companies targeted by the 1976 amendments, this sole technological difference between Aereo
and traditional cable companies should not make a critical difference.^456
Drawing an analogy, the Court noted that subscribers in Fortnightly and Teleprompter
could select what programs they wished to view by simply turning the knob on their television
sets.
[In Aereo’s system], the signals pursue their ordinary course of travel through the
universe until today’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 broadcaster. 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.”^457A dissenting opinion, filed by Justice Scalia and joined by Justices Thomas and Alito,
strongly objected to the holding that Aereo itself “performed” the petitioners’ works. The
dissent argued that the petitioners’ claim for direct infringement was governed by a simple but
profoundly important rule – a defendant may be held directly liable only if it has engaged in
volitional conduct that violates the copyright statute. The dissent noted that every Court of
Appeals to have considered an automated service provider’s direct liability for copyright
infringement had adopted the volitional conduct rule, and further noted that, although the Court
itself had not opined on the issue, its cases were fully consistent with a volitional conduct
requirement. Under the volitional conduct rule, in the dissent’s view, Aereo could not have
direct liability. Unlike video-on-demand services, Aereo did not provide a prearranged
assortment of movies and television shows. Rather, subscribers were entirely in control of what
particular content was transmitted to them.^458 “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 [petitioners’] public-performance right.”^459
The dissent expressed concern that the majority’s “looks like cable TV” rule would
greatly disrupt settled jurisprudence that previously applied a straightforward, bright-line test of
volitional conduct directed at the copyrighted work. If that test was not outcome determinative
in this case, presumably it would not be outcome determinative in other cases involving
technological systems acting in automated responses to subscribers’ directives. The dissent also
found it unclear what the majority was proposing to replace the bright-line test.^460 “Perhaps the
Court means to adopt (invent, really) a two-tier version of the Copyright Act, one part of which
(^456) Id. at 2506-07.
(^457) Id. at 2507 (quoting the dissent’s opinion analogizing Aereo to a copy shop that provides its patrons with a
library card).
(^458) Id. at 2512-14 (Justice Scalia, dissenting).
(^459) Id. at 2514.
(^460) Id. at 2516.