performance through multiple, discrete transmissions.^466 “That is because one can ‘transmit’ or
‘communicate’ something through a set of actions.”^467 The Court observed that the fact that a
singular noun (“a performance”) follows the words “to transmit” does not suggest the contrary,
because one can sing a song to his family, whether he sings the same song one-on-one or in front
of all together. By the same principle, an entity may transmit a performance through one or
several transmissions, where the performance is of the same work.^468 Said the Court:
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 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
“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 regardless of the number of discrete communications it makes.^469The Court found it not relevant that Aereo transmitted via personal copies of programs,
because the statute applies to transmissions “by means of any device or process.” The Court
observed that whether Aereo transmitted from the same or separate copies, it performed the same
work, it showed the same images and made audible the same sounds. The Court therefore
concluded that when Aereo streamed the same television program to multiple subscribers, it
transmitted a performance to all of them, and those subscribers constituted members of the
“public” because they consisted of a large group of people outside of a family and friends.^470
Aereo and many of its amici express concern that applying the transmit clause to Aereo’s
conduct would impose copyright liability on other existing or new technologies, such as storage
lockers and cloud computing, that Congress could not possibly have wanted to reach. In
response, the majority went somewhat out of its way to reassure that its holding was intended to
be specific to Aereo’s system and would not necessarily reach other technologies, by making the
following statements:
-- “[A]n 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 paying subscribers who lack any prior relationship to the works does so
perform.”^471
(^466) Id. at 2509.
(^467) Id. (emphasis in the original).
(^468) Id.
(^469) Id.
(^470) Id. at 2509-10.
(^471) Id. at 2510.