Supreme Court, U.S.FILED

MOV 12 2013

9 FF!CE OpTj-jf" Ci CE*1/

No. 13-461

In The

Supreme Court of tfre WLnitzb States

American Broadcasting Companies, Inc., et al,Petitioners,

Aereo, Inc., f/k/a Bamboom Labs, Inc.,Respondent.

On Petition for Writ of Certiorari to theUnited States Court ofAppeals for the Second Circuit

Brief of Amici Curiae The American Society ofComposers, Authors and Publishers (ASCAP),

Broadcast Music, Inc. (BMI), The National MusicPublishers' Association (NMPA), The recordingIndustry Association of America (RIAA), SESAC,

Inc., The Songwriters Guild of America, Inc.(SGA), The Church Music Publishers Association(CMPA), The Nashville Songwriters Association,International (NSAI),and SoundExchange, Inc.

in Support of petitioners

Russell J. Frackman

Counsel of RecordMitchell Silberberg &

Knupp LLP11377 W. Olympic Blvd.Los Angeles, CA 90064

Tel: (310)312-2000Email: rjf@msk.com

Counsel for

Eric J. Schwartz

J. Matthew Williams

Mitchell Silberberg &Knupp LLP

1818 N St., NW, 8th Fir.Washington, DC 20036Tel: (202)355-7900Email: ejs@msk.comEmail: mxw@msk.com

Amici Curiae

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIAE 1

SUMMARY OF ARGUMENT 6

ARGUMENT 8

I. The Second Circuit's Interpretation IsInconsistent With The Statute's Purpose ToProvide A Fair Return To Copyright OwnersAs An Incentive To Create And Disseminate

Works 8

II. The Second Circuit Misread The LanguageAnd Intent Of The Transmit Clause 12

III. The Second Circuit's Opinion Cannot BeReconciled With The Structure Or LegislativeHistory Of The CopyrightAct 19

IV. The Second Circuit's Opinion Is InconsistentWith Treaty Obligations 24

CONCLUSION 28

TART/E OF AUTHORITIES

Page(s)

Cases

Beethoven.com LLC v. Librarian ofCong.,394 F.3d 939 (D.C. Cir. 2005) 22

Bowen v. Gilliard,483 U.S. 587 (1987) lb

Broad. Music, Inc. v. Columbia Broad. Sys.,Inc.,441 U.S. 1 (1979) z

Cartoon Network LP, LLLP v. CSC Holdings,Inc., .536 F.3d 121 (2d Cir. 2008), cert, denied,129 S. Ct. 2890 (2009) !» 5> 8

Columbia Pictures Indus., Inc. v. Prof'l RealEstate Investors,866 F.2d 278 (9th Cir. 1989) 15

Columbia Pictures Indus, v. Redd Home,749 F.2d 154 (3d Cir. 1984) 19

Eldred v. Ashcroft537 U.S. 186 (S

FDA v. Brown &Williamson Tobacco Corp

537 U.S. 186 (2003) 25

529 U.S. 120 (2000) 23

u

TABLE OF AUTHORITIES(continued)

Page(s)

Fox Television Stations, Inc. v. BarryDrillerContent Sys., PLC,915 F. Supp. 2d 1138 (CD. Cal. 2012) 4, 14

Fox TV Stations, Inc. v. FilmOn XLLC,No. 13-758 (RMC), 2013 U.S. Dist. LEXIS126543 (D.D.C. Sept. 5, 2013) 4, 13

Golan v. Holder,132 S. Ct. 873 (2012) 7, 25

Hearst Stations Inc. v. Aereo, Inc.,No. 13-11649-NMG, 2013 U.S. Dist. LEXIS146825 (D. Mass. Oct. 8, 2013) 5

ITVBroad. Ltd v. TV Catchup, Ltd.,Case No. C-607/1 (E.C.J. Mar. 7, 2013) 27

Mazer v. Stein,347 U.S. 201 (1954) 6

Metro-Goldwyn-Mayer Studios Inc. v.Grokster, Ltd.,545 U.S. 913 (2005) 5

Natl Cable Television Ass'n, Inc. v. Broad.Music, Inc.,772 F. Supp. 614 (D.D.C. 1991) 7, 15

in

TABLE OF AUTHORITIES(continued)

Page(s)

Nexstar Broad., Inc. v. Aereo, Inc.,No. 2:13-cv-975 (D. Utah Oct. 24, 2013) 5

On Command Video Corp. v. ColumbiaPictures Indus.,Ill F. Supp. 787 (N.D. Cal. 1991) 16

PGA Tour, Inc. v. Martin,532 U.S. 661 (2001) 20

Sebelius v. AuburnReg'l Med. Ctr.,133 S. Ct. 817 (2013) 13

SoundExchange, Inc. v. Librarian of Cong.,571 F.3d 1220 (D.C. Cir. 2009) 21

United States v. Gonzales,520 U.S. 1 (1997) 18

WNET Thirteen v. Aereo, Inc.,712 F.3d 676, reh'g denied, 722 F.3d 500(2d Cir. 2013) Passim

WPLX,Inc.v.ivi,Inc,691 F.3d 275 (2d Cir. 2012) 15

Statutes

U.S. Constitution, Art. 1, §8, cl. 8 6

IV

TABLE OF AUTHORITIES(continued)

Page(s)

17U.S.C,§101 passim§106 6, 14, 19§§106(6), 112(e), 114 22§114(d)(3)(C) 22§114(d)(4)(B) 22

47 U.S.C. §325(b) 10

Berne Convention Implementation Act of1988, Pub. L. No. 100-568, 102 Stat. 2853(1988) 26

Digital Millennium Copyright Act, Pub. L. No.105-304, 112 Stat. 2860 (1998) 26

Uruguay Round Agreements Act, Pub. L. No.103-465, 108 Stat. 4809 (1994) 26

Legislative Materials

H. Rep. on Copyright Law Revisions, H.R.Rep. No. 94-1476, 94th Cong., 2d Sess.(1976) 6,18,21

H. Rep. on Copyright Law Revision, H.R. Rep.No. 90-83, 90th Cong., 1st Sess. (1967) 21

TABLE OF AUTHORITIES(continued)

Page(s)

H. Rep. on the Digital Performance Right inSound Recordings Act of 1995, H.R. Rep.No. 104-274, 104th Cong., 1st Sess. (1995) 23

Music Licensing in Restaurants and Retailand Other Establishments: Hearing Beforethe Subcomm. on Courts and IntellectualProperty of the H. Comm. on the Judiciary,105th Cong. (1997) 20

Rep. of the Comm. on the Judiciary of the H.of Rep. on the WIPO Copyright TreatiesImplementation and On-Line CopyrightInfringement Liability Limitation Act,H.R. REP. No. 105-551, pt. 1 (105th Cong.,2d Sess. 1998) 26

Supplementary Register's Rep. on the GeneralRevision of the U.S. Copyright Law, 89thCong., 1st Sess., Copyright Law Revision Part6 (H. Comm. Print 1965) 19

Other Authorities

Agreement on Trade-Related Aspects ofIntellectual Property Rights, April 15,1994, 1867 U.S.T. 154, 33 I.L.M. 81 24

VI

TABLE OF AUTHORITIES(continued)

Page(s)

Ben Sisario, As Downloads Dip, MusicExecutives Cast a Wary Eye on StreamingServices, N.Y. TIMES, Oct. 21, 2013 2

Berne Convention for the Protection ofLiterary and Artistic Works, Sept. 9, 1886,(Paris Text 1971, as amended Sept. 28,1979), 25 U.S.T. 1341, 828 U.N.T.S. 221 24

Brian Stelter, Netflix Hits Milestone andRaises Its Sights, N.Y. TIMES, Oct. 22, 2013 3

Cecelia Kang, Time Warner May Weigh AereoModel, WASH. POST, May 3, 2013 10

Graeme McMillan, Viewers Are Flocking toStreaming Video Content - And So AreAdvertisers, WIRED, Mar. 1, 2013 11

Jane C. Ginsburg, Copyright 1992-2012: TheMost Significant Development, 23Fordham Intell. Prop. Media & Ent. L.J.465(2012) 10

2 M.B. Nimmer & D. Nimmer, Nimmer OnCopyright §8.ll[D] [4] [c] (2013) 20

2 Paul Goldstein, Goldstein On Copyright§7.7.2(2013) 13

vii

TABLE OF AUTHORITIES(pnntinued)

Page(s)

Press Release, Int'l Fed'n of the PhonographicIndus., Record Labels Invest US. $4.5Billion In New Music, Nov. 12, 2012

Richard A. Posner, Reasoning by Analogy, 91Cornell L. Rev. 761 (2006)

l SamRicketson &Jane C. Ginsburg, Int'lCopyright And Neighbouring Rights:The Berne Convention and Beyond (2d ^ed. 2006)

Shalini Ramachandran &Amet SharmaElectricity Use Impedes Aereo sMarch,Wall St. J. Oct, 28, 2009

Shalini Ramachandran, Evidence Grows onTV Cord-Cutting, WALL St. J., Aug. 7, 2012

Top EU Court Rules Against "Live Stream"Web Broadcaster, REUTERS, Mar. 7, 2013

4William F. Patry, PATRY On COPYRIGHT ^§14:16(2013)

vin

INTERESTS OF AMICI CURIAE1

This case is about a misinterpretation andcurtailment of the Copyright Act's publicperformance right at precisely the time whencompensation from public performances, specificallyvia digital transmissions, is of critical importance toAmici and their members. At stake is more than the

economic survival of over-the-air television

broadcasters. The decisions in WNET Thirteen v.Aereo, Inc., 712 F.3d 676 ("Aereo"), reh'g denied, 722F.3d 500 (2d Cir. 2013) and in Cartoon Network LP,LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir.2008) ("Cablevision"), cert, denied, 129 S. Ct. 2890(2009), on which Aereo is based, imperil thelivelihoods of millions of artists and creators in

multiple industries, including the music business.The decisions also conflict with clear U.S.international treaty obligations.

Amici Curiae are associations and

organizations whose members create anddisseminate a wide variety of musical compositionsand sound recordings. Amici and their membersdepend heavily on royalties from the publicperformance of their copyrighted music throughaudio services, such as broadcast radio and Internetwebcasting, and audiovisual services, such as

No party or counsel for any party authored any part of thisbrief or made a monetary contribution intended to fund thepreparation and submission of this brief. Counsel for allparties received at least ten days notice of Amici's intent to filethis brief. All parties consent to Amici filing this brief.

broadcast television and streaming video.Collectively, Amici represent hundreds of thousandsof songwriters, composers, music publishers,recording artists, record labels, and others who will

2

be harmed if the Aereo opinion stands.

Royalties from digital transmissions arebecoming the most important source of revenue forAmici and their members, with the number of digitalstreams growing at an increasingly rapid pace asmore consumers turn to online streaming services astheir primary source of music and audiovisualcontent. See Ben Sisario, As Downloads Dip, MusicExecutives Cast a Wary Eye on Streaming Services,N.Y. TIMES, Oct. 21, 2013, at B3 ("Last year,streaming and subscription services generated $1.03

2

Through their robust enforcement and licensing activities,ASCAP, BMI, and SESAC play a crucial role in giving practicaleffect to the public performance right granted to songwriters,composers, and music publishers. They offer "blanket" licensesthat allow broadcasters, cable and satellite operators, andaudio and audiovisual streaming services to perform publiclytheir repertoires of compositions. See generally Broad. Music,Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1 (1979). NMPAand RIAA work on behalf of music publishers and record labels,respectively, to protect, promote, and advance their interests onlegislative, litigation, and regulatory matters. CMPA is anorganization of religious music publishers that works tosupport and promote worldwide copyright protection andeducation. SoundExchange, on behalf of record labels andrecording artists, collects performance royalties under astatutory license for certain non-interactive, online streams ofsound recordings and other eligible services. SGA and NSAIare not-for-profit trade associations for songwriters.

billion in revenue, up 59 percent from the yearbefore ... ."). In the future, nearly everyone maywatch "television" through on-demand andindividualized programming services that enableconsumers to enjoy tailored and targeted viewingexperiences. See Brian Stelter, Netflix HitsMilestone and Raises Its Sights, N.Y. TIMES, Oct. 22,2013, at Bl; Shalini Ramachandran, Evidence Growson TV Cord-Cutting, WALL St. J., Aug. 7, 2012, atB3. In the digitally networked environment, theexclusive right to license the public performance bystreaming of music and audiovisual works thatcontain music is even more critical to the vitality —and the economic survival - of Amici, their members,and others involved in creating and distributingmusic.

As many in the copyright communitypredicted, Cablevision's erroneous interpretation ofthe public performance right created a problematicand unintended loophole. As a result, serviceproviders can avoid obtaining licenses and paying forthe right to publicly perform copyrighted works bystructuring their businesses so that individual copiesare used to transmit the performances of audiovisualprograms or songs to their viewers or listeners. TheCourt in Aereo, following Cablevision's erroneousinterpretation, widened that loophole. See Aereo,712 F.3d at 689 ("Cablevision's interpretation of theTransmit Clause ... establishes guideposts thatdetermine this appeal."). The result is Aereo'sparasitic business model, a model which has beenand will be adopted by other services.

3

Aereo's technology is neither new nor efficient- it merely uses traditional antennae (thousands ofminiature ones) to capture and copy over-the-airbroadcasts and retransmits those broadcasts overthe Internet to paying subscribers. Regardless ofhow many antennae and how many digital copiesAereo uses to stream copyrighted programming, itperforms exactly the same function and providesexactly the same consumer experience as serviceswith which it competes and that Amici and itsmembers license. The difference is that by atechnological sleight of hand Aereo transforms for-profit, commercial broadcasts, the paradigm ofpublic performances under the Copyright Act, intoputative private performances. See Aereo, 722 F.3dat 513 (denying rehearing; Chin, J., dissenting)(calling Aereo's technological set-up "a sham").

As Aereo and its copycat businessesproliferate the number of lawsuits involving theprecise issues presented by the petition will continueto grow and to reach inconsistent outcomes. See,e.g., Shalini Ramachandran & Amet Sharma,Electricity Use Impedes Aereo's March, WALL St. J.Oct, 28, 2009, at Bl ("Aereo intends to expand to 22markets by year end."). As a result, courts arecarving up the country into a patchwork ofpermittedor enjoined Aereo-type services. See Fox TelevisionStations, Inc. v. BarryDriller Content Sys., PLC, 915F. Supp. 2d 1138, 1148 (CD. Cal. 2012) (injunctionlimited to Ninth Circuit); Fox TV Stations, Inc. v.FilmOn X LLC, No. 13-758 (RMC), 2013 U.S. Dist.LEXIS 126543, at *58-9 (D.D.C. Sept. 5, 2013)

(nationwide injunction except Second Circuit);Hearst Stations Inc. v. Aereo, Inc., No. 13-11649-NMG, 2013 U.S. Dist. LEXIS 146825, at *22 (D.Mass. Oct. 8, 2013) (denying injunction); NexstarBroad., Inc. v. Aereo, Inc., No. 2:13-cv-975 (D. UtahOct. 24, 2013). The uncertainty extendsinternationally, with the same types of services heldunlawful in some countries with which the United

States has copyright treaty obligations. See Top EUCourt Rules Against "Live Stream" Web Broadcaster,REUTERS, Mar. 7, 2013 (The ECJ held: "Televisionbroadcasters may prohibit the retransmission oftheir programmes by another company via theInternet.").

Artists, developers, businesses, and investorsin the entertainment and technology industries arein dire need now of the type of clarity that only thisCourt can provide. This Court previously hasintervened to strike down business models premisedon copyright infringement. E.g., Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913(2005). The petition provides the timely opportunityto correct the erroneous interpretation of the publicperformance clause by Cablevision and Aereo, toprevent the harm caused by digital profiteers likeAereo, and to uphold the protections intended by theCopyright Act. The issue presents an importantfederal question and the petition should be granted.

3Available at: http://www.reuters.com/article/2013/03/07/eu-

court-internet-tv-idUSL6N0BZ5IH20130307.

SUMMARY OF ARGUMENT

The Copyright Act must be interpreted toachieve its purpose of promoting "the Progress ofScience and useful Arts." U.S. Constitution, Art. 1,§8, cl. 8. As this Court has observed:

The economic philosophy behind theclause empowering Congress to grantpatents and copyrights is the convictionthat encouragement of individual effortby personal gain is the best way toadvance public welfare through thetalents of authors and inventors in"Science and useful Arts." Sacrificialdays devoted to such creative activitiesdeserve rewards commensurate withthe services rendered.

Mazer v. Stein, 347 U.S. 201, 219 (1954). Toimplement that philosophy, Congress crafted theCopyright Act to provide broad protections in theform of exclusive rights in original "works" subject tonarrowly defined statutory exceptions. See H. Rep.on Copyright Law Revisions, H.R. Rep. No. 94-1476,94th Cong., 2d Sess., at 61 (1976) ("The approach ofthe bill is to set forth the copyright owner's exclusiverights in broad terms in section 106, and then toprovide various limitations, qualifications orexemptions in the ... sections that follow.").

Consistent with this approach, the provisionthat defines the contours of the public performance

right (the "Transmit Clause") encompasses alltechnological methods of delivering performances ofworks to members of the public. 17 U.S.C. §101 ("Toperform ... a work 'publicly' means ... to transmit orotherwise communicate a performance ... of the work... to the public, by means of any device orprocess ...") (emphasis added). Read broadly, asCongress intended, the Transmit Clause isconsistent with the Act's purpose. See Golan v.Holder, 132 S. Ct. 873, 889 (2012) ("Our decisions ...recognize that copyright supplies the economicincentive to create and disseminate ideas.") (originalemphasis) (quotation marks omitted). In contrast,the Second Circuit's Aereo opinion is inconsistentwith the purpose of the Copyright Act, the plainlanguage of the specific statutory provisions, thestructure and legislative history of the Act as awhole, and international agreements to which theUnited States is a party. See Jane C. Ginsburg,WNET v. Aereo: The Second Circuit Persists in Poor(Cable)Vision, Media Inst., April 23, 2013(hereinafter "Ginsburg, WNET v. Aereo") (callingAereo "a decision so inconsistent with statutory textand policy as to inspire surmise that the ruling wasan April Fool's prank").

4

Available at:

http://www.mediainstitute.org/IPI/2013/042313.php.

7

ARGUMENT

I The Second Circuit's Interpretation IsInconsistent With The Statute's PurposeTo Provide A Fair Return To CopyrightOwners As An Incentive To Create AndDisseminate Works.

In Aereo, the Court held that Cablevisionrequired reading the Copyright Act to provide averylimited public performance right, the parameters ofwhich are defined by arbitrary and illogical technicaldistinctions between how delivery methods function.In the Second Circuit, courts now must consider thepotential audience of [each] ^fftransmission." Aereo, 712 F.3d at 689. If anindividual transmission can be received by only onehousehold, it is private. Id. If multiple householdscan receive the individual transmission, it verylikely is public. Id. Courts may not aggregatemultiple individual transmissions of performances otthe same work delivered by the same serviceprovider and treat them as public, unless the"private transmissions are generated from the samecopy of the work. In such cases these privatetransmissions should be aggregated and if theseaggregated transmissions from a single copy enablethe public to view that copy, the transmissions arepublic performances." Id.

This convoluted interpretation of theTransmit Clause is directly contrary to Congress'intent to provide a broad and flexible publicperformance right. It is a road map for mediacompanies to design services providing thousands orevens millions of transmissions of performances of awork to paying subscribers and by that device avoidcompensating copyright owners because theperformances are deemed "private" when separatecopies are used to generate the transmissions.Artful Dodgers like Aereo are now using this map todeprive not only television broadcasters, but alsoartists, copyright owners, and authorizeddistributors of entertainment content of fair

compensation for their works. Aereo's practice has adomino effect on Amici, their members, and millionsof others who earn their livings through the creationand distribution of copyrighted content. See ROBERTLevine, Free Ride: How Digital Parasites AreDestroying The Culture Business, And How TheCulture Business Can Fight Back 3 (2011) ("[T]heeasy, illegal availability of all kinds of content hasundermined the legal market for it, in a way thataffects the entire media business. ... This

devaluation could also hurt the Internet, sinceprofessional media provides much of the value in abroadband subscription.").

The Aereo decision threatens rapidly evolvingInternet and on-demand markets for licensed

content. For example, Amici will receive lowerpayments from broadcasters because their revenueswill decrease as fewer and fewer companies that

9

perform television programming pay retransmissionconsent fees. See 47 U.S.C. §325(b) (requiring multichannel video programming distributors ("MVPDs")to license retransmissions of broadcast signals). Inaddition, Amici will receive lower payments fromcable and satellite television providers becauseunfair competition from Aereo and others willdecrease revenues earned by licensedretransmitters, who may themselves ultimatelyforego licenses and adopt Aereo's "unique copy"scheme. See Cecelia Kang, Time Warner May WeighAereo Model, WASH. POST, May 3, 2013, at A13.Moreover, Amici likely will receive lower paymentsfrom audio and audiovisual streaming servicesarguing that the Second Circuit's holdings apply totheir business models because they use (or will use)easily made unique but exact copies to delivercontent to customers. See Jane C. Ginsburg,Copyright 1992-2012: The Most SignificantDevelopment, 23 FORDHAM INTELL. PROP. MEDIA &ENT. L.J. 465, 476-77 (2012) ("As the cost of digitalstorage drops, the prospects for redundantindividually-dedicated copies increase, potentiallyspawning a host of new copyright-avoiding businessmodels, particularly as that storage moves to the'cloud.'").

Amici and those they represent invest money,talent, labor, and time to create, market, anddistribute works to the public. See, e.g., PressRelease, Int'l Fed'n of the Phonographic Indus.,Record Labels Invest U.S. $4.5Billion In New Music,Nov. 12, 2012 ("Music companies invest a greater

10

proportion of their global revenues in A&R [artistsand repertoire] than most other sectors do inresearch and development (R&D)," includingsoftware and computing and the pharmaceutical andbiotech sectors). Copyright exploitation of thoseworks that ultimately are proven to be commerciallysuccessful is the only way to recoup theseinvestments. See Richard A. Posner, Reasoning byAnalogy, 91 CORNELL L. REV. 761, 771 (2006) ("Thepurpose [of copyright] is to prevent the form of freeriding that consists of waiting for someone to spendmoney creating a valuable work and then preventinghim from recouping his investment by ... sellingcopies at a price below the price the creator of thework would have to charge to break even."). Wheninvestment is not recouped, projects (such as aband's next record or a label's new artist) disappearand the Copyright Act is not serving its purpose.

This case does not present a Hobson's choicebetween allowing Aereo to function as anunauthorized television retransmitter or else

eliminating access to all such content on theInternet. Licensed services already provide onlineaccess to broadcast television content. See GraemeMcMillan, Viewers Are Flocking to Streaming VideoContent - And So Are Advertisers, WIRED, Mar. 1,2013 ("Now, there are very few shows that you can'tactually find online, whether downloading them

5Available at:

http://www.ifpi.org/content/section_news/investing_in_music.html.

11

from iTunes, streaming them directly from Amazonor elsewhere, or even finding older movies and showson Netflix.").6 The choice is whether to allow Aereoand others to unfairly compete with licensed servicesor to uphold the purpose of the Copyright Act byrequiring fair compensation to copyright owners andtheir business partners in return for their creativeefforts.

II. The Second Circuit Misread TheLanguage And Intent Of The TransmitClause.

The decision below is based on the fallacy thatthe Transmit Clause must be read as follows:

To perform or display a work 'publicly'means - ... to transmit or otherwisecommunicate a performance or displayof the work ... to the public, by meansof any device or process, whether themembers of the public capable ofreceiving the performance or displaytransmission receive ** [thetransmission] in the same place or inseparate places and at the same time orat different times.

17 U.S.C. §101 (emphasis and edits added).

6Available at:

http://www.wired.com/underwire/2013/03/streaming-video-advertising/.

12

The Second Circuit misinterpreted the statutewhen it read the pronoun "it" to refer to "thetransmission," and required that each individualtransmission of a single, identical work be capable ofreaching multiple households in order to be a publicperformance. See Aereo, 112 F.3d at 789. Readcorrectly, "[t]here can be little doubt that theitalicized word it in the [Transmit Clause] refers to'performance or display,' not transmission, which infact appears only as a verb, and not as a noun, in thedefinition." 2 PAUL GOLDSTEIN, GOLDSTEIN ONCOPYRIGHT §7.7.2 (2013) (original emphasis).

Underlying the Second Circuit's error is theconclusion that the "transmission of a performance isitself a performance." Aereo, 712 F.3d at 687,quoting Cablevision, 536 F.3d at 134. That is,according to the Second Circuit, Congress used thewords "performance" and "transmission" assynonymous. See FilmOn X, 2013 U.S. Dist. LEXIS126543 at *49, n.12 ("Aereo mistakenly substituted'transmission' for 'performance' in its analysis");Ginsburg, WNET v. Aereo, supra ("The SecondCircuit conflated 'performance' with 'transmission'...

This reading does not work in terms of thestatute."). To the contrary, Congress defined thoseterms separately and distinctly. 17 U.S.C. §101.And "unless a contrary result is readily apparent,[courts] generally presume Congress intendsdifferent terms in the same statute to have different

meanings." Aereo, 722 F.3d at 507 (rehearingdenied; Chin, J., dissenting). See Sebelius v. AuburnReg'l Med. Ctr., 133 S. Ct. 817, 825 (2013) ("[A]s a

13

general rule, ... Congress's use of certain language inone part of the statute and different language inanother can indicate that different meanings wereintended.") (quotation marks omitted).

The definitions of "perform" and "transmit"make plain the crucial distinction between them:"To 'perform' a work means to recite, render, play,dance, or act it, either directly or by means of anydevice or process or, in the case of a motion pictureor other audiovisual work, to show its images in anysequence or to make the sounds accompanying itaudible." 17 U.S.C. §101. "To 'transmit' aperformance or display is to communicate it by anydevice or process whereby images or sounds arereceived beyond the place from which they are sent."Id. Thus, "transmission" is a term of art for avehicle that delivers a "performance." By focusingmyopically on who is capable of receiving eachindividual transmission, the Second Circuit lostsight of the fact that the Copyright Act concernsexclusive rights to exploit performances of "works."See 17 U.S.C. §106 ("[T]he owner of copyright underthis title has the exclusive rightD to ... perform thecopyrighted work publicly ... ") (emphasis added);17 U.S.C. §101 ("To perform ... a work publiclymeans ...") (emphasis added). The dispositive issueunder the Transmit Clause then is whether aperformance ofa "work" is transmitted to the public,not how it is transmitted. See BarryDriller, 915 F.Supp. 2d at 1144-45 ("Very few people gather aroundtheir oscilloscopes to admire the sinusoidal waves ofa television broadcast transmission. People are

14

interested in watching the performance of thework.") (original emphasis). The Second Circuitconfused the means with the end.

Copyright protection is not contingent ontechnical differences between delivery methods thathave no impact on the use or the user experience,such as Aereo's thousands of tiny antennae andmultiple digital copies of the same works. SeeColumbia Pictures Indus., Inc. v. Prof'l Real EstateInvestors, 866 F.2d 278, 282 (9th Cir. 1989) ("A plainreading of the transmit clause indicates that itspurpose is to prohibit transmissions and other formsof broadcasting from one place to another withoutthe copyright owner's permission."). "[I]t wouldstrain logic to conclude that Congress would haveintended the degree of copyright protection to turnon the mere method by which television signals aretransmitted to the public." Natl Cable TelevisionAss'n, Inc. v. Broad. Music, Inc., 772 F. Supp. 614,651 (D.D.C. 1991), quoting David v. Showtime/TheMovie Channel, Inc., 697 F. Supp. 752, 759 (S.D.N.Y.1988).

Aereo's requirement that courts determinewhether a unique copy of a particular work was usedto deliver a transmission of a performance of thatwork to a member of the public elevates form oversubstance. From the consumer's perspective, Aereo'sservice is no different from the streaming televisionretransmission services that courts have heldinfringe the public performance right. E.g., WPLX,Inc. v. ivi, Inc., 691 F.3d 275 (2d Cir. 2012). See also

15

Bowen v. Gilliard, 483 U.S. 587, 606 (1987) (courtsshould not place "form over substance, and labelsover reality" where the difference between twoconcepts is "more theoretical than practical").Common sense and the Transmit Clause dictate thata public performance occurs when members of thepublic are capable of receiving transmissions ofperformances of the same work. See Aereo, 712F.3d at 698 (Chin, J., dissenting) ("Giving theundefined term 'the public' its ordinary meaning ... atransmission to anyone other than oneself or anintimate relation is a communication to a member_of the public, because it is not in any sense'private.'") (citations omitted); On Command VideoCorp. v. Columbia Pictures Indus., Ill F. Supp. 787,790 (N.D. Cal. 1991) (where "the relationshipbetween the transmitter of the performance ... andthe audience ... is a commercial, 'public' one" thepublic performance right is implicated).

The Second Circuit's misreading of theTransmit Clause inevitably leads to internalinconsistencies. The judicially created exception forindividual transmissions of performances that bydesign originate from unique copies is directly atodds with the statute's instruction that a publicperformance of a work occurs when members of thepublic receive the performance of that work "atdifferent times." 17 U.S.C. §101. Forced to reconcilethese antithetical concepts, the Second Circuitfashioned an illogical and unsupported newexception to its entirely new rule, i.e., that separate,"private" transmissions from the same copy of a

16

work are "aggregated" even when the transmissionsoccur at different times, whereas separate, "private"transmissions of the same work from differentidentical copies are not. Aereo, 712 F.3d at 789.Simultaneously, the court had to admit that"[aggregating private transmissions generated fromthe same copy is in some tension with the ...conclusion that the relevant inquiry under theTransmit Clause is the potential audience of theparticular transmission." Id. atn.ll.

The Aereo Court's novel reading is not just in"some tension" with the statute; it severely limits theprovision in the Transmit Clause stating that apublic performance takes place "whether themembers of the public capable of receiving theperformance receive it ... at the same time or atdifferent times." 17 U.S.C. §101. See Ginsburg,WNET v. Aereo, supra (contending that: "[T]heSecond Circuit's reading effectively deletes 'differenttimes' from the statute, thus defeating Congress'sclear intent to bring pay-per-view and otherindividualized forms of transmission within the

scope of the Copyright Act.").

The court's tortured rationale was never

mentioned in the 20-year process leading to theCopyright Act of 1976. It ignores that nothing in thelanguage of the Transmit Clause refers to thenumber of copies used to deliver transmissions ofperformances of works to members of the public. Ifthe number of copies used by a device or process totransmit a performance of a work were critical,

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Congress surely would have expressed thatcondition. It did not. See Aereo, 722 F.3d at 509(denying rehearing; Chin, J., dissenting) ("IfCongress had intended the definition to turn onwhether a unique copy was used, it knew how to sayso."). See also, e.g., 17 U.S.C. §§101 (defining"copies"); 108 ("no more than one copy"); 109 ("ownerof a particular copy"); 112 ("no more than one copy ofa particular transmission"); 107 ("making of anothercopy ).

In fact, none of the relevant statutorydefinitions reference "copies." Instead, thetechnologically neutral and broad language of theTransmit Clause is reiterated in the definitions of

"perform" ("either directly or by means of any deviceor process"), "transmit" ("to communicate ... by anydevice or process whereby images or sounds arereceived beyond the place from which they aresent"), "device" ("one now known or later developed"),and "process" (same). 17 U.S.C. §101 (emphasisadded). See United States v. Gonzales, 520 U.S. 1, 5(1997) ("Read naturally, the word 'any' has anexpansive meaning, that is, 'one or someindiscriminately of whatever kind."'), quoting

The rights of reproduction and performance are distinct andseparately defined. Whether one right is infringed isindependent of whether any other right is infringed. See H.R.Rep. No. 94-1476, at 61 ("each subdivision of an exclusive rightmay be owned and enforced separately"). However, under theSecond Circuit's construct, whether the performance right isinfringed is dependent on whether copies are reproduced.

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Webster's Third New Int'l Dictionary 97 (1976)See also Aereo, 722 F.3d at 510 (Chin, J., dissenting-'denying rehearing) ("It is obvious from the text thatCongress intended 'any device or process' to have thebroadest possible construction so that it couldcapture technologies that were unimaginable in1976."). Whereas the statute's plain languagerequires neutrality and breadth, the Second Circuit'serroneous statutory reading does just the opposite.

HI. The Second Circuit's Opinion Cannot BeReconciled With The Structure OrLegislative History OfThe Copyright Act.

Congress envisioned the public performanceright, like other exclusive rights, as a broadexclusive right subject to delineated, narrowexceptions. See 17 U.S.C. §106 (exclusive rights[s]ubject to section 107 though 122," which contain

exceptions and compulsory licenses). See alsoSupplementary Register's Rep. on the GeneralRevision of the U.S. Copyright Law, 89th Cong., 1stbess., Copyright Law Revision Part 6 at 15 (HComm. Print 1965) ("Section 106 is intended to markout the perimeter of copyright in broad terms andthe remaining sections in the chapter are intended todefine its scope in particular situations and forparticular kinds ofworks.").

The broadly crafted exclusive rights, whichare intended to be separate and distinct from eachother, are designed to survive the ever-changingtechnological landscape. See Columbia Pictures

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Indus, v. Redd Home, 749 F.2d 154, 157 (3d Cir.1984) ("A defendant ... is not immune from liabilityfor copyright infringement simply because thetechnologies are of recent origin or are being appliedto innovative uses."); 2 M.B. Nimmer & D. Nimmer,Nimmer On Copyright §8.ll[D][4][c] (2013) ("[T]hedrafters of the current [Copyright] Act conceived itsexclusive rights broadly, encouraging courts tointerpret them so as to avoid their erosion as a resultof unforeseen technological changes[.]"); MusicLicensing in Restaurants and Retail and OtherEstablishments: Hearing Before the Subcomm. onCourts and Intellectual Property of the H. Comm. onthe Judiciary, 105th Cong. 17 (1997) (statement ofMarybeth Peters, Register of Copyrights) ("Withrespect to music, the public performance right is themost important of the copyright bundle of rights ...The present copyright law ... recognizes theimportance of this right; section 106(4) givescopyright owners a very broad public performanceright."). As this Court has stressed, "the fact that astatute can be applied in situations not expresslyanticipated by Congress does not demonstrateambiguity. It demonstrates breadth." PGA Tour,Inc. v. Martin, 532 U.S. 661, 689 (2001), quoting Pa.Dep't ofCorrs. v. Yeskey, 524 U.S. 206, 212 (1998).

The legislative history confirms Congress'adaptable view of the public performance right:

The definition of 'transmit' - to

communicate a performance or display'by means of any device or process

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whereby images or sound are receivedbeyond the place from which they aresent' - is broad enough to includeall conceivable forms andcombinations of wired or wirelesscommunications media, includingbut by no means limited to radio andtelevision broadcasting as we knowthem.

H.R. Rep. No. 94-1476, at 64 (emphasis added). SeeH. Rep. on Copyright Law Revision, H.R. Rep. No.90-83, 90th Cong., 1st Sess., at 29 (1967) ("[A]performance made available by transmission to thepublic at large is 'public' even though ... thetransmission is capable of reaching differentrecipients at different times, as in the case ofsounds or images stored in an informationsystem and capable of being performed ordisplayed at the initiative of individualmembers of thepublic") (emphasis added).8

Congress acted with the same intent in 1995,when it extended the public performance right todigital audio transmissions of sound recordings.9 See

o

The 1967 Report describes language almost identical to theTransmit Clause as enacted. See 4 William F. Patry, PATRY OnCopyright §14:16 (2013).9

Previously, owners of sound recordings had no publicperformance rights. SoundExchange, Inc. v. Librarian ofCong., 571 F.3d 1220, 1222 (D.C. Cir. 2009). The creation of adigital audio transmission right in sound recordings did not

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17 U.S.C. §§106(6), 112(e), 114. Congress recognizedthat online transmissions to individual members ofthe public inevitably involve the creation of multiple,individual digital copies of sound recordings.Therefore, the statutory licensing framework underwhich Amicus SoundExchange operates specificallycovers the use of unique copies to generate streams,each to a single consumer, and provides for themaking of "the temporary copies necessary tofacilitate the transmission of sound recordingsduring internet broadcasting." Beethoven.com LLCv. Librarian of Cong., 394 F.3d 939, 942-43 (D.C. Cir.2005). At the same time, Congress recognized that"interactive services" publicly perform musical worksand sound recordings (notwithstanding that thereare separate transmissions to each consumer) byallowing individual consumers to choose what songis played and when. 17 U.S.C. §114(d)(3)(C).

The 1995 amendment reaffirmed that alltransmissions to members of the public (explicitlyincluding by multiple individual copies) are publicperformances.

Under existing principles ofcopyright law, the transmission orother communication to the public of amusical work constitutes a publicperformance of that musical work. ...New technological uses of

diminish the public performance right in musical compositions.17 U.S.C. §114(d)(4)(B).

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copyrighted sound recordings arearising which require anaffirmation of existing principlesand application of those principles tothe digital transmission of soundrecordings, to encourage the creation ofand protect rights in those soundrecordings and the musical works theycontain.

H. Rep. on the Digital Performance Right in SoundRecordings Act of 1995, H.R. Rep. No. 104-274,104th Cong., 1st Sess., at 22 (1995) (emphasisadded). See FDA v. Brown & Williamson TobaccoCorp., 529 U.S. 120, 133 (2000) ("[T]he meaning ofone statute may be affected by other Acts,particularly where Congress has spokensubsequently and more specifically to the topic athand.").

The Aereo majority failed to apprehend thesignificance of the statute's structure and Congress'expressions of intent. The court opined that"because Congress did not wish to require everyoneto obtain a license from copyright holders before theycould perform the copyrighted works played by theirtelevision, Congress was careful to note that aperformance 'would not be actionable as aninfringement unless it were done 'publicly,' asdefined in section 101." Aereo, 712 F.3d at 694(emphasis added). However, that Congress did notintend to render all performances "played by atelevision" public in no way implies that Aereo's

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performances fall outside the scope of the TransmitClause. While Aereo posits the question of what theTransmit Clause means by "publicly," it fails toanswer it. Both the statute and its legislativehistory provide that answer.

TV. The Second Circuit's Opinion IsInconsistent With Treaty Obligations.

The United States is required by internationalcopyright treaties and trade agreements to provide abroad public performance right (also known as the"communication to the public" right). Membernations must accord public performance rightsregardless of the means of transmission of theperformance, whether the transmission emanatesfrom a single or multiple copies, or whether it is tomultiple or individual recipients. See 1 SAMRicketson & Jane C. Ginsburg, Int'l CopyrightAnd Neighbouring Rights: The Berne ConventionAND BEYOND 702-54 (2d ed. 2006) (hereinafter"Ricketson"). Compliance with these obligations —under the Berne Convention ("Berne"), the WorldTrade Organization Agreement on Trade-RelatedAspects of Intellectual Property Rights ("TRIPS"),11and the World Intellectual Property Organization

Berne Convention for the Protection of Literary and ArtisticWorks, Sept. 9, 1886, (Paris Text 1971, as amended Sept. 28,1979), 25 U.S.T. 1341, 828 U.N.T.S. 221.

Agreement on Trade-Related Aspects of IntellectualProperty Rights, April 15, 1994, 1867 U.S.T. 154, 33 LL.M. 81.

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Copyright Treaty ("WCT") —ensures the reciprocalpayment of royalties for the use of the works ofAmerican songwriters and recording artists abroad,and for the use of works of foreign rightholders inthe United States under the principle of "nationaltreatment." In order to facilitate this cross-borderprotection and dissemination of copyrightedmaterials, in the last half century the United Stateshas harmonized its copyright law with those of itstrading partners. See Eldred v. Ashcroft, 537 U S186, 195 (2003); Golan, 132 S. Ct. at 889.

Berne Article 11 requires that "[ajuthors ofdramatic, dramatico-musical and musical worksshall enjoy the exclusive right of authorizing: (i) thepublic performance of their works, including suchpublic performances by any means or process; [and](ii) any communication to the public of theperformance of their works."13 Berne's requirementsare incorporated into TRIPS (Art. 9, incorporatingBerne Arts. 1-21) and the WCT (Art. 1, incorporatingBerne Arts. 1-21). The WCT goes even further: aspart of the exclusive right of communication to thepublic, the right holders control "the makingavailable to the public of their works in such a waythat members of the public may access these worksfrom a place and at a time individually chosen bythem." WCT, Art. 8. In addition to the public12

WIPO Copyright Treaty, Dec. 20, 1996, 36LL.M. 65.13

Article Ubis of Berne provides similar rights for owners ofcopyright in cinematographic works.

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performance right, Berne and TRIPS requiremember states to provide copyright owners with anexclusive right to authorize retransmissions ofbroadcasts containing underlying works, includingmusical works. 1 Ricketson, supra at 737. Thus,Berne, TRIPS and the WCT require United Stateslaw to afford to creators broad, technology-neutralexclusive rights that embrace services of the typeundertaken by Aereo.

None of these treaties or agreements is self-executing. United States accession to each of themwas based on a determination by the President,ratified by the Senate, that existing law (includingthe scope of exclusive rights) was fully compliantwith the treaties and agreements. Thesedeterminations followed the enactment ofimplementing legislation designed to bring UnitedStates law up to the standard mandated by eachtreaty. None of these enactments required anyamendment to the statutory provisions establishingthe public performance right. See generally DigitalMillennium Copyright Act, Pub. L. No. 105-304, 112Stat. 2860 (1998); Berne Convention ImplementationAct of 1988, Pub. L. No. 100-568, 102 Stat. 2853(1988); Uruguay Round Agreements Act, Pub. L. No.103-465, 108 Stat. 4809 (1994). See, e.g., Rep. of theComm. on the Judiciary of the H. of Rep. on theWIPO Copyright Treaties Implementation and Online Copyright Infringement Liability LimitationAct, H.R. REP. No. 105-551, pt. 1, at 9 (105th Cong.,2d Sess. 1998) ("The treaties do not require any

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change in the substance of copyright rights orexceptions in U.S. law.").

More recently, a number of Free TradeAgreements require that signatories providecopyright owners with an exclusive right toauthorize Internet-based retransmissions ofbroadcast television programs (including workscontained therein). See, e.g., United States-Australia Free Trade Agreement, art. 17.4.10(b)(Jan. 1, 2005) ("Neither Party may permit theretransmission of television signals (whetherterrestrial, cable, or satellite) on the Internetwithout the authorization of the right holder or rightholders, if any, of the content of the signal and of thesignal."). And in March 2013, the European Court ofJustice held that a U.K. service provider that offereda service that permitted its users to receive, via theInternet, live streams of free-to-air televisionbroadcasts infringed the rights of broadcasters. SeeITV Broad. Ltd v. TV Catchup, Ltd., Case No. C-607/1 (E.C.J. Mar. 7, 2013) (the "communication tothe public" right "must be interpreted broadly").

If the Second Circuit's opinion stands, theUnited States will be out of compliance with itstreaty obligations and out of step with internationalnorms, and the United States and its contentcreators and disseminators will be disadvantagedand harmed.

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CONCLUSION

Amici respectfully submit that the Courtshould grant certiorari.

Respectfully submitted:

Russell J. Frackman

Counsel of RecordMitchell Silberberg &

Knupp LLP11377 W. Olympic Blvd.Los Angeles, CA 90064

Tel: (310)312-2000rjf@msk.com

Eric J. Schwartz

J. Matthew Williams

Mitchell Silberberg &Knupp LLP

1818 N St., NW, 8th Fir.Washington, DC 20036Tel: (202)355-7900ejs@msk.commxw@msk.com

Counsel for Amici Curiae

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