playback of programs stored on its network servers by customers did not constitute public
performances because the RS-DVR customer, not Cablevision, invoked the transmitting and thus
the performing, and the transmissions were not “to the public.”^389
The court ruled that it need not address Cablevision’s first argument because, even if the
court were to assume that Cablevision made the transmissions when RS-DVR playbacks
occurred, the RS-DVR playbacks did not involve the transmission of a performance “to the
public.” The court began its analysis by noting that the second, or “transmit,” clause of the
definition of public performance applies “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.”^390 The court observed, “The fact that the statute says ‘capable
of receiving the performance,’ instead of ‘capable of receiving the transmission,’ underscores the
fact that a transmission of a performance is itself a performance.”^391
The Second Circuit therefore focused on who was “capable of receiving” performances
through playbacks via the RS-DVR system. Cablevision argued that, because each RS-DVR
transmission was made using a single unique copy of a work, made by an individual subscriber,
one that could be decoded exclusively by that subscriber’s cable box, only one subscriber was
capable of receiving any given RS-DVR transmission. By contrast, the district court had
suggested that, in considering whether a transmission was “to the public,” one should consider
not the potential audience of a particular transmission, but the potential audience of the
underlying work whose content was being transmitted. The Second Circuit ruled that the district
court’s approach was inconsistent with the language of the transmit clause, which speaks of
persons capable of receiving a particular “transmission” or “performance,” and not of the
potential audience of a particular “work.”^392
On appeal, the plaintiffs presented a slightly different argument, insisting that the same
original performance of a work was being transmitted to Cablevision’s various subscribers at
different times upon request. The court noted that the implication of the plaintiffs’ argument was
that, to determine whether a given transmission of a performance was to the public, one should
consider not only the potential audience of that transmission, but also the potential audience of
any transmission of the same underlying “original” performance. The court rejected this
argument, noting that it would obviate any possibility of a purely private transmission.^393
We do not believe Congress intended such odd results. Although the transmit
clause is not a model of clarity, we believe that when Congress speaks of
transmitting a performance to the public, it refers to the performance created by
the act of transmission. Thus, HBO transmits its own performance of a work(^389) Id. at 134.
(^390) Id.
(^391) Id.
(^392) Id. at 135.
(^393) Id. at 135-36.