company. Aereo’s holding that entities bearing an overwhelming likeness to cable companies
publicly perform within the meaning of the transmit clause of the definition or “publicly
perform” therefore did not extend to Dish Anywhere.^527
The court then turned to the question whether, if any public performance occurred when
subscribers used Dish Anywhere, Dish could be directly liable by virtue of engaging in sufficient
volitional conduct enabling that performance. The court noted that, to use Dish Anywhere, a
subscriber was required to log in or open the Dish Anywhere app, select the television program
she wanted to watch, and request that the live or recorded television programming be sent from
the set-top box in her home to her computer or mobile device. Although this process depended
to some extent on external equipment and services provided by Dish, it was the user who
initiated the process, selected the content, and received the transmission. The court therefore
concluded that Dish subscribers, not Dish, engaged in the volitional conduct necessary for any
direct infringement.^528
Finally, the court considered whether Dish might still be liable for secondary
infringement if its subscribers were engaging in direct infringement by using Dish Anywhere to
transmit public performances. The court concluded that the subscribers were not. Turning again
to the Supreme Court’s Aereo decision, the district court noted that, in rejecting Aereo’s
argument that it did not transmit a performance “to the public,” the Aereo opinion noted that
nothing in the record before it suggested that the subscribers received the performances in their
capacities as owners or possessors of the underlying works, and that this factor could affect
whether or not the subscribers constituted “the public.” The district court noted that, in this case,
Dish subscribers were valid possessors of the copyrighted works that were stored in the set-top
boxes in their homes. Thus, when an individual Dish subscriber transmitted programming
rightfully in her possession to another device, that transmission did not travel to a large number
of people who are unknown to each other. Rather, the transmission travelled either to the
subscriber herself or to someone in her household using an authenticated device. The court
concluded that was simply not a “public” performance within the meaning of the transmit clause.
Because Dish Anywhere subscribers did not directly infringe the public performance right, Dish
could not be liable for secondary infringement, and the court therefore granted Dish’s motion for
summary judgment as to the claim for copyright infringement by Dish Anywhere with Sling.^529
C. The Right of Public Display
Section 106 (5) of the copyright statute grants the owner of copyright in a literary,
musical, dramatic, and choreographic work, a pantomime, and a pictorial, graphic or sculptural
work, including the individual images of a motion picture or other audiovisual work,^530 the
(^527) Id. at 36.
(^528) Id. at 37-38.
(^529) Id. at *38-41.
(^530) To display a motion picture, one must display individual images “nonsequentially.” 17 U.S.C. § 101 (definition
of “display”).