (1) black boxes (i.e., you don’t know how they arrive at their verdicts, what they though was significant, etc.), and (2) not required to be consistent, just not insane. Over time, you can make educated guesses, but only if you have enough data. There are so few jury verdicts in copyright cases that we’ll never really have enough data. It would become the third major squishy area of copyright law.16Strictly speaking (pun alert), copyright law already employs proximate causation in determining actual damages, but this is a fairly minor use because plaintiffs rarely try to recover actual damages—in part because it’s so hard to prove proximate causation between the infringement and the damage!—and this problem is by no means unique to copyright. And squishy areas tend to favor plaintiffs because they create uncertainty among potential defendants, who will have to be extra careful to avoid infringement.
Hart argues that proximate causation isn’t a hard question in Aereo. It should surprise exactly nobody that Aereo’s customers will use Aereo’s service in the manner that Aereo instructs.17.Devlin Hartline argues that the Aereo decision can be reconciled with volitional conduct because “Aereo crossed the line from being a passive conduit to being an active participant because it functioned just like a cable system.” For an opposing view, which really excoriates the Supreme Court, try this piece by J.S. Greenfield.
Now, normally, we wouldn’t be bending ourselves into knots trying to figure out whether what Aereo is doing is direct infringement, because, normally, supplying equipment and explaining people how to use it to infringe is also a form of infringement—contributory infringement. And contributory infringement is just as bad as direct infringement. Under this doctrine, you are liable for copyright infringement if (1) you contribute to another’s infringement, (2) knowing that the other person’s conduct constituted infringement.
But contributory infringement didn’t help the plaintiffs in Aereo 18The dissent in Aereo seems to assume that Aereo would ultimately be found liable for contributory infringement for public performance, but I think they forgot about the “public” element of the right. because you have to contribute to the other person’s infringement. In other words, what the other person is doing must itself be direct infringement. And while the viewers are certainly performing the TV shows under the current definition of “perform,” they aren’t doing so publicly. Mostly what they are doing is watching TV by themselves or with their friends and family. Unless they’re projecting the TV program for the whole neighborhood (like for a block party), they aren’t engaging in public performance.
Thus, what we have is: one party that doing something publicly, but that’s not a performance; and another party performing something but not publicly.
What Did the Court Say? C-C-CATV!
Well, why are we having an academic debate about volitional conduct, proximate causation, exploding fireworks and falling scales19Did you click on the Palsgraf link?, when we have a Supreme Court opinion that addresses these issues? Sure, let’s see what the majority said about these crucial issues.
Checking.
Checking.
Hmm.
Let’s run a few text searches…
Huh.
You know what? The majority says nothing about volitional conduct. Well, it’s an esoteric concept, and maybe nobody brought up? No, the dissent is all about volitional conduct. The issue must have been laid before the Court. Weird. OK, but surely proximate causation—which is well known to every lawyer—is discussed? Nope.20Hart, who thought the Court decided Aereo correctly, criticized the majority for “not adequately explain[ing] the rule it was applying,” the implication being that, if it did, it would look exactly like Hart’s explanation.
The majority does address the fact that Aereo’s customers, not Aereo itself, determine what program Aereo’s equipment transmits to the customer. But the majority doesn’t understand this to be an argument about volitional conduct or even causation. To the majority, this is an attempt to distinguish Aereo from the CATV systems upheld in Fortnightly and Teleprompter, which holdings Congress intended to overturn with its definition of “perform” in the current copyright act. From this point of view, it’s a distinction without a difference because the viewer experience is the same either way—everything else is just “behind the scenes.” This reasoning is circular, because Congress didn’t intend to make all cable systems illegal, only to remove what was in effect an immunity to liability that cable systems had enjoyed. From the point of view of causation, who “presses the button” might really matter.
Shouting at the Wind
The majority’s refusal to consider volitional conduct or causation is really gobsmacking. It’s not as though the concepts of causation and volitional conduct weren’t put before the Court—they were. And, without a discussion of causation, the majority’s analysis is missing a crucial step. Just because cable companies are no longer effectively immune to copyright liability doesn’t mean they are automatically liable—you still have to show that they did something that was the legal cause of copyright infringement. Maybe Aereo did, but you can’t tell from the Court’s opinion. Furthermore—
Oh, there I go. Shouting at the wind. It is a difficult temptation to resist, isn’t it? My job isn’t to tell the Supreme Court how to do its job, but to figure out whether and how Aereo has changed copyright law. There are three main possibilities that I currently see (and I’m happy to consider others!):
- Hart is correct, and the Court is secretly applying his theory of proximate causation. In other words, Aereo is a major game-changer. The problem is that: the majority had every opportunity to use this well-known phrase and failed to use it once. Also, there are some theoretical problems with this model.
- Volitional conduct survives intact, but we expand our definition of direct infringement enough to encompass Aereo’s holding, i.e., direct holding requires either (a) volitional conduct or (b) that your service behaves a lot like a cable company’s. In other words, Aereo is an outlier. The problem is that: this sounds really stupid.
- Volitional conduct has been applied too narrowly, but proximate causation is too broad for copyright. In other words, Aereo is a clarification of copyright law, not a major revision, but not an outlier either. The problem is: the majority doesn’t suggest anything like this and provides no clues for us to figure out what the real causation standard should be.
Which is it? Got me. I’m fairly certain it isn’t no. 1 because proximate causation is such a common concept that the Court would have said “proximate causation” if that’s what it meant. No. 2 is quite possible, since the Court emphasizes the narrowness of its holding (in a transparent attempt to protect cloud computing). When I’m wearing my law professor hat, No. 3 is most appealing because it would fit Aereo into the structure of copyright law, and it would give us lots of room to argue about how volitional conduct should be understood.
As a copyright practitioner, however: AARGH!
Oh, you wanted me to talk about cloud computing and some other stuff? Maybe next time.
Thanks for reading!
Footnotes
↑1 | Amazon quickly restored the disabled files after a good deal of media attention. |
---|---|
↑2 | Actually, as I’m coming to understand the service, if you were in the Albany market, you wouldn’t be able to receive New York programming. This strikes me as a fairly significant fact that’s left out of the majority opinion and the dissent’s opinion, and most of the discussion about it. It is mentioned but doesn’t play much of a role in the lower court decision. |
↑3 | Gosh, why would she set up such a convoluted system? Wouldn’t it just be easier to constantly make copies of each channel and play those back on demand? Guess not. |
↑4 | Rights owners often feel this way even when the conduct is manifestly legal. They typically hate secondary markets, for example, even though maybe they shouldn’t, and they’ve hated libraries since pretty much forever. |
↑5 | When you’re watching a play, the actors are the ones “performing” the work, and the audience is off the hook. You can see why: what if you happened on a street performance? |
↑6 | ”…do not select the programs to be viewed…” Interesting phrasing. |
↑7 | A commentator who understands this better than I do points out that if the cable company is rebroadcasting a program in the same market as the original broadcast, the cable company wouldn’t even have to pay a royalty, [edit: beyond a certain minimum], the idea being the copyright holder would already have been compensated. Further, Aereo is designed to shut off once you leave the relevant market. [Edit: Anyway, see the comments.] |
↑8 | Compare this situation to one in which you lend your friend your car. If you know your friend was drunk at the time, you’d be liable for any accident he got into, because it would be reasonably foreseeable that drunk drivers cause car accidents. If, by contrast, your friend wasn’t drunk but later got drunk without your knowledge, you wouldn’t be liable because you’d lack that knowledge requirement. |
↑9 | Decided by the same court that the Supreme Court reversed in Aereo. |
↑10 | Which rendered the resulting playback private, allowing the court to punt the performance issue. It seems to me, by its own definition of “volitional conduct,” the customer was also the one causing the performance when he or she requested playback. |
↑11 | The Aereo court specifically contemplated that you can perform something publicly by a series of private performances. I think this is crazy because it equate a “performance” with the work itself. But there it is. |
↑12 | Again, this hypothetical normally doesn’t create a practical problem because if it isn’t direct infringement, it’d certainly be contributory infringement. But in this unusual situation, it wouldn’t be contributory infringement because the people we’re inviting to listen or watch aren’t themselves direct infringers. |
↑13 | Essentially a lobbying organization for copyright holders, so his view isn’t exactly unbiased. |
↑14 | It is an old joke among lawyers that on a clear day, you can foresee forever. |
↑15 | For fun, sneak up to your lawyer friends, whisper “Palsgraf” in their ear, and be prepared for hilarity that will ensue. |
↑16 | Strictly speaking (pun alert), copyright law already employs proximate causation in determining actual damages, but this is a fairly minor use because plaintiffs rarely try to recover actual damages—in part because it’s so hard to prove proximate causation between the infringement and the damage!—and this problem is by no means unique to copyright. |
↑17 | .Devlin Hartline argues that the Aereo decision can be reconciled with volitional conduct because “Aereo crossed the line from being a passive conduit to being an active participant because it functioned just like a cable system.” For an opposing view, which really excoriates the Supreme Court, try this piece by J.S. Greenfield. |
↑18 | The dissent in Aereo seems to assume that Aereo would ultimately be found liable for contributory infringement for public performance, but I think they forgot about the “public” element of the right. |
↑19 | Did you click on the Palsgraf link? |
↑20 | Hart, who thought the Court decided Aereo correctly, criticized the majority for “not adequately explain[ing] the rule it was applying,” the implication being that, if it did, it would look exactly like Hart’s explanation. |
Thanks for the link to my own post on the Aereo decision. There are a few points of fact I feel compelled to make regarding your comments in this post.
1. Prior to the 1976 Copyright Act, only transmitters (not recipients) were deemed to perform. i.e., broadcasters performed, viewers did not. The Court in Fortnightly and Teleprompter concluded that cable operators were more like viewers than like broadcasters, and so like viewers, they did not perform.
2. By the 1976 Copyright Act, Congress certainly did overturn the notion that cable operators did not perform (as well as the notion that viewers did not perform). What they did economically, however, was far more nuanced than you suggest — and had nothing to do with compensating broadcasters.
Congress concluded that broadcasters were (always) already compensated by cable retransmissions (so long as those retransmissions were unmodified), since broadcasters make their money by selling commercials.
What Congress was concerned about was compensation for third parties who licensed works to broadcasters. And respecting that issue, Congress concluded that when cable operators retransmitted signals within the local market of a broadcaster, the third-party rightsholders had already been compensated for the use in that market. Accordingly, Congress granted not only a statutory license for this case, but a royalty-free statutory license.
Only in the case where a cable operator imported “distant signals” from a different market did Congress impose a royalty for the statutory license. And those royalties are used to compensate rightsholders in underlying works, not broadcasters.
(This, btw, is where your reasoning regarding Aereo goes awry in an earlier post. Aereo was delivering signals into markets the broadcasters did already serve, and served for free, per their legal obligations to give the signals away free in those markets. To the degree that Aereo was a “free-rider,” it was a free-rider in exactly the same sense that a vendor selling high-gain antennas, or DVRs or televisions, for that matter, are free-riders.)
3. In Cablevision, the Second Circuit ruled that users, rather than Cablevision, created the recording copies, but it did not rule at all on the question of who performed when it came to transmitting. Rather, it concluded that the performances were private, regardless of who the performer was, and since private performance is not an exclusive right, the court concluded it didn’t need to determine who the performer was.
4. Your proposed MP3 player analogy is not at all like what Aereo and Cablevision did/do. 😉
I’ve edited the post to correct the errors and to clarify a few things. I keep forgetting that Cablevision punted the performance issue, having gone to all the trouble to apply “volitional conduct” to the other aspects of the system. I’ve clarified that Aereo is similar to my MP3 hypothetical because it invites, rather than commands (or acts completely passively).
If Aereo’s customers are limited to the relevant TV market, then why are the rights holders so bent out of shape? (That’s not a rhetorical question. This is real hammer and tongs stuff.) Also, how does that work, technologically? I see how it would work with a mobile device, but consumer IP addresses are really hard to geo-locate because of the way dynamic addressing works.
Anyway, thanks for reading!
The broadcasters were bent out of shape with Aereo because the law around retransmission consent gives them incentive to keep free reception as minimal as possible, despite their legal obligation to make their signal freely available. (This is what would be classified as price discrimination in business school: make free reception as hard as possible, so that only those who are truly price sensitive (i.e., resistant to paying) will actually do the work required to get it for free. The rest will just pay, because it’s easier. It’s the functional equivalent of coupons.)
There’s no question that Aereo posed some threat to retransmission fees that many broadcasters negotiate under retransmission consent. (And likewise, posed some threat to the other terms broadcasters negotiate under retransmission consent.)
The broadcasters intentionally conflated retransmission fees with copyright fees (and the media did not understand the distinction at all, so it was completely conflated in all coverage), but retransmission fees have nothing to do with copyright, and were not at issue in the Aereo case. Retransmission consent was adopted long after the 1976 Copyright Act, in the 1992 Cable Act, and are part of Title 47, not Title 17.
Retransmission consent was adopted on the theory that broadcasters needed the power to defend themselves from cable companies that both had significant control over their distribution, and were emerging competitors (with cable-only channels). Broadcasters argued that cable operators could use money from retransmitting broadcast signals to bootstrap their own competing channels, and then once having established those channels, turn around and switch off the competing broadcast retransmissions. So Congress gave broadcasters the right to withhold their signal, or to negotiate terms (including fees) for their retransmission. (For the record, this has turned out to be a disastrously failed policy for consumers, and has ended up being the largest factor in the meteoric rise in cable TV costs over the intervening two decades, not to mention channel blackouts.)
Retransmission consent applies regardless of whether the content being broadcast is protected by copyright. And unlike the statutory copyright royalties, any fees go directly to the broadcasters, not to underlying rightsholders.
Oh, and retransmission consent doesn’t apply at all in certain situations — most notably, when a cable operator only carries broadcast signals. (If there are no competing channels, then there’s no need to get consent, and there are no retransmission fees — consistent with the fact that retransmission fees are not copyright fees.)
So while the broadcasters were pressing a copyright case, their motivation for such had nothing to do with copyright, at all. Copyright was just a technical mechanism of attack.
As for the MP3 analogy, it remains fundamentally different from Aereo (and Cablevision). In your example, you select the content (and make the copy of it). This is analogous to VOD, not DVR services. As Scalia’s dissent discusses with respect to VOD services and Netflix, “[t]hat selection and arrangement by the service provider constitutes a volitional act directed to specific copyrighted works and thus serves as a basis for direct liability.” (Furthermore, that same copy is used to serve many different users.)
Aereo (and Cablevision), on the other hand, engage in no corresponding selection. Aereo enables the tuning and recording of all receivable broadcast transmissions (and Cablevision enables the recording of all channels in the user’s cable package). The lack of volition on their part exactly mirrors the case of an in-home equipment rental (or sale, for that matter), as in the case where Cablevision rents an in-home DVR to a user. (And the copies made by users are accessible only to themselves, of course.)
So your MP3 example is a case where, under existing volitional conduct precedent, direct liability would appear applicable, whereas only secondary liability should be potentially applicable to Aereo (and Cablevision) under the volitional conduct test — even though, in all cases, it is the user who “presses the button” to actually initiate the performance. In one case, you are taking a copy of a particular piece of content that you select, and then making performances of that copy available to the public. In the other cases, the public is being provided access to a service/equipment enabling them to make personal copies (under what normal human beings would expect to be fair use rights, per Sony), and then to perform that content solely to themselves.
Thanks for response!
OK, so the main difference between what I’m doing in my hypothetical and Aereo/Cablevision is/was doing is I’m the one making the choices, while Aereo/Cablevision is providing precisely what the broadcasters are providing. Thus, it wouldn’t make a difference if I said to the same people: “Hey, wanna listen to any song on my MP3 player?” because I’m still the one who installed those songs on the player—that’s the volitional act on my part. This is why the folks at Truth on the Market thought it was significant that you couldn’t tune quite every NYC-area station, because that meant Aereo was making some choice as to available content (minor and fixable, as you say).
So, as you read the precedents, volitional conduct, at least with regard to performance, consists of (1) selection of copyrighted works, and (2) some act that makes said selection available to the viewer/listener. But that “making available” element (which I hope is different from “making available” concept that bedevils the analysis under the distribution right in file-sharing cases) seems to me to hide an intent requirement. If I upload a copyrighted work to what I think is a secure, private network, so that only I and my family members can view the work, but my WiFi settings got reset somehow, and my neighbors are also enjoying the content (and they’re outside my circle of acquaintances). I have chosen the content and I (accidentally) made it available to my neighbors for performance. Is that volitional conduct? Is it volitional only if I intend for the “public” to view what I “make available”? But: strict liability. It shouldn’t matter if I was negligent or not in safeguarding my network.
Another question, if it’s not too much trouble: Aereo seems to go to some trouble to limit its customers to those within the relevant TV market. But no court has found this particularly significant. If the Second Circuit’s reasoning had carried the day with the Supreme Court, would Aereo still need to impose this limitation? It seems to me it doesn’t. So why bother? Was it always Aereo’s intention to come under § 111? If so, why not raise it in the opposition to the motion for preliminary injunction and so forth? (Well, one effect that has is it makes me reconsider my previous description of Aereo’s victory in the Second Circuit as “anomalous.”)
Thanks again for reading and responding to my questions!
Btw, I neglected to respond to your geo-location question. IP-based geolocation is pretty effective at the town level for wired broadband users. (i.e., will place you near your actual location.) The use of dynamic vs. static IP addresses is really not an issue.
And these days, html5 browsers running on laptops/desktops that have wifi can geolocate using wifi just like mobile devices.
Rick,
I’m curious about footnote 8 where you say: “if the cable company is rebroadcasting a program in the same market as the original broadcast, the cable company wouldn’t even have to pay a royalty.” I wonder if this is exactly true.
Look, for example, at this decision from the U.S. Copyright Royalty Judges: http://www.loc.gov/crb/orders/2010/final-distribution-order-cable-00-03.pdf
The Royalty Judges explain on page 2 that there’s three classes of cable systems: small, medium, and large. For large cable systems, there is no royalty unless they’re retransmitting distant OTA broadcasts. One exception is when the large cable system carries only local broadcasts, in which case it does have to “pay a basic minimum fee.” Another exception is for “cable systems with less than one DSE,” which “are still required to pay a minimum fee.” See footnote 6 on page 11. For small and medium cable systems, they pay a flat fee royalty no matter what.
So it seems to me that Aereo as a cable system would have to pay royalties, assuming it’s small or medium. If it’s large, then it would pay royalties if it only carries local broadcasts or has a DSE less than one. Aereo did in fact pay (or at least attempt to pay) these royalties, so it clearly thinks that it, as a cable system, has to pay them.
This is not my specialty area, by any means, and I could certainly be wrong! But I’m wondering how you square the fact that Aereo thinks it has to pay royalties with your claim that cable systems that retransmit only local OTA broadcasts do not.
Devlin, I’ve plowed through § 111 (which isn’t QUITE my area), and I think you’re right. Under § 111(d)(1)(B), there is no royalty rate assigned for distances within the “local service area of [the] primary transmitter.” But, § 111(d)(1)(E) & (F) appear to essentially create a minimum royalty of no less than .5% on $10,400. Can anyone clarify?
Yes, that was the essence of TOTM’s argument — that Aereo actually was undertaking a volitional act in choosing which stations to make available. As I noted, however, this was not part of the record, and beside the fact that such could easily be fixed if it were actually a problem, some fact-gathering and analysis would be required to determine whether such legally constituted a volitional act.
For example, if the channels Aereo made available were based exclusively on information provided by a third-party guide data supplier (like Macrovision or TMS), is it a volitional act by Aereo to the degree that such information is incomplete? (This would place them in the same position as Tivo, for example.) Or what if on a given day, conditions are such that an out-of-market channel can be tuned? Is it a volitional act on Aereo’s part of they fail to recognize such, and add that out-of-market channel to the guide?
I don’t claim to have sufficient expertise to opine as to the limits of what does or doesn’t constitute a volitional act, generally. What I do know is that Scalia described the requirement for direct liability as being a volitional act “directed to specific copyrighted works” and that seems to be consistent with the caselaw I’m aware of. I also know that volition in designing systems — VCRs, DVRs, even p2p file sharing systems — has never been treated as volition sufficient to trigger direct liability. So to my view, the argument Devlin Hartline makes, that Aereo’s (and Cablevision’s) volition in merely creating the system is sufficient to create direct liability, is entirely without any basis in precedent, and entirely without merit.
As for your final set of questions, I don’t believe that Aereo went into this expecting to drop back to claiming a section 111 license. I think they absolutely believed that they would prevail on the performances being private. And I’m not aware of the issue of geographic limitations actually being explored in any of the cases, except very briefly at SCOTUS oral argument.
I think Aereo had a very practical reason for doing such in their initial deployment, which was to make sure that they were operating strictly within the Second Circuit, to ensure that the initial suit could only be brought in the Second Circuit, where the Cablevision precedent controlled.
Beyond that, I always figured that Aereo imposed such merely to avoid having an additional variable, and bolster their argument that the system functioned just like home equipment. (If you look at the Cablevision case, you’ll find that the initial RS-DVR design exactly mirrored the SA 8300 in-home DVRs Cablevision deployed: 2 tuners, 160 GB storage, same user interface, etc. These factors shouldn’t have any relevance to the outcome, but when dealing with judges that may not be tech-savvy, it certainly can’t hurt to make the new system look as much like an existing one as possible.)
During oral argument, however, Aereo’s counsel suggested that local vs. distant market might impact the question of whether making a recording (a required element of Aereo’s system, in order to get to the point of performance) was actually a fair use. That is, making a recording at home is clearly fair use under Sony. It would seem natural to think that making a recording elsewhere within the same local market is also a fair use, but perhaps making a recording in a distant market is not a fair use.
The distant vs. local issue was always a big concern raised by Aereo opponents. Who knows– perhaps Aereo had actually already gamed that fair use question out, and imposed the local market limitation as more than just a conservative simplification. But based on the way they spoke publicly, how they proceeded in court, and the fact that operating under a 111 license would have been much simpler and cheaper than the individualized equipment approach, it seems unlikely to me that they had anticipated the section 111 license move as a plan B, much prior to oral argument (where multiple justices seemed to embrace the notion — actually raised not by Aereo, but by competitor FilmOn X, in its amicus brief — that they qualified).
Devlin, the statutory license in 111 imposes no royalty for in-market retransmissions, reflecting Congress’s determination that rightsholders had already been compensated for that use of their work in that local market.
As an administrative matter, the Copyright Office has imposed some minimum fees on those filing for the 111 license, which they have described as being “paid by operators for the privilege of retransmitting distant broadcast signals even if none are carried.”
So there are administrative filing fees. This doesn’t change the fact that Congress deemed that no further royalty was due to rightsholders for in-market retransmissions, and referring to the statutory license for such as royalty-free is perfectly reasonable.
Aereo might additionally owe some actual royalties, for “distant” signal retransmission, to the degree that they carry certain low-power stations to an entire DMA (designated market area), where the entire DMA isn’t part of the low-power station’s deemed coverage. (If/when they operate as a 111 “cable system” going forward, they may well become selective about carriage of such stations, in order to avoid royalties for such.)
The tiny sum (~$5K) that Aereo calculated that it owed for all of 2012 and 2013 demonstrates that even any such actual royalties included in their filing fees were truly de minimus.
I think that’s my read too, Rick.
111(d)(1)(B) is for large cable systems, 111(d)(1)(F) is for medium cable systems, and 111(d)(1)(E) is for small cable systems. All three pay a “filing fee” determined by the Register under 111(d)(1)(G). Small and medium cable systems pay a “royalty fee” based on gross receipts, even for signals that aren’t sent “beyond the local service area” and regardless of the number of “distant signal equivalents.” Large cable systems pay a percentage of gross receipts for “the privilege of further transmitting, beyond the local service area of such primary transmitter, any non-network programming of a primary transmitter in whole or in part,” as well as for the number of “distant signal equivalents.”
You mention in a footnote: “Devlin Hartline argues that the Aereo decision can be reconciled with volitional conduct because ‘Aereo crossed the line from being a passive conduit to being an active participant because it functioned just like a cable system.’” Let me explain.
In short, I think all courts apply the volitional conduct test when determining liability for infringement, as the test is really just tort causation analysis, i.e., a determination of cause-in-fact and legal cause. The issue is often which version of the test is being applied. Some courts have stated that there’s a bright-line rule that the subscriber is the direct infringer under the “who presses the button” version of the test. I disagree that “who presses the button” is a proper bright-line rule, and the Aereo majority in fact rejects this narrow understanding of the volitional conduct test (though the minority would have adopted it). The Court instead does a causation analysis and adopts what I have argued is “the only bright-line rule under the volitional conduct test,” namely, “who supplies the infringing content.” See http://lawtheories.com/?p=939 and http://lawtheories.com/?p=1586
I think Terry’s position on volitional conduct is quite similar to mine. We both think the Netcom court engaged in tort causation analysis, determining that the defendant was the cause-in-fact of the copying and then making a policy-based decision whether to hold it liable as the legal cause. We both think this is standard analysis whether it’s called “volitional conduct” or not. Terry thinks the “volitional conduct” moniker should be dropped, since it injects confusion into the analysis based on the strands of case law that subscribe to the “who pushes the button” version of the test. I personally have no problem with calling it “volitional conduct,” so long as we keep in mind that it’s really just standard causation analysis.
It’s true that the Aereo majority doesn’t explicitly invoke the volitional conduct test, as the minority does, but it’s also true that the statute says nothing about proximate causation—even though that is an element of the analysis. The Supreme Court said years ago: “It is a well-established principle of that law, that in all cases of loss, we are to attribute it to the proximate cause, and not to any remote cause.” Waters v. Merchants’ Louisville Ins. Co., 36 U.S. 213, 223 (1837). Statutes quite often leave out the fact that proximate cause is an element of the tort, and courts often leave out mention of the fact that they’re doing a proximate causation analysis. Courts sometimes do the analysis without mentioning the underlying test. Just look at Windsor, where the Court struck down DOMA without saying what test it was applying (rational basis, rational basis with bite, or heightened scrutiny).
Devlin, you make repeated assertions such as “the majority here applied the volitional conduct test” and “the Court instead does a causation analysis.” Yet, it is not possible to find even so much as the mention of such in the majority holding.
Furthermore, what is found contradicts your assertions. For all that can be found is the syllogism that Scalia summarizes in his dissent: a finding that Congress modified the Copyright Act to hold that cable systems perform, a likening of Aereo’s functionality to that of cable systems, and the conclusion that Aereo, therefore, performs. This is neither a causation analysis nor application of a volitional conduct rule. In fact, it is a rejection of the application of such to this case.
Even when discussing how other providers might differ with respect to whether they perform, the majority identifies only that ‘the history of cable broadcast transmissions that led to the enactment of the Transmit Clause informs our conclusion that Aereo “perform[s],” but it does not determine whether different kinds of providers in different contexts also “perform.”’
This underscores the point that the majority reached its conclusion based on a likeness to cable systems, not any volition or causation analysis.
The claim that the Court secretly adopted your theory of the case, and applied such without so much as a mention, even though they explicitly stated a completely different basis for their conclusion, strikes me as incredible.
Justice Breyer’s opinion for the majority is all about the volitional conduct test. Though he doesn’t use my terminology, he engages in the same reasoning:
Does Aereo “perform”? See § 106(4) (“[T]he owner of [a] copyright … has the exclusive righ[t] … to perform the copyrighted work publicly” (emphasis added)); § 101 (“To perform … a work ‘publicly’ means [among other things] to transmit … a performance … of the work … to the public …” (emphasis added)). Phrased another way, does Aereo “transmit … a performance” when a subscriber watches a show using Aereo’s system, or is it only the subscriber who transmits? In Aereo’s view, it does not perform. It does no more than supply equipment that “emulate[s] the operation of a home antenna and [digital video recorder (DVR) ].” Brief for Respondent 41. Like a home antenna and DVR, Aereo’s equipment simply responds to its subscribers’ directives. So it is only the subscribers who “perform” when they use Aereo’s equipment to stream television programs to themselves.
This is the classic volitional conduct inquiry. The question is whether it’s the service or the subscribers who cause the copying (in the broad sense) to occur. This is just like the seminal Netcom case which introduced the word “volition” to the analysis. The issue there was whether it was Netcom or its users who were causing the copy to be made. We have the same thing in Cablevision, where the Second Circuit looked at who was making the copies. And there’s the same thing in Fox v. Dish, where the Ninth Circuit said it was Dish’s customers who make the copies on the Hopper DVR. The test looks at whether the service has engaged in enough volitional conduct to have crossed the line from being a passive conduit to an active participant. Courts engage in this analysis quite frequently, and the Supreme Court is doing the same thing here.
Justice Breyer next says:
Considered alone, the language of the Act does not clearly indicate when an entity “perform[s]” (or “transmit[s]”) and when it merely supplies equipment that allows others to do so. But when read in light of its purpose, the Act is unmistakable: An entity that engages in activities like Aereo’s performs.
So the text is unclear about whether a service like Aereo has engaged in enough volitional conduct to be an active participant, i.e., whether Aereo itself performs. So what does Breyer do? He turns to the history of the Transmit Clause, starting with two cases where the Court analyzed whether CATV systems were acting like a broadcaster or a viewer. (Those cases used the volitional conduct test too.) Had the CATV system crossed the line from being a passive conduit to an active participant? The Court in both cases said, “no,” but then Congress legislatively overruled the Court with the 1976 Act.
Justice Breyer notes:
Congress also enacted the Transmit Clause, which specifies that an entity performs publicly when it “transmit[s] … a performance … to the public.” § 101; see ibid. (defining “[t]o ‘transmit’ a performance” as “to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent”). Cable system activities, like those of the CATV systems in Fortnightly and Teleprompter, lie at the heart of the activities that Congress intended this language to cover. See H.R. Rep., at 63 (“[A] cable television system is performing when it retransmits [a network] broadcast to its subscribers”); see also ibid. (“[T]he concep[t] of public performance … cover[s] not only the initial rendition or showing, but also any further act by which that rendition or showing is transmitted or communicated to the public”). The Clause thus makes clear that an entity that acts like a CATV system itself performs, even if when doing so, it simply enhances viewers’ ability to receive broadcast television signals.
This is the key move, and it’s based on volitional conduct. Justice Breyer says that we don’t know how much volition is enough to say that the service has crossed the line to being an active participant. But, that doesn’t mean we can’t figure it out here. Since we know that cable systems are on the active participant side of line, Justice Breyer reasons that Aereo is also on that side of the line since it is functionally equivalent to a cable system. If cable systems are active participants for doing what they’re doing, then so are any other services which do the same thing.
Justice Breyer explains:
This history makes clear that Aereo is not simply an equipment provider. Rather, Aereo, and not just its subscribers, “perform[s]” (or “transmit[s]”). Aereo’s activities are substantially similar to those of the CATV companies that Congress amended the Act to reach. See id., at 89 (“[C]able systems are commercial enterprises whose basic retransmission operations are based on the carriage of copyrighted program material”). Aereo sells a service that allows subscribers to watch television programs, many of which are copyrighted, almost as they are being broadcast. In providing this service, Aereo uses its own equipment, housed in a centralized warehouse, outside of its users’ homes. By means of its technology (antennas, transcoders, and servers), Aereo’s system “receive[s] programs that have been released to the public and carr[ies] them by private channels to additional viewers.” Fortnightly, 392 U.S., at 400, 88 S.Ct. 2084. It “carr[ies] … whatever programs [it] receive[s],” and it offers “all the programming” of each over-the-air station it carries. Id., at 392, 400, 88 S.Ct. 2084.
This is a list of volitional conduct Aereo has engaged in that makes it just like a cable system. The majority then has to deal with one difference between Aereo and a cable company, i.e., that cable systems transmit constantly while Aereo only performs when a button is pushed. Justice Breyer explains why this doesn’t change the volitional conduct such that Aereo is back to being a passive conduit:
In our view, however, the dissent’s copy shop argument, in whatever form, makes too much out of too little. Given Aereo’s overwhelming likeness to the cable companies targeted by the 1976 amendments, this sole technological difference between Aereo and traditional cable companies does not make a critical difference here. The subscribers of the Fortnightly and Teleprompter cable systems also selected what programs to display on their receiving sets. Indeed, as we explained in Fortnightly, such a subscriber “could choose any of the … programs he wished to view by simply turning the knob on his own television set.” 392 U.S., at 392, 88 S.Ct. 2084. The same is true of an Aereo subscriber. Of course, in Fortnightly the television signals, in a sense, lurked behind the screen, ready to emerge when the subscriber turned the knob. Here the signals pursue their ordinary course of travel through the universe until today’s “turn of the knob”—a click on a website—activates machinery that intercepts and reroutes them to Aereo’s subscribers over the Internet. But this difference means nothing to the subscriber. It means nothing to the broadcaster. We do not see how this single difference, invisible to subscriber and broadcaster alike, could transform a system that is for all practical purposes a traditional cable system into “a copy shop that provides its patrons with a library card.”
This is classic volitional conduct analysis, looking at factual causes of the copying and determining whether to hold the service liable as the proximate cause. The Court is trying to figure out if Aereo is a passive conduit or an active participant, based on its volitional conduct in causing the performances to occur. I read the ENTIRE discussion of whether Aereo performs to be an application of the volitional conduct test.
Devlin, not a single one of the excerpts you cited even remotely supports the assertion that the Court applied a volitional conduct test or conducted any causation analysis, and the last excerpt shows the Court clearly rejecting the use of such an analysis — arguing that even though Aereo operates like a copy shop (with its absence of volitional conduct/causation), the fact that the functional result is (in their view) equivalent to a cable system controls the determination.
What you are arguing is that merely asking the question “Does Aereo perform?” is tantamount to conducting causation/volitional conduct analysis. That might make sense to you, on the basis of an apparent belief that a causation/volitional conduct analysis is the only way to address the question. But to any objective observer, the only evidence in these excerpts (or anywhere in the majority holding) is evidence of the majority rejecting causation/volitional conduct analysis as the way to answer the question, in favor of deferring to an inferred pre-emptory determination the majority perceived that Congress had already made, regarding the question of performance in the case of a cable-like service.
Devlin, not a single one of the excerpts you cited even remotely supports the assertion that the Court applied a volitional conduct test or conducted any causation analysis
The idea of volition comes from Netcom, where the district court said: “Although copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party.” Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1370 (N.D. Cal. 1995).
The district court held:
[T]he mere fact that Netcom’s system incidentally makes temporary copies of plaintiffs’ works does not mean Netcom has caused the copying. The court believes that Netcom’s act of designing or implementing a system that automatically and uniformly creates temporary copies of all data sent through it is not unlike that of the owner of a copying machine who lets the public make copies with it. Although some of the people using the machine may directly infringe copyrights, courts analyze the machine owner’s liability under the rubric of contributory infringement, not direct infringement.
Id. at 1368-69. The question of volition is the question of causation, i.e., whether “Netcom has caused the copying.” The court found Netcom’s volitional conduct sufficiently passive such that it could not be a direct infringer. It based this decision, in part, on the fact that Netcom didn’t supply the content to be copied and on the policy implications of such a ruling—the classic causation analysis looking at cause-in-fact and proximate cause.
The Fourth Circuit in Costar quoted Netcom and said the same thing:
Accordingly, we conclude that Netcom made a particularly rational interpretation of § 106 when it concluded that a person had to engage in volitional conduct—specifically, the act constituting infringement—to become a direct infringer. As the court in Netcom concluded, such a construction of the Act is especially important when it is applied to cyberspace.
CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544, 551 (4th Cir. 2004). Thus, “volitional conduct” refers to “the act constituting infringement.” In other words, the acts engaged in by the defendant that cause the copying to occur.
The Ninth Circuit and Second Circuit have also said the same thing (and there’s another circuit that said it as well, but I can’t remember which one at the moment). The question of volition is the question of causation, and the Court decided whether Aereo performs by looking at whether Aereo caused the performance to occur. Was Aereo a passive system, or was there “some element of volition or causation,” as the Netcom court put it, on Aereo’s part such that it wasn’t passive.
The Aereo Court poses the question: “Does Aereo “perform”? . . . Phrased another way, does Aereo “transmit … a performance” when a subscriber watches a show using Aereo’s system, or is it only the subscriber who transmits?”
The very question to be decided is whether Aereo performs, i.e., whether Aereo causes the performance to occur. There’s no doubt that there’s a performance when contemporaneously perceptible images and sounds are transmitted from Aereo’s server to it subscriber. The question is whether Aereo causes that performance to occur. This question is answered, naturally, by doing a causation analysis, i.e., determining if Aereo is the factual and legal cause of the performance.
Justice Breyer explains why the majority thinks “Aereo, and not just its subscribers, ‘performs[s]’ (or ‘transmit[s]’).” In other words, he looks at the actions taken by Aereo that cause the performance to occur. Reasoning by analogy to a cable system, Justice Breyer points out some acts that Aereo engaged in:
Aereo sells a service that allows subscribers to watch television programs, many of which are copyrighted, almost as they are being broadcast. In providing this service, Aereo uses its own equipment, housed in a centralized warehouse, outside of its users’ homes. By means of its technology (antennas, transcoders, and servers), Aereo’s system “receive[s] programs that have been released to the public and carr[ies] them by private channels to additional viewers.” . . . It “carr[ies] … whatever programs [it] receive[s],” and it offers “all the programming” of each over-the-air station it carries.
This is causation analysis. Aereo “sells a service that allows subscribers to watch television programs,” and this is relevant because it’s an act that Aereo engages in that causes the performance to occur. So is the fact that “Aereo uses its own equipment, housed in a centralized warehouse, outside of its users’ homes.” This is also relevant because it points to Aereo causing the performance to occur.
the last excerpt shows the Court clearly rejecting the use of such an analysis — arguing that even though Aereo operates like a copy shop (with its absence of volitional conduct/causation), the fact that the functional result is (in their view) equivalent to a cable system controls the determination.
The Court says that even though the subscriber selects what programs to watch (which means this volitional conduct is credited to the subscriber and not Aereo), this does not mean that Aereo is not causing the performance to occur: “We do not see how this single difference . . . could transform a system that is for all practical purposes a traditional cable system into ‘a copy shop that provides its patrons with a library card.’” So even though, like a copy shop, the user selects the content, this doesn’t erase enough of Aereo’s volitional conduct such that it’s not still functionally equivalent to a cable system.
Moreover, Justice Breyer pointed out that people also select content with cable systems: “Of course, in Fortnightly the television signals, in a sense, lurked behind the screen, ready to emerge when the subscriber turned the knob. Here the signals pursue their ordinary course of travel through the universe until today’s ‘turn of the knob’—a click on a website—activates machinery that intercepts and reroutes them to Aereo’s subscribers over the Internet.”
I agree that the “functional result” is relevant, but I think it’s relevant only because acts which lead to that functional result are acts that cause the performance to occur. In other words, the Court is not “clearly rejecting the use of such an analysis.” It is precisely doing that causation analysis by saying that the user selecting the content doesn’t mean that Aereo’s is not causing the performance. And the fact that Aereo is functionally equivalent to a cable system means that its acts are sufficient such that it is causing the performance to occur—whether the subscriber selects the content or not.
This makes sense. Think about video-on-demand. Just because I press a button to select the content and initiate the stream, it doesn’t mean my cable company is not publicly performing that content. Who selects the content is certainly relevant since it goes to causation, but it’s not dispositive either way. It’s all factored into the volitional conduct analysis.
What you are arguing is that merely asking the question “Does Aereo perform?” is tantamount to conducting causation/volitional conduct analysis. That might make sense to you, on the basis of an apparent belief that a causation/volitional conduct analysis is the only way to address the question.
It’s not that the Court merely asked the question, it’s that it answered it. The answer, of course, depends on causation. I’m not sure how a court could ever answer the question without looking at the acts engaged in by the defendant that caused the copying (reproduction, distribution, display, performance, adaptation) to occur. If you look at every single court to mention “volition” in this context in a copyright case (I have a Word document with every passage in every case), the court invariably does a causation analysis. What other possible way could there be to decide who causes the copying other than looking at whether the defendant caused the copying?
But to any objective observer, the only evidence in these excerpts (or anywhere in the majority holding) is evidence of the majority rejecting causation/volitional conduct analysis as the way to answer the question, in favor of deferring to an inferred pre-emptory determination the majority perceived that Congress had already made, regarding the question of performance in the case of a cable-like service.
I think it’s clear that Congress did decide that cable systems are often publicly performing when they retransmit broadcasts. That’s why Section 111 licenses were created. If such transmissions weren’t public performances in the first place, why would Congress create statutory licenses for them?
Thanks for the chat! I’ve got a busy week ahead and I probably won’t have time to respond any further. Take care, Jonathan.
Devlin, much of your last comment is a very long way of explaining precisely what I said previously: that you believe merely asking the question “Does Aereo perform?” (or answering that question, as you say) is tantamount to conducting a volitional conduct/causation analysis.
The fact remains, it is not.
We know well from numerous prior postings of yours that you take an extremely expansive view of what constitutes “volitional conduct” and “causation” with respect to such. Nobody, least of all you, should mistake that for matching the currently-established judicial concepts of such.
You believe that merely designing a system can constitute sufficient “volitional conduct” to render any usage of that system a direct infringement by the designer. This extremely broad interpretation of volition is presumably why you can look at something like the mere location, or ownership, of equipment, and declare that such is relevant to the question of “volition” (even as it is by now long established that these same factors are irrelevant in other cases, such as that of a copy shop).
The excerpt you cite, once again, as evidence of a causation analysis is, in fact, Breyer saying nothing about volition or causation, but rather, is entirely a citation of what Breyer sees as evidence of the similarity between Aereo and a cable system. That’s precisely why much of it is quoted from Fortnightly. The point Breyer is making is that, in his view, Aereo matches the description of cable systems as given in Fornightly.
This is not causation analysis. This is just transitive logic — the syllogism Scalia references. Cable systems are assumed to perform (no causation analysis required, or conducted). Aereo is functionally “like” cable. Therefore, Aereo performs.
Your subsequent argument focusing on user selection of content misses the point (which Scalia made very clearly in his dissent). The question of whether a service provider exercises volition doesn’t hinge on whether the user also exercises volition. A VOD provider exercises volition by selecting the content to make available on demand. The fact that users subsequently also select content, from that which the VOD provider has made available, doesn’t change the the VOD provider’s volition.
A provider who merely provides systems enabling others to select content, without the provider ever selecting content itself, on the other hand, does not engage in volition or causation that, under existing precedents, would render them a direct infringer. This is why copy shops who rent copiers don’t infringe. This is why Napster and Grokster were found secondarily liable, not directly liable.
The majority looked at Aereo and dismissed the fact that it was like a copy shop, like Napster, like Grokster, in the way that it worked—in its absence of volition/causation—because it deemed that Aereo’s functional similarity to cable systems was more important than the question of volition.
As I said previously, this is a rejection of a volitional conduct test, not the adoption of such.
But nobody here needs to take my word for it. They can look to the Court itself. The dissenters pointed out very clearly that the majority was rejecting the volitional conduct test (emphasis added):
And the majority? Well, the majority replied directly to the dissent’s criticism in their opinion (in one of the excerpts you cite, in fact), yet they made no attempt, whatsoever, to refute the criticism that they were departing from volitional conduct precedent. They didn’t argue that they evaluated the question volition differently. Rather, they repeatedly stated that the details of the volition/causation analysis were not sufficient to outweigh a conclusion based solely on functional similarity to cable systems:
and:
The majority is quite explicit here: for cases that don’t involve cable-like services, some other analysis (presumably a volitional conduct analysis) likely applies—but for cable-like services, they don’t see those issues as “bear[ing] on whether the provider performs within the meaning of the act.”
The majority is rejecting the application of volitional conduct analysis to this case, plain and simple.
And later, they reiterate the same point (as I had cited previously):
i.e., the majority concludes that the functional similarity to cable systems leaves them no choice but to find that Aereo performs. For other cases, where (inferred) Congressional intent hasn’t already dictated the outcome, other analysis (presumably volitional conduct analysis) can be expected to apply. But for a system that functions similarly to a cable system in its effect, they view the outcome as having already been pre-determined by Congress, so neither volitional conduct analysis, nor any other analysis, is relevant.
Save for explicitly stating “we reject application of the volitional conduct test here” the majority really couldn’t have been clearer in rejecting such.
I’d like to respond to a couple of your points while I have a few minutes.
You say: You believe that merely designing a system can constitute sufficient “volitional conduct” to render any usage of that system a direct infringement by the designer.
I don’t think merely designing a system would be enough volitional conduct to hold the designer directly liable, but designing and implementing a system could be enough, depending on the facts. For example, I don’t think Kinko’s or Xerox is a direct infringer when I use the Xerox machine at Kinko’s to make illicit copies. I agree with most of the copy shop case law. But if Kinko’s preloads the machine with copyrighted materials while maintaining complete control over the machine and only permitting me to copy the unlicensed materials it supplies to me, then I think Kinko’s could be directly liable (but Xerox still would not be). Volitional conduct is simply the conduct engaged in by the defendant that causes the copying to occur. The fact that Kinko’s in the second scenario supplies the materials, maintains complete control over the machine, and only lets me copy the materials it supplies goes to causation. Those are things Kinko’s does in providing its service that are volitional conduct on its part that cause the copying to occur. So it’s not just designing the system, it’s in how the system is implemented. Designing the system would make the designer the factual cause of the copying, but the question is whether it makes that designer the legal cause. There’s a distinction between factual and legal causation that I’m not sure you’re understanding. In the second scenario, both Kinko’s and Xerox are the cause-in-fact of the illicit copying. So am I since I press the button. But the real question with volitional conduct is whether any of us have sufficiently caused the copying such that we are a direct infringer. It’s whether our aggregate volitional conduct makes us cross the passive/active line. And the answer to that question can be “squishy,” as Rick calls it above. (I wrote a research paper about volitional conduct and the copy shop analogy for my LLM, so I’ve given this much thought.)
You say: This extremely broad interpretation of volition is presumably why you can look at something like the mere location, or ownership, of equipment, and declare that such is relevant to the question of “volition” (even as it is by now long established that these same factors are irrelevant in other cases, such as that of a copy shop).
I think those factors are relevant because they go to causation, and the fact is that courts cite them as reasons to find that the defendant causes the copying. The Supreme Court in Aereo even mentions the fact that Aereo’s equipment is centrally located. I know you brush off the entire section of the Court’s analysis on whether Aereo performs as having nothing whatsoever to do with causation, but I don’t think that view is plausible. And you’re right that I think a court must do a causation analysis to determine whether the defendant is a direct infringer. Any other method would be illogical since the very question to be decided is whether the defendant caused the copying. How could one decide causation without looking at causation? But back to your point, I disagree that “these same factors are irrelevant in other cases, such as that of a copy shop.” It’s not that those factors are irrelevant—they are relevant because they go to causation. It’s instead that the amount of causation from those factors is not sufficient to hold the copy shop directly liable. So it’s not that the copy shop is not the factual (but-for) cause of the copying. It is. The issue is whether that factual causation is sufficient such that the copy shop is also the legal cause of the copying. It’s usually not, though it depends on the facts. But whether the defendant is the legal cause or not, that doesn’t mean those factors are irrelevant. They are relevant, they’re just not dispositive. For example, the location of the machine is not a bright-line rule, but this doesn’t mean that the location does not factor in to the totality of the circumstances analysis.
I gotta run. Thanks for the chat.
Devlin, preloading a copy machine with copyrighted materials would be “a volitional act directed to specific copyrighted works.” Of course, this is irrelevant to Aereo, as Aereo’s system wasn’t preloaded with any copyrighted material, any more than Tivos, or televisions for that matter, are preloaded with copyrighted material.
As for location and ownership, the Court cites them in its explanation of how it finds Aereo to be similar to a cable company—as part of a paragraph that begins by stating that “Aereo’s activities are substantially similar to those of the CATV companies that Congress amended the Act to reach” and ends by describing Aereo via excerpts from Fortnightly describing cable systems.
To any reasonable observer, these points are cited only as aspects of Aereo that the majority finds similar to a cable company. The suggestion that they are, instead, evidence of volition, is entirely yours. The Court does not even remotely suggest such.
Any reasonable observer will immediately recognize that it’s absurd to think that location or ownership would have any bearing on a question of volition. And the argument that it plays some nebulous role in a “totality of the circumstances” test is an argument completely lacking any rigor or principle, whatsoever. As I have (elsewhere) told you repeatedly before, such is nothing more than a completely capricious declaration that, like Potter Stewart and obscenity, “I know it when I see it.” Or as Scalia said in his dissent:
And the argument that it plays some nebulous role in a “totality of the circumstances” test is an argument completely lacking any rigor or principle, whatsoever. As I have (elsewhere) told you repeatedly before, such is nothing more than a completely capricious declaration that, like Potter Stewart and obscenity, “I know it when I see it.” Or as Scalia said in his dissent:
…th’ol’ totality-of-the-circumstances test…is not a test at all but merely assertion of an intent to perform test-free, ad hoc, case-by-case evaluation.
I’m confused. Are you saying that it can’t be the test because it’s ad hoc and case-by-case? It’s common knowledge that causation analysis in part turns on ad hoc, case-by-case, subjective policy judgments. Here’s the Court discussing proximate causation a few years back:
The term “proximate cause” is shorthand for a concept: Injuries have countless causes, and not all should give rise to legal liability. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 42, p. 273 (5th ed.1984) (hereinafter Prosser and Keeton). “What we … mean by the word ‘proximate,’ ” one noted jurist has explained, is simply this: “[B]ecause of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point.” Palsgraf v. Long Island R. Co., 248 N.Y. 339, 352, 162 N.E. 99, 103 (1928) (Andrews, J., dissenting). Common-law “proximate cause” formulations varied, and were often both constricted and difficult to comprehend. ***
As we have noted, see supra, at 2636 – 2637, the phrase “proximate cause” is shorthand for the policy-based judgment that not all factual causes contributing to an injury should be legally cognizable causes. Prosser and Keeton explain: “In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond.” § 41, p. 264. To prevent “infinite liability,” ibid., courts and legislatures appropriately place limits on the chain of causation that may support recovery on any particular claim.
The term “proximate cause” itself is hardly essential to the imposition of such limits. It is a term notoriously confusing. See, e.g., Prosser and Keeton § 42, p. 273 (“The word ‘proximate’ is a legacy of Lord Chancellor Bacon, who in his time committed other sins …. It is an unfortunate word, which places an entirely wrong emphasis upon the factor of physical or mechanical closeness. For this reason ‘legal cause’ or perhaps even ‘responsible cause’ would be a more appropriate term.” (footnotes omitted)).
And the lack of consensus on any one definition of “proximate cause” is manifest. Id., § 41, p. 263. Common-law formulations include, inter alia, the “immediate” or “nearest” antecedent test; the “efficient, producing cause” test; the “substantial factor” test; and the “probable,” or “natural and probable,” or “foreseeable” consequence test. Smith, Legal Cause in Actions of Tort, 25 Harv. L.Rev. 103, 106–121 (1911); Smith, Legal Cause in Actions of Tort (Concluded), 25 Harv. L.Rev. 303, 311 (1912).
CSX Transp., Inc. v. McBride, 131 S. Ct. 2630, 2637-42 (2011).
As the Court notes, causation is “notoriously confusing,” and there’s a lack of consensus about what the proper test should be. It’s not always a nice and easy bright-line rule that can be applied formulaically. Just read the Palsgraf case Rick mentioned in the footnotes above. That’s the classic case first-year law students read, and tons of ink has been spilled debating these issues over the decades. I get the sense that you believe these things are black-and-white. I don’t think that’s usually so—at least for the cases that make it into the casebooks.
And I disagree that it’s “test-free.” Sometimes the statute will lay out the test, and sometimes the courts have to create the test because the statute is silent. Even Justice Scalia wholeheartedly endorses his view of the judge-made tests in Fox, Cablevision, and CoStar. He doesn’t think that analysis is wrong, even though it’s in some sense the product of “test-free, ad hoc, case-by-case evaluation” of the courts that made it up. Justice Scalia’s test is just as made up as the majority’s test, and the fact is that it’s not really “test-free.”
Justice Scalia himself embraces proximate causation, as he wrote in his opinion for a unanimous Court earlier this year:
Second, we generally presume that a statutory cause of action is limited to plaintiffs whose injuries are proximately caused by violations of the statute. For centuries, it has been “a well established principle of [the common] law, that in all cases of loss, we are to attribute it to the proximate cause, and not to any remote cause.” Waters v. Merchants’ Louisville Ins. Co., 11 Pet. 213, 223, 9 L.Ed. 691 (1837); see Holmes, 503 U.S., at 287, 112 S.Ct. 1311 (SCALIA, J., concurring in judgment). That venerable principle reflects the reality that “the judicial remedy cannot encompass every conceivable harm that can be traced to alleged wrongdoing.” Associated Gen. Contractors, 459 U.S., at 536, 103 S.Ct. 897. Congress, we assume, is familiar with the common-law rule and does not mean to displace it sub silentio. We have thus construed federal causes of action in a variety of contexts to incorporate a requirement of proximate causation. See, e.g., Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 346, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) (securities fraud); Holmes, supra, at 268–270, 112 S.Ct. 1311 (RICO); Associated Gen. Contractors, supra, at 529–535, 103 S.Ct. 897 (Clayton Act). No party disputes that it is proper to read § 1125(a) as containing such a requirement, its broad language notwithstanding.
The proximate-cause inquiry is not easy to define, and over the years it has taken various forms; but courts have a great deal of experience applying it, and there is a wealth of precedent for them to draw upon in doing so. See Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 838–839, 116 S.Ct. 1813, 135 L.Ed.2d 113 (1996); Pacific Operators Offshore, LLP v. Valladolid, 565 U.S. ––––, ––––, 132 S.Ct. 680, 692–693, 181 L.Ed.2d 675 (2012) (SCALIA, J., concurring in part and concurring in judgment). Proximate-cause analysis is controlled by the nature of the statutory cause of action. The question it presents is whether the harm alleged has a sufficiently close connection to the conduct the statute prohibits.
Put differently, the proximate-cause requirement generally bars suits for alleged harm that is “too remote” from the defendant’s unlawful conduct. That is ordinarily the case if the harm is purely derivative of “misfortunes visited upon a third person by the defendant’s acts.” Holmes, supra, at 268–269, 112 S.Ct. 1311; see, e.g., *1391 Hemi Group, LLC v. City of New York, 559 U.S. 1, 10–11, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010). In a sense, of course, all commercial injuries from false advertising are derivative of those suffered by consumers who are deceived by the advertising; but since the Lanham Act authorizes suit only for commercial injuries, the intervening step of consumer deception is not fatal to the showing of proximate causation required by the statute. See Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 800–801 (C.A.5 2011). That is consistent with our recognition that under common-law principles, a plaintiff can be directly injured by a misrepresentation even where “a third party, and not the plaintiff, … relied on” it. Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639, 656, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008).
Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1390-91 (2014).
Justice Scalia sees no problem with reading proximate causation into a statute even if it makes no mention of it. And it’s hard to imagine a standard that’s more squishy than whether something is “sufficiently close” or “too remote,” yet Justice Scalia says that’s the law without complaint. But notice why he says that’s the law: “over the years it has taken various forms; but courts have a great deal of experience applying it, and there is a wealth of precedent for them to draw upon in doing so.” So he doesn’t think judges are really just making this stuff up willy-nilly. It’s a common law tradition, not a throw-the-dart-and-see-where-it-lands tradition.
By now, we’re focused on something that is merely tangential to discussion of the Aereo decision…but what I’m saying is that you reference a “totality of the circumstances analysis” as if it were some principled application of law. It is not. It’s nothing more than a fancy way of saying “I know it when I see it,” whereby judges (or pundits) are completely subjective, rather than adhering to (or even establishing) any actual principles. Making it up as they go along. It’s the rule of judges, not the rule of law. (And that could hardly be more evident than when you argue that a physical attribute like location, and a legal attribute like ownership, though completely irrelevant in all other cases, are somehow magically relevant in this one, in ways that even you cannot explain other than as part of a morass of the “totality of the circumstances”…and to a determination of volition, a mental attribute of the defendant, no less.)
That judges defend such when it suits them is hardly a convincing argument that such is actually principled.
It’s funny you bring up Justice Stewart’s famous line from Jacobellis. If you read that whole opinion, you’ll see the Court is all over the place on its obscenity analysis. There’s five opinions, and all of them are subjective. Just look at Justice Brennan’s opinion applying the Roth standard. Talk about subjective. Justice White simply votes to reverse, without any opinion. I guess he knows it when he sees it too. And if you look at the Miller test for obscenity, which is currently the law, you’ll see that it’s quite subjective too. I think you have some strange notion that courts are completely objective. That’s not usually how it works.
But I think you’re missing my point. Yes, I fully agree that decisionmaking is typically subjective to some extent. I agree that you could call it arbitrary and unprincipled, at least partly. But you haven’t shown that this is not the law. And you haven’t explained why Justice Scalia’s embrace of the judge-made rules in Fox, Cablevision, and CoStar are any less subjective than the judge-made rule the majority applies in Aereo. Is Justice Scalia unprincipled too? Or is it only unprincipled when a judge rules in a way you don’t like?
And I think majority’s reasoning is more principled than you let on. The majority reasons that we know a cable system performs by engaging in certain acts that lead to a certain result, and since Aereo engages in the same acts that lead to the same result as a cable system, we know that Aereo performs. This is taking one standard, i.e., that a cable system performs, and applying it to a system that is functionally equivalent, i.e., that results in the same thing. This reasoning is sound and principled. It’s NOT just looking at Aereo and saying, “I know it when I see it.” It’s looking at Aereo and saying, “You’re doing the same thing as a cable system, and I know a cable system performs, ergo, you perform too.”
Justice Stewart thought that only hardcore pornography was unprotected by the First Amendment, but he couldn’t formulate an objective test for distinguishing between the different types of pornography. The rest of the Court couldn’t agree on any of it either, and Justice Stewart was not the only subjective view on the Court. But that’s worlds away from the Aereo majority, where it looked at one set of acts that are known to produce a certain result and then reasoned by analogy to Aereo.
The majority in Aereo absolutely did not reason that Aereo engaged in the same acts leading to the same result. The majority in Aereo reasoned that Aereo’s system produced the same functional result, while dismissing differences in how Aereo acted as irrelevant, in light of their view of the overriding importance of functional similarity. In doing so, they diverged from the action-focused analysis that has been used in prior cases, even as they implied that such action-focused analysis would still apply in other cases in the future.
They also intimated that other cases involving identical actions to those in this case would likely not constitute public performances, and potentially not even performances by the service provider, at all, because of minor context differences that would make them look less like traditional cable in terms of the functional result. For example, if there’s a delay, so that the transmissions aren’t in “near-real-time,” the majority suggests that the analysis in the present case probably doesn’t apply — even though the actions are identical. Or if the identical actions are undertaken by a cable provider who separately charges for traditional cable service, so that the majority would deem payments to be made “primarily” for storage, rather than for the transmissions themselves, the majority suggests that a completely different analysis would apply — even though the actions are identical.
You seem to be treating analysis of the majority opinion as if it were an exercise in some rational basis test — whereby you ignore what they actually wrote, and instead attempt to create a more rational argument of your own, which you then attribute as the basis for their ruling.
But we know what they wrote, and it simply does not comport with your own characterizations of the analysis.
In addition to having applied a completely new analytical scheme especially for “cable-like” services, different from what has been used before, and what the court suggests should be used for other cases in the future, the court tells us that provisions of the Copyright Act that were very intentionally written in application-neutral language, with no mention of cable whatsoever, actually imply a special cable-only rule of “if you look too much like a cable system, then you automatically perform publicly, regardless of what you do or don’t do.”
I have little interest in debating whether the majority ruling, itself, does or does not constitute “I know it when I see it.” As I said, I consider that a tangential discussion. The point I was making was that when you talk about a “totality-of-the-circumstances test” what you’re proposing is, in reality, nothing more than “I know it when I see it.” This remains the same as it was when we first started debating this case back in January.
What is without question is that the majority applied a completely new and different standard to Aereo than any court has applied in prior cases, and different from what the majority suggests should be applied in other cases going forward. And whatever Congress’s motivations may have been in amending the Copyright Act, there is absolutely no basis to be found in the actual text of the Act to justify that anomalous treatment of “cable-like” services.
The only principle that the majority conveyed by its decision is the principle of judicial supremacy, whereby a majority of the justices deem themselves entitled to indulge their own sense of right and wrong, regardless of what the law actually says, so long as they can find some fig leaf (such as a belief that Congress of decades ago would have shared their sense of right and wrong) to justify that indulgence.
I make no claim that those in the dissent are, in general, superior in that regard. I have little doubt that the dissenting justices engage in the same egregious behavior in other cases. (There’s no question that all of the justices engage in such when it comes to constitutional issues.) I merely claim that they are superior in this particular case, because in this case, they are the ones who are deferring to what the law actually says, and to precedent, rather than arbitrarily imposing their own sense of right and wrong, via a new and anomalous rule, in its stead.
(At this point, I’m skeptical that there’s anything more to be said in this exchange that will be at all productive, so I’m likely to let you say whatever more you want to say, and leave it at that.)