American Broadcasting Cos. v. Aereo, Inc. , 134 S. Ct. 2498 ( 2014 )

(Slip Opinion) OCTOBER TERM, 2013 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
AMERICAN BROADCASTING COS., INC., ET AL. v.
AEREO, INC., FKA BAMBOOM LABS, INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 13–461. Argued April 22, 2014—Decided June 25, 2014
The Copyright Act of 1976 gives a copyright owner the “exclusive
righ[t]” to “perform the copyrighted work publicly.” 17 U.S. C.
§106(4). The Act’s Transmit Clause defines that exclusive right to in-
clude the right to “transmit or otherwise communicate a performance
. . . of the [copyrighted] work . . . to the public, by means of any device
or process, whether the members of the public capable of receiving
the performance . . . receive it in the same place or in separate places
and at the same time or at different times.” §101.
Respondent Aereo, Inc., sells a service that allows its subscribers to
watch television programs over the Internet at about the same time
as the programs are broadcast over the air. When a subscriber wants
to watch a show that is currently airing, he selects the show from a
menu on Aereo’s website. Aereo’s system, which consists of thou-
sands of small antennas and other equipment housed in a centralized
warehouse, responds roughly as follows: A server tunes an antenna,
which is dedicated to the use of one subscriber alone, to the broadcast
carrying the selected show. A transcoder translates the signals re-
ceived by the antenna into data that can be transmitted over the In-
ternet. A server saves the data in a subscriber-specific folder on
Aereo’s hard drive and begins streaming the show to the subscriber’s
screen once several seconds of programming have been saved. The
streaming continues, a few seconds behind the over-the-air broadcast,
until the subscriber has received the entire show.
Petitioners, who are television producers, marketers, distributors,
and broadcasters that own the copyrights in many of the programs
that Aereo streams, sued Aereo for copyright infringement. They
sought a preliminary injunction, arguing that Aereo was infringing
2 AMERICAN BROADCASTING COS. v. AEREO, INC.
Syllabus
their right to “perform” their copyrighted works “publicly.” The Dis-
trict Court denied the preliminary injunction, and the Second Circuit
affirmed.
Held: Aereo performs petitioners’ works publicly within the meaning of
the Transmit Clause. Pp. 4–18.
(a) Aereo “perform[s].” It does not merely supply equipment that
allows others to do so. Pp. 4–10.
(1) One of Congress’ primary purposes in amending the Copy-
right Act in 1976 was to overturn this Court’s holdings that the activ-
ities of community antenna television (CATV) providers fell outside
the Act’s scope. In Fortnightly Corp. v. United Artists Television,
Inc., 392 U.S. 390, the Court determined that a CATV provider was
more like a viewer than a broadcaster, because its system “no more
than enhances the viewer’s capacity to receive the broadcaster’s sig-
nals [by] provid[ing] a well-located antenna with an efficient connec-
tion to the viewer’s television set.” Id., at 399. Therefore, the Court
concluded, a CATV provider did not perform publicly. The Court
reached the same determination in respect to a CATV provider that
retransmitted signals from hundreds of miles away in Teleprompter
Corp. v. Columbia Broadcasting System, Inc., 415 U.S. 394. “The re-
ception and rechanneling of [broadcast television signals] for simul-
taneous viewing is essentially a viewer function, irrespective of the
distance between the broadcasting station and the ultimate viewer,”
the Court said. Id., at 408. Pp. 4–7.
(2) In 1976, Congress amended the Copyright Act in large part to
reject the Fortnightly and Teleprompter holdings. The Act now clari-
fies that to “perform” an audiovisual work means “to show its images
in any sequence or to make the sounds accompanying it audible.”
§101. Thus, both the broadcaster and the viewer “perform,” because
they both show a television program’s images and make audible the
program’s sounds. Congress also enacted the Transmit Clause,
which specifies that an entity performs when it “transmit[s] . . . a
performance . . . to the public.” Ibid. The Clause makes clear that an
entity that acts like a CATV system itself performs, even when it
simply enhances viewers’ ability to receive broadcast television sig-
nals. Congress further created a complex licensing scheme that sets
out the conditions, including the payment of compulsory fees, under
which cable systems may retransmit broadcasts to the public. §111.
Congress made all three of these changes to bring cable system activ-
ities within the Copyright Act’s scope. Pp. 7–8.
(3) Because Aereo’s activities are substantially similar to those of
the CATV companies that Congress amended the Act to reach, Aereo
is not simply an equipment provider. Aereo sells a service that al-
lows subscribers to watch television programs, many of which are
Cite as: 573 U. S. ____ (2014) 3
Syllabus
copyrighted, virtually as they are being broadcast. Aereo uses its
own equipment, housed in a centralized warehouse, outside of its us-
ers’ homes. By means of its technology, Aereo’s system “receive[s]
programs that have been released to the public and carr[ies] them by
private channels to additional viewers.” Fortnightly, supra, at 400.
This Court recognizes one particular difference between Aereo’s
system and the cable systems at issue in Fortnightly and Teleprompt-
er: The systems in those cases transmitted constantly, whereas
Aereo’s system remains inert until a subscriber indicates that she
wants to watch a program. In other cases involving different kinds of
service or technology providers, a user’s involvement in the operation
of the provider’s equipment and selection of the content transmitted
may well bear on whether the provider performs within the meaning
of the Act. But given Aereo’s overwhelming likeness to the cable
companies targeted by the 1976 amendments, this sole technological
difference between Aereo and traditional cable companies does not
make a critical difference here. Pp. 8–10.
(b) Aereo also performs petitioners’ works “publicly.” Under the
Clause, an entity performs a work publicly when it “transmit[s] . . . a
performance . . . of the work . . . to the public.” §101. What perfor-
mance, if any, does Aereo transmit? Petitioners say Aereo transmits
a prior performance of their works, whereas Aereo says the perfor-
mance it transmits is the new performance created by its act of
transmitting. This Court assumes arguendo that Aereo is correct and
thus assumes, for present purposes, that to transmit a performance
of an audiovisual work means to communicate contemporaneously
visible images and contemporaneously audible sounds of the work.
Under the Court’s assumed definition, Aereo transmits a perfor-
mance whenever its subscribers watch a program.
What about the Clause’s further requirement that Aereo transmit
a performance “to the public”? Aereo claims that because it trans-
mits from user-specific copies, using individually-assigned antennas,
and because each transmission is available to only one subscriber, it
does not transmit a performance “to the public.” Viewed in terms of
Congress’ regulatory objectives, these behind-the-scenes technological
differences do not distinguish Aereo’s system from cable systems,
which do perform publicly. Congress would as much have intended to
protect a copyright holder from the unlicensed activities of Aereo as
from those of cable companies.
The text of the Clause effectuates Congress’ intent. Under the
Clause, an entity may transmit a performance through multiple
transmissions, where the performance is of the same work. Thus
when an entity communicates the same contemporaneously percepti-
ble images and sounds to multiple people, it “transmit[s] . . . a per-
4 AMERICAN BROADCASTING COS. v. AEREO, INC.
Syllabus
formance” to them, irrespective of the number of discrete communica-
tions it makes and irrespective of whether it transmits using a single
copy of the work or, as Aereo does, using an individual personal copy
for each viewer.
Moreover, the subscribers to whom Aereo transmits constitute “the
public” under the Act. This is because Aereo communicates the same
contemporaneously perceptible images and sounds to a large number
of people who are unrelated and unknown to each other. In addition,
neither the record nor Aereo suggests that Aereo’s subscribers receive
performances in their capacities as owners or possessors of the under-
lying works. This is relevant because when an entity performs to a
set of people, whether they constitute “the public” often depends upon
their relationship to the underlying work. Finally, the statute makes
clear that the fact that Aereo’s subscribers may receive the same pro-
grams at different times and locations is of no consequence. Aereo
transmits a performance of petitioners’ works “to the public.” Pp. 11–
15.
(c) Given the limited nature of this holding, the Court does not be-
lieve its decision will discourage the emergence or use of different
kinds of technologies. Pp. 15–17.
712 F.3d 676, reversed and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.
SCALIA, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ.,
joined.
Cite as: 573 U. S. ____ (2014) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–461
_________________
AMERICAN BROADCASTING COMPANIES, INC.,
ET AL., PETITIONERS v. AEREO, INC., FKA
BAMBOOM LABS, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 25, 2014]
JUSTICE BREYER delivered the opinion of the Court.
The Copyright Act of 1976 gives a copyright owner the
“exclusive righ[t]” to “perform the copyrighted work pub-
licly.” 17 U.S. C. §106(4). The Act’s Transmit Clause
defines that exclusive right as including the right to
“transmit or otherwise communicate a performance
. . . of the [copyrighted] work . . . to the public, by
means of any device or process, whether the members
of the public capable of receiving the performance . . .
receive it in the same place or in separate places and
at the same time or at different times.” §101.
We must decide whether respondent Aereo, Inc., infringes
this exclusive right by selling its subscribers a technologi-
cally complex service that allows them to watch television
programs over the Internet at about the same time as the
programs are broadcast over the air. We conclude that it
does.
2 AMERICAN BROADCASTING COS. v. AEREO, INC.
Opinion of the Court
I
A
For a monthly fee, Aereo offers subscribers broadcast
television programming over the Internet, virtually as the
programming is being broadcast. Much of this program-
ming is made up of copyrighted works. Aereo neither
owns the copyright in those works nor holds a license from
the copyright owners to perform those works publicly.
Aereo’s system is made up of servers, transcoders, and
thousands of dime-sized antennas housed in a central
warehouse. It works roughly as follows: First, when a
subscriber wants to watch a show that is currently being
broadcast, he visits Aereo’s website and selects, from a list
of the local programming, the show he wishes to see.
Second, one of Aereo’s servers selects an antenna, which
it dedicates to the use of that subscriber (and that sub-
scriber alone) for the duration of the selected show. A
server then tunes the antenna to the over-the-air broad-
cast carrying the show. The antenna begins to receive the
broadcast, and an Aereo transcoder translates the sig-
nals received into data that can be transmitted over the
Internet.
Third, rather than directly send the data to the sub-
scriber, a server saves the data in a subscriber-specific
folder on Aereo’s hard drive. In other words, Aereo’s
system creates a subscriber-specific copy—that is, a “per-
sonal” copy—of the subscriber’s program of choice.
Fourth, once several seconds of programming have been
saved, Aereo’s server begins to stream the saved copy of
the show to the subscriber over the Internet. (The sub-
scriber may instead direct Aereo to stream the program at
a later time, but that aspect of Aereo’s service is not before
us.) The subscriber can watch the streamed program on
the screen of his personal computer, tablet, smart phone,
Internet-connected television, or other Internet-connected
device. The streaming continues, a mere few seconds
Cite as: 573 U. S. ____ (2014) 3
Opinion of the Court
behind the over-the-air broadcast, until the subscriber has
received the entire show. See A Dictionary of Computing
494 (6th ed. 2008) (defining “streaming” as “[t]he process
of providing a steady flow of audio or video data so that an
Internet user is able to access it as it is transmitted”).
Aereo emphasizes that the data that its system streams
to each subscriber are the data from his own personal
copy, made from the broadcast signals received by the
particular antenna allotted to him. Its system does not
transmit data saved in one subscriber’s folder to any other
subscriber. When two subscribers wish to watch the same
program, Aereo’s system activates two separate antennas
and saves two separate copies of the program in two sepa-
rate folders. It then streams the show to the subscribers
through two separate transmissions—each from the sub-
scriber’s personal copy.
B
Petitioners are television producers, marketers, distrib-
utors, and broadcasters who own the copyrights in many
of the programs that Aereo’s system streams to its sub-
scribers. They brought suit against Aereo for copyright
infringement in Federal District Court. They sought a
preliminary injunction, arguing that Aereo was infringing
their right to “perform” their works “publicly,” as the
Transmit Clause defines those terms.
The District Court denied the preliminary injunction.
874 F. Supp. 2d 373 (SDNY 2012). Relying on prior Cir-
cuit precedent, a divided panel of the Second Circuit af-
firmed. WNET, Thirteen v. Aereo, Inc., 712 F.3d 676
(2013) (citing Cartoon Network LP, LLLP v. CSC Hold-
ings, Inc., 536 F.3d 121 (2008)). In the Second Circuit’s
view, Aereo does not perform publicly within the meaning
of the Transmit Clause because it does not transmit “to
the public.” Rather, each time Aereo streams a program to
a subscriber, it sends a private transmission that is avail-
4 AMERICAN BROADCASTING COS. v. AEREO, INC.
Opinion of the Court
able only to that subscriber. The Second Circuit denied
rehearing en banc, over the dissent of two judges. WNET,
Thirteen v. Aereo, Inc., 722 F.3d 500 (2013). We granted
certiorari.
II
This case requires us to answer two questions: First, in
operating in the manner described above, does Aereo
“perform” at all? And second, if so, does Aereo do so “pub-
licly”? We address these distinct questions in turn.
Does Aereo “perform”? See §106(4) (“[T]he owner of [a]
copyright . . . has the exclusive righ[t] . . . to perform the
copyrighted work publicly” (emphasis added)); §101 (“To
perform . . . a work ‘publicly’ means [among other things]
to transmit . . . a performance . . . of the work . . . to the
public . . . ” (emphasis added)). Phrased another way, does
Aereo “transmit . . . a performance” when a subscriber
watches a show using Aereo’s system, or is it only the
subscriber who transmits? In Aereo’s view, it does not
perform. It does no more than supply equipment that
“emulate[s] the operation of a home antenna and [digital
video recorder (DVR)].” Brief for Respondent 41. Like a
home antenna and DVR, Aereo’s equipment simply re-
sponds to its subscribers’ directives. So it is only the
subscribers who “perform” when they use Aereo’s equip-
ment to stream television programs to themselves.
Considered alone, the language of the Act does not
clearly indicate when an entity “perform[s]” (or “trans-
mit[s]”) and when it merely supplies equipment that
allows others to do so. But when read in light of its pur-
pose, the Act is unmistakable: An entity that engages in
activities like Aereo’s performs.
A
History makes plain that one of Congress’ primary
purposes in amending the Copyright Act in 1976 was to
Cite as: 573 U. S. ____ (2014) 5
Opinion of the Court
overturn this Court’s determination that community
antenna television (CATV) systems (the precursors of
modern cable systems) fell outside the Act’s scope. In
Fortnightly Corp. v. United Artists Television, Inc., 392
U.S. 390 (1968), the Court considered a CATV system
that carried local television broadcasting, much of which
was copyrighted, to its subscribers in two cities. The
CATV provider placed antennas on hills above the cities
and used coaxial cables to carry the signals received by the
antennas to the home television sets of its subscribers.
The system amplified and modulated the signals in order
to improve their strength and efficiently transmit them to
subscribers. A subscriber “could choose any of the . . .
programs he wished to view by simply turning the knob on
his own television set.” Id., at 392. The CATV provider
“neither edited the programs received nor originated any
programs of its own.” Ibid.
Asked to decide whether the CATV provider infringed
copyright holders’ exclusive right to perform their works
publicly, the Court held that the provider did not “per-
form” at all. See 17 U.S. C. §1(c) (1964 ed.) (granting
copyright holder the exclusive right to “perform . . . in
public for profit” a nondramatic literary work), §1(d)
(granting copyright holder the exclusive right to “perform
. . . publicly” a dramatic work). The Court drew a line:
“Broadcasters perform. Viewers do not perform.” 392
U.S., at 398 (footnote omitted). And a CATV provider
“falls on the viewer’s side of the line.” Id., at 399.
The Court reasoned that CATV providers were unlike
broadcasters:
“Broadcasters select the programs to be viewed; CATV
systems simply carry, without editing, whatever pro-
grams they receive. Broadcasters procure programs
and propagate them to the public; CATV systems re-
ceive programs that have been released to the public
6 AMERICAN BROADCASTING COS. v. AEREO, INC.
Opinion of the Court
and carry them by private channels to additional
viewers.” Id., at 400.
Instead, CATV providers were more like viewers, for “the
basic function [their] equipment serves is little different
from that served by the equipment generally furnished by”
viewers. Id., at 399. “Essentially,” the Court said, “a
CATV system no more than enhances the viewer’s capac-
ity to receive the broadcaster’s signals [by] provid[ing] a
well-located antenna with an efficient connection to the
viewer’s television set.” Ibid. Viewers do not become
performers by using “amplifying equipment,” and a CATV
provider should not be treated differently for providing
viewers the same equipment. Id., at 398–400.
In Teleprompter Corp. v. Columbia Broadcasting Sys-
tem, Inc., 415 U.S. 394 (1974), the Court considered the
copyright liability of a CATV provider that carried broad-
cast television programming into subscribers’ homes from
hundreds of miles away. Although the Court recognized
that a viewer might not be able to afford amplifying
equipment that would provide access to those distant
signals, it nonetheless found that the CATV provider was
more like a viewer than a broadcaster. Id., at 408–409. It
explained: “The reception and rechanneling of [broadcast
television signals] for simultaneous viewing is essentially
a viewer function, irrespective of the distance between the
broadcasting station and the ultimate viewer.” Id., at 408.
The Court also recognized that the CATV system exer-
cised some measure of choice over what to transmit. But
that fact did not transform the CATV system into a broad-
caster. A broadcaster exercises significant creativity in
choosing what to air, the Court reasoned. Id., at 410. In
contrast, the CATV provider makes an initial choice about
which broadcast stations to retransmit, but then “ ‘simply
carr[ies], without editing, whatever programs [it] re-
ceive[s].’ ” Ibid. (quoting Fortnightly, supra, at 400 (altera-
Cite as: 573 U. S. ____ (2014) 7
Opinion of the Court
tions in original)).
B
In 1976 Congress amended the Copyright Act in large
part to reject the Court’s holdings in Fortnightly and
Teleprompter. See H. R. Rep. No. 94–1476, pp. 86–87
(1976) (hereinafter H. R. Rep.) (The 1976 amendments
“completely overturned” this Court’s narrow construction
of the Act in Fortnightly and Teleprompter). Congress
enacted new language that erased the Court’s line be-
tween broadcaster and viewer, in respect to “perform[ing]”
a work. The amended statute clarifies that to “perform”
an audiovisual work means “to show its images in any
sequence or to make the sounds accompanying it audible.”
§101; see ibid. (defining “[a]udiovisual works” as “works
that consist of a series of related images which are intrin-
sically intended to be shown by the use of machines . . . ,
together with accompanying sounds”). Under this new
language, both the broadcaster and the viewer of a televi-
sion program “perform,” because they both show the pro-
gram’s images and make audible the program’s sounds.
See H. R. Rep., at 63 (“[A] broadcasting network is per-
forming when it transmits [a singer’s performance of a
song] . . . and any individual is performing whenever he or
she . . . communicates the performance by turning on a
receiving set”).
Congress also enacted the Transmit Clause, which
specifies that an entity performs publicly when it “trans-
mit[s] . . . a performance . . . to the public.” §101; see ibid.
(defining “[t]o ‘transmit’ a performance” as “to communi-
cate it by any device or process whereby images or sounds
are received beyond the place from which they are sent”).
Cable system activities, like those of the CATV systems in
Fortnightly and Teleprompter, lie at the heart of the activ-
ities that Congress intended this language to cover. See
H. R. Rep., at 63 (“[A] cable television system is perform-
8 AMERICAN BROADCASTING COS. v. AEREO, INC.
Opinion of the Court
ing when it retransmits [a network] broadcast to its sub-
scribers”); see also ibid. (“[T]he concep[t] of public perfor-
mance . . . cover[s] not only the initial rendition or show-
ing, but also any further act by which that rendition or
showing is transmitted or communicated to the public”).
The Clause thus makes clear that an entity that acts like
a CATV system itself performs, even if when doing so, it
simply enhances viewers’ ability to receive broadcast
television signals.
Congress further created a new section of the Act to
regulate cable companies’ public performances of copy-
righted works. See §111. Section 111 creates a complex,
highly detailed compulsory licensing scheme that sets out
the conditions, including the payment of compulsory fees,
under which cable systems may retransmit broadcasts.
H. R. Rep., at 88 (Section 111 is primarily “directed at the
operation of cable television systems and the terms and
conditions of their liability for the retransmission of copy-
righted works”).
Congress made these three changes to achieve a similar
end: to bring the activities of cable systems within the
scope of the Copyright Act.
C
This history makes clear that Aereo is not simply an
equipment provider. Rather, Aereo, and not just its sub-
scribers, “perform[s]” (or “transmit[s]”). Aereo’s activities
are substantially similar to those of the CATV companies
that Congress amended the Act to reach. See id., at 89
(“[C]able systems are commercial enterprises whose basic
retransmission operations are based on the carriage of
copyrighted program material”). Aereo sells a service that
allows subscribers to watch television programs, many of
which are copyrighted, almost as they are being broadcast.
In providing this service, Aereo uses its own equipment,
housed in a centralized warehouse, outside of its users’
Cite as: 573 U. S. ____ (2014) 9
Opinion of the Court
homes. By means of its technology (antennas, trans-
coders, and servers), Aereo’s system “receive[s] programs
that have been released to the public and carr[ies] them by
private channels to additional viewers.” Fortnightly, 392
U.S., at 400. It “carr[ies] . . . whatever programs [it]
receive[s],” and it offers “all the programming” of each
over-the-air station it carries. Id., at 392, 400.
Aereo’s equipment may serve a “viewer function”; it may
enhance the viewer’s ability to receive a broadcaster’s
programs. It may even emulate equipment a viewer could
use at home. But the same was true of the equipment that
was before the Court, and ultimately before Congress, in
Fortnightly and Teleprompter.
We recognize, and Aereo and the dissent emphasize,
one particular difference between Aereo’s system and the
cable systems at issue in Fortnightly and Teleprompter.
The systems in those cases transmitted constantly; they
sent continuous programming to each subscriber’s televi-
sion set. In contrast, Aereo’s system remains inert until a
subscriber indicates that she wants to watch a program.
Only at that moment, in automatic response to the sub-
scriber’s request, does Aereo’s system activate an antenna
and begin to transmit the requested program.
This is a critical difference, says the dissent. It means
that Aereo’s subscribers, not Aereo, “selec[t] the copy-
righted content” that is “perform[ed],” post, at 4 (opinion of
SCALIA, J.), and for that reason they, not Aereo, “transmit”
the performance. Aereo is thus like “a copy shop that
provides its patrons with a library card.” Post, at 5. A
copy shop is not directly liable whenever a patron uses the
shop’s machines to “reproduce” copyrighted materials
found in that library. See §106(1) (“exclusive righ[t] . . . to
reproduce the copyrighted work”). And by the same token,
Aereo should not be directly liable whenever its patrons
use its equipment to “transmit” copyrighted television
programs to their screens.
10 AMERICAN BROADCASTING COS. v. AEREO, INC.
Opinion of the Court
In our view, however, the dissent’s copy shop argument,
in whatever form, makes too much out of too little. Given
Aereo’s overwhelming likeness to the cable companies
targeted by the 1976 amendments, this sole technological
difference between Aereo and traditional cable companies
does not make a critical difference here. The subscribers
of the Fortnightly and Teleprompter cable systems also
selected what programs to display on their receiving sets.
Indeed, as we explained in Fortnightly, such a subscriber
“could choose any of the . . . programs he wished to view by
simply turning the knob on his own television set.” 392
U.S., at 392. The same is true of an Aereo subscriber. Of
course, in Fortnightly the television signals, in a sense,
lurked behind the screen, ready to emerge when the sub-
scriber turned the knob. Here the signals pursue their
ordinary course of travel through the universe until to-
day’s “turn of the knob”—a click on a website—activates
machinery that intercepts and reroutes them to Aereo’s
subscribers over the Internet. But this difference means
nothing to the subscriber. It means nothing to the broad-
caster. We do not see how this single difference, invisible
to subscriber and broadcaster alike, could transform a
system that is for all practical purposes a traditional cable
system into “a copy shop that provides its patrons with a
library card.”
In other cases involving different kinds of service or
technology providers, a user’s involvement in the opera-
tion of the provider’s equipment and selection of the con-
tent transmitted may well bear on whether the provider
performs within the meaning of the Act. But the many
similarities between Aereo and cable companies, consid-
ered in light of Congress’ basic purposes in amending the
Copyright Act, convince us that this difference is not
critical here. We conclude that Aereo is not just an
equipment supplier and that Aereo “perform[s].”
Cite as: 573 U. S. ____ (2014)
11
Opinion of the Court
III
Next, we must consider whether Aereo performs peti-
tioners’ works “publicly,” within the meaning of the
Transmit Clause. Under the Clause, an entity performs a
work publicly when it “transmit[s] . . . a performance . . . of
the work . . . to the public.” §101. Aereo denies that it
satisfies this definition. It reasons as follows: First, the
“performance” it “transmit[s]” is the performance created
by its act of transmitting. And second, because each of
these performances is capable of being received by one and
only one subscriber, Aereo transmits privately, not pub-
licly. Even assuming Aereo’s first argument is correct, its
second does not follow.
We begin with Aereo’s first argument. What perfor-
mance does Aereo transmit? Under the Act, “[t]o ‘trans-
mit’ a performance . . . is to communicate it by any device
or process whereby images or sounds are received beyond
the place from which they are sent.” Ibid. And “[t]o ‘per-
form’ ” an audiovisual work means “to show its images in
any sequence or to make the sounds accompanying it
audible.” Ibid.
Petitioners say Aereo transmits a prior performance of
their works. Thus when Aereo retransmits a network’s
prior broadcast, the underlying broadcast (itself a perfor-
mance) is the performance that Aereo transmits. Aereo,
as discussed above, says the performance it transmits is
the new performance created by its act of transmitting.
That performance comes into existence when Aereo
streams the sounds and images of a broadcast program to
a subscriber’s screen.
We assume arguendo that Aereo’s first argument is
correct. Thus, for present purposes, to transmit a perfor-
mance of (at least) an audiovisual work means to com-
municate contemporaneously visible images and contem-
poraneously audible sounds of the work. Cf. United States
v. American Soc. of Composers, Authors and Publishers,
12 AMERICAN BROADCASTING COS. v. AEREO, INC.
Opinion of the Court
627 F.3d 64, 73 (CA2 2010) (holding that a download of a
work is not a performance because the data transmitted
are not “contemporaneously perceptible”). When an Aereo
subscriber selects a program to watch, Aereo streams the
program over the Internet to that subscriber. Aereo
thereby “communicate[s]” to the subscriber, by means of a
“device or process,” the work’s images and sounds. §101.
And those images and sounds are contemporaneously
visible and audible on the subscriber’s computer (or other
Internet-connected device). So under our assumed defini-
tion, Aereo transmits a performance whenever its sub-
scribers watch a program.
But what about the Clause’s further requirement that
Aereo transmit a performance “to the public”? As we have
said, an Aereo subscriber receives broadcast television
signals with an antenna dedicated to him alone. Aereo’s
system makes from those signals a personal copy of the
selected program. It streams the content of the copy to the
same subscriber and to no one else. One and only one
subscriber has the ability to see and hear each Aereo
transmission. The fact that each transmission is to only
one subscriber, in Aereo’s view, means that it does not
transmit a performance “to the public.”
In terms of the Act’s purposes, these differences do not
distinguish Aereo’s system from cable systems, which do
perform “publicly.” Viewed in terms of Congress’ regula-
tory objectives, why should any of these technological differ-
ences matter? They concern the behind-the-scenes way in
which Aereo delivers television programming to its view-
ers’ screens. They do not render Aereo’s commercial objec-
tive any different from that of cable companies. Nor do
they significantly alter the viewing experience of Aereo’s
subscribers. Why would a subscriber who wishes to watch
a television show care much whether images and sounds
are delivered to his screen via a large multisubscriber
antenna or one small dedicated antenna, whether they
Cite as: 573 U. S. ____ (2014) 13
Opinion of the Court
arrive instantaneously or after a few seconds’ delay, or
whether they are transmitted directly or after a personal
copy is made? And why, if Aereo is right, could not mod-
ern CATV systems simply continue the same commercial
and consumer-oriented activities, free of copyright re-
strictions, provided they substitute such new technologies
for old? Congress would as much have intended to protect
a copyright holder from the unlicensed activities of Aereo
as from those of cable companies.
The text of the Clause effectuates Congress’ intent.
Aereo’s argument to the contrary relies on the premise
that “to transmit . . . a performance” means to make a
single transmission. But the Clause suggests that an
entity may transmit a performance through multiple,
discrete transmissions. That is because one can “trans-
mit” or “communicate” something through a set of actions.
Thus one can transmit a message to one’s friends, irre-
spective of whether one sends separate identical e-mails to
each friend or a single e-mail to all at once. So can an
elected official communicate an idea, slogan, or speech to
her constituents, regardless of whether she communicates
that idea, slogan, or speech during individual phone calls
to each constituent or in a public square.
The fact that a singular noun (“a performance”) follows
the words “to transmit” does not suggest the contrary.
One can sing a song to his family, whether he sings the
same song one-on-one or in front of all together. Similarly,
one’s colleagues may watch a performance of a particular
play—say, this season’s modern-dress version of “Measure
for Measure”—whether they do so at separate or at the
same showings. By the same principle, an entity may
transmit a performance through one or several transmis-
sions, where the performance is of the same work.
The Transmit Clause must permit this interpretation,
for it provides that one may transmit a performance to the
public “whether the members of the public capable of
14 AMERICAN BROADCASTING COS. v. AEREO, INC.
Opinion of the Court
receiving the performance . . . receive it . . . at the same
time or at different times.” §101. Were the words “to
transmit . . . a performance” limited to a single act of
communication, members of the public could not receive
the performance communicated “at different times.”
Therefore, in light of the purpose and text of the Clause,
we conclude that when an entity communicates the same
contemporaneously perceptible images and sounds to
multiple people, it transmits a performance to them re-
gardless of the number of discrete communications it
makes.
We do not see how the fact that Aereo transmits via
personal copies of programs could make a difference. The
Act applies to transmissions “by means of any device or
process.” Ibid. And retransmitting a television program
using user-specific copies is a “process” of transmitting a
performance. A “cop[y]” of a work is simply a “material
objec[t] . . . in which a work is fixed . . . and from which the
work can be perceived, reproduced, or otherwise communi-
cated.” Ibid. So whether Aereo transmits from the same
or separate copies, it performs the same work; it shows the
same images and makes audible the same sounds. There-
fore, when Aereo streams the same television program to
multiple subscribers, it “transmit[s] . . . a performance” to
all of them.
Moreover, the subscribers to whom Aereo transmits
television programs constitute “the public.” Aereo com-
municates the same contemporaneously perceptible images
and sounds to a large number of people who are unre-
lated and unknown to each other. This matters because,
although the Act does not define “the public,” it specifies
that an entity performs publicly when it performs at “any
place where a substantial number of persons outside of a
normal circle of a family and its social acquaintances is
gathered.” Ibid. The Act thereby suggests that “the pub-
lic” consists of a large group of people outside of a family
Cite as: 573 U. S. ____ (2014) 15
Opinion of the Court
and friends.
Neither the record nor Aereo suggests that Aereo’s
subscribers receive performances in their capacities as
owners or possessors of the underlying works. This is
relevant because when an entity performs to a set of peo-
ple, whether they constitute “the public” often depends
upon their relationship to the underlying work. When, for
example, a valet parking attendant returns cars to their
drivers, we would not say that the parking service pro-
vides cars “to the public.” We would say that it provides
the cars to their owners. We would say that a car dealer-
ship, on the other hand, does provide cars to the public, for
it sells cars to individuals who lack a pre-existing relation-
ship to the cars. Similarly, an entity that transmits a
performance to individuals in their capacities as owners or
possessors does not perform to “the public,” whereas an
entity like Aereo that transmits to large numbers of pay-
ing subscribers who lack any prior relationship to the
works does so perform.
Finally, we note that Aereo’s subscribers may receive
the same programs at different times and locations. This
fact does not help Aereo, however, for the Transmit Clause
expressly provides that an entity may perform publicly
“whether the members of the public capable of receiving
the performance . . . receive it in the same place or in
separate places and at the same time or at different
times.” Ibid. In other words, “the public” need not be
situated together, spatially or temporally. For these
reasons, we conclude that Aereo transmits a performance
of petitioners’ copyrighted works to the public, within the
meaning of the Transmit Clause.
IV
Aereo and many of its supporting amici argue that to
apply the Transmit Clause to Aereo’s conduct will impose
copyright liability on other technologies, including new
16 AMERICAN BROADCASTING COS. v. AEREO, INC.
Opinion of the Court
technologies, that Congress could not possibly have wanted
to reach. We agree that Congress, while intending the
Transmit Clause to apply broadly to cable companies and
their equivalents, did not intend to discourage or to control
the emergence or use of different kinds of technologies.
But we do not believe that our limited holding today will
have that effect.
For one thing, the history of cable broadcast transmis-
sions that led to the enactment of the Transmit Clause
informs our conclusion that Aereo “perform[s],” but it does
not determine whether different kinds of providers in
different contexts also “perform.” For another, an entity
only transmits a performance when it communicates
contemporaneously perceptible images and sounds of a
work. See Brief for Respondent 31 (“[I]f a distributor . . .
sells [multiple copies of a digital video disc] by mail to
consumers, . . . [its] distribution of the DVDs merely
makes it possible for the recipients to perform the work
themselves—it is not a ‘device or process’ by which the
distributor publicly performs the work” (emphasis in
original)).
Further, we have interpreted the term “the public” to
apply to a group of individuals acting as ordinary mem-
bers of the public who pay primarily to watch broadcast
television programs, many of which are copyrighted. We
have said that it does not extend to those who act as own-
ers or possessors of the relevant product. And we have not
considered whether the public performance right is in-
fringed when the user of a service pays primarily for
something other than the transmission of copyrighted
works, such as the remote storage of content. See Brief for
United States as Amicus Curiae 31 (distinguishing cloud-
based storage services because they “offer consumers more
numerous and convenient means of playing back copies
that the consumers have already lawfully acquired” (em-
phasis in original)). In addition, an entity does not trans-
Cite as: 573 U. S. ____ (2014) 17
Opinion of the Court
mit to the public if it does not transmit to a substantial
number of people outside of a family and its social circle.
We also note that courts often apply a statute’s highly
general language in light of the statute’s basic purposes.
Finally, the doctrine of “fair use” can help to prevent
inappropriate or inequitable applications of the Clause.
See Sony Corp. of America v. Universal City Studios, Inc.,
464 U.S. 417 (1984).
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.” Brief for United States as Amicus
Curiae 34 (quoting Sony, supra, at 431 (alteration in
original)). And we note that, to the extent commercial
actors or other interested entities may be concerned with
the relationship between the development and use of such
technologies and the Copyright Act, they are of course free
to seek action from Congress. Cf. Digital Millennium
Copyright Act, 17 U.S. C. §512.
* * *
In sum, having considered the details of Aereo’s practices,
we find them highly similar to those of the CATV systems
in Fortnightly and Teleprompter. And those are activities
that the 1976 amendments sought to bring within the
scope of the Copyright Act. Insofar as there are differ-
ences, those differences concern not the nature of the
service that Aereo provides so much as the technological
manner in which it provides the service. We conclude that
those differences are not adequate to place Aereo’s activi-
ties outside the scope of the Act.
For these reasons, we conclude that Aereo “perform[s]”
18 AMERICAN BROADCASTING COS. v. AEREO, INC.
Opinion of the Court
petitioners’ copyrighted works “publicly,” as those terms
are defined by the Transmit Clause. We therefore reverse
the contrary judgment of the Court of Appeals, and we
remand the case for further proceedings consistent with
this opinion.
It is so ordered.
Cite as: 573 U. S. ____ (2014) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–461
_________________
AMERICAN BROADCASTING COMPANIES, INC.,
ET AL., PETITIONERS v. AEREO, INC., FKA
BAMBOOM LABS, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 25, 2014]
JUSTICE SCALIA, with whom JUSTICE THOMAS and
JUSTICE ALITO join, dissenting.
This case is the latest skirmish in the long-running
copyright battle over the delivery of television program-
ming. Petitioners, a collection of television networks and
affiliates (Networks), broadcast copyrighted programs on
the public airwaves for all to see. Aereo, respondent,
operates an automated system that allows subscribers to
receive, on Internet-connected devices, programs that they
select, including the Networks’ copyrighted programs.
The Networks sued Aereo for several forms of copyright
infringement, but we are here concerned with a single
claim: that Aereo violates the Networks’ “exclusive righ[t]”
to “perform” their programs “publicly.” 17 U.S. C.
§106(4). That claim fails at the very outset because Aereo
does not “perform” at all. The Court manages to reach the
opposite conclusion only by disregarding widely accepted
rules for service-provider liability and adopting in their
place an improvised standard (“looks-like-cable-TV”) that
will sow confusion for years to come.
I. Legal Standard
There are two types of liability for copyright infringe-
ment: direct and secondary. As its name suggests, the
2 AMERICAN BROADCASTING COS. v. AEREO, INC.
SCALIA, J., dissenting
former applies when an actor personally engages in in-
fringing conduct. See Sony Corp. of America v. Universal
City Studios, Inc., 464 U.S. 417, 433 (1984). Secondary
liability, by contrast, is a means of holding defendants
responsible for infringement by third parties, even when
the defendants “have not themselves engaged in the in-
fringing activity.” Id., at 435. It applies when a defendant
“intentionally induc[es] or encourag[es]” infringing acts by
others or profits from such acts “while declining to exer-
cise a right to stop or limit [them].” Metro-Goldwyn-Mayer
Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005).
Most suits against equipment manufacturers and ser-
vice providers involve secondary-liability claims. For ex-
ample, when movie studios sued to block the sale of
Sony’s Betamax videocassette recorder (VCR), they argued
that Sony was liable because its customers were making
unauthorized copies. See Sony, supra, at 434–435. Record
labels and movie studios relied on a similar theory when
they sued Grokster and StreamCast, two providers of
peer-to-peer file-sharing software. See Grokster, supra, at
920–921, 927.
This suit, or rather the portion of it before us here, is
fundamentally different. The Networks claim that Aereo
directly infringes their public-performance right. Accord-
ingly, the Networks must prove that Aereo “perform[s]”
copyrighted works, §106(4), when its subscribers log in,
select a channel, and push the “watch” button. That pro-
cess undoubtedly results in a performance; the question is
who does the performing. See Cartoon Network LP, LLLP
v. CSC Holdings, Inc., 536 F.3d 121, 130 (CA2 2008). If
Aereo’s subscribers perform but Aereo does not, the claim
necessarily fails.
The Networks’ claim is governed by a simple but pro-
foundly important rule: A defendant may be held directly
liable only if it has engaged in volitional conduct that
violates the Act. See 3 W. Patry, Copyright §9:5.50 (2013).
Cite as: 573 U. S. ____ (2014) 3
SCALIA, J., dissenting
This requirement is firmly grounded in the Act’s text,
which defines “perform” in active, affirmative terms: One
“perform[s]” a copyrighted “audiovisual work,” such as a
movie or news broadcast, by “show[ing] its images in any
sequence” or “mak[ing] the sounds accompanying it audi-
ble.” §101. And since the Act makes it unlawful to copy or
perform copyrighted works, not to copy or perform in
general, see §501(a), the volitional-act requirement de-
mands conduct directed to the plaintiff ’s copyrighted
material, see Sony, supra, at 434. Every Court of Appeals
to have considered an automated-service provider’s direct
liability for copyright infringement has adopted that rule.
See Fox Broadcasting Co. v. Dish Network LLC, 747 F.3d
1060, 1066–1068 (CA9 2014); Cartoon Network, supra, at
130–131 (CA2 2008); CoStar Group, Inc. v. LoopNet, Inc.,
373 F.3d 544, 549–550 (CA4 2004).1 Although we have
not opined on the issue, our cases are fully consistent with
a volitional-conduct requirement. For example, we gave
several examples of direct infringement in Sony, each of
which involved a volitional act directed to the plaintiff ’s
copyrighted material. See 464 U.S., at 437, n. 18.
The volitional-conduct requirement is not at issue in
most direct-infringement cases; the usual point of dispute
is whether the defendant’s conduct is infringing (e.g., Does
the defendant’s design copy the plaintiff ’s?), rather than
whether the defendant has acted at all (e.g., Did this
defendant create the infringing design?). But it comes
right to the fore when a direct-infringement claim is
——————
1 An unpublished decision of the Third Circuit is to the same effect.
Parker v. Google, Inc., 242 Fed. Appx. 833, 836–837 (2007) (per curiam).
The Networks muster only one case they say stands for a different
approach, New York Times Co. v. Tasini, 533 U.S. 483 (2001). Reply
Brief 18. But Tasini is clearly inapposite; it dealt with the question
whether the defendants’ copying was permissible, not whether the
defendants were the ones who made the copies. See 533 U.S., at 487–
488, 492, 504–506.
4 AMERICAN BROADCASTING COS. v. AEREO, INC.
SCALIA, J., dissenting
lodged against a defendant who does nothing more than
operate an automated, user-controlled system. See, e.g.,
Fox Broadcasting, supra, at 1067; Cartoon Network, supra,
at 131. Internet-service providers are a prime example.
When one user sends data to another, the provider’s
equipment facilitates the transfer automatically. Does
that mean that the provider is directly liable when the
transmission happens to result in the “reproduc[tion],”
§106(1), of a copyrighted work? It does not. The provid-
er’s system is “totally indifferent to the material’s con-
tent,” whereas courts require “some aspect of volition”
directed at the copyrighted material before direct liability
may be imposed. CoStar, 373 F.3d, at 550–551.2 The
defendant may be held directly liable only if the defendant
itself “trespassed on the exclusive domain of the copyright
owner.” Id., at 550. Most of the time that issue will come
down to who selects the copyrighted content: the defend-
ant or its customers. See Cartoon Network, supra, at
131–132.
A comparison between copy shops and video-on-demand
services illustrates the point. A copy shop rents out photo-
copiers on a per-use basis. One customer might copy his
10-year-old’s drawings—a perfectly lawful thing to do—
while another might duplicate a famous artist’s copyrighted
photographs—a use clearly prohibited by §106(1). Either
way, the customer chooses the content and activates the
copying function; the photocopier does nothing except in
response to the customer’s commands. Because the shop
plays no role in selecting the content, it cannot be held
directly liable when a customer makes an infringing copy.
See CoStar, supra, at 550.
——————
2 Congress has enacted several safe-harbor provisions applicable to
automated network processes, see, e.g., 17 U.S. C. §512(a)–(b), but
those provisions do not foreclose “any other defense,” §512(l), including
a volitional-conduct defense.
Cite as: 573 U. S. ____ (2014) 5
SCALIA, J., dissenting
Video-on-demand services, like photocopiers, respond
automatically to user input, but they differ in one crucial
respect: They choose the content. When a user signs in to
Netflix, for example, “thousands of . . . movies [and] TV
episodes” carefully curated by Netflix are “available to
watch instantly.” See How [D]oes Netflix [W]ork?, online
at http://help.netflix.com/en/node/412 (as visited June 20,
2014, and available in Clerk of Court’s case file). That
selection and arrangement by the service provider consti-
tutes a volitional act directed to specific copyrighted works
and thus serves as a basis for direct liability.
The distinction between direct and secondary liability
would collapse if there were not a clear rule for deter-
mining whether the defendant committed the infringing
act. See Cartoon Network, 536 F.3d, at 132–133. The
volitional-conduct requirement supplies that rule; its
purpose is not to excuse defendants from accountability,
but to channel the claims against them into the correct
analytical track. See Brief for 36 Intellectual Property
and Copyright Law Professors as Amici Curiae 7. Thus, in
the example given above, the fact that the copy shop does
not choose the content simply means that its culpability
will be assessed using secondary-liability rules rather
than direct-liability rules. See Sony, supra, at 434–442;
Cartoon Network, supra, at 132–133.
II. Application to Aereo
So which is Aereo: the copy shop or the video-on-demand
service? In truth, it is neither. Rather, it is akin to a copy
shop that provides its patrons with a library card. Aereo
offers access to an automated system consisting of routers,
servers, transcoders, and dime-sized antennae. Like a
photocopier or VCR, that system lies dormant until a
subscriber activates it. When a subscriber selects a pro-
gram, Aereo’s system picks up the relevant broadcast
signal, translates its audio and video components into
6 AMERICAN BROADCASTING COS. v. AEREO, INC.
SCALIA, J., dissenting
digital data, stores the data in a user-specific file, and
transmits that file’s contents to the subscriber via the
Internet—at which point the subscriber’s laptop, tablet, or
other device displays the broadcast just as an ordinary
television would. The result of that process fits the statu-
tory definition of a performance to a tee: The subscriber’s
device “show[s]” the broadcast’s “images” and “make[s] the
sounds accompanying” the broadcast “audible.” §101. The
only question is whether those performances are the prod-
uct of Aereo’s volitional conduct.
They are not. Unlike video-on-demand services, Aereo
does not provide a prearranged assortment of movies and
television shows. Rather, it assigns each subscriber an
antenna that—like a library card—can be used to obtain
whatever broadcasts are freely available. Some of those
broadcasts are copyrighted; others are in the public do-
main. The key point is that subscribers call all the shots:
Aereo’s automated system does not relay any program,
copyrighted or not, until a subscriber selects the program
and tells Aereo to relay it. Aereo’s operation of that sys-
tem is a volitional act and a but-for cause of the resulting
performances, but, as in the case of the copy shop, that
degree of involvement is not enough for direct liability.
See Grokster, 545 U.S., at 960 (BREYER, J., concurring)
(“[T]he producer of a technology which permits unlawful
copying does not himself engage in unlawful copying”).
In sum, Aereo does not “perform” for the sole and simple
reason that it does not make the choice of content. And
because Aereo does not perform, it cannot be held directly
liable for infringing the Networks’ public-performance
right.3 That conclusion does not necessarily mean that
Aereo’s service complies with the Copyright Act. Quite the
——————
3 Because I conclude that Aereo does not perform at all, I do not reach
the question whether the performances in this case are to the public.
See ante, at 10–15.
Cite as: 573 U. S. ____ (2014) 7
SCALIA, J., dissenting
contrary. The Networks’ complaint alleges that Aereo is
directly and secondarily liable for infringing their public-
performance rights (§106(4)) and also their reproduction
rights (§106(1)). Their request for a preliminary injunc-
tion—the only issue before this Court—is based exclusively
on the direct-liability portion of the public-performance
claim (and further limited to Aereo’s “watch” function, as
opposed to its “record” function). See App. to Pet. for Cert.
60a–61a. Affirming the judgment below would merely
return this case to the lower courts for consideration of the
Networks’ remaining claims.
III. Guilt By Resemblance
The Court’s conclusion that Aereo performs boils down
to the following syllogism: (1) Congress amended the Act
to overrule our decisions holding that cable systems do not
perform when they retransmit over-the-air broadcasts;4 (2)
Aereo looks a lot like a cable system; therefore (3) Aereo
performs. Ante, at 4–10. That reasoning suffers from a
trio of defects.
First, it is built on the shakiest of foundations. Perceiv-
ing the text to be ambiguous, ante, at 4, the Court reaches
out to decide the case based on a few isolated snippets of
legislative history, ante, at 7–8 (citing H. R. Rep. No. 94–
1476 (1976)). The Court treats those snippets as authori-
tative evidence of congressional intent even though they
come from a single report issued by a committee whose
members make up a small fraction of one of the two Houses
of Congress. Little else need be said here about the severe
shortcomings of that interpretative methodology. See
Lawson v. FMR LLC, 571 U. S. ___, ___ (2014) (SCALIA, J.,
concurring in principal part and concurring in judgment)
(slip op., at 1–2).
——————
4 See Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415
U.S. 394 (1974); Fortnightly Corp. v. United Artists Television, Inc.,
392 U.S. 390 (1968).
8 AMERICAN BROADCASTING COS. v. AEREO, INC.
SCALIA, J., dissenting
Second, the Court’s reasoning fails on its own terms
because there are material differences between the cable
systems at issue in Teleprompter Corp. v. Columbia
Broadcasting System, Inc., 415 U.S. 394 (1974), and Fort-
nightly Corp. v. United Artists Television, Inc., 392 U.S.
390 (1968), on the one hand and Aereo on the other. The
former (which were then known as community-antenna
television systems) captured the full range of broadcast
signals and forwarded them to all subscribers at all times,
whereas Aereo transmits only specific programs selected
by the user, at specific times selected by the user. The
Court acknowledges this distinction but blithely concludes
that it “does not make a critical difference.” Ante, at 10.
Even if that were true, the Court fails to account for other
salient differences between the two technologies.5 Though
cable systems started out essentially as dumb pipes that
routed signals from point A to point B, see ante, at 5, by
the 1970’s, that kind of service “ ‘no longer exist[ed],’ ”
Brief for Petitioners in Columbia Broadcasting System,
Inc. v. Teleprompter Corp., O. T. 1973, No. 72–1633, p. 22.
At the time of our Teleprompter decision, cable companies
“perform[ed] the same functions as ‘broadcasters’ by delib-
erately selecting and importing distant signals, originat-
ing programs, [and] selling commercials,” id., at 20, thus
making them curators of content—more akin to video-on-
demand services than copy shops. So far as the record
reveals, Aereo does none of those things.
——————
5 The Court observes that “[t]he subscribers of the Fortnightly and
Teleprompter cable systems . . . selected what programs to display on
their receiving sets,” but acknowledges that those choices were possible
only because “the television signals, in a sense, lurked behind the
screen, ready to emerge when the subscriber turned the knob.” Ante, at
10. The latter point is dispositive: The signals were “ready to emerge”
because the cable system—much like a video-on-demand provider—
took affirmative, volitional steps to put them there. As discussed
above, the same cannot be said of the programs available through
Aereo’s automated system.
Cite as: 573 U. S. ____ (2014) 9
SCALIA, J., dissenting
Third, and most importantly, even accepting that the
1976 amendments had as their purpose the overruling of
our cable-TV cases, what they were meant to do and how
they did it are two different questions—and it is the latter
that governs the case before us here. The injury claimed
is not violation of a law that says operations similar to
cable TV are subject to copyright liability, but violation of
§106(4) of the Copyright Act. And whatever soothing
reasoning the Court uses to reach its result (“this looks
like cable TV”), the consequence of its holding is that
someone who implements this technology “perform[s]”
under that provision. That greatly disrupts settled juris-
prudence which, before today, applied the straightforward,
bright-line test of volitional conduct directed at the copy-
righted work. If that test is not outcome determinative in
this case, presumably it is not outcome determinative
elsewhere as well. And it is not clear what the Court
proposes to replace it. Perhaps the Court means to adopt
(invent, really) a two-tier version of the Copyright Act, one
part of which applies to “cable companies and their equiv-
alents” while the other governs everyone else. Ante, at 9–
10, 16.
The rationale for the Court’s ad hoc rule for cable-
system lookalikes is so broad that it renders nearly a third
of the Court’s opinion superfluous. Part II of the opinion
concludes that Aereo performs because it resembles a
cable company, and Congress amended the Act in 1976 “to
bring the activities of cable systems within [its] scope.”
Ante, at 8. Part III of the opinion purports to address
separately the question whether Aereo performs “pub-
licly.” Ante, at 10–15. Trouble is, that question cannot
remain open if Congress’s supposed intent to regulate
whatever looks like a cable company must be given legal
effect (as the Court says in Part II). The Act reaches only
public performances, see §106(4), so Congress could not
have regulated “the activities of cable systems” without
10 AMERICAN BROADCASTING COS. v. AEREO, INC.
SCALIA, J., dissenting
deeming their retransmissions public performances. The
upshot is this: If Aereo’s similarity to a cable company
means that it performs, then by necessity that same char-
acteristic means that it does so publicly, and Part III of
the Court’s opinion discusses an issue that is no longer
relevant—though discussing it certainly gives the opinion
the “feel” of real textual analysis.
Making matters worse, the Court provides no criteria
for determining when its cable-TV-lookalike rule applies.
Must a defendant offer access to live television to qualify?
If similarity to cable-television service is the measure,
then the answer must be yes. But consider the implica-
tions of that answer: Aereo would be free to do exactly
what it is doing right now so long as it built mandatory
time shifting into its “watch” function.6 Aereo would not
be providing live television if it made subscribers wait to
tune in until after a show’s live broadcast ended. A sub-
scriber could watch the 7 p.m. airing of a 1-hour program
any time after 8 p.m. Assuming the Court does not intend
to adopt such a do-nothing rule (though it very well may),
there must be some other means of identifying who is and
is not subject to its guilt-by-resemblance regime.
Two other criteria come to mind. One would cover any
automated service that captures and stores live television
broadcasts at a user’s direction. That can’t be right, since
it is exactly what remote storage digital video recorders
(RS–DVRs) do, see Cartoon Network, 536 F.3d, at 124–
125, and the Court insists that its “limited holding” does
not decide the fate of those devices, ante, at 16–17. The
other potential benchmark is the one offered by the Gov-
ernment: The cable-TV-lookalike rule embraces any entity
——————
6 Broadcasts accessible through the “watch” function are technically
not live because Aereo’s servers take anywhere from a few seconds to a
few minutes to begin transmitting data to a subscriber’s device. But
the resulting delay is so brief that it cannot reasonably be classified as
time shifting.
Cite as: 573 U. S. ____ (2014) 11
SCALIA, J., dissenting
that “operates an integrated system, substantially de-
pendent on physical equipment that is used in common by
[its] subscribers.” Brief for United States as Amicus Curiae
20. The Court sensibly avoids that approach because it
would sweep in Internet service providers and a host of
other entities that quite obviously do not perform.
That leaves as the criterion of cable-TV-resemblance
nothing but th’ol’ totality-of-the-circumstances test (which
is not a test at all but merely assertion of an intent to
perform test-free, ad hoc, case-by-case evaluation). It will
take years, perhaps decades, to determine which automated
systems now in existence are governed by the tradi-
tional volitional-conduct test and which get the Aereo
treatment. (And automated systems now in contemplation
will have to take their chances.) The Court vows that its
ruling will not affect cloud-storage providers and cable-
television systems, see ante, at 16–17, but it cannot deliver
on that promise given the imprecision of its result-driven
rule. Indeed, the difficulties inherent in the Court’s
makeshift approach will become apparent in this very
case. Today’s decision addresses the legality of Aereo’s
“watch” function, which provides nearly contemporaneous
access to live broadcasts. On remand, one of the first
questions the lower courts will face is whether Aereo’s
“record” function, which allows subscribers to save a pro-
gram while it is airing and watch it later, infringes the
Networks’ public-performance right. The volitional-
conduct rule provides a clear answer to that question:
Because Aereo does not select the programs viewed by its
users, it does not perform. But it is impossible to say how
the issue will come out under the Court’s analysis, since
cable companies did not offer remote recording and play-
back services when Congress amended the Copyright Act
in 1976.
12 AMERICAN BROADCASTING COS. v. AEREO, INC.
SCALIA, J., dissenting
* * *
I share the Court’s evident feeling that what Aereo is
doing (or enabling to be done) to the Networks’ copyrighted
programming ought not to be allowed. But perhaps we
need not distort the Copyright Act to forbid it. As dis-
cussed at the outset, Aereo’s secondary liability for per-
formance infringement is yet to be determined, as is its
primary and secondary liability for reproduction infringe-
ment. If that does not suffice, then (assuming one shares
the majority’s estimation of right and wrong) what we
have before us must be considered a “loophole” in the law.
It is not the role of this Court to identify and plug loop-
holes. It is the role of good lawyers to identify and exploit
them, and the role of Congress to eliminate them if it
wishes. Congress can do that, I may add, in a much more
targeted, better informed, and less disruptive fashion than
the crude “looks-like-cable-TV” solution the Court invents
today.
We came within one vote of declaring the VCR contra-
band 30 years ago in Sony. See 464 U.S., at 441, n. 21.
The dissent in that case was driven in part by the plain-
tiffs’ prediction that VCR technology would wreak all
manner of havoc in the television and movie industries.
See id., at 483 (opinion of Blackmun, J.); see also Brief for
CBS, Inc., as Amicus Curiae, O. T. 1982, No. 81–1687, p. 2
(arguing that VCRs “directly threatened” the bottom line
of “[e]very broadcaster”).
The Networks make similarly dire predictions about
Aereo. We are told that nothing less than “the very exist-
ence of broadcast television as we know it” is at stake.
Brief for Petitioners 39. Aereo and its amici dispute those
forecasts and make a few of their own, suggesting that a
decision in the Networks’ favor will stifle technological
innovation and imperil billions of dollars of investments in
cloud-storage services. See Brief for Respondents 48–51;
Brief for BSA, The Software Alliance as Amicus Curiae 5–
Cite as: 573 U. S. ____ (2014) 13
SCALIA, J., dissenting
13. We are in no position to judge the validity of those
self-interested claims or to foresee the path of future
technological development. See Sony, supra, at 430–431;
see also Grokster, 545 U.S., at 958 (BREYER, J., concur-
ring). Hence, the proper course is not to bend and twist
the Act’s terms in an effort to produce a just outcome, but
to apply the law as it stands and leave to Congress the
task of deciding whether the Copyright Act needs an
upgrade. I conclude, as the Court concluded in Sony: “It
may well be that Congress will take a fresh look at this
new technology, just as it so often has examined other
innovations in the past. But it is not our job to apply laws
that have not yet been written. Applying the copyright
statute, as it now reads, to the facts as they have been
developed in this case, the judgment of the Court of Ap-
peals must be [affirmed].” 464 U.S., at 456.
I respectfully dissent.