applies to ‘cable companies and their equivalents’ while the other governs everyone else.”^461
Nor, in the dissent’s view, had the majority provided any criteria for determining when its cable-
TV-lookalike rule would apply.^462 The dissent therefore concluded, “It will take years, perhaps
decades, to determine which automated systems now in existence are governed by the traditional
volitional-conduct test and which get the Aereo treatment.”^463
It is unclear from the majority opinion whether the dissent’s reading of it to reject the
volitional conduct rule is correct. The majority opinion does not mention the volitional conduct
rule by name at all, nor cite any of the Court of Appeals decisions cited by the dissent that have
adopted the rule. Certainly the majority did not apply that rule to dispose of the case, as the
dissent would have. However, the majority opinion made the following statement, which seems
in substance to leave open the possibility that the volitional conduct rule might apply in other
cases of automated systems or functions that do not bear an “overwhelming likeness” to a cable
television system: “In other cases involving different kinds of service or technology providers, a
user’s involvement in the operation of the provider’s equipment and selection of the content
transmitted may well bear on whether the provider performs within the meaning of the Act.”^464
Turning to the second question to be decided – whether Aereo was performing the
petitioners’ copyrighted works “publicly” – the majority concluded that it was. The parties
disagreed concerning what performance Aereo transmitted. Petitioners argued that Aereo
transmitted a prior performance of their works (the original broadcast performance), whereas
Aereo argued that the performance it transmitted was the new performance created by its act of
transmitting. The Court did not resolve this question, assuming arguendo that Aereo was correct.
Under this assumption, Aereo transmitted a performance whenever its subscribers watched a
program. Aereo argued that, because each transmission was to only one subscriber, those
transmissions were not to the public. The court rejected this argument, first on policy grounds,
again finding Aereo’s system indistinguishable from cable systems, which do perform publicly.
Viewed in terms of Congress’ regulatory objectives in the 1976 amendments, the Court found
that the technological differences in Aereo’s system should not matter. Such differences did not
render Aereo’s commercial objective any different from that of cable companies. Nor did they
alter the viewing experience of Aereo’s subscribers. And if Aereo were correct, modern cable
systems would be able simply to substitute new technologies similar to Aereo and continue their
same commercial and consumer-oriented activities free of copyright restrictions.^465
In addition, focusing on the text of the transmit clause, the Court noted that Aereo’s
argument relied on the premise that “to transmit ... a performance” means to make a single
transmission. But the Court found that the transmit clause suggests that an entity may transmit a
(^461) Id.
(^462) Id.
(^463) Id. at 2517.
(^464) Id. at 2507 (majority opinion).
(^465) Id. at 2508-09.