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No. 13-461: American Broad. Cos., Inc. V. Aereo, Inc

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No. 13-461: American Broad. Cos., Inc. V. Aereo, Inc No. 13-461 In the Supreme Court of the United States 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 BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONERS EDWIN S. KNEEDLER Deputy Solicitor General Counsel of Record STUART F. DELERY Assistant Attorney General MALCOLM L. STEWART JACQUELINE C. CHARLESWORTH Deputy Solicitor General General Counsel BRIAN H. FLETCHER SARANG VIJAY DAMLE Assistant to the Solicitor Special Advisor to the General General Counsel MARK R. FREEMAN STEPHEN S. RUWE SONIA K. MCNEIL JOHN R. RILEY Attorneys Attorneys Department of Justice United States Copyright Washington, D.C. 20530-0001 Office [email protected] Washington, D.C. 20540 (202) 514-2217 QUESTION PRESENTED The Copyright Act of 1976, 17 U.S.C. 101 et seq., grants the owner of copyright in an audiovisual work the exclusive right “to perform the copyrighted work publicly.” 17 U.S.C. 106(4). Respondent’s service enables paying subscribers to receive copyrighted broadcast television programs over the Internet by using thousands of miniature antennas to capture, create, and stream an individual digital copy of a broadcast program to each subscriber who seeks to watch it. The question presented is as follows: Whether respondent’s service infringes petitioners’ exclusive right “to perform [their] copyrighted work[s] publicly.” (I) TABLE OF CONTENTS Page Interest of the United States ........................................................ 1 Statement .................................................................................... 2 Summary of argument ............................................................. 11 Argument ................................................................................... 14 I. Respondent performs copyrighted works publicly in violation of 17 U.S.C. 106(4)....................................... 16 A. Respondent “performs” copyrighted works .......................................................................... 17 B. Respondent transmits performances of copyrighted broadcast programming “to the public” .................................................................. 23 II. Reversal of the judgment below need not threaten cloud computing ............................................................... 31 Conclusion ................................................................................. 34 TABLE OF AUTHORITIES Cases: Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191 (1931) .................................................................................. 2, 26 Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984) ........................................................................................ 5 Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), cert. denied, 557 U.S. 946 (2009) ...................................................................... passim Community Television of Utah, LLC v. Aereo, Inc., No. 2:13-cv-910, 2014 WL 642828 (D. Utah Feb. 19, 2014), appeal pending, No. 14-4020 (10th Cir. dock- eted Feb. 20, 2014)................................................................ 24 CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004)........................................................................ 19 Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968) ................................................. 2, 3, 17, 22 (III) IV Cases—Continued: Page Fox Television Stations, Inc. v. BarryDriller Con- tent Sys., PLC, 915 F. Supp. 2d 1138 (C.D. Cal. 2012), appeal pending, No. 13-55226 (9th Cir. dock- eted Feb. 7, 2013)............................................................ 22, 24 Fox Television Stations, Inc. v. FilmOn X LLC, No. 13-758, 2013 WL 4763414 (Sept. 5, 2013), ap- peal pending, Nos. 13-7145 and 13-7146 (D.C. Cir. docketed Sept. 17, 2013) ...................................................... 24 Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005)...................................................... 15 National Basketball Ass’n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997).................................................. 26 Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) ......................................................... 33, 34 Teleprompter Corp. v. CBS, Inc., 415 U.S. 394 (1974) ............................................................................ 3, 17, 22 Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975) ................................................................................. 3 United States v. American Soc’y of Composers, Au- thors, & Publishers, 627 F.3d 64 (2d Cir. 2010), cert. denied, 132 S. Ct. 366 (2011) ........................................ 7 WPIX, Inc. v. ivi, Inc., 691 F.3d 275 (2d Cir. 2012), cert. denied, 133 S. Ct. 1585 (2013) .................................... 30 Warner Bros. Entm’t Inc. v. WTV Sys., Inc., 824 F. Supp. 2d 1003 (C.D. Cal. 2011)................................ 19 Statutes: Copyright Act of 1976, 17 U.S.C. 101 et seq................passim 17 U.S.C. 101 ............................................................. passim 17 U.S.C. 102(a) ................................................................... 2 17 U.S.C. 106(1) ............................................................. 2, 32 17 U.S.C. 106(3) ............................................................. 2, 32 V Statutes—Continued: Page 17 U.S.C. 106(4) ................................................... 2, 5, 12, 28 17 U.S.C. 107 ......................................................................32 17 U.S.C. 110 ......................................................................29 17 U.S.C. 110(1)-(4) .............................................................5 17 U.S.C. 110(5)(A) .............................................................5 17 U.S.C. 110(6) ...................................................................5 17 U.S.C. 110(8)-(10) ...........................................................5 17 U.S.C. 111 ...................................................... 5, 23, 29, 30 17 U.S.C. 111(a) ........................................................... 23, 30 17 U.S.C. 111(a)(1) ..............................................................5 17 U.S.C. 111(b) .................................................................23 17 U.S.C. 111(c) .................................................................23 17 U.S.C. 111(c)(1) .............................................................30 17 U.S.C. 111(d) .................................................................31 17 U.S.C. 111(d)(1)(E) ......................................................30 17 U.S.C. 111(f)(3) .............................................................30 17 U.S.C. App. 111(d)(2)(C) (1976) .................................30 17 U.S.C. 119 ........................................................................5 17 U.S.C. 122 ........................................................................5 17 U.S.C. 701 ........................................................................1 Copyright Act of 1909, 17 U.S.C. 1-215 ..................................2 17 U.S.C. 1(c) (1976) ............................................................2 17 U.S.C. 1(d) (1976) ...........................................................2 17 U.S.C. 1(e) (1976) ...........................................................2 Miscellaneous: H.R. Rep. No. 1476, 94th Cong., 2d Sess. (1976) ............................................................ 4, 5, 24, 25, 26, 29 VI Miscellaneous—Continued: Page Peter Mell & Timothy Grance, National Inst. of Standards & Tech., U.S. Dep’t of Commerce, Spe- cial Pub. 800-145, The NIST Definition of Cloud Computing (2011), http://csrc.nist.gov/publications/ nistpubs/800-145/SP800-145.pdf ......................................... 31 Register of Copyrights, Satellite Home Viewer Ex- tension and Reauthorization Act Section 109 Re- port (June 2008), http://www.copyright.gov/reports/ section109-final-report.pdf .................................................. 30 In the 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 BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONERS INTEREST OF THE UNITED STATES This case presents questions about the scope of the Copyright Act’s public-performance right in the con- text of novel technologies for transmitting and viewing copyrighted audiovisual works using the Internet. The United States Copyright Office is responsible for administering the registration of creative works and for advising Congress, federal agencies, the courts, and the public on copyright law and policy. 17 U.S.C. 701. This case also implicates matters of concern to other federal agencies charged with administering federal laws governing intellectual property, the tele- vision industry, and the Internet. The United States therefore has a substantial interest in the Court’s disposition of this case. (1) 2 STATEMENT 1. The Copyright Act of 1976, 17 U.S.C. 101 et seq., grants copyright protection to “original works of au- thorship fixed in any tangible medium of expression.” 17 U.S.C. 102(a). Copyright protection confers certain exclusive rights, including the rights to copy and to distribute
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