On March 3rd, the Copyright Alliance submitted an amicus brief before the U.S. Supreme Court in support of broadcasters and the larger creative community in ABC v. Aereo. Professors Jon Garon, Hugh Hansen, Stan Liebowitz, Adam Mossoff, Raymond Nimmer, Sean O’Connor, Mark Schultz and John Simson joined in support of the brief.
Special thanks to Legal Advisory Board Members who drafted the brief Eleanor M. Lackman, Mary E. Rasenberger, Nancy E. Wolff and Scott J. Sholder from Cowan, Debaets, Abrahams & Sheppard. You can read the full brief here.
The public benefits from innovation in creative expression that relies on a strong and robust public performance right. This right is part of a copyright owner’s bundle of rights regardless of how a work reaches the public. In the era of cord cutting and Internet dissemination of content, copyright protection is highly relevant to ensuring the continued creation and availability of high quality works. Moreover, “[i]f the trend of free-riding established by Aereo is allowed to continue, broadcasters – having been deprived of revenues – will be unable to pay for top-of-the-line programming, and the most popular shows will migrate from free over-the-air television to pay services that are able to protect them from Aereo-like services and are able to afford the license fees.”
Congress envisioned copyright law to encompass the protection not only of those who create works but also of those who disseminate those works. The right of public performance has fostered the development of many industries. Indeed, “cable, satellite, and other licensed services have worked in partnership with creators to build businesses that benefit the public interest and that return compensation to creative workers in a variety of ways. These businesses pay significant royalties to contributors whose works are used in the broadcasts that those businesses retransmit.” Reversal of the Second Circuit’s erroneous decision would benefit the public interest as “ensuring that technology does not leave copyright law behind perpetuates the promise that when a consumer tunes into a new service, she will always be able to find something new to watch.”
Aereo’s unlicensed business model cannot be reconciled with the intent and text of U.S. copyright law. The fact that Aereo’s subscribers are in different places and watch the transmissions through the Internet at different times are irrelevant for purposes of interpreting the statute. The Second Circuit took its erroneous reasoning in Cablevision and applied it in ABC v. Aereo “in a way that permits avoidance of the copyright law if a provider makes intermediate (and unnecessary) copies of transmitted works, even though to the consumer, the purpose for subscribing is to “watch live TV” – just as the consumer would do over cable or a licensed Internet service.” A number of copyright scholars have pointed out that Cablevision arrived at its result by erroneously substituting the word “performance” for the word “transmission” in the statute. The Aereo court compounded this error by creating “four complicated and convoluted guideposts that bear no resemblance to the broad statutory language or the intent of Congress in drafting the Copyright Act’s definitions.”