That is not the only possible reading of the statute. The definition section sets
forth what constitutes a public performance of a copyrighted work, and says that
transmitting a performance to the public is a public performance. It does not
require a “performance” of a performance. The Second Circuit buttressed its
definition with a “cf.” to Buck v. Jewell-La Salle Realty Co., 283 U.S. 191, 196, S.
Ct. 410, 75 L.Ed. 971 (1931), which interpreted the 1909 Copyright Act’s
provision of an exclusive right to publicly perform a musical composition and
held that “the reception of a radio broadcast and its translation into audible sound”
is a performance. But Buck, like Cablevision and this case, was concerned with a
copyright in the work that was broadcast. Id. at 195. The Supreme Court was not
concerned about the “performance of the performance” – instead, it held that
using a radio to perform the copyrighted song infringed the exclusive right to
perform the song (not to perform the performance of the song). Id. at 196.^489The district court noted that the Second Circuit had supported its decision via citation to
the House Report on the 1976 Copyright Act, which stated that a performance made available by
transmission to the public at large is “public” even though the recipients are not gathered in a
single place, and that the same principles apply whenever the potential recipients of the
transmission represent a limited segment of the public, such as the occupants of hotel rooms or
the subscribers of a cable television service. From this, the Second Circuit reasons that the
transmission had to itself be public, and one must therefore look at the persons who are capable
of receiving a particular transmission of a performance to determine whether such transmission
constitutes a public performance.^490 The district court rejected the Second Circuit’s
interpretation of the import of the House Report:
But the House Report did not discuss which copy of a work a transmission was
made from. The statute provides an exclusive right to transmit a performance
publicly, but does not by its express terms require that two members of the public
receive the performance from the same transmission. The statute provides that
the right to transmit is exclusive “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. 17 U.S.C. § 101. Again, the
concern is with the performance of the copyrighted work, irrespective of which
copy of the work the transmission is made from. ... Thus, Cablevision’s focus on
the uniqueness of the individual copy from which a transmission is made is not
commanded by the statute.^491(^489) Id. at 14-15.
(^490) Id. at 15.
(^491) Id. at 16. The court elaborated further in a footnote: “The Second Circuit appears to implicitly bracket the text
of the House Report like this: [a performance made available by] [transmission to the public]. It seems like the
House Report could just as easily be read like this: [a performance made available by transmission] [to the
public]. Defendants make Plaintiffs’ copyrighted works available to the public by transmission. The Second
Circuit’s reading effectively converts ‘available by transmission’ to ‘available by a single transmission.’ In any
event, the statute uses the verb ‘transmit,’ rather than the noun used in the House Report.” Id. at 16-17.