cablevision amicus brief by mmasnick

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       United States Court of Appeals
                                   for the

                        Second Circuit

                                    – v. –
                (For Continuation of Caption See Inside Cover)


                                        JEFFREY A. LAMKEN
                                        ROBERT K. KRY
                                        MOLOLAMKEN LLP
                                        The Watergate, Suite 660
                                        600 New Hampshire Avenue, N.W.
                                        Washington, D.C. 20037
                                        (202) 556-2000
                                        Counsel for Amicus Curiae
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                and WNJU-TV BROADCASTING LLC,
                                – v. –
                           AEREO, INC.,
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      Pursuant to Federal Rule of Appellate Procedure 26.1, amicus curiae Cable-

vision Systems Corporation states that it is a publicly held corporation with no par-

ent corporation. The following publicly held corporation owns 10% or more of

Cablevision Systems Corporation’s stock: T. Rowe Price.

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                                         TABLE OF CONTENTS


INTEREST OF AMICUS CURIAE............................................................................1

ARGUMENT .............................................................................................................2

I.       Congress Enacted the Transmit Clause To Address Retransmission
         Services Like Aereo’s......................................................................................3

II.      Aereo’s Efforts To Avoid the Transmit Clause Fail .......................................6

         A.       Under the Transmit Clause, Whether a Performance
                  Is “to the Public” Depends on Whether It Is Offered
                  Generally for Viewing...........................................................................7

         B.       Aereo’s Use of Individual Antennas Does Not
                  Convert Public Performances into Private Ones.................................11

         C.       Aereo’s Interposition of Separate Hard-Drive Copies
                  Does Not Convert Public Performances into Private

III.     Aereo’s System Also Violates the Reproduction Right ................................26


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                                      TABLE OF AUTHORITIES

Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121
  (2d Cir. 2008), cert. denied, 129 S. Ct. 2890 (2009).................................. passim

Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154
  (3d Cir. 1984)..................................................................................................8, 12

Fortnightly Corp. v. United Artists Television, Inc., 392 U.S.
  390 (1968)...............................................................................................3, 4, 6, 10

Infinity Broad. Corp. v. Kirkwood, 63 F. Supp. 2d 420
    (S.D.N.Y. 1999) ................................................................................................5, 6

Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545
  U.S. 913 (2005)...................................................................................................26

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

Teleprompter Corp. v. Columbia Broad. Sys., Inc., 415 U.S.
   394 (1974)...............................................................................................3, 4, 6, 10

Warner Bros. Entm’t, Inc. v. WTV Sys., Inc., 824 F.
  Supp. 2d 1003 (C.D. Cal. 2011) .................................................................2, 9, 13

WPIX, Inc. v. ivi, Inc., — F.3d — , No. 11-788-cv,
  2012 WL 3645304 (2d Cir. Aug. 27, 2012) ...........................................5, 6, 9, 10

17 U.S.C. § 101..............................................................................................4, 5, 7, 8

17 U.S.C. § 106..........................................................................................................4

17 U.S.C. § 106(1) .....................................................................................................3

17 U.S.C. § 106(4) .................................................................................................3, 7

17 U.S.C. § 111..................................................................................................4, 5, 6

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17 U.S.C. § 111(a) .....................................................................................................6

17 U.S.C. § 111(c) .....................................................................................................6

47 U.S.C. § 325..........................................................................................................5

                                            OTHER AUTHORITIES
H.R. Rep. No. 94-1476 (1976).......................................................................4, 5, 7, 8

2 Nimmer on Copyright (2008)..................................................................................7

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      Cablevision Systems Corporation (“Cablevision”) respectfully submits the

following brief as amicus curiae.1

                       INTEREST OF AMICUS CURIAE

      Cablevision provides cable television service in the New York metropolitan

area and elsewhere. Pursuant to license agreements with television networks and

other content providers, it distributes copyrighted materials over its cable system.

Cablevision also developed the Remote Storage Digital Video Recorder (“RS-

DVR”) this Court upheld against a copyright challenge in Cartoon Network LP v.

CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), cert. denied, 129 S. Ct. 2890

(2009) (“Cablevision”). The RS-DVR allows each subscriber to record television

programs he is otherwise entitled to watch over cable as they air—just as he could

with a VCR or traditional set-top DVR. Each subscriber can then play back his

own personal recordings for private viewing—again just as he could with a VCR

or set-top DVR. Unlike those earlier technologies, however, the RS-DVR stores

the subscriber’s recordings remotely on Cablevision’s premises. Cablevision be-

gan offering the RS-DVR to its subscribers in January 2011.

      Cablevision has a strong interest in this case.     The district court relied

squarely on the Cablevision decision in upholding the lawfulness of Aereo’s re-
  No counsel for any party authored this brief in whole or part; no such party or
counsel made a monetary contribution intended to fund its preparation or submis-
sion; and no person other than Cablevision made such a contribution.

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transmission system. Because Cablevision currently operates the system this Court

upheld, it has a direct interest in the proper interpretation of the Court’s decision.

Moreover, this case implicates a complex marketplace with rapidly evolving tech-

nologies. Cablevision both provides cutting-edge technologies in that market and

distributes over its cable system content licensed from copyright holders. For that

reason, Cablevision has a unique—and uniquely balanced—perspective.

      Cablevision previously participated as amicus curiae in another case where a

technology company sought an unjustifiable extension of this Court’s Cablevision

decision. In Warner Bros. Entertainment, Inc. v. WTV Systems, Inc., 824 F. Supp.

2d 1003 (C.D. Cal. 2011), Zediva sought to stream DVDs over the Internet without

a license, relying on a broad interpretation of the Cablevision decision that Cable-

vision urged the district court to reject. See Doc. No. 51 in No. 2:11-cv-02817

(C.D. Cal. filed July 18, 2011). In Cablevision’s judgment, this case is similar.

Aereo seeks an expansion of Cablevision’s public-performance holding that would

extend it far beyond the case’s facts, beyond its rationale, and in contravention of

settled industry expectations. All parties have consented to the filing of this brief.


      Cable operators like Cablevision routinely pay licensing and retransmission

consent fees to retransmit copyrighted programming. Aereo’s system performs the

same function, receiving over-the-air broadcasts and retransmitting them for view-

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ers to watch. The question here is whether Aereo can provide that service without

paying those fees.

      For the reasons below, the Court should hold that it may not. The Copyright

Act grants copyright holders the exclusive right both to “perform the copyrighted

work publicly” and to “reproduce the copyrighted work in copies.” 17 U.S.C.

§ 106(1), (4). Aereo’s system infringes both those rights.


      Congress drafted the current definition of “[t]o perform . . . a work ‘pub-

licly’ ”—and the clause addressing transmissions in particular—to address re-

transmission systems like the one at issue here. Before the 1976 Copyright Act,

the Supreme Court held that cable system operators do not publicly perform a work

when they retransmit over-the-air broadcasts to their subscribers. In Fortnightly

Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968), the Court rejected a

challenge to the use of community antennas placed on hills above cities to receive

over-the-air signals and retransmit them to subscribers in areas where the terrain

made it difficult to receive signals with individual antennas. Id. at 399-401. Such

systems, the Court reasoned, did not perform the television programs they carried

but merely “enhance[d] the viewer’s capacity to receive the broadcaster’s signals.”

Id. at 399. Later, in Teleprompter Corp. v. Columbia Broadcasting System, Inc.,

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415 U.S. 394 (1974), the Court extended that decision to cable systems that re-

transmitted signals to distant communities. Id. at 402-15.

      Congress responded in the 1976 Copyright Act. Although prior law already

granted copyright holders the exclusive right to “perform the copyrighted work

publicly,” 17 U.S.C. § 106, the 1976 Act amended the definition of public perfor-

mance to encompass retransmissions like those in Fortnightly and Teleprompter.

Under the so-called Transmit Clause, the phrase “[t]o perform . . . a work ‘pub-

licly’ ” now includes “to transmit or otherwise communicate a performance or dis-

play of the work to a [public place] or to the public, by means of any device or

process, whether the members of the public capable of receiving the performance

or display receive it in the same place or in separate places and at the same time or

at different times.” Id. § 101. Congress coupled that new definition with a statu-

tory licensing scheme that permits cable systems to retransmit over-the-air content

upon paying prescribed fees to copyright holders. Id. § 111.

      Those amendments were specifically intended to overturn Fortnightly and

Teleprompter. Citing those decisions, Congress opined 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.” H.R. Rep. No. 94-1476,

at 89 (1976). Fortnightly, Teleprompter, and their progeny had been based “on a

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narrow construction of the word ‘perform’ in the 1909 statute,” and “[t]his basis

. . . is completely overturned by the present bill and its broad definition of ‘per-

form’ in section 101.” Id. at 86-87.

      The 1976 Act thus makes it clear that cable systems require a license from

the content owner—either a statutory license under Section 111 or a negotiated

one. Congress, moreover, has since amended the Communications Act to require

the consent of the broadcaster as well (who may or may not be the content owner).

Thus, since 1992, cable systems have had to obtain certain broadcasters’ permis-

sion to retransmit over-the-air signals under the so-called “retransmission consent”

provisions. 47 U.S.C. § 325. Those regimes form the background against which

cable operators like Cablevision have conducted business for years.

      Nonetheless, service providers have occasionally attempted to retransmit

over-the-air signals without the required licenses. For example, in Infinity Broad-

casting Corp. v. Kirkwood, 63 F. Supp. 2d 420 (S.D.N.Y. 1999), on remand from

150 F.3d 104 (2d Cir. 1998), the court enjoined a system that captured over-the-air

radio programming and retransmitted it to customers using their telephones. More

recently, in WPIX, Inc. v. ivi, Inc., — F.3d — , No. 11-788-cv, 2012 WL 3645304

(2d Cir. Aug. 27, 2012), this Court affirmed an injunction against a service that

captured over-the-air broadcast television and allowed subscribers to access it over

the Internet. In both cases, the courts held that the systems failed to qualify for

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statutory licenses or other exemptions under Section 111. See ivi, slip op. at 26-27

(not a cable system under Section 111(c)); Infinity Broadcasting, 63 F. Supp. 2d at

425-26 (not a passive carrier under Section 111(a)(3)). But there was no dispute in

either case that the systems rendered performances to the public within the mean-

ing of the Copyright Act. See, e.g., ivi, slip op. at 8 (“[I]t is undisputed . . . that ivi

publicly performed [television programs] without plaintiffs’ consent.”).

       Aereo’s system is no different. It allows subscribers to access over-the-air

television programming over the Internet, just like the service enjoined in ivi. In-

deed, but for the fact that Aereo’s content is transmitted over the Internet rather

than a cable system, it is no different from the systems that Cablevision and other

cable operators have been providing for decades. The critical legal difference is

that Cablevision pays statutory licensing and retransmission consent fees for the

content it retransmits, while Aereo does not. Aereo’s retransmission service thus

bears a striking resemblance to the ones in Fortnightly and Teleprompter that Con-

gress amended the Copyright Act to address.


       Aereo urges that, unlike traditional cable systems or Internet streaming sys-

tems, it does not need a license to retransmit over-the-air broadcasts to its sub-

scribers, asserting two distinctions. First, Aereo urges it needs no license because

each subscriber is temporarily allocated his own micro-antenna. Second, Aereo

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urges that it is different because it interposes an individual separate hard-drive re-

cording for each subscriber during the transmission process. On both points, Ae-

reo relies heavily on this Court’s Cablevision decision, urging that the separate an-

tennas and separate hard-drive copies sufficiently individuate the resulting trans-

missions and render them private performances. Neither argument is persuasive.

      A.     Under the Transmit Clause, Whether a Performance Is “to the
             Public” Depends on Whether It Is Offered Generally for Viewing

      The Copyright Act grants owners the exclusive right to “perform the copy-

righted work publicly,” including the right to “transmit . . . a performance . . . of

the work . . . to the public.” 17 U.S.C. §§ 101, 106(4). As the Cablevision deci-

sion recognized, the key limitation there is “to the public”: Unlicensed transmis-

sions “to the public” are infringing; unlicensed private transmissions are not. 536

F.3d at 134. To determine whether a transmission is “to the public,” this Court

held, one must examine its “potential audience”—i.e., who is “ ‘capable of receiv-

ing’ a particular transmission of a performance.” Id. at 135 (citing 17 U.S.C.

§ 101; H.R. Rep. No. 94-1476, at 64-65 (1976)). “[I]f a transmission is only avail-

able to one person,” for example, “then it clearly fails to qualify as ‘public.’ ”

2 Nimmer on Copyright § 8.14[C][2] (2008).

      A transmission may be “to the public” even though it is ultimately received

by only one person, so long as it was made available more broadly. For example,

if Cablevision showed a particularly unpopular Ed Wood movie at 3:00 a.m., the

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transmission would not cease to be a public performance merely because only one

person bothered watching it. The transmission would be a public performance be-

cause it was made available to the public—held out for viewing to all of Cablevi-

sion’s subscribers.

      Those same principles apply when performances are offered on a one-at-a-

time basis as well. The Copyright Act expressly covers performances received in

“separate places” and at “different times.” 17 U.S.C. § 101. That clause addresses

systems like the one in Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 749

F.2d 154 (3d Cir. 1984), in which a video rental store built individual viewing

booths and offered to transmit movies from a central player to the booths. The

Third Circuit held that the transmissions were public performances because the

proprietor’s library of videotapes had been “ ‘made available by transmission to

the public at large,’ ” even though “members of the public view the performance at

different times.” Id. at 159 (quoting H.R. Rep. No. 94-1476, at 64-65) (emphasis

added). Although patrons used the booths on a one-at-a-time basis, the critical fact

was that any member of the public willing to pay could occupy a booth to view

each succeeding performance.

      The same is true of modern video-on-demand systems, in which a system

operator like Cablevision assembles a library of recorded movies or other content

and holds out that library for any subscriber to watch. Because the recordings are

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made available to any subscriber, the resulting performances are to the public, even

though members of the public watch the recordings one at a time. Such video-on-

demand systems are universally understood within the industry to require a public

performance license. See Warner Bros. Entm’t, Inc. v. WTV Sys., Inc., 824 F.

Supp. 2d 1003 (C.D. Cal. 2011) (enjoining unlicensed video-on-demand system

that purported to “rent” DVDs to subscribers from service provider’s centralized

library of DVDs and then transmit their contents to subscribers). Internet stream-

ing services like the one in ivi render public performances for the same reason.

The system in ivi captured over-the-air broadcast programming and offered to

transmit it to any subscriber who downloaded ivi’s player and paid the fee. See ivi,

slip op. at 4-5. Because any subscriber was capable of receiving the transmissions

of ivi’s broadcast feed, ivi was offering public performances, even though sub-

scribers ultimately received the transmissions individually.

      By contrast, where an individual makes his own recordings using content he

already owns, and plays them back only to himself, the resulting transmissions are

not “to the public,” even though the transmission apparatus itself may be offered as

a commercial service to the public. For example, a consumer might upload his

own, lawful personal music collection to a “cloud-based” remote server or “virtual

locker” and then listen to the recordings by streaming them to himself over the

Internet. That is not a “public performance”: The individual’s music collection is

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not being held out or offered generally for transmission to the public—the individ-

ual can play back only his own recordings.

      So too with RS-DVR, as this Court held in Cablevision. Just as with an or-

dinary VCR or DVR, the only person who can play back a recording with the RS-

DVR—the only potential audience capable of receiving the transmission generated

from the recording—is the subscriber who made the recording. For that reason, the

transmissions are private performances, not public ones: “Because each RS-DVR

playback transmission is made to a single subscriber using a single unique copy

produced by that subscriber, . . . such transmissions are not performances ‘to the

public,’ and therefore do not infringe any exclusive right of public performance.”

Cablevision, 536 F.3d at 139.

      Aereo’s system falls on the public performance side of that line. There

could be no doubt about that conclusion if Aereo had offered its service in the most

straightforward manner. If Aereo had provided an Internet-based streaming ser-

vice that simply retransmitted broadcast television to consumers using a single

communal antenna rather than individual micro-antennas and without making any

individual hard-drive copies during the transmission process—essentially the same

system as in ivi —it would unquestionably be rendering public performances. Like

the cable systems in Fortnightly and Teleprompter, Aereo’s system would be offer-

ing to retransmit performances of the over-the-air broadcasts captured by its sys-

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tem to anyone willing to pay. Aereo tries to evade that result by using individual

antennas and by interposing separate hard-drive copies during transmission. As

explained below, neither aspect of Aereo’s system alters the result.

      B.     Aereo’s Use of Individual Antennas Does Not Convert Public
             Performances into Private Ones

      Aereo’s individual antennas do not make the performances private. They in

no way change the fact that Aereo’s system holds out retransmissions of over-the-

air broadcasts through its system to any subscriber who wants to view them.

      As the district court explained, the “vast majority” of Aereo’s subscribers

are “dynamic users” who are “randomly assigned an antenna each time they use

Aereo’s system.” SPA-5. “[A]lthough any particular antenna can be used by only

one user at a time, dynamic users ‘share’ antennas in that a given antenna may be

assigned to different users at different times.” Id. Even “static users”—the small

minority—“may similarly ‘share’ antennas in the event that the antennas perma-

nently assigned to them are unavailable, in which case the Aereo system will ran-

domly assign them another unused antenna that may at some other time be allo-

cated to another user.” Id. at 5-6.

      That forecloses any claim that Aereo’s antennas render its performances pri-

vate. Although subscribers may use the antennas on a one-at-a-time basis, the

over-the-air broadcasts the antennas capture, like the antennas themselves, are held

out to any subscriber who wants to view the broadcasts. Any subscriber can be-

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come the next temporary user of an antenna—and the next viewer of the program-

ming content it captures—simply by selecting “Watch.”2

      Aereo thus offers to retransmit broadcasts “to the public” in the same sense

that a hotel chain offers hotel rooms to the public. We all understand that hotels

are “public accommodations” because anyone willing to pay can get a room. The

fact that rooms are used on a one-at-a-time basis, and are not available to others

once occupied by a guest, does not change the fact that the hotel is offering its

rooms “to the public.” Likewise, Aereo holds out to subscribers the television

broadcasts captured by its antennas. The resulting performances are public be-

cause, ex ante, any member of the public willing to pay is “capable of receiving”

the retransmitted broadcasts from its antennas—even if subscribers ultimately use

each antenna on a one-at-a-time basis. At any point in time, Aereo makes the re-

transmissions from any unused antenna available to any subscriber (who need do

no more than press “Watch”).

      Aereo’s antennas are also analogous to the system in Redd Horne. In that

case, a proprietor owned discrete copies of a movie and offered to transmit the

movie on a one-at-a-time basis to customers who rented private booths. 749 F.2d

  For various reasons, it is likely that Aereo’s system would render public perform-
ances even if all its customers were truly “static” customers with their own perma-
nently dedicated reception equipment. Given Aereo’s use of a shared pool of an-
tennas, however, this Court need not address that issue.

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at 159. Even though each transmission was received by only one customer, and

even though no one else could watch that copy of the movie while it was allocated

to that customer, the transmissions were public performances because, ex ante, any

customer willing to rent a booth was “capable of receiving” the next transmission.

Likewise, each of Aereo’s subscribers is “capable of receiving” the next transmis-

sion from one of Aereo’s array of antennas simply by selecting “Watch.” That is

no less true merely because Aereo uses a shared pool of antennas rather than one

master antenna.

      Finally, Aereo’s antennas are analogous to modern video-on-demand sys-

tems. When a subscriber chooses to watch a particular movie on demand and

presses play, a separate transmission is sent to that subscriber. If ten subscribers

all choose to watch the same movie, ten separate transmissions are sent. Because

any subscriber can receive a performance—it is available to all—they are public

performances, even if rendered “one at a time.” In some systems (like the one en-

joined in WTV Systems), when one user watches a particular recording, no other

subscriber can access it until that user is finished. But that does not change the fact

that the recordings are offered to the public: At any point in time, any member of

the public can watch the next transmission of a performance from the copy. As a

result, the movies are being publicly performed and a license is required. Aereo’s

system is no different.

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      C.     Aereo’s Interposition of Separate Hard-Drive Copies Does Not
             Convert Public Performances into Private Ones

      Perhaps for the reasons above, the district court did not rest its decision on

the fact that Aereo serves its customers through a cluster of antennas rather than a

single antenna. See SPA-37. Instead, it relied primarily on the fact that Aereo in-

terposes hard-drive copies between the antennas and its customers. Whenever a

subscriber uses Aereo’s system in “Watch Now” mode to watch a program live,

electrical signals are received from the antenna, processed, and written to hard

drive storage allocated to that user. SPA-6. The data is then read from that hard-

drive copy into a RAM buffer, and transmitted over the Internet to the user once a

sufficient amount of data (six or seven seconds) has accumulated. Id.3 The district

court held that those transmissions were not “to the public” because each transmis-

sion emanated from the individual hard-drive copy, not directly from the broadcast

signal received by the antennas. SPA-19. Even if it would be unlawful for Aereo

to stream the broadcast signal to its customers directly, the court reasoned, inter-

posing such individual hard-drive copies changed the result. See id.

      The court believed that Aereo’s hard-drive copies were “materially identi-

cal” to the copies at issue in Cablevision—the recordings that RS-DVR subscribers

make when they record television programs for later viewing. SPA-19. But that
  The hard-drive copy persists thereafter for at least as long as the user is watching
the program.

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comparison does not withstand scrutiny. In Cablevision, the hard-drive copies

both had a meaningful function with respect to the challenged unlicensed retrans-

mission and were independent of Cablevision’s (licensed and lawful) real-time

retransmission of the programming. The hard-drive copies interposed in the trans-

mission process here have neither characteristic.

      1.     Cablevision addressed the legality of Cablevision’s Remote Storage

Digital Video Recorder, or “RS-DVR,” a system that traces its pedigree to a long

line of lawful devices that allow consumers to record, for later viewing, television

programs they could otherwise watch in their homes in real-time. In Sony Corp. of

America v. Universal City Studios, Inc., 464 U.S. 417 (1984), the Supreme Court

held that consumers have a fair use right to use VCRs for that purpose. Id. at 447-

56. In the wake of Sony, other “time-shifting” devices emerged—first TiVos, and

then set-top DVRs.

      The RS-DVR operates just like those earlier devices. As with a VCR or set-

top DVR, a subscriber can use the RS-DVR to record programs he was entitled to

watch on Cablevision’s licensed cable system. Cablevision, 536 F.3d at 123-25.

As with a VCR or set-top DVR, the subscriber can then play back his personal re-

cordings to himself. Id. at 125. Indeed, the subscriber operates the RS-DVR using

the same remote control and on-screen guide he would use to operate one of Ca-

blevision’s set-top DVRs. The difference is simply that, while VCRs and set-top

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DVRs store recordings in each customer’s home, the RS-DVR stores each cus-

tomer’s recordings remotely on Cablevision’s premises. Id. at 124-25.

      Contrary to the district court’s holding, Aereo’s system is nothing like—

much less “materially identical” to—the RS-DVR for copyright purposes. Unlike

Aereo, Cablevision operates a licensed cable system that retransmits content to

subscribers pursuant to agreements with content providers. See 536 F.3d at 123.

In addition to and separate from providing that licensed cable system, Cablevi-

sion also offers technologies that enable its subscribers to record television pro-

grams for later viewing—first, traditional set-top DVRs and, more recently, its RS-

DVR. The recordings that subscribers make with the RS-DVR perform a function

that is both operationally meaningful and independent from Cablevision’s real-

time, licensed transmission of cable content.

      a.     RS-DVR recordings are operationally meaningful from both a con-

sumer-experience and a technological standpoint. From the consumers’ perspec-

tive, the RS-DVR is used to record programs for later viewing, just as with a VCR

or set-top DVR. If the subscriber starts recording a program halfway through, only

the second half gets recorded; if the subscriber deletes his recording, he can no

longer play it back even though other subscribers can still play back their re-

cordings of the same program. And subscribers use their recordings to permit

them to do something distinct from watching the live licensed transmissions on

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Cablevision’s cable system—they are making a separate recording to permit later

viewing, as Sony permits.

      The recordings also play a meaningful function (distinct from a live retrans-

mission) from a technological perspective.         The RS-DVR makes separate re-

cordings for each subscriber because it is a device used to make copies, like a pho-

tocopier or a camera. That is how all DVRs and VCRs work. By centralizing the

recording hardware, Cablevision simply moved that expensive and delicate copy-

ing equipment from the set-top box in the consumer’s home to its own head-end,

allowing it to offer the same functionality more efficiently and less expensively.

      b.     Perhaps most critically, the RS-DVR recordings are independent from

Cablevision’s licensed cable delivery system. The RS-DVR recordings are not an

inherent or necessary part of allowing subscribers to watch television programs

“live” on Cablevision’s system in the first instance: Because Cablevision has li-

censes from copyright holders, it can transmit and subscribers can watch television

over Cablevision’s cable system in real time without using the RS-DVR’s re-

cording technology at all. And Cablevision markets the ability to make time-

shifting recordings as a separate and distinct offering from its underlying cable sys-

tem. Of course, the RS-DVR (like a set-top DVR) would not function without the

cable system. But the cable system is perfectly capable of functioning without the

       Case: 12-2807   Document: 110     Page: 24     09/21/2012   727382    37

RS-DVR. In that respect, the RS-DVR is separable from Cablevision’s cable sys-


        2.    Aereo’s system differs from the RS-DVR in both respects: Aereo’s

hard-drive copies perform a role that is neither operationally meaningful nor inde-

pendent from Aereo’s real-time transmission service. As an initial matter, when a

customer uses Aereo’s “Watch Now” function to watch live programming, the

hard-drive copies perform no consumer-experience function related to the retrans-

mission. The customer would be just as happy receiving the signal directly from

the antenna without the intervening recording, and customers would experience the

process of watching live television in the same way. That the hard-drive copies

may delay retransmission by seconds is immaterial: A customer who selects Ae-

reo’s “Watch Now” function is not choosing to watch television on a delayed

rather than real-time basis because of a desire to watch later on, and Aereo does

not market the feature that way. Rather, the customer understands that he is watch-

ing “live” television, and he is in substance doing just that.

        Nor do Aereo’s hard-drive copies perform any obvious technological func-

tion for “Watch Now” retransmission (as distinct from those instances when they

are used to pause and rewind, addressed below, see pp. 23-25, infra). As a techno-

logical matter, the hard-drive copies are unnecessary for Aereo to deliver live tele-

    Case: 12-2807    Document: 110     Page: 25     09/21/2012    727382     37

vision programming to its customers. The programs could be streamed directly

from the antenna.

      In any event (and, critically), the hard-drive copies are in no sense independ-

ent from Aereo’s delivery of live television programming—they are an inherent

part of Aereo’s delivery process. The hard-drive copies are automatically made

whenever Aereo’s system delivers live television to Aereo’s customers. Customers

cannot watch live television on Aereo’s system without making those hard-drive

copies. And Aereo does not market any real-time retransmission service that does

not involve the making of hard-drive copies. Nor could it: Aereo relies on those

copies to support its private performance argument. Aereo’s private performance

argument thus rests on the interdependence between the hard-drive copies and its

real-time transmission service. That is the precise opposite of Cablevision, where

the RS-DVR recordings and the playback transmissions emanating from them were

distinct from Cablevision’s underlying lawful provision of cable service. Aereo’s

hard-drive copies are part and parcel of its real-time delivery of television pro-

gramming, and deliberately so.

      3.    Those distinctions make all the difference in the world for purposes of

the public performance right. In Cablevision, this Court rejected the argument that

each subscriber’s playback of his own RS-DVR recording was a public perform-

ance because the Court viewed the playback transmissions as emanating, for copy-

     Case: 12-2807     Document: 110     Page: 26     09/21/2012    727382   37

right purposes, from each subscriber’s own dedicated self-made recording.

“[B]ecause the RS-DVR system, as designed, only makes transmissions to one

subscriber using a copy made by that subscriber, we believe that the universe of

people capable of receiving an RS-DVR transmission is the single subscriber

whose self-made copy is used to create that transmission.” 536 F.3d at 137 (em-

phasis added); see also id. at 138 (“Given that each RS-DVR transmission is made

to a given subscriber using a copy made by that subscriber, we conclude that such

a transmission is not ‘to the public’ . . . .” (emphasis added)).

      Treating those RS-DVR transmissions as emanating from each subscriber’s

self-made recording made sense for the reasons discussed above: The recordings

played a significant role in terms of both consumer experience and technology, and

they were separable from Cablevision’s underlying delivery of cable content. The

subscriber’s creation of a time-shifting copy thus was a copyright-significant event

that meaningfully separated the transmission associated with the playback from

any underlying, real-time cable transmission. Accordingly, it made sense to view

playback transmissions as emanating from the consumer’s own recording.

      By contrast, in Aereo’s system, the hard-drive copies perform neither a

meaningful nor independent function related to Aereo’s delivery of live television

programming. The hard-drive copies used for “Watch Now” have no bearing on

the customer’s experience. There is no technological justification for them. And

    Case: 12-2807     Document: 110     Page: 27    09/21/2012     727382     37

the copies are not at all separable from Aereo’s live television service: Customers

cannot choose to watch live television without making hard-drive copies.

      In those circumstances, the creation of hard-drive copies should not be

treated as a copyright-significant event that makes the live television broadcast that

Aereo receives distinct from the retransmissions that its system makes to subscrib-

ers. The transmissions to subscribers should be viewed, not as emanating from the

hard-drive copies, but as emanating from the preceding television broadcast signals

that Aereo receives. They instead should be treated as secondary retransmissions

of the broadcast signals. Because those retransmitted broadcast signals are made

generally available to any Aereo subscriber who selects “Watch,” the transmissions

are properly viewed as public, not private, performances.

      To put it differently, at least where the copy of a work serves no meaningful

or independent function in the transmission—where it is simply part and parcel of

the process by which the transmission is made—a court analyzing whether the

transmission is public or private should disregard or “look through” the copy: The

copy does not break the chain of transmission from whatever precedes and follows

it. Here, it simply is not sensible to deem the performance as emanating from a

separate hard-drive copy—rather than the over-the-air broadcast—where that hard-

drive copy serves no necessary function in the challenged retransmission and is not

severable from an initial (and licensed) retransmission through the system. That

    Case: 12-2807     Document: 110    Page: 28     09/21/2012    727382     37

does not violate Cablevision’s proscription against “look[ing] back (or ‘up-

stream’)” when analyzing whether a transmission is private or public. Cf. SPA-21

to -22. It merely recognizes that copies that perform no meaningful or independent

function—copies that are simply part and parcel of the transmission process—

should be disregarded when deciding where the transmission begins.4

      That also does not mean Cablevision’s holding is limited solely to time-

shifting technologies, and the court below properly rejected plaintiffs’ efforts to

impose such a limitation. SPA-22 to -25. There are doubtless many technologies

where intermediate copies play meaningful independent roles other than time-

  Beyond the fact that the hard-drive copies are neither necessary to the retransmis-
sions, nor independent of an otherwise lawful delivery of service, Aereo’s manda-
tory hard-drive copies lack a meaningful individuating function. With the RS-
DVR (as with a VCR or set-top DVR), the subscriber chooses to make a recording
that has the intended effect of separating his viewing from others, creating his own
copy he can delete or replay at a time of his own choosing. That self-made copy
serves the consumer’s desire to watch an individualized performance at a time
convenient to him. By contrast, Aereo’s system may produce many copies in
“Watch Now” mode, but Aereo uses those copies in transmitting the same pro-
gram, at precisely the same time, to thousands or tens of thousands of Aereo sub-
scribers using “Watch Now” to view that program. The interposition of copying in
that process of mass and simultaneous retransmission of identical content cannot
fairly be viewed as converting what would otherwise be a massive public perform-
ance into distinct private ones. Aereo’s copies thus are not means of letting the
consumer control and watch his own copy, at a potentially unique time of his
choosing, over the same delivery system he lawfully could have used to watch the
program in the first instance. They are instead part and parcel of a process of si-
multaneously delivering programming to myriad subscribers through a system that,
concededly, could not otherwise be lawfully used to transmit the performances.

    Case: 12-2807    Document: 110     Page: 29     09/21/2012    727382     37

shifting. For example, when a consumer uploads his personal music collection to a

“cloud-based” remote server, and then listens to his collection by streaming those

recordings to himself, the operator of the remote server is not engaged in a “public

performance,” despite the absence of any time-shifting. See pp. 9-10, supra. But

at least where the intermediate copies play no meaningful operative function in the

challenged retransmission and are not separable from the underlying transmission

service, they do not justify treating the ensuing retransmissions as emanating from

the copies rather than from some prior source.5

      4.    Aereo urges that its hard-drive copies do, in fact, play a meaningful

independent role because they enable subscribers to pause and rewind live televi-

sion. That argument is unpersuasive for multiple reasons.

      As an initial matter, Aereo’s hard-drive copies are not, in fact, necessary for

pausing live television. There is no reason Aereo’s system must continuously cre-

ate a background copy of whatever the customer is watching, and then transmit

content from that background copy, to enable pausing. Rather, a copy need only

be created and used if and when the customer actually presses “pause,” so that he

can later resume watching the show when he “unpauses” it.

  Because Aereo’s hard-drive copies neither perform a meaningful operative func-
tion in Aereo’s transmission of live programming nor exist independent from Ae-
reo’s underlying television delivery service—while Cablevision’s RS-DVR re-
cordings do both—this Court need not address other cases.

    Case: 12-2807      Document: 110   Page: 30     09/21/2012    727382     37

      Similarly, although some form of ongoing background recording may be

necessary to enable customers to rewind live television, there is no reason custom-

ers watching live television without rewinding it must receive transmissions from

the hard-drive copies rather than directly from the live stream. For example, Ca-

blevision’s Scientific Atlanta set-top DVRs enable rewinding by continuously re-

cording whatever channel the subscriber is watching; but those resulting copies are

used only if and when the customer actually rewinds and plays back the program.

When the subscriber is simply watching live television, he watches from the live

feed, not from the hard-drive copy. Aereo could easily have designed its system

the same way. Thus, although some form of recording may be necessary to enable

pause and rewind, there is no reason Aereo’s system must constantly generate and

transmit performances from separate hard-drive copies in order to make those

functions available.

      Even if those design choices were truly necessary, that still would not justify

treating the hard-drive copies as the source of the ensuing transmissions for copy-

right purposes. The hard-drive copies play no meaningful role when customers use

Aereo’s retransmission service to watch live television. At most, those copies play

a meaningful role when customers actually use them to pause or rewind a pro-

gram. That does not justify treating the retransmission as emanating from unique

hard-drive copies the rest of the time, when the customer is effectively watching

    Case: 12-2807     Document: 110    Page: 31      09/21/2012   727382       37

live television. Nor do the pause and rewind functions make the hard-drive copies

independent from Aereo’s retransmission service. Because Aereo does not have

licenses to retransmit programs over its system, it does not and cannot offer a re-

transmission service separate from its hard-drive copies. And customers who use

Aereo’s system to watch live television cannot refrain from making hard-drive

copies, even if they never pause or rewind a show.

      Indeed, it would be absurd to claim that a retransmission service like Ae-

reo’s is lawful if it includes a pause and rewind function, but unlawful if it does

not. Pause and rewind functions are secondary and collateral to the underlying ser-

vice of delivering television programming. Set-top DVR users spend only a small

fraction of their time pausing or rewinding, and there is no reason to think Aereo

customers would use those functions any differently. Relying on those secondary

pause and rewind functions to justify Aereo’s entire live retransmission service is a

classic case of the tail wagging the dog. Aereo’s hard-drive copies do not play a

sufficiently meaningful or independent role for copyright purposes merely because,

some fraction of the time, consumers use them for those collateral purposes.

      For all those reasons, the hard-drive copies should not be viewed as mean-

ingful and independent in Aereo’s transmission system. Any ensuing transmis-

sions should be viewed as originating, not from those separate hard-drive copies,

but from the broadcast feed received by Aereo’s pool of shared antennas.

       Case: 12-2807   Document: 110   Page: 32    09/21/2012    727382    37


        In addition to the infringing public performance that occurs when Aereo’s

system retransmits programming, a separate violation occurs when the system is

used to make the hard-drive copies. Assuming that the subscriber, rather than Ae-

reo, makes those copies, the subscriber has no fair use right to do so. The sub-

scriber thus infringes the copyright holder’s reproduction rights, and Aereo may be

held secondarily liability for those infringing acts. See, e.g., Metro-Goldwyn-

Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).

        Sony recognized that consumers have a fair use right to record television

programs for later viewing. See 464 U.S. at 447-56. But this case goes far beyond

Sony in multiple respects. First, Sony involved the recording of lawful transmis-

sions sent by broadcasters or other system operators licensed to provide the pro-

gramming to the consumer’s home. See id. Nothing in Sony remotely suggests

that a consumer has a fair use right to record programming to facilitate an unlaw-

ful act. Thus, if Aereo’s system infringes the public performance right, it follows

that customers make infringing reproductions when they make copies of programs

to enable those unlawful transmissions—infringements for which Aereo is liable.

        Second, even if the Court were to agree with Aereo on the public perform-

ance issue, this case would still go far beyond Sony. Sony recognized a fair use

right to record, for later viewing, programming that consumers were already law-

    Case: 12-2807     Document: 110     Page: 33    09/21/2012     727382     37

fully receiving in the home and could readily have watched live through a broad-

cast antenna or a cable system. See 464 U.S. at 447-56. In contrast, the live

broadcast programming a customer watches with Aereo’s system is not program-

ming he is already receiving and could readily watch live through Aereo’s system.

Aereo subscribers pay for Aereo’s service precisely to get access to live broadcast

programming without having to rely on a working broadcast antenna or a cable


      No doubt Aereo would argue that at least some of its subscribers could have

functioning broadcast antennas or subscribe to cable television. But for what per-

centage of Aereo subscribers will that be true? Doubtless many subscribe because

their antenna is inadequate or they do not have cable. Aereo itself estimates that

30 percent of its customers will terminate cable service. In any event, a fair use

claim that depends on the mere possibility that an Aereo subscriber has a function-

ing broadcast antenna or a cable subscription giving it the same access Aereo does

goes far beyond the fair use right upheld in Sony, where the consumer could exer-

cise the right only if he either had an antenna or cable. So too does a fair use claim

that copying is permissible to provide service outside the home using the Internet

where consumers formerly could view programming only inside the home.

      The critical factor in Sony was the absence of any showing of “meaningful

likelihood of future harm” to content owners. 464 U.S. at 451. Sony recognized

    Case: 12-2807     Document: 110    Page: 34     09/21/2012     727382   37

that, where programming is already being delivered to a consumer’s home through

a licensed cable system or other lawful delivery network that provides fair com-

pensation to copyright holders, content owners suffer no significant harm from a

consumer’s mere decision to record those licensed transmissions for later viewing.

By contrast, Aereo’s system in significant respects supplants rather than comple-

ments licensed programming delivery networks, competing directly with cable sys-

tems like Cablevision’s and broadcast networks like plaintiffs’.

      Third, Sony recognized only one specific fair use: time-shifting. 464 U.S. at

447-56. In “Watch Now” mode, Aereo’s customers are using the hard-drive copies

for a very different purpose: watching live television (over an unlicensed and oth-

erwise unlawful retransmission system). Nothing in the Supreme Court’s analysis

supports the notion that making copies for the purpose of watching live television

over such a system is “fair use.”

      Aereo will no doubt argue that the hard-drive copies are made, not to enable

delivery of live television programming over an otherwise unlawful retransmission

network, but to allow consumers to pause and rewind. While pausing and rewind-

ing are forms of time-shifting within the scope of Sony, the mere possibility that

consumers might sometimes use the copies for that purpose does not make the cop-

ies lawful when used—as they normally are—simply to deliver live television.

Nothing in Sony supports the view that a copy made for one valid “fair use” pur-

    Case: 12-2807     Document: 110     Page: 35    09/21/2012    727382   37

pose (such as time-shifting) may also be used for other, invalid purposes (such as

watching live television through an otherwise unlawful retransmission service)—

particularly where that other invalid purpose is the primary reason for the copy.

For that reason too, Aereo’s customers lack any fair use right to make the hard-

drive copies, and Aereo is secondarily liable.


      The district court’s judgment should be reversed.

      Dated: September 21, 2012               Respectfully submitted,

                                              /s/ Jeffrey A. Lamken
                                              Jeffrey A. Lamken
                                              Robert K. Kry
                                              MOLOLAMKEN LLP
                                              The Watergate, Suite 660
                                              600 New Hampshire Avenue, N.W.
                                              Washington, D.C. 20037
                                              (202) 556-2000 (telephone)

                                              Counsel for Amicus Curiae

     Case: 12-2807   Document: 110    Page: 36    09/21/2012     727382    37

                     CERTIFICATE OF COMPLIANCE

1.    This brief complies with the type-volume limitation of Fed. R. App. P.
      32(a)(7)(B) because:

 X    this brief contains 6,750 words, excluding the parts of the brief exempted by
      Fed. R. App. P. 32(a)(7)(B)(iii), or

      this brief uses a monospaced typeface and contains [state the number of ]
      lines of text, excluding the parts of the brief exempted by Fed. R. App. P.

2.    This brief complies with the typeface requirements of Fed. R. App. P.
      32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:

 X    this brief has been prepared in a proportionally spaced typeface using Micro-
      soft Word in Times New Roman 14 point font, or

      this brief has been prepared in a monospaced typeface using [state name and
      version of word processing program] with [state number of characters per
      inch and name of type style].

                                                  /s/ Jeffrey A. Lamken
                                                  Jeffrey A. Lamken
    Case: 12-2807    Document: 110    Page: 37    09/21/2012    727382     37

                        CERTIFICATE OF SERVICE

      I certify that today, September 21, 2012, six paper copies of the foregoing

Brief for Amicus Curiae Cablevision Systems Corporation in Support of Reversal

were dispatched to the clerk by hand delivery, the brief was filed by ECF, and the

brief was served on all counsel of record by ECF pursuant to Local Rule 25.1(h).

                                            /s/ Jeffrey A. Lamken
                                            Jeffrey A. Lamken

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