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Related Case No. 12-2786-cv
IN THE
mntteb Sta tes ourt of gppealsFOR THE SECOND CIRCUIT
AMERICAN BROADCASTING COMPANIES, INC., et al.
Plaintiffs-Appellants,
v.
AEREO, INC.,
Defendant-Appellee.
On Appeal from the United States District Court
for the Southern District of New York
BRIEF OF MICI CURI ENATIONAL BASK ETBALL ASSOCIATION
NBA MEDIA VENTUR ES LLC NBA PROPERTIES INC. NATIONALFOOTBALL LEAGUE NATIONAL HOCKEY LEAGUE OFFICE OF THE
COMM ISSIONER OF BASEBALL AND MLB ADVANCED MEDIA L.P.
IN SUPPORT OF REHEARING EN BAN C
Robert Alan GarrettStephen M. Marsh
R. Stanton Jones
ARNOLD PORTER LLP555 Twelfth Street, NW
Washington, DC 20004
202) [email protected]
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RULE 26.1 CORPOR TE DISCLOSU RE ST TEMENT
In accordance with Federal Rule of Appellate Procedure 26.1, mici Curiae
state as follows:
The National Basketball Association ( NBA ) has no parent corporation and
no publicly held company owns 10% or more of its stock.
NBA Media Ventures, LLC ( NBAMV ) has no parent corporation and no
publicly held company owns 10% or more of its stock.
NBA Properties, Inc. ( NBAP ) is owned equally by the thirty NBA
members; NBAP has no parent corporation and no publicly held company owns
10% or more of its stock.
The National Football League ( NFL ) has no parent corporation and no
publicly held company owns 10% or more of its stock.
The National Hockey League ( NHL ) has no parent corporation and no
publicly held company owns 10% or more of its stock.
The Office of the Commissioner of Baseball, doing business as Major
League Baseball ( MLB ), has no parent corporation and no publicly held
company owns 10% or more of its stock.
MLB Advanced Media, L.P. ( MLBAM) is a limited partnership organized
under the laws of the State of Delaware. Its partners consist of MLB Advanced
Media, Inc., and MLB Media Holdings, L.P. ( MLBMH). There is no publicly
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held company that owns 10 or more of the stock of MLBAM MLBMH or MLB
Advanced Media Inc.
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T BLE OF CONTENTS
age
RULE 26.1 CORPORATE DISCLOSURE STATEMENT
TABLE OF AUTHORITIES v
IDENTITY AND INTERESTS OF AMICI CURIAE
ARGUMENT 2
I. THE MAJORITY S DECISION CONTRAVENES CONGRESS
DETERMINATION IN THE 976COPYRIGHT ACT THAT
BROADCAST RETRANSMISSION SERVICES MAKE PUBLIC
PERFORMANCES AND SHOULD PAY COPYRIGHT ROYALTIES
O THE OWNERS OF THE PROGRAMMING THEY EXPLOIT. 2
11. THE MAJORITY S DECISION IS INCONSISTENT WITH THIS
COURT S DECISIONS IN CABLEVISIONAND IVI
111. THIS CASE RAISES AN ISSUE OF EXCEPTIONAL IMPORTANCE 8
CONCLUSION 13
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
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T BLE OF UTHORITIES
Cartoon Network LP v. CSC Holdings Inc.536 F.3d 121 (2d Cir. 2008) pssim
Fortnightly Corp. v. U nited Artists Te levision Inc.
392 U.S. 390 (1968) 10
Fox Television Stations Inc. v. Barry Driller Content Sys. PLCF Supp. 2d ---, 012 WL 6784498 (C.D. Cal. Dec. 27, 2012)
Teleprompter Corp. v. Columbia Broad. Sys. Inc.415 U.S. 394 (1974) 0
Twentieth Century Music Corp. v. Aiken422 U.S. 15 1 (1975) 3
WPIX Inc. v. ivi Inc. 691 F.3d 275 (2d Cir. 2012),
cert. denied --- S. Ct. --- 1 U.S.L.W. 3511 (Mar. 18, 2013) 2, 7, 8
Fed. R. App. P 35(b)
Brief of the United States as Amicus Curiae, Cable News Network Inc. v.
CSC Holdings Inc. No. 08-448,2009 WL 1511740 (U.S. May 29,2009) 6 ,7
Case C-607/11, ITV Broadcasting Ltd. v TVCatchUp Ltd. (Mar. 7,2013),available at http://curia.europa.eu/juris/document/d0cument.jsf?text= docid= 134604 pageIndex=0 doclang=en mode=
req dir= occ=first part=l cid=143508 1
Christopher S. Stewart William Launder, Diller Wins A Broadcast-TVClash Wall St. J . July 12, 2012 10
.R. Rep. No 94-1476 8
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Jane C. Ginsburg, WNET v. Aereo: The Second Circuit Persists in Poor
Cable) Vision Apr. 23,2013), available at
http://www.mediainstitute.org/IPI/2O1310423 13 php 5
Janko Roettgers, Does Dish Want To Buy Aereo? Broadcasters Would Love
To Know, Paid Content April 4,2013, 7:51 p.m.),http://paidcontent.org/2013/04/04/does dish want to buyaereobroadcasters-would-love-to-know. 0
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IDENTITY AND INTERESTS OF AMICI CURIAE
Amici are the major U.S. .profess ional sports leagues-the National
Basketball Association ( NBA ), National Football Lea gue ( NFL ), National
Hockey League ( NHL ), and Office of the Commissioner of Baseball d/b/a Major
League Baseball ( MLBn)-NBA Media Ventures, LLC (owner of the right to
stream telecasts of NB A games ove r the Internet); NB A P roperties, Inc. (owner of
the intellectual property rights in certain NBA programming); and MLB Advanced
Media, L.P. (owner of the right to stream telecasts of MLB games over the
Internet).
Amici provide the public with, and own copyrights in, a substantial amount
of very valuable and popular live professional sports programm ing. A significant
portion of that programming appears on broadcast television stations that
Defendant-A ppellee Aereo, Inc. ( Aereo ) retransmits o ver the Internet to its
paying subscribers-without obtaining any authorization of, or paying any
compensation to, Am ici or anyone else. Aereo provides its unauthorized broadcast
retransmission service in direct and unfair competition with various Internet and
other services that Amici themselves offer or license to third parties. ee Brief of
No party's counsel authored this brief in whole or in part. N o party or party's
counsel made a monetary contribution intended to fund the preparation or
submission of this brief, and no person other than Amici or their counsel madesuch a m onetary contribution.
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Amici Curia e National B asketball Association et al. at 3-4 (No. 12-2807 , Dkt. 1 23)
( Sports Amicus Br. ).
Amici believe that the panel majority's April 1, 2013 decision in this case
incorrectly interprets the Copyright Act and is inconsistent with the decisions of
this Cou rt in WPIX; Inc . v. ivi, Inc., 69 1 F.3d 275 (2d Cir. 20 12), cer t. denied , S.
Ct. --- 1 U.S.L.W. 35 11 (Mar. 18 ,20 13 ) ( ivy), and C artoon Network L P v. C SC
Holdings, Inc ., 536 F.3d 121 (2d Cir. 2008) ( C ablevision ). Th is case also raises
an issue of exceptional importance concerning the copyright liability of services
that retransmit broadcast television programming to paying subscribers without
licenses to do so. Accordingly, en bane review is warranted under Rule 35(b) of
the Federal Rules of A ppellate Procedure.
ARGUMENT
I. THE MAJORITY S DECISION CONTRA VENES CONGRESSDETERMINATION IN THE 1976 COPYRIGHT ACT THAT
BROADCAST RETRANSMISSION SERVICES MAKE PUBLIC
PERFORMANCES AND SHOULD PAY COPYRIGHT ROYALTIES
TO TH E OW NERS OF THE PROGRAMMING THEY EXPLOIT.
Like any cable or satellite service, Aereo allows thousands of paying
subscribers to view simultaneously the same over-the-air broadcast of a
copyrighted television program, e.g., the WNYW-TV or other network broadcast
of the Super Bowl or World Series. Nevertheless, the panel majority concluded
that Aereo makes, not public perform ances, but thousan ds of pr iv at e performances
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of that program. A s the dissent correctly observed, that conclusion makes no
sense and elevates form over substance. Dissent at 3 4 (Chin, J.). An
individual who sings a copyrighted lyric in the shower engages in a private
performance. Twentieth C entury Music Covp v. Aiken 422 U.S. 151, 155 (1975).
A commercial service (like Aereo) that retransmits the broadcast of a copyrighted
television program to thousands of paying subscribers at the same time is not in
any way com parable to an individual singing in the shower.
The panel majority's decision is squarely at odds with Congress'
determination in the 1976 Copyright Act that broadcast retransmission services
engage in public performances. Congress concluded that it would be inequitable to
allow commercial enterprises to profit from retransmitting broadcast television
programming without compensating those who-at great expense, effort and
risk-are responsible for the creation of that program ming. See 1976 H.R. Rep.
No. 94-1476, at 89 (1976); Sports Am icus Br. 8-9. Aereo is such a comm ercial
enterprise; it too is a broadcast retransmission service built on the exploitation of
copyrighted programming, including Am ici's programm ing. Under the Transmit
Clause, all such services (whether cable, satellite or Internet) that retransmit to
multiple subscribers the same broadcast of a television program, i . e . the same
performance of a copyrighted work, publicly perform that w ork.
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The panel majority improperly exempted Aereo's broadcast retransmission
service from th e public performance right, asserting that technical architecture
matters. Op . at 1. In other words, the majority concluded that such a service can
convert what is indisputably a public performance (the retransmission of a
broadcast of a program to thousands of households at the same time) into
thousands of individual private performances merely by adopting a Rube
Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the
Copyright Ac t and to take advantage of a perceived loophole in the law. Dissent
at 2. But there is no engineering exemption to the Transmit Clause; the Transmit
Clause is intentionally technology agnostic. And Congress in the 1976 Copyright
Act determined that all services that retransmit the broadcast of a program to
multiple mem bers of the public publicly perform that program-not just those who
employ a particular technical architecture to do so.
Indeed, a principal legislative objective in enacting the 1976 Copyright Act
was to ensure that unforeseen changes in technology would not erode the value of
the exclusive rights accorded copyright owners and require Congress constantly to
update the Copyright Act to ensure protection of those rights. See Sports Amicus
Br. 12. Accordingly, Con gress drafted the Transmit Clause broad[ly] to define
public perform ance as including the transmission of a performance or display of
the work to the public by means of any device or process now known or
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lat er developed -irrespective of whether those capable of receiving the
transmission receive it separately, i.e., at the same place or in separate places or
at the same time or at different times. 17 U.S.C. 101 (emphasis added).
Aereo's broadcast retransmission service (like any of the cable systems and
satellite carriers with which it competes) falls squarely within that broad language.
The panel majority erred when it reached the contrary conclusion by mechanically
applying the C ablevision interpretation of the Tran smit Clause to a se rvice that the
Cablevision court never contemplated or addressed. See Dissent at 17-18; Jane C.
Ginsburg, WNET v. Aereo: The Second Circuit Persists in Poor (Cab1e)Vision
(Apr. 23, 2013) (explaining that the Aereo decision is inconsistent w ith statutory
text and policy ), available a t http://www.mediainstitute.org/IPI/2O13/0423 13.php.
11. TH E MA JORITY S DECISION IS INCON SISTENT WITH THIS
COURT S DECISIONS IN CABLEVISION AND IVI
Th e panel majority dismissed, as incompatible w ith the conclusions of the
Cablevision court, the view that Aereo's Internet broadcast retransmission service
engages in public performances under the language and legislative history of the
1976 Act. Op. at 31. But Cablevision did not consider, mu ch less disturb, the
well-settled principle that commercial broadcast retransmission services (like
Aereo) engage in public performances, regardless of the technology they employ.
Moreover, the C ourt in Cablevision determined only that a transmission made over
closed facilities owned and managed by a licensed cable operator is capable of
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being received by more than one person without violating the Copyright Act. It
offered no view on the distinct issue of whether a retransmission made over the
Internet and to mobile devices is capable of being received by more than a single
individual without violating the Copyright Act. See Sports Amicu s Br. 26-29.
The Court in Cablevision emphasize[d] that it did not intend to exempt
content delivery networks from copyright liability simply because they (like
Aereo) associate unique copies of copyrighted works with each of their
subscribers. See 536 F.3d at 139. In recommending against Suprem e Court review
of Cablevision the Government (represented by then-Solicitor General Elena
Kagan) likewise explained that this Court in Cablevision was careful to tie its
actua l holdings to the facts of [that] case, and that Cablevision should not be
construed to underm ine copy right protection in circumstances far beyond those
presented here, including with respect to situations in which a party streams
copyrighted material on an individualized basis over the Internet. Brief of the
United States as Amicus Curiae, Cable News Network Inc. v. CSC Holdings Inc.
No. 08-448,2009 W 1511740, at 6,20 -21 (U.S. May 29,20 09).
The panel majority in this case acted inconsistently with Cablevision by
extending Cablevision well beyond its facts to encompass a wholly unlicensed
Internet broadcast retransmission service. See Dissent at 18-20. Th e majority did
so (a) without making any attempt to reconcile the Cablevision interpretation of the
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Transmit C lause with the indisputable fact that Congress in the 1976 Act intended
to subject broadcast retransmission services to copyright liability; and (b) without
evaluating the significant factual differences between the Internet and mobile
services provided by Aereo, on the one hand, and the network DVR service at
issue in Cablevision on the other hand.
The panel majority's decision also cannot be reconciled with the recent ivi
decision, where this Court (like the Register of Copyrights) concluded that
Congress never intended to accord a compulsory or statutory license to
retransmit broadcast programming over the Internet. ivi 691 F.3d at 284-85. As
the Court in ivi also correctly determined, unauthorized retransmissions of
broadcast program ming over the Internet would substantially diminish the value
of the programming, drastically change the industry, to [copyright owners']
detriment, and threaten to destabilize the entire industry. Id at 285-86. These
concerns apply with equal force here, where Aereo is doing precisely w hat ivi was
enjoined from doing: streaming copyrighted works over the Internet without
permission of the copyrigh t holders. Dissent at 26.
The effect of the ivi decision is to require Internet broadcast retransmission
services to negotiate public performance licenses with copyrigh t owners. The
panel's decision in this case, however, is inconsistent with ivi. It provides Internet
services and others with a blueprint (id.) for avoiding the copyright licenses that
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the Court in ivi (and Congress) determ ined are necessary--and thereby paves the
way for the very industry-wide harm that the Court in ivi sought to forestall. The
fact that an unlicensed Internet broadcast retransmission service (like Aereo)
inefficiently utilizes thousands of mini-antennas, unnecessarily makes a unique
copy of each television program for each subscriber, and employs other
technological gimmickry in the hope of avoiding copy right liability does nothing to
ame liorate that harm. The panel majority's decisio n in this case creates the
statutory exemption that Congress never intended to accord Internet broadcast
retransmission services and that the Court in ivi properly rejected. See Sports
Am icus Br. 15 23. In sho rt, it conflicts with ivi
I n THIS CA SE RAISES AN ISSUE OF EXCE PTIONAL IMPORTANCE
For several reasons, and as reflected by the broad array o f amici who have
participated in this appeal (on both sides) and the blitz of media attention that has
been focused on litigation involving Aereo and com parable Internet retransmission
services, this case raises an issue of exceptional importance that warrants the
attention of the full Court.
First he issue in this case concerns the copyright liability o f a com mercial
service that, without co nsent, reformats and retransmits to paying subscribers the
copyrighted program min g on broadcast television signals. Historically, that issue
has been one of exceptional importance. Indeed, it was the mo st controversial
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issue in the legislative debates leading to the 1976 Copyright Act and was
primarily responsible for delaying passage of that legislation for more than a
decade. See H.R. Rep. No. 94-1476, at 89. Durin g that period, broadcasters,
copyright owners, cable operators and public interest organizations devoted
enormous resources to resolving the issue in legislative debates, federal court
litigation (culminating in two Supreme Court decisions reviewing decisions from
this Court), and numerous proceedings before the Federal Communications
Com mission and the Cop yright Office. Congress thought it had comprehensively
resolved in the 1976 Act the copyright issues surround ing broadcast retransm ission
services. Th e panel majority's decision, how ever, throws that resolution to the
wind by providing the blueprint for circumventing Congressional intent. Dissent
at 26.
Second with the advent of the digital age, there has been renewed focus on
the copyright issues surrounding unlicensed broadcast retransmission services.
Given the technological ease with which broadcast programm ing can be captured
and retransmitted over the Internet, several such commercial retransmission
services have emerge d. Th e courts have enjoined all these services, with the sole
exception of Aereo. See Sports Amicus Br. 7-8. Most recently, a California
federal court has preliminarily enjoined a service that claims to employ the same
technology as Aereo, concluding that the interpretation of the Transmit Clause
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reflected in Cablevision and Aereo is simply incorrect. See Fox Television
Stations Inc. V Barry Driller Content Sys. PLC F Supp. 2d --- 012 WL
6784498 (C.D. Cal. Dec. 27, 2012). Tha t decision is pending before the Ninth
Circuit. If there is to be a circuit split on this issue, it is particularly important to
have the views of the full Court in this appeal, rather than that of a divided panel.
While the Supreme Court considered the scope of the public performance right
under the 1909 Copyright Act (including in the context of broadcast retransmission
services), see e.g. Fortnightly Coup. v. Un ited Artists Television Inc. 392 U.S.
390 (1968); Teleprompter Corp. v Columbia Broad. Sys. Inc. 415 U.S. 394
(1974), it has never considered the scope of that right under the 1976 Act.
Third there is nothing particularly complicated or proprietary about the
Rube Goldberg device that Aereo has employed to avoid copyright liability.
Othe rs (whether they a re start-up Internet services or traditional cable and satellite
services) can easily adopt the same technological fix. They too, with little
difficulty, can em ploy mini-antennas and insert uniqu e copies into
retransmission stream s in the hope of avo iding the copyright liability that Congress
imposed upon broadcast retransmission services in the 1976 Act. Th e copycat
service involved in the BarryDriller litigation, allegedly, already has done so.
It also is hardly surprising that various cable and satellite services have an
interest in the outcom e of this proceeding and in negotiating with Aereo a s a means
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of circumventing copyrigh t liability. Christopher S. Stewart William Launder,
Diller Wins A B roadcast-TV Clash Wall St. J., July 12, 2012, at B1,
http:Nonline wsj com/article/SB0001424052702303644004577521 362073 162108
.html; Janko Roettgers, Does Dish Want To Buy Aereo? Broadcasters Would Love
To Know Paid Content (April 4, 2013, 7:51 p.m.),
http://paidcontent.org/20 13/04/04/does dish want to buy aereobroadcasters
would-love-to-know. Moreover, while Aereo currently retransmits only New York
signals to New Yo rk subscribers, its interpretation of the Transm it Clause does not
require this limitation; Aereo in effect claims that it can retransmit broadcast
signals anywhere in the country (or, indeed, in the world) without copyright
liability under U.S. law. Any decision to undo the 1976 Act s conclusions
concerning broadcast retransmission services should be made, if at all, by the
entire Court, and not a divided panel o f that Court.
Fourth th e pa ne l s decision places the United States in violation of its
obligations under various international treaties. See Sports Am icus Br. 30-32. It
also results in copyright owners receiving measurably less protection in the United
States than abroad. See Case C-607111, ITV Broadcasting Ltd. v. TVCatchUp Ltd.
(Mar. 7, 2013) (European Court of Justice decision holding that services that
retransmit live broadcast programming over the Internet make communications to
the public that require the consent of copyright owners), available at
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http://curia.europa.edjuris/document/document.js~text= docid=l34604 pageInd
ex=0 doclang=en mode=req dir= occ=first part=l cid=143508. Such a
decision also should be made by the Court en bane and not by a divided panel,
which did not even consider the impact of its actions on this coun try s international
obligations.
Finally, this case involves application of a decision of this Court
(Cablevision) that itself was highly controversial. As noted, in response to a
petition for writ of certiorari, the Supreme Court called for the views of the then-
Solicitor General (Elena Kagan), who recommended against Supreme Court
review only because there was, at that time, no circuit split and the Court in
Cablevision explicitly confined its decision to the facts of that case. If there is to
be an extension of Cablevision to the unique circumstances presented by broadcast
retransmission services, that extension should be made (if at all) by the full Court.
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ON LUSION
For the reasons set forth above, rehearing n b ne should be granted.
Dated: April 23,20 13 Respectfully submitted,
IS/ Robert Alan Garrett
Robert Alan Garrett
Stephen M. MarshR. Stanton Jones
ARNOLD PORTER P555 Twelfth Street, NW
Washington, DC 20004
202) 942-5000
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CERTIFIC TE OF COMPLI NCE
This brief complies with the type-volume limitation of Fed. R. App. P.
32 a) 7) B) because the brief contains 2,621 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32 a) 7) B) iii). This brief complies with the
typeface and type style requirements of Fed. R. App. P. 32 a) 5) and 32 a) 6),
respectively, because this brief has been prepared in a proportionately spaced
typeface using Microsoft Word 2007 in Times New R oman 14-point font.
IS/ Robert Alan Garre tt
Robert Alan Garrett