Aereo’s hard drive. Aereo’s system then converted the signal from its original format to a
different digital format that allowed the user to access the program over the Internet. A user
could access his or her individual copy of a program by streaming it over the Internet from
Aereo’s hard drive to his or her personal computer, smart phone, or other Internet-enabled
device. The system did not permit users to download permanent physical copies of programs to
their personal hard drives. The plaintiff contended, among other claims, that Aereo infringed its
distribution right. The court rejected this claim, noting that although the Copyright Act does not
define what it means to “distribute,” a number of courts had interpreted it to entail an actual
dissemination of either copies or phonorecords. Here, because Aereo’s technology allowed users
only to stream but not download programming, Aereo was more aptly described as “performing”
rather than “distributing” copyrighted works.^740
(2) Fox Broadcasting v. Dish NetworkThe facts of Fox Broadcasting Co. v. Dish Network, L.C.C.^741 are discussed in Section
II.A.4(u) above. Among many other issues, the district court considered whether Dish was liable
for violation of Fox’s distribution right and found that it was not. Citing the Perfect 10 v.
Amazon case,^742 the court noted that infringement of the distribution right requires actual
dissemination of a copy by sale or other transfer of ownership, or by rental, lease, or lending.
Here, a PTAT-enabled Hopper recorded primetime programming locally and, at most that local
copy was disseminated within a single household. PTAT and AutoHop therefore did not involve
any actual distribution of unauthorized copies, so the court concluded that Fox had not
established a likelihood of success on the merits of its distribution claim.^743 The distribution
issue was not addressed in the Ninth Circuit’s affirming opinion on appeal.
In a subsequent opinion after discovery, the district court again ruled that PTAT did not
“distribute” Fox’s programming because, as the court had previously held in its ruling on the first
motion for a preliminary injunction, distribution under the copyright statute requires actual
dissemination of a copy that changes hands. PTAT was a system for automatically recording
programming as it was being received by a subscriber’s set-top box, inside the subscriber’s
home. Those recordings were therefore not distributed, delivered, or transmitted to any other
location or person using PTAT alone.^744
- The Requirement of a “Public” Distribution
Unlike the case of the public performance and public display rights, the copyright statute
does not define what constitutes a “public” distribution. However, one might expect courts to
afford a similarly broad interpretation of “public” with respect to the right of public distribution.
(^740) Id. at 3-4, 17-18.
(^741) 905 F. Supp. 2d 1088 (C.D. Cal. 2012), aff’d, 723 F.3d 1067 (9th Cir. 2013).
(^742) Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007).
(^743) Fox Broadcasting, 905 F. Supp. 2d at 1106.
(^744) Fox Broadcasting Co. v. Dish Network LLC, 2015 U.S. Dist. LEXIS 23496 at 59-60 (C.D. Cal. Jan. 21,
2015).