possible. See Cablevision, 536 F.3d at 135-36. The House Report accompanying
the 1976 amendments, which explains that the process of communicating a
copyrighted work from its original creator to the ultimate consumer may involve
several “performances,” provides further support. See H.R. Rep. No. 94-1476, at- In short, while the Transmit Clause is not a model of clarity, the Court finds
at this juncture that Aereo presents the more plausible interpretation. As such,
Hearst has not persuaded the Court that it is likely to succeed on the merits of its
public performance claim.^505
Hearst also argued that Aereo infringed its right of reproduction by creating and saving
three copies of its copyrighted programming every time a consumer chose to watch or record a
program. Aereo contended that it could not be liable for infringing the plaintiff’s reproduction
right because its users provided the volitional conduct that created the copy of the program they
selected. The district court noted that the First Circuit had not yet decided whether a plaintiff
claiming infringement of the reproduction right must show volitional conduct on the part of the
defendant, but noted that courts in the Second, Third, and Fourth Circuit had imposed such a
requirement. The court observed that requiring a showing of volitional conduct comports with
the general principle that, even with a strict liability statute such as the Copyright Act, the
challenged conduct must cause the harm. The court concluded that in this case it was likely that
the user supplied the necessary volitional conduct to make the copy. The fact that Aereo users
had the option to watch programs live did not command a different result because those users
were informed that the system would create a copy of the program so they could pause and
rewind. The court noted, however, that the reproduction issue was a closer question than the
issue of public performance, and discovery could reveal that Aereo’s service infringed the
plaintiff’s reproduction right.^506
Hearst further contended that Aereo infringed its distribution right. The court noted that
the Copyright Act does not define what it means to “distribute” but 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.^507
Finally, Hearst contended that Aereo’s act of reformatting intercepted programming
violated its right to prepare derivative works. The court quickly dismissed this contention,
noting that Hearst had presented no legal authority, nor was the court aware of any, for the
proposition that Aereo’s technology created a derivative work merely by converting programs
from their original digital format to a different digital format compatible with Internet streaming.
The court therefore denied the plaintiff’s motion for a preliminary injunction.^508
(^505) Id. at 38-39.
(^506) Id. at 39.
(^507) Id. at 39-40.
(^508) Id. at 40-41.