WNET v. Aereo, Inc. Am. Broad. Cos. v. Aereo, Inc.
722 F.3d 500
2d Cir.2013Background
- Aereo captured over-the-air TV broadcasts with thousands of tiny antennas and streamed them to paying subscribers live or for later viewing without licenses or retransmission fees.
- Aereo claimed each subscriber received a unique copy via an individual antenna, so transmissions were "private" (not "public performances" under 17 U.S.C. § 106(4)).
- A Second Circuit panel (relying on Cartoon Network v. CSC/Cablevision) held Aereo did not commit public performances; Judge Chin dissented.
- The court denied rehearing en banc; Judge Chin (joined by Judge Wesley) dissented from that denial and urged full-court review.
- Judge Chin argues the Copyright Act text and legislative history show Aereo transmits performances "to the public," and that Cablevision was wrongly decided or wrongly extended to Aereo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Aereo's retransmissions are "public performances" under 17 U.S.C. § 101/§106(4) | Broadcasters: Aereo transmits copyrighted performances "to the public" via a device/process and so needs licenses | Aereo: each subscriber gets a unique copy via an individual antenna, so each transmission is private, not "to the public" | Panel held Aereo not liable (applied Cablevision); en banc petition denied (Chin dissenting) |
| Whether Cablevision controls resolution here | Broadcasters: Cablevision was wrongly decided and/or should not extend to an unlicensed service that avoids retransmission fees | Aereo: Cablevision controls because individual, subscriber-created unique copies mean transmissions are not "to the public" | Panel applied Cablevision; dissent argues Cablevision misinterprets statute and should be reconsidered en banc |
| Proper statutory interpretation of the "transmit" clause (aggregation, "copies," and audience) | Broadcasters: "transmit" means communicating a performance to members of the public regardless of how many technical copies or individualized transmissions exist | Aereo: focus should be on each transmission; unique copy means no single transmission reaches the public | Judge Chin: statutory text and legislative history support aggregation and a functional inquiry; Cablevision conflated "transmission" and "performance" erroneously |
| Whether rehearing en banc should be granted | Broadcasters: Question is of exceptional importance and uniformity; industry effects and precedent conflict justify en banc review | Aereo: (implicit) panel precedent binding and case-specific application of Cablevision is proper | Court denied rehearing en banc; Chin dissented urging reconsideration to preserve uniformity and correct legal error |
Key Cases Cited
- Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (RS‑DVR decision relied on by panel; held individualized playback from unique copies was not a public performance)
- WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013) (panel decision applying Cablevision to hold Aereo not liable; dissent argued otherwise)
- WPIX, Inc. v. ivi, Inc., 691 F.3d 275 (2d Cir. 2012) (held Internet retransmission of broadcast programming without permission constituted public performance)
- United States v. American Society of Composers, Authors & Publishers, 627 F.3d 64 (2d Cir. 2010) (observed streaming a song is a public performance)
- Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104 (2d Cir. 1998) (providing remote access to receivers to listen to broadcasts constituted a public performance)
- Nat'l Football League v. PrimeTime 24 Joint Venture, 211 F.3d 10 (2d Cir. 2000) (interpreting scope of public performance/transmission in broadcast contexts)