Earlier today, a number of international and foreign associations and copyright scholars filed an Amicus brief in the Supreme Court of the United States in the ABC, Inc. et al v. Aereo, Inc case. The brief brings to the attention of the SCOTUS a number of international treaties and trade agreements respecting copyright that impose obligations on the United States to provide copyright holders with a broad technologically neutral communication to the public right that would cover all aspects of Aereo’s service and make its service infringing.
Aereo’s business model of re-transmitting TV broadcasts without a license is being challenged in the SCOTUS by US studios and broadcasters. The Second Circuit Court of Appeals ruled in a split decision in Wnet, 13 v. Aereo, Inc. 712 F. 3d 676 (2d Cir. 2013) that Aereo’s use of dime sized antennas to transmit TV programming to subscribers is not a public performance.
Judge Chin wrote a very strong dissent in the Second Circuit opinion concluding that Aereo’s system is nothing more than “a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.” He later wrote a powerful dissent from the decision of the Second Circuit not to rehear the case en banc. Some judges outside of New York agree with him that the US performance right covers the transmissions made to the public by such systems. See, Community Television of Utah, LLC v. Aereo, Inc., No. 2:13 CV910DAK, slip OP. (D. Utah Feb. 2014), Fox Television Stations, Inc. v. Filmon X LLC, 2013 WL 4763414 (D.D.C. Sept. 5, 2013), Fox Television Stations, Inc. v. BarryDriller Content Systems, 915 F. Supp 2d 1138 (C.D. Cal. 2012).
The SCOTUS decided to hear the case after all parties asked the Court to take it. The Brief for Petitioners was filed on February 24, 2014.
In their Amicus brief the international associations and copyright scholars argue that the US Copyright Act, its legislative history, and treaty history make clear that Congress intended to enact a broad technologically neutral public performance right that would not leave open the loophole Aereo claims exists. That is the only conclusion that is consistent with the United States’ international obligations including its obligations under the Berne Convention, the WIPO Copyright Treaty, and bi-lateral and multilateral trade agreements including NAFTA and the U.S.-Australia Free Trade Agreement.
Reversing the decision of the Second Circuit would also make the US public performance right consistent with the broad technologically neutral right of communication to the public which has been recognized in other jurisdictions as applying to on-demand internet transmissions of performances regardless of the technical means used to effect the transmissions. See, Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 (Canada), ITV Broadcasting Ltd and other companies v TVCatchup Ltd,  3 C.M.L.R. 1 (Case C-607-11, CJEU).
The Summary of Argument sets out the thrust of the submissions made by the international associations and copyright scholars:
Copyright law is an increasingly harmonized international system supported by bilateral, regional and multilateral treaties. These treaties help creators and businesses in the United States disseminate copyright works worldwide. They also reflect an agreement among the treaty parties on the minimum standards for copyright protection of works.
One of the most important underpinnings of this international system is technological neutrality. Starting in the 1990s, the United States negotiated important bilateral, regional and multilateral treaties and trade agreements in the knowledge that new communications technologies were transforming the ways in which copyright works were consumed. With an eye to the unpredictability of these technologies, these treaties were drafted to apply reliably and comprehensively to the provision of access to content, regardless of the specific mechanism used to deliver it. These treaties were entered into by the Executive Branch, ratified by the Senate and implemented by domestic legislation. The trade agreements were entered into by the Executive Branch, approved in public laws enacted by both Houses of Congress, and signed by the President. In each case, Congress confirmed its satisfaction that the scope of the domestic copyright law fulfilled international standards.
Numerous international agreements provide a right of communication to the public, which applies even when the technology used to effect the transmissions enables members of the public to access works or performances of works “from a place and at a time individually chosen by them.” WIPO Copyright Treaty Art. 8, Dec. 20, 1996, S. Treaty Doc. 105-17 (1997), 36 I.L.M. 65 (“WCT”); WIPO Performances and Phonograms Treaty Arts. 10, 14, Dec. 20, 1996, S. Treaty Doc. 105-17 (1997), 36 I.L.M. 76 (“WPPT”); Free Trade Agreement, U.S.-Australia, art. 17.5, May 18, 2004, K.A.V. 7141. The North American Free Trade Agreement requires the United States to ensure that the term “public” includes “any aggregation of individuals intended to be the object of, and capable of perceiving, communications or performances of works” even if those individuals engage with the works “at the same or different times or in the same or different places.” North American Free Trade Agreement, art. 1721(2), Dec. 17, 1992, H.R. Doc. No. 103-159, vol. 1 (“NAFTA”) (definition of “public”). These agreements render the particular method of transmission irrelevant.
Even before the treaties were executed, this core concept of technological neutrality was long embedded in U.S. copyright law. Passed in 1976 to reverse technology-specific outcomes reached by this Court in a trio of cases under the prior copyright statute, the definitions section of the Copyright Act confirms that to perform or display a work “publicly” means, inter alia:
to transmit or otherwise communicate a performance or display of the work * * * to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
17 U.S.C. §101 (2012) (defining “To perform or display a work ‘publicly’”)
The definition of “transmit”—to communicate a performance or display—in what has become known as the “Transmit Clause,” was intended to be “broad enough to include all conceivable forms and combinations of wired or wireless communications media.” H.R. Rep. No. 94-1476, at 64 (1976). “Each and every method by which the images or sounds comprising a performance or display are picked up and conveyed is a ‘transmission,’ and if the transmission reaches the public in any form, the case comes within the scope of clauses (4) or (5) of section 106.” S. Rep. No. 94-473, at 61 (1975).
As has been observed by respected commentators, the decision of the Second Circuit neglected to consider important elements of this statutory definition. By following its prior, incorrect test of examining “who precisely is ‘capable of receiving’ a particular transmission of a performance,” the Second Circuit read out the “at different times” criterion from the Act. It also ignored the “by means of any device or process” language that is at the heart of the technologically neutral definition of the Transmit Clause. In doing so, the Second Circuit failed to construe the public performance right consistently with the treaty obligations of the United States. These obligations require protection for the transmissions of performances to the public even when they are delivered by numerous separate transmissions.
The highest courts of America’s major trading partners have construed these treaties in analogous cases. They have recognized that these treaties anticipated and dealt with services that claim as “private” a series of performances delivered to the public at large. Such decisions have closed the door to all “Rube Goldberg-like contrivances” (Pet. App. 40a, dissent of Judge Chin) that seek to bypass the communication to the public right by using point-to-point technologies….
The purpose of this brief is to describe how the technology-specific outcome in Cablevision and Aereo is fundamentally at odds with the international treaty commitments entered into by the United States and with its domestic legislative history, each of which demonstrates the understanding that existing public performance rights comply with those obligations.
The Amicus brief was filed by the “who’s who” of international and foreign (non-US) associations representing, among others, producers of sound recordings, TV and motion pictures, music publishers and performers including IFPI, AMPROFON, Australian Copyright Council (ACC), British Copyright Council (BCC), ICMP, CISAC, FIA, FIAPF, FIM, IVF, and SCAPR. The following Canadian associations and organizations joined as well ACTRA, ALAI CANADA, CMPA, Music Canada and SOCAN.
The International copyright scholars that joined in the brief to the SCOTUS were: Professor F. Jay Dougherty (Loyola Law School Los Angeles and Director Entertainment & Media Law Institute), Dr. Mihály Ficsor (former Assistant Director General of WIPO during the preparation and adoption of the WIPO Treaties and author of The Law of Copyright and the Internet), Professor Ysolde Gendreau (Faculty of Law of the Université de Montréal), Professor Justin Hughes (William H. Hannon Professor of Law at Loyola Law School in Los Angeles), Professor Marshall Leafer (Distinguished Scholar in Intellectual Property Law Indiana University School of Law), Professor Silke von Lewinski (Tenured at Max Planck Institute and author of The WIPO Treaties with J. Reinbothe);, and Professor Victor Nabhan (Laval University and Chairman of ALAI (Association Littéraire et Artistique Internationale)). I was honoured to join in the brief along with these international copyright scholars and associations and to help co-author it along with other Amici, my partner Dan Glover of McCarthy Tétrault, and counsel for the Amici.
The Counsel of Record for the Amici is my partner and intellectual property litigation lawyer Steven Mason of McCarthy Tétrault. His co-counsel was David Carson, IFPI’s head of global legal policy and former General Counsel of the US Copyright Office.
Other Amicus briefs supporting the studios and broadcasters were also filed with the Court. They will be available here in a few days. The Amicus brief filed by the international associations and copyright scholars is available here.