Copyright Act of 1976 - Transmit Clause

Harvard Law Review, November 2014 | Go to article overview

Copyright Act of 1976 - Transmit Clause


In the late 1940s and early 1950s, a new industry of community antenna television (CATV) exploded. (1) By placing an antenna on top of a hill above a community and transmitting signals to subscribers' houses via coaxial cables, CATV companies provided television to areas where hilly terrain made receiving traditional broadcast signals difficult. (2) After the Supreme Court held that such systems did not violate copyright holders' exclusive rights to public performance, (3) Congress revised the copyright law in 1976 and, among other things, enacted the Transmit Clause to supersede those decisions and make such transmissions an infringement of copyright. Last Term, in ABC, Inc. v. Aereo, Inc., (4) the Supreme Court held that a company that transmitted broadcast television to users via the Internet violated the Transmit Clause, even though the user selected what content to watch, and even though each user had a dedicated antenna that produced a "personal" copy of the broadcast. (5) The Court employed a functionalist approach, relying on analogical reasoning rather than analyzing the underlying technical operations of the system--the method that Justice Scalia adopted in his dissent. In doing so, the majority introduced unpredictability into the law by leaving important doctrinal questions unanswered and adopting an approach that lacks clear boundaries.

Prior to the Copyright Act of 1976, (6) the Court read the public performance right narrowly. In 1968, in Fortnightly Corp. v. United Artists Television, Inc., (7) the Court held that a CATV operator is more analogous to a "viewer" than a "performer," and thus cannot face liability under the Copyright Act. (8) The Court affirmed Fortnightly in Teleprompter Corp. v. Columbia Broadcasting System, Inc., (9) and called on Congress to revise the copyright law if it wished to cover such activity. (10) In 1976, Congress enacted a sweeping reform of copyright law, which included adding the Transmit Clause to broaden the definition of what it meant to "publicly perform" a work. (11) According to the Transmit Clause, a work is performed publicly when the performance is transmitted to the public "by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times." (12)

In order to avoid implicating the Transmit Clause, Aereo, a company that allowed users to watch live and recorded broadcast television on a computer or other digital device, employed arrays of tiny television antennas and assigned each antenna to only one user at a time--rather than broadcasting to a multifarious "public." (13) Aereo announced its public launch in February 2012 in New York. (14) Subsequently, a group of broadcasters including ABC and WNET filed suit in the Southern District of New York and moved for a preliminary injunction on the ground of copyright infringement by public performance. (15) Judge Nathan denied the preliminary injunction, (16) relying on a Second Circuit case, Cartoon Network LP, LLLP v. CSC Holdings, Inc. (Cablevision), (17) which held that remote storage digital video recorders (RS-DVRs) do not violate the Transmit Clause. (18) Finding that Aereo's technology was structured similarly to the RS-DVRs and rejecting the plaintiffs' attempts to distinguish Cablevision, (19) Judge Nathan held that the plaintiffs were not likely to prevail on the merits. (20)

The Second Circuit affirmed. Writing for the majority, Judge Droney (21) reaffirmed Cablevision's doctrinal interpretation and found that Aereo's technology, under Cablevision's approach, was noninfringing and that the plaintiffs were therefore unlikely to prevail on the merits. (22) In Cablevision, the Second Circuit had stated that "transmission of a performance is itself a performance," (23) and that the inquiry under the Transmit Clause is who is capable of receiving "a particular transmission of a performance. …

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