Symposium: A win, though a narrow one (thanks to Breyer, J.), for copyright owners

ABC v. Aereo was always going to come down to a battle of two metaphors:

1.  Aereo is a cable company (or at least the functional equivalent of a cable company).  Cable companies are required (by the so-called “must-carry” provisions of the Communications Act) to take the TV signals transmitted over the air by the broadcast networks and to re-transmit those signals to cable company subscribers.  The Copyright Act, in turn, makes sure that they have to pay the network broadcasters for those re-transmissions; in a variety of rather convoluted ways, it deems them to be “transmitting performances of copyrighted works to the public” when they do so.  And that is exactly what Aereo is doing: re-transmitting over-the-air broadcast TV signals to its subscribers.  It, too, should be deemed to be “transmitting performances of copyrighted works to the public.” QED.

2.  No, Aereo’s not a cable system, it’s a rooftop TV antenna connected to a DVR in the living room – a whole bunch of them, actually.  It simply gives consumers a new tool that enables them to do what they are already permitted to do:  pull down signals coming in (for free!!) over the air, record those signals, and then transmit them at a later time to some device of theirs (TV, laptop, phone).  It’s not infringing for customers to do that for themselves, so why should it be infringing when Aereo does it for them, in a more efficient manner?  Aereo’s equipment (just like rooftop antennas) transmits performances – but those performances are not transmitted “to the public”; each transmission from each rooftop antenna (or each Aereo antenna) is a private performance to the individual subscriber whose antenna/DVR, controlled by that subscriber, was called into play.

The majority (opinion by Justice Breyer for himself and Chief Justice John Roberts, along with Justices Ruth Bader Ginsburg, Anthony Kennedy, Elena Kagan, and Sonia Sotomayor) took route 1; the dissent (Justice Antonin Scalia, joined by Justices Clarence Thomas and Samuel Alito), route 2.

[A word about the alignment, which is pretty intriguing.  Two principles seem to have been violated:  that copyright cases never fall out along straightforward ideological grounds, and, relatedly, that Justices Breyer and Ginsburg, the Court’s two most “liberal” Justices, never agree about interpretations of copyright law (the former taking the “pro-innovation/user” side, the latter the pro-rightsholder side).  I don’t know exactly how to interpret what is going here.  On the basis of absolutely no actual information about what happened, this feels to me like a case in which Justice Breyer did a little horse-trading:  “I’ll go along with you on Aereo (though only if I get to write the opinion, which will ensure that our ruling doesn’t have any serious anti-innovation or anti-competitive effects, and only if you join me in the X vs Y case . . .”  Just a thought.]

Although I was very much a partisan of route 2 (James Grimmelmann and I wrote an amicus brief in support of Aereo on behalf of a group of thirty-six law professors, and Justice Scalia’s dissenting opinion, citing the brief, follows much of the structure of the arguments we made there), I’m neither surprised at the outcome – nor, indeed, am I terribly despondent about the result.

The big question lurking in this case was:  How much damage will the Court do to settled copyright understandings in coming out one way or the other?  Something had to give.  The two metaphors are each quite compelling; they both “work,” given the statutory language.  But (obviously) they can’t co-exist, because that would mean that Aereo is, and is not, infringing.  Choosing one was always going to mean breaking whatever piece of copyright law was propping up the other.  Find for Aereo, and you risk screwing up the rather intricately contrived scheme under which cable companies subsidize the networks – must-carry+retransmission fees.  Find for the broadcasters, and you risk screwing up the intricately contrived scheme under which individuals can obtain content of all kinds – newspapers, blogs, music, movies, ezines, . . . – without owing copyright owners a royalty.

This was, to me, particularly worrisome, because the broadcasters were pushing a theory of the case that would have dramatically altered widely shared understandings about the meaning of some very, very important copyright terms – “perform,” and “performance,” and “transmit,” and “to the public.”  These represent foundational principles in the copyright world; the entire edifice of copyright law is built upon reasonably settled expectations of what they mean.  And, in turn, many hundreds of billions of dollars of economic activity, and an incalculable amount of innovative technological activity, is premised on the stability of that copyright edifice, on the rules of the copyright game.

That the Court would find for the broadcasters didn’t worry me too much; at bottom, I didn’t think and I don’t think that the world changes a great deal depending on whether Aereo does, or does not, have to pay royalties to the broadcasters.  What worried me was that the Court would, in the course of finding for the broadcasters, take the opportunity to re-define these basic copyright principles in a way that could have rather dire implications for a very wide range of content-delivery and content-storage systems out there (and those not yet deployed or even invented).

So after I (rather quickly) got over my disappointment upon hearing the result, the question I had as I read Justice Breyer’s opinion was:  How much copyright blood was on the floor?

I think the answer is: Not too much.  The majority takes great pains, at several points in the opinion, to emphasize the narrow scope of the holding.  While Congress did intend the re-transmission provisions “to apply broadly to cable companies and their equivalents,” it didn’t “intend to discourage or to control the emergence or use of different kinds of technologies,” and the Court’s “limited holding today” won’t have that effect.  This case, the Court repeats at several junctures, is just about broadcast television and the re-transmission of broadcast signals.

The [Copyright Act] makes clear that an entity that acts like a CATV system [the early precursors of today’s cable systems, which were in Congress’ sights when it amended the Copyright Act in 1976] itself performs, even if when doing so, it simply enhances viewers’ ability to receive broadcast television signals.  [And] Aereo’s activities are substantially similar to those of the CATV companies that Congress amended the Act to reach.

It is only Aereo’s “overwhelming likeness to the cable companies targeted by the 1976 amendments,” and the “many similarities between Aereo and cable companies” viewed “in terms of Congress’ regulatory objectives,” that carry the day here.

In sum, having considered the details of Aereo’s practices, we find them highly similar to those of the CATV systems . . . that the 1976 amendments sought to bring within the scope of the Copyright Act.

And that is that.  Congress has made a choice about what you may or may not do with over-the-air broadcast signals:  anyone who re-transmits them (like the cable companies do) has to pay royalties to the broadcasters when they do so.

So if you’re not doing that – acting like a cable system and re-transmitting over-the-air broadcast signals – you can continue to go about your business without worrying about the implications of this decision.

We cannot now answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before us. We agree with the Solicitor General that “[q]uestions involving cloud computing,[remote storage] DVRs, and other novel issues not before the Court, as to which ‘Congress has not plainly marked [the] course,’ should await a case in which they are squarely presented.

If that’s what it means – and I think that is what it means, though as always, we will all be poring over the text in the coming weeks and months to extract its true meaning – the decision has nothing to say about any other content-delivery or content-storage platforms that deal with the vast array of non-broadcast-TV content.  Over-the-air television programming – I don’t think I’m giving away any secrets here – is probably not where the action is over the next ten or twenty years, and how the money gets carved up in that little corner of the entertainment universe is really of rather limited significance.  Precisely how Justice Breyer wants it, I think.