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The case below has been excerpted from
the July-Aug 2014 issue of The Copyright Law Journal.
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American Broadcasting Cos., Inc. v. Aereo, Inc., 572 U.S. __ (2014)


The Supreme Court (6-3) reversed and concluded that Aereo’s unauthorized Internet streaming of “live” television programming to its subscribers constitutes infringing public performances.


Plaintiffs are television producers and broadcasters who own the copyrights to many of the programs that Aereo’s system streams to its subscribers. Alleging that Aereo’s service unlawfully captures broadcast television signals and provides them over the Internet to its subscribers, plaintiffs filed suit for infringement of their reproduction and public performance rights, as well as for contributory infringement. Their motion for a preliminary injunction, however, was narrow: they challenged only Aereo’s direct infringement of their public performance rights and only those aspects of Aereo’s service that allow subscribers to watch plaintiff’s televised programs contemporaneously with the over-the-air broadcast of those programs.

Aereo’s system consists of servers, transponders, and thousands of dime-sized antennas located in a central warehouse. The system works as follows: When a subscriber wants to watch a particular program currently being broadcast, he goes to Aereo’s website and selects the show he wants to watch. One of Aereo’s servers then selects an antenna, which it dedicates to the use of that subscriber (and only to that subscriber) for the duration of the selected program. Another server then tunes the antenna to the over-the-air broadcast of the program. The antenna receives the broadcast and a transponder translates the signals received into data that can be transmitted over the Internet. Aereo’s system creates a subscriber-specific copy, i.e., a “personal” copy of the subscriber’s program of choice. After a lapse of several seconds, Aereo’s server begins to stream the copy of the program to the subscriber over the Internet. [Aereo’s system also allows subscribers to record the program to watch at a later time, but that aspect of Aereo’s service is not involved in the appeal.] The subscriber can watch the streamed program on a personal computer, tablet, smart phone, Internet connected television, or other Internet connected device. “Streaming” is a process of providing a steady flow of audio or video data so that an Internet user can access it as it is being transmitted.

Aereo claimed that the data its system streams to each subscriber are from the subscriber’s own personal copy, made from the broadcast signals received by the particular antenna allotted to him. Its system does not transmit data allocated to one subscriber to any other subscriber. When two subscribers want to watch the same program, Aereo’s system activates two separate antennas and saves two separate copies of the program in two separate folders. It then streams the program to the subscribers through two separate transmissions—each from the subscriber’s personal copy.

Plaintiffs sought a preliminary injunction, arguing that Aereo is infringing their public performance rights under the Transmit Clause of the Copyright Act. The district court denied their motion. 874 F. Supp. 2d 373 (S.D.N.Y. 2012), 26 CLJ 67 (Nov.-Dec. 2012). Relying on Circuit precedent, a divided Second Circuit affirmed. WNET, Thirteen v. Aereo, Inc., 742 F.3d 676 (2d Cir. 2013), 28 CLJ 26 (May-June 2013), citing Cartoon Network L.P. v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), 23 CLJ 2 (Jan.-Feb. 2009) (Cablevision). According to the Second Circuit, Aereo does not perform publicly within the meaning of the Transmit Clause because it does not transmit to the public—each time Aereo streams a program to a subscriber, it sends a “private” transmission that is available only to that subscriber. The Second Circuit denied a rehearing en banc, over the dissent of two judges. 722 F.3d 500 (2d Cir. 2013). The Supreme Court granted certiorari and reversed.


Public Performance

Justice Breyer said that two questions are presented: Does Aereo “perform?” And, if so, does it do so “publicly?” “To perform . . . a work ‘publicly’ means [among other things] to transmit . . . a performance . . . of the work . . . to the public . . . ,” he said. In other words, 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 merely supplies the equipment that “emulates the operation of a home antenna and a digital video recorder (DVR).” Like a home antenna and DVR, Aereo contended that its equipment simply responds to its subscribers’ directives, so that it is the subscribers who “perform” when they use Aereo’s system to stream TV programs to themselves. While acknowledging that the language of the Copyright Act does not clearly indicate when an entity “performs” or “transmits” and when it merely supplies equipment for others to do so, Justice Breyer said that when read in light of its purpose, the Act is unmistakable: “An entity that engages in activities like Aereo’s performs.”

Justice Breyer noted that one of Congress’ main purposes in amending the 1907 Copyright Act in 1976 was to overturn two Supreme Court decisions involving community antenna television (CATV) systems (the precursors of modern cable systems). In Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968), the Supreme Court considered a CATV system that carried local television broadcasting to its subscribers. 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 TV sets of its 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. At issue was whether the CATV provider infringed the copyright owners’ exclusive right to perform their works publicly. Fortnightly drew a line: “Broadcasters perform. Viewers do not perform.” 392 U.S. at 398. And a CATV provider “falls on the viewer’s side of the line.” Id. at 399. Fortnightly distinguished between CATV providers and broadcasters as follows: “Broadcasters select programs to be viewed; CATV systems simply carry without editing, whatever programs they receive.” Moreover, broadcasters deliver programs to the public while CATV systems “receive those programs that have been released to the public and carry them . . . to additional viewers.” Id. at 400. CATV providers were, under Fortnightly, 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, a CATV system does no more than enhance the viewer’s capacity to receive the broadcaster’s signals [by] providing a well-located antenna with an efficient connection to the viewer’s television set.” Id. 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 Systems, Inc., 415 U.S. 394 (1974), the Supreme Court considered the copyright liability of a CATV provider that carried distant television broadcasting and found that the CATV provider was more like a viewer than a broadcaster. Id. at 408-09. It explained: “The reception and rechanneling of [broadcast television signals] for simultaneous viewing is essentially a viewer function . . . .” Id. at 408. Teleprompter explained that a broadcaster exercises creativity in choosing what to air, while a CATV provider simply carries whatever programs it receives. Id. at 410.

In 1976, Congress amended the Copyright Act in large part to reject the Court’s holdings in Fortnightly and Teleprompter, said Justice Breyer, citing H.R. Rep. No. 94-1476, at 86-87 (1976). The 1976 amendments “completely overturned” the Court’s narrow construction of the Act in those cases. Congress, he said, erased the line between broadcaster and viewer in respect to “performing” a work. The 1976 Act, he said, clarifies that to “perform” an audiovisual work means “to show its images in any sequence or to make the sounds accompanying it audible.” Section 101. Under the 1976 Act, Justice Breyer said that “both the broadcaster and the viewer of a television program ‘perform,’ because they both show the program’s images and make audible the program’s sounds.” See H.R. Rep., at 68 (“a broadcasting network is performing 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, said Justice Breyer, states that an entity performs publicly when it “transmits . . . a performance . . . to the public.” See Section 101 which provides that “to ‘transmit’ a performance” is “to communicate it by any device or process whereby images or sounds are received beyond the place from which they were sent.” Cable Systems, he said, like the CATV systems in Fortnightly and Teleprompter, are at the heart of the activities Congress intended to cover. See H.R. Rep., at 63 (“A cable television system is performing when it retransmits [a network] broadcast to its subscribers”). The Transmit Clause, said Justice Breyer, “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, he noted, created a new section of the Act to regulate cable companies’ public performances. See Section 111, which creates a complex, highly detailed compulsory licensing system under which cable companies may retransmit broadcasts. See H.R. Rep., at 88. Justice Breyer said that Congress made these changes to bring the activities of cable systems within the scope of the Copyright Act.

Clearly, said Justice Breyer, Aereo “is not simply an equipment provider”—it “performs” or “transmits” and its activities are substantially similar to those of the CATV companies that Congress amended the Act to reach. Aereo, he said, sells a service that allows subscribers to watch television programs, almost as they are being broadcast; in providing this service, Aereo uses its own equipment, housed in a centralized warehouse, outside of its users’ homes. Aereo, he said, receives publicly released programs and carries them to its subscribers—Fortnightly did the same. 392 U.S., at 400. Justice Breyer acknowledged the difference between Aereo’s system and the systems at issue in Fortnightly and Teleprompter; those systems transmitted constantly while Aereo’s system remains inert until a subscriber requests a particular program to watch. The dissent considered this a “critical difference” because that means that Aereo’s subscribers, not Aereo, select the content that is performed and therefore they, not Aereo, “transmit” the performance. Justice Breyer was not persuaded. Given Aereo’s “overwhelming likeness” to the cable companies targeted by the 1976 Act, this sole technological difference between Aereo and traditional cable companies, he said, “does not make a critical difference.” The difference in the technology, he said, means nothing to the subscriber or to the broadcaster; the single difference between turning the knob on a TV set or clicking on a website cannot be a critical difference. However, Justice Breyer took care to note: “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.” Justice Breyer concluded that Aereo is not just an equipment supplier, but “performs.”

Having determined that Aereo “performs,” Justice Breyer next considered whether it performs plaintiffs’ copyrighted works “publicly” within the meaning of the Transmit Clause. That Clause, he said, provides that an entity performs a work publicly when it “transmits . . . a performance . . . of the work . . . to the public.” Section 101. Aereo’s arguments that the “performance” it “transmits” is the performance created by its act of transmitting, that each performance is capable of being received by only one subscriber, and that Aereo transmits privately, not publicly, were all rejected. “Aereo transmits a performance whenever its subscribers watch a program,” Justice Breyer said. Aereo maintained that since it makes a copy of the selected program and streams the content of that copy to only one subscriber, the transmission of the performance is not to the public. In terms of the Act’s purposes, Justice Breyer said that “these differences do not distinguish Aereo’s system from cable systems, which do perform ‘publicly.’” The Transmit Clause, he said, states that one transmits a performance to the public “whether the members of the public capable of receiving the performance . . . receive it . . . at the same time or at different times.” Justice Breyer said that in light of the purpose and text of the Transmit Clause, “when an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it transmits a performance to them, regardless of the number of discrete communications it makes.” He failed to “see how the fact that Aereo transmits via personal copies of programs could make a difference.” So whether Aereo transmits from the same or separate copies, Justice Breyer said that it performs the same work and that when it streams the same television program to multiple subscribers, it transmits a performance to the public. Justice Breyer concluded that Aereo “transmits a performance of [plaintiffs’] copyrighted works to the public, within the meaning of the Transmit Clause.”

Justice Breyer addressed the concern of Aereo and its supporting amici that applying the Transmit Clause to Aereo’s system will impose copyright liability on other technologies, including new technologies. He said that the Court’s “narrow” holding will not discourage or control the emergence or use of different kinds of technologies. He noted that “an entity only transmits a performance when it communicates contemporaneously perceptible images and sounds of a work.” Thus, he said, a distributor who sells multiple copies of a digital video disc to consumers, making it possible for them to perform the work themselves, does not publicly perform the work. He noted, too, that the Court has not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content. A cloud-based storage service that offers consumers a convenient means of playing back copies that they lawfully acquired and own is not unlawful, he said. Finally, Justice Breyer said that the doctrine of fair use can help prevent “inappropriate or inequitable” applications of the Transmit Clause. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), 1 CLJ 2 (July 1984).

As a cautionary note, Justice Breyer said that the Court “cannot now answer . . . how the Transmit Clause . . . will apply to technologies not before” the Court. Questions involving cloud-computing (remote storage), DVRs, and other novel issues, he said, must await a proper case.

In sum, the majority found Aereo’s system highly similar to those of the systems in Fortnightly and Teleprompter, which activities are now within the scope of the Copyright Act, and concluded that Aereo performs plaintiffs’ protected works publicly within the meaning of the Transmit Clause. Justice Breyer’s opinion was joined by Chief Justice Roberts, and Justices Kennedy, Ginsburg, Sotomayor, and Kagan.

Dissenting Opinion

Justice Scalia dissented because, in his view, “Aereo does not ‘perform’ at all.” “A defendant,” he said, “may be held directly liable only if it has engaged in volitional conduct that violates the Act.” The “volitional-act requirement demands conduct directed to the plaintiff’s copyrighted material,” he said. Justice Scalia cited Cablevision for the “volitional-conduct requirement,” which is important when a direct infringement claim is made against a defendant who just operates an automated, user-controlled system. In most cases, he said, the issue is who selects the copyrighted content: defendant or its customers. See Cablevision, 536 F.3d at 131-32. According to Justice Scalia, although Aereo’s system provides access to an automated system and transmits material to its subscribers via the Internet, such performances are not the product of Aereo’s volitional conduct—“subscribers call all the shots.” In short, he said that Aereo “does not ‘perform’ for the sole and simple reason that it does not make the choice of content.” Because Aereo does not perform, he said that it cannot be held directly liable for infringing plaintiffs’ public performance right.

Justice Scalia also took issue with the majority’s conclusion that Aereo performs because its system “looks a lot like a cable system,” i.e., the systems at issue in Fortnightly and Teleprompter, which Congress overruled. Those systems, he said, captured the full range of broadcast signals and sent them to all subscribers at all times, whereas Aereo transmits only specific programs selected by the user, at specific times also selected by the users. The consequence of the majority’s holding, he said, “greatly disrupts settled jurisprudence which, before today, applied the straightforward, bright-line test of volitional conduct directed at the copyrighted work.” Finally, Justice Scalia acknowledged that he shares the majority’s “feeling that what Aereo is doing (or enabling to be done) to the Networks’ copyrighted programming ought not to be allowed.” Suggesting a “loophole” in the law, he said that “it is not the role of this Court to identify and plug loopholes.” His opinion was joined by Justices Thomas and Alito.


1.   In Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), 23 CLJ 2 (Jan.-Feb. 2009) (Cablevision), the Second Circuit concluded that defendant’s remote storage digital video recording service (RS-DVR) does not directly infringe plaintiffs’ exclusive rights of reproduction or public performance. Cable companies like Cablevision aggregate television programming from various sources—the broadcast and cable channels that produce or provide programs—and transmit those programs to their subscribers. After a RS-DVR subscriber selects a program to record, and that program airs, a copy of that program is made and resides on Cablevision’s server. The question, said the Second Circuit, is who made the copy? If it is Cablevision, plaintiffs’ theory of direct infringement prevails; if it is the subscriber, that theory fails because Cablevision would be liable, at most, for secondary liability. “In determining who actually ‘makes’ a copy, a significant difference exists between making a request to a human employee, who then voluntarily operates the copying system to make the copy, and issuing a command directly to a system, which automatically obeys commands and engages in no volitional conduct,” said the Cablevision Court. Believing that volitional conduct is an important element of direct liability, Cablevision concluded that the copies made by the RS-DVR system were made not by Cablevision, but by its subscribers. The Supreme Court in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984), 1 CLJ 2 (July 1984), found Sony not liable for contributory infringement for making and selling the Betamax, because “the sale of copying equipment does not constitute contributory infringement if the product is widely used for legitimate, unobjectional purposes.”

2.   Cablevision’s reliance on Sony is misplaced. Sony held that the copying by consumers of television broadcasts for later viewing using technologies inside their homes, i.e., VCRs, is a fair use. The Second Circuit in Cablevision extended Sony to hold defendant not liable for direct infringement where consumers copy television programs using technologies outside their homes. Despite the fact that Cablevision designed, operated, and maintained a system for the sole purpose of making copies, the Second Circuit reasoned that only “volitional conduct” by a “human employee” when a subscriber requests that a particular program be copied, triggers direct liability. The Ninth Circuit in Fox Broadcasting Co. v. Dish Network, LLC, 723 F.3d 1067 (9th Cir. 2013) 27 CLJ 70 (Nov.-Dec. 2013), followed Cablevision’s reasoning, stating that “operating a system used to make copies at the user’s command does not mean that the system operator, rather than the user, caused the copies to be made.” Without discussing (or even mentioning) the so-called “volitional act” requirement, the Supreme Court found Aereo directly liable for infringing plaintiffs’ exclusive right of public performance. The question “who made the copies” never came up; plaintiffs’ exclusive right of reproduction was not at issue. Aereo’s system creates a subscriber-specific copy, i.e., a personal copy of the subscriber’s selected program. The Court found direct liability under the Transmit Clause. Given the distinction between direct and secondary infringement liability and the Court’s silence on the so-called “volitional-act” requirement, it is unclear how the lower courts will address other cases involving automated user-controlled systems and Internet-service providers. The majority, unfortunately, provides no clear guidance.

3.   The Court’s opinion relied more on legislative history than statutory or case law. Fortnightly held that “Broadcasters perform. Viewers do not perform” and a CATV provider “falls on the viewer’s side of the line.” 392 U.S. at 398. Teleprompter also found a CATV provider was more like a viewer than a broadcaster. 415 U.S. at 408-09. The 1976 Copyright Act overturned both cases. Section 111 of the Act addresses the complex problem of secondary transmissions which primarily involve cable television systems. Cable TV systems are commercial subscription services that pick up broadcasts of programs originated by others and retransmit them to their paying subscribers. Before the 1976 Act, cable television operators were not required to pay royalties or retransmission fees to the broadcasters for using their over-the-air copyrighted programming. Basically, Section 111 establishes a new compulsory license for cable systems, defines the terms and scope of such licenses, and other complex provisions. To publicly perform a work means to transmit or otherwise communicate a performance of the work to the public or to a place open to the public. To “transmit” a performance means to communicate it by any means whereby images or sounds are received beyond the place from which they are sent. Section 111(f)(3) defines a “cable system” as “a facility . . . that in whole or in part receives . . . programs broadcast by one or more television broadcast stations . . . and makes secondary transmissions of such . . . programs by wires, cables, microwave, or other communication channels to subscribing members of the public who pay for such service.” Although Aereo is not a cable system, its activities were held to be substantially similar to cable systems now governed by the 1976 Act. Even though the systems at issue in Fortnightly and Teleprompter transmitted constantly, while Aereo’s system only transmits when a subscriber requests a particular program, that technological difference between Aereo and traditional cable companies is not a “critical difference.” The Court found this difference meaningless to a subscriber and broadcaster and invisible to both. Note, however, that “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.” Here, again, the Court offers no clear guidance.

4.   The Court’s holding that Aereo’s Internet streaming service is “substantially similar” to cable systems, prompted Aereo to request that it be classified as a cable system. As such, it would be eligible for a compulsory license under Section 111. The Copyright Office rejected its application because Aereo’s Internet transmissions of TV broadcasts do not qualify it as a cable system.

5.   To allay fears that its application of the Transmit Clause to Aereo’s system will impose liability on other technologies, including new technologies, the Court stated that by applying the Clause to cable companies and their equivalents, it “did not intend to discourage or to control the emergence or use of different kinds of technologies.” The Court did not believe that its “limited” holding will have that effect. While the Court’s interpretation of the Transmit Clause led to its conclusion that Aereo “performs,” it did “not determine whether different kinds of providers in different contexts also ‘perform.’” The Court’s narrow holding is limited to an entity that “only transmits a performance when it communicates contemporaneously perceptible images and sounds of a work.” The Court did not consider whether the public performance right is infringed when a user of a service pays for something other than the transmission of copyrighted works, such as the remote storage or content. Practice Tip: Cloud-based storage services may have no liability when they offer customers the means of playing back copies of works owned by those customers, but owners of copies of copyrighted works have no right to publicly perform those works. The Court added a further limitation: an entity does not transmit to the public if it does not transmit to a substantial number of people outside of a family and its social circle. Also, the Court noted a safeguard: “Inappropriate or inequitable” applications of the Transmit Clause can be prevented by the fair use doctrine. The Court was unable to answer “more precisely” how the Transmit Clause may apply to other technologies. Questions involving cloud computing (remote storage) and other novel issues will be dealt with as they arise.

6.   Given little guidance from the Court’s “limited” decision, the lower courts will have to determine whether future (or existing) automated systems copy or perform under the volitional-act test or do so because of their substantial similarity to cable systems. The cloud-computing industry has little to fear. Offering remote storage facilities to users who wish to store their lawfully acquired digital copies for later use, and the unauthorized making of copyrighted works available to paying members of the public, are two entirely different matters—only the latter infringes.

7.   The district court as well as the Second Circuit in Aereo relied heavily on Cablevision. Section 101 states that to perform a work “publicly” means “to transmit . . . a performance . . . of the work . . . 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.” Cablevision read “capable of receiving the performance” to mean not the performance of the work being transmitted but the transmission itself, since the “transmission of a performance is itself a performance.” 536 F.3d at 134. That error was compounded by Cablevision’s conclusion that the Transmit Clause focuses on “[who is] capable of receiving a particular transmission of a performance.” Id. at 135.

8.   Cablevision was incorrectly reasoned and wrongly decided, and created a perceived loophole which gave rise to Aereo. Now that Aereo has been overruled, what remains of Cablevision? Nothing, with respect to its reading of the Transmit Clause. As to its volitional-act test, that remains to be seen.

9.   The Supreme Court’s ruling in Aereo comes as no surprise. In WPIX, Inc. v. ivi, Inc., 691 F.3d 275 (2d Cir. 2012), 27 CLJ 2 (Jan.-Feb. 2013), the Second Circuit recognized that the unauthorized transmission of copyrighted TV programming by streaming it live over the Internet is an infringing public performance. Similarly, in U.S. v. ASCAP, 627 F.3d 64 (2d Cir. 2010), the Second Circuit noted that the streaming of a song, like the streaming of a TV or radio broadcast, is a public performance. In Fox Television Stations, Inc. v. Barry Diller Content Systems PLC, 915 F. Supp. 2d 1138 (C.D. Cal. 2012), 27 CLJ 18 (March-April 2013), the district court rejected the Second Circuit’s decision in Cablevision and concluded that defendants’ Internet streaming infringes plaintiffs’ public performance rights. Also disagreeing with Cablevision (as well as Aereo), the district court in Fox Television Stations, Inc. v. FilmOn X, LLC, __ F. Supp. 2d __ (D.D.C. 2013), 23 CLJ 2 (Jan.-Feb. 2014), held that defendants’ Internet streaming service is an infringing public performance. As to whether defendants in Cablevision transmit a performance of copyrighted works to the public, the Second Circuit reasoned that because Cablevision’s RS-DVR system “only makes transmissions to one subscriber using a copy made by that subscriber . . . the universe of people capable of receiving [that] transmission is the single subscriber whose self-made copy is used to create the transmission.” 536 F.3d at 137. That misreading of the Transmit Clause and the purpose of copyright law was followed by the Second Circuit in Aereo. Cablevision’s misreading of the Transmit Clause has now been corrected by the Supreme Court’s holding in Aereo. That misreading, however, was based in large part on Cablevision’s determination that copies produced by the RS-DVR system were made not by the defendants, but by their customers. Determining who actually makes a copy, the defendant’s system or its user, may define the boundary between direct liability and contributory liability. These issues and new technologies and innovations will keep the courts, counsel, and Congress busy for years to come. However, one truth is self-evident: Aereo’s unauthorized activities are infringing public performances. Beyond that single proposition, all else is less clear.

10.  Justice Scalia’s statement that it is for Congress, not the Courts, to plug loopholes, overlooks the fact that Congress did just that when it enacted the 1976 Act. Justice Scalia also stated that “when a user signs in to Netflix, for example, ‘thousands of . . . movies [and] TV episodes are available to watch instantly.’” That “selection and arrangement,” he said, “constitutes a volitional act directed to specific copyrighted works and thus serves as a basis for direct liability.” In other words, in Justice Scalia’s view, online systems that “chose the content” may be liable for direct copyright infringement.


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