After the district court’s decision, the Supreme Court issued its decision in the Aereo
case, discussed in Section II.B.10 above, ruling that Aereo violated the public performance right
by transmitting the plaintiffs’ works through its system collectively to public subscribers. The
Aereo decision undermines the district court’s rulings in this case with respect to the public
performance right.
- Community Television of Utah v. Aereo
The case of Community Television of Utah, LLC v. Aereo, Inc.^509 was the fifth case (and
the third against Aereo) to adjudicate claims of infringement of the public performance right
based on a streaming and recording system utilizing individual mini digital antennas and DVRs
to enable users to watch or record a free television broadcast. The plaintiffs sought a preliminary
injunction, arguing that Aereo was violating their exclusive rights of public performance in their
copyrighted broadcast programs. The court found that the plaintiffs were likely to succeed on
the merits of their claim under the transmit clause, noting that the definitions pertinent to the
transmit clause contained sweepingly broad language that easily encompassed Aereo’s process
of transmitting copyright-protected material to its paying customers. Specifically, the court
found that Aereo used “any device or process” to transmit a performance or display of the
plaintiffs’ copyrighted programs to Aereo’s paid subscribers, all of whom were members of the
public who received it at the same time or separate times.^510
To bolster its interpretation, the court reviewed the history of the adoption of the transmit
clause, noting that Congress adopted it in response to two decisions of the Supreme Court under
the 1909 Copyright Act^511 holding that cable companies’ erection of community antennas to
receive broadcast signals and transmission of such signals to their subscribers’ homes via coaxial
cable did not violate the public performance right. In those cases the Supreme Court concluded
that a cable company was free to do whatever a private citizen could do for itself without
infringing a copyright. Congress then passed the transmit clause in part to abrogate the two
Supreme Court decisions and bring a cable television system’s transmission of broadcast
television programming within the scope of the public performance right. The district court
found that Aereo’s retransmission of the plaintiffs’ copyrighted programs was indistinguishable
from a cable company and therefore fell squarely within the language of the transmit clause.^512
The district court found the Second Circuit’s interpretation of the transmit clause in the
Cablevision case to be unpersuasive. The Second Circuit had focused on who was capable of
receiving the performance in determining whether a performance was transmitted to the public.
The district court found such a focus was not supported by the language of the statute, which
states that it applies to any performance made available to the public. Aereo’s paying
subscribers to whom the performances were made available fell within the ambit of “a
(^509) 997 F. Supp. 2d 1191 (D. Utah 2014).
(^510) Id. at 1197-99.
(^511) Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968); Teleprompter Corp. v. Columbia
Broadcasting Sys., 415 U.S. 394 (1974).
(^512) Community Television of Utah, 997 F. Supp. 2d at 1198-99.