Recently, the Second Circuit denied a preliminary injunction motion raised by the plaintiffs in WNET, Thirteen et al v. Aereo. The plaintiffs, copyright owners all, had alleged that Aereo’s video-streaming and recording technology violated the public performance rights associated with their works. The Second Circuit’s denial of the motion depended heavily on the technology Aereo developed with the precise intention of carefully skirting the limits of copyright law. Some might look at this as a victory for those seeking sanity among the copyright morass, but it actually represents how convoluted and absurd copyright law has become.
The public performance right grants copyright owners the exclusive right to “perform the copyrighted work publicly.” 17 U.S.C. 106(4). The distinction between “public” and “private” performances has produced a great deal of judicial interpretation, and the ensuing uncertainty has only been exacerbated by the rise of streaming video and audio technology, like DVRs, music-streaming services like Pandora, or absurdly over-engineered services like Aereo. Statutorily, to perform a work publicly means:
- to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered
17. U.S.C. 101. The Second Circuit, in Cartoon Network v CSC Holdings, Inc, had previously held that there is no violation of a public performance right where DVR stream buffering technology makes a single transmission to a single subscriber using a single copy “made” (read: initiated or requested) by that subscriber. The legal analysis essentially argues that if the transmission is made to a single subscriber, it is thereby not public (not “outside” of a place where a normal family/social acquaintances is gathered).
Aereo takes the legal conclusion of Cartoon Network and takes it to its technologically illogical end. Aereo’s technology fills data centers with hundreds, thousands of tiny (dime-sized) attenae, each designed to transmit a single, unique copy of a program channel to a single subscriber. The Second Circuit, in denying the preliminary injunction, relied upon Cartoon Network, and found that this technology meant the potential audience for each copied program was a single individual, and thereby not the public.
Give credit where it’s due: to the probably too-clever-for-his/her-own good engineer who designed the Aereo system; but decry the redundancy, cost, and inefficiency of a system necessary to avoid legal liability. Wouldn’t it be simpler (and probably more environmentally friendly) to have a single server farm that can simultaneously stream multiple copies of programs to multiple paying subscribers? Of course it would. But that would violate US copyright law, and infringe the rights of copyright owners that refuse to provide their works to the public in an easily accessible form. One might think that Aereo’s solution to the public performance right issue in copyright law is fairly tongue-in-cheek, but, sadly, it is an all-too-realistic approach to providing content to consumers in a legally permissible manner.