all other purposes of the Copyright Act. The Supreme Court’s opinion in Aereo had not made
any such express holding. The district court noted that the Supreme Court had consistently
stated throughout its opinion that Aereo’s similarity to a cable system informed its conclusion
that Aereo performs, not that Aereo is a cable system. But the Supreme Court did not imply,
much less hold, that simply because an entity performs publicly in much the same way as a cable
system, it is necessarily a cable system entitled to a Section 111 compulsory license.^479 “Stated
simply, while all cable systems may perform publicly, not all entities that perform publicly are
necessarily cable systems, and nothing in the Supreme Court’s opinion indicates otherwise.”^480
Aereo argued that such a holding could be inferred from the questions and statements of
the Justices at oral argument. The district court rejected this argument, noting that the
commentary of individual Justices at oral argument has no legal effect, only the Justices’ written
opinions have the force of law.^481 And the district court observed that any void left by the
Supreme Court’s decision on Section 111 was filled by on-point, binding Second Circuit
precedent – WPIX, Inc. v. ivi, Inc.^482 – which concluded that Congress did not intend for Section
111’s compulsory license to extend to Internet transmissions. In reaching its conclusion, the
Second Circuit in WPIX had given deference to the Copyright Office’s interpretation that
Internet retransmission services do not constitute cable systems under Section 111, and the
district court noted that the Copyright Office had not changed its interpretation of Section 111
since WPIX.^483
Aereo contended that the Supreme Court implicitly overruled WPIX when it compared
Aereo to a cable system. The district court rejected this, noting that the Supreme Court did not
mention WPIX or its holding, and nothing in the Supreme Court’s opinion could be read as
abrogating WPIX, because the Supreme Court limited its holding to a finding that Aereo
performed like a cable system for purposes of the transmit clause, not that it was a cable system
entitled to a Section 111 license. The district court therefore concluded that WPIX remained
good law and binding precedent. The court also rejected Aereo’s argument that even if WPIX
remained good law, the case was distinguishable from the facts here based on the limited
geographic reach of Aereo’s services – namely, Aereo’s technology did not give its subscribers
access to broadcasts outside of their home designated market area (DMA). The court noted that
the geographic reach of Internet retransmission services was but one of many factors the Second
Circuit considered in reaching its holding that Section 111 does not cover Internet retransmission
services, and the Second Circuit had referenced the possible geographic reach of ivi’s system
only as an additional point of distinction between Internet retransmission and traditional cable
(^479) Id. at 15-19.
(^480) Id. at 19.
(^481) Id. at 19.
(^482) 691 F.3d 275 (2d Cir. 2012). The Second Circuit’s decision is discussed in Section III.E.5(a) below.
(^483) American Broadcasting Cos. v. Aereo, Inc., 2014 U.S. Dist. LEXIS 150555 at 20-21 & 25 n.3.