FOX TELEVISION STATIONS, INC; Twentieth Century Fox Film Corporation; Fox Broadcasting Company, Inc.; NBC Universal Media, LLC; Universal Network Television, LLC; Open 4 Business Productions, LLC; NBC Subsidiary (KNBC-TV) Inc; American Broadcasting Companies, Inc.; ABC Holding Company, Inc.; Disney Enterprises, Inc.; CBS Broadcasting Inc.; CBS Studios Inc.; Big Ticket Television, Inc.; Telemundo Network Group LLC; WNJU-TV Broadcasting LLC, Plaintiffs-Appellants, v. AEREOKILLER, LLC; Alkiviades David; Filmon.tv Networks, Inc.; Filmon.tv, Inc.; Filmon.com, Inc.; Filmon X, LLC; Does, 1-3, inclusive, Defendants-Appellees.
No. 15-56420
United States Court of Appeals, Ninth Circuit
March 21, 2017
851 F.3d 1002
Because this is a circular definition-a “wage claim” is “an employee‘s claim“-and the Oregon legislature has not further defined “claim” in this context, we look to Webster‘s, which defines the noun “claim” to mean “an authoritative or challenging request: demand....” Webster‘s Third New Int‘l Dictionary 414 (unabridged ed. 1986). It gives other meanings for “claim,” but neither the text nor context of the statute indicates that any meaning is more applicable than the ordinary one. Having examined the statute‘s text and context, we find that the Oregon legislature intended “wage claim” in
Applying this definition to the facts of this case leads us to conclude that part of Brunozzi‘s claim for retaliation under
Brunozzi‘s refusal to work additional overtime unless he was paid an overtime rate for those hours was a demand for future payment and does not qualify as a wage claim under Oregon law. See Perri, 66 P.3d at 538-40 & n.8 (concluding “that a wage claim for purposes of
REVERSED and REMANDED for further proceedings consistent with this opinion.
Ryan Geoffrey Baker, Baker Marquart LLP, Los Angeles, CA, argued the cause and filed the brief for the defendants-appellees. With him on the brief was Scott M. Malzahn, Baker Marquart LLP, Los Angeles, CA.
Duncan W. Crabtree-Ireland, SAG-AFTRA, Los Angeles, CA, filed a brief on behalf of amici curiae Screen Actors Guild-America Federation of Television and Radio Artists; Directors Guild of America, Inc.; and Writers Guild of America, West, Inc., in support of the plaintiffs-appellants. With him on the brief was Danielle S. Van Lier, SAG-AFTRA, Los Angeles, CA; David B. Dreyfus, Directors Guild of America, Inc., Los Angeles, CA; and Anthony R. Segall, Writers Guild of America, West, Inc., Los Angeles, CA.
Jay A. Rosenthal and J. Matthew Williams, Mitchell Silberberg & Knupp LLP, Washington, DC, filed a brief on behalf of amici curiae The American Society of Composers, Authors and Publishers; Broadcast Music, Inc.; The National Music Publishers’ Association; The Recording Industry Association of America; The Recording Academy; and SESAC, Inc. in support of the plaintiffs-appellants.
Brandon Butler, Glushko-Samuelson Intellectual Property Clinic, American University Washington College of Law, Washington, DC, filed a brief on behalf of amici curiae Consumer Federation of America in support of defendants-appellees. With him on the brief was Alexandra Wilson, Law Student, Glushko-Samuelson Intellectual Property Clinic, American University Washington College of Law, Washington, DC.
Eleanor M. Lackman, Cowan, Debaets, Abrahams & Sheppard LLP, New York, NY, filed a brief on behalf of amici curiae The Copyright Alliance in support of the plaintiffs-appellants. With her on the brief was Keith Kupferschmid; Terry Hart and Terry Hart, Copyright Alliance, Washington, DC; and Nancy E. Wolff; Scott J. Sholder; and Marissa B. Lewis, Cowan, Debaets, Abrahams & Sheppard LLP, New York, NY.
Mitchell L. Stoltz, Electronic Frontier Foundation, San Francisco, CA, and Phillip R. Malone; Jeffrey T. Pearlman; and Brian Quinn, Juelsgaard Intellectual Property and Innovation Clinic, Stanford, CA, filed a brief on behalf of amici curiae Electronic Frontier Foundation and Public Knowledge in support of the defendants-appellees.
Rodney A. Smolla, Wilmington, DE, filed a brief on behalf of amici curiae The Media Institute in support of the plaintiffs-appellants.
Rick Kaplan and Benjamin F. P. Ivins, National Association of Broadcasters, Washington, DC; Joseph R. Palmore and James R. Sigel, Morrison & Foerster LLP, Washington, DC; and Paul Goldstein, Morrison & Foerster LLP, San Francisco, CA, filed a brief on behalf of amici curiae National Association of Broadcasters in support of the plaintiffs-appellants.
Brandon Butler, Glushko-Samuelson Intellectual Property Clinic, American University Washington College of Law, Washington, DC, filed a brief on behalf of amici curiae National Federation of the blind in support of defendants-appellees. With him on the brief was Darlene Tzou, Law Student; Glushko-Samuelson Intellectual Property Clinic, American University Washington College of Law, Washington, DC.
Anthony J. Dreyer; Jordan A. Feirman; and David M. Lamb, Skadden, Arps, Slate Meagher & Flom LLP, New York, NY, filed a brief on behalf of amici curiae National Football League; The Officers of the Commissioner of Baseball d/b/a Major League Baseball; and The PGA Tour, Inc. in support of the plaintiffs-appellants.
Susan Cleary, Vice President & General Counsel, Independent Film & Television Alliance, Los Angeles, CA, and Kelly M. Klaus and David J. Feder, Munger, Tolles & Olson LLP, Los Angeles, CA, filed a brief on behalf of amici curiae Paramount Pictures Corporation; Warner Bros. Entertainment Inc.; and Independent Film & Television Alliance in support of the plaintiffs-appellants.
Ralph Oman, Pravel Professorial Lecturer in Intellectual Property and Patent Law, George Washington University Law School, Former Register of Copyrights of the United States of America, Washington, DC, filed a brief on behalf of amici curiae on his own behalf in support of the plaintiffs-appellants.
Before: DIARMUID F. O‘SCANNLAIN, JOHNNIE B. RAWLINSON, and CONSUELO M. CALLAHAN, Circuit Judges.
OPINION
O‘SCANNLAIN, Circuit Judge:
We must decide whether a service that captures copyrighted works broadcast over the air, and then retransmits them to paying subscribers over the Internet without the consent of the copyright holders, is a “cable system” eligible for a compulsory license under the Copyright Act.
I
A
The Copyright Act of 1976 gives copyright holders six “exclusive rights,” including the exclusive right “to perform” copyrighted works “publicly.”
Under § 111 of the Act, a “cable system” is eligible for a so-called compulsory license that allows it to retransmit “a performance or display of a work” that had originally been broadcast by someone else-even if such material is copyrighted-without having to secure the consent of the copyright holder.
This lawsuit pits a group of broadcast stations and copyright holders (collectively, “Fox“) against an entity now known as FilmOn X (“FilmOn“). FilmOn operates a service that uses antennas to capture over-the-air broadcast programming, much of it copyrighted, and then uses the Internet to retransmit such programming to paying subscribers, all without the consent or authorization of the copyright holders. The Supreme Court recently held that such a service does “perform” the retransmitted works “publicly,” and hence infringes the copyright holders’ exclusive performance rights. American Broad. Cos. v. Aereo, Inc., 134 S. Ct. 2498, 2503 (2014). Fox sued FilmOn for copyright infringement in 2012; in its most recent defense, FilmOn claims that it is a “cable system” eligible for a compulsory license under § 111.
The relevant provision of the Copyright Act defines “cable system” as follows:
A “cable system” is a facility, located in any State, territory, trust territory, or possession of the United States, that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service. For purposes of determining the royalty fee under subsection
(d)(1), two or more cable systems in contiguous communities under common ownership or control or operating from one headend shall be considered as one system.
B
The district court granted partial summary judgment to FilmOn, agreeing with it that it qualified as a “cable system” and was therefore potentially entitled to a compulsory license. The district court based its conclusion on what it took to be the plain meaning of § 111, as well as the Supreme Court‘s Aereo decision; which had analogized Internet-based retransmission services to cable companies in the course of deciding that Internet retransmissions count as “performances” under the Act‘s Transmit Clause,
Recognizing that its ruling “involve[s] a controlling question of law as to which there is substantial ground for difference of opinion,” however, the district court authorized an immediate appeal from its decision. We granted Fox‘s petition for permission to appeal.1
II
“We review de novo both the district court‘s grant of summary judgment and its holdings on questions of statutory interpretation.” Phoenix Mem‘l Hosp. v. Sebelius, 622 F.3d 1219, 1224 (9th Cir. 2010). But before turning to the parties’ interpretations of § 111, it is crucial to point out that we do not confront § 111‘s compulsory licensing scheme on a blank slate, because there is an agency interpretation in the background. The Copyright Office-the agency charged with implementing the Copyright Act-has for many years maintained that Internet-based retransmission services are not “cable systems” and hence are not eligible for compulsory licenses under § 111. Thus, when FilmOn attempted to pay the government-prescribed fee for retransmitting copyrighted broadcast programming, the Office refused to accept FilmOn‘s filings, citing its position that Internet-based retransmission services are not covered by § 111.
Fox and FilmOn each claim that the plain meaning of § 111 resolves this case in its favor. We will first discuss Fox‘s interpretation, then FilmOn‘s, and only then-if we conclude that the meaning of § 111 is ambiguous on the question presented-will we consider the views of the Copyright Office.
III
A
Fox maintains that § 111‘s “plain text makes clear that the relevant ‘facility’ com-
Fox‘s theory is not implausible. As Fox points out, and as FilmOn does not dispute, “[a] traditional cable system is a ‘facility’ in this sense: It ... retransmits [broadcast] signals directly to its subscribers over a transmission path fully within its control.” Nevertheless, we cannot conclude that the statute compels the conclusion that to qualify as a “cable system,” a retransmission service must encompass or have control over the means it uses to transmit material to paying subscribers.
The most important difficulty with Fox‘s interpretation is that it finds insufficient support in the text of the statute. Recall the relevant language; to be a “cable system,” a facility must “make[] secondary transmissions of [broadcast] signals or programs by wires, cables, microwave, or other communications channels.”
In addition,
B
Although Fox‘s plain-meaning construction has not convinced us, Fox can prevail if we defer to the views of the Copyright Office. FilmOn urges us not to do so because, FilmOn insists, the plain meaning of § 111 supports its position. FilmOn strives mightily to demonstrate that the plain meaning of § 111 unambiguously entitles it to a compulsory license.
FilmOn first argues that § 111 “should be interpreted in a technology agnostic manner.” FilmOn would have us read § 111 as making compulsory licenses available to any facility that retransmits broadcast signals or programming, no matter its technological features or characteristics. That position is a poor fit with § 111‘s text and structure. First of all, if Congress had intended § 111 to service the entire secondary transmission community, doling out statutory licenses without regard to the technological makeup of its members, it would have been easy enough for Congress to say so (and in fact, Congress came very close to doing just that in the Transmit Clause,
Undeterred, FilmOn relies on the Supreme Court‘s recent decision in Aereo, which, FilmOn insists, “recognized section 111‘s technology agnosticism.” But Aereo did nothing of the sort. Aereo dealt with an altogether different provision of the Copyright Act, the Transmit Clause, which defines the scope of a copyright holder‘s exclusive right by delineating the class of activities that count as public performances and hence infringe such right. See
We also cannot accept FilmOn‘s assertion that it clearly satisfies § 111‘s requirement that a cable system make secondary transmissions by “wires, cables, microwave, or other communications channels.”
Moreover, it would be perfectly reasonable to interpret “other communications channels” according to the ejusdem generis canon, which instructs that “when a statute sets out a series of specific items ending with a general term, that general term is confined to covering subjects comparable to the specifics it follows.” Hall St. Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 586 (2008). Invoking such canon, one could reasonably conclude that the “other communications channels” must share characteristics such as bandwidth, throughput, and noise; alternatively, one could conclude, as the Copyright Office does, that such channels must be “inherently localized transmission media of limited availability.” Either interpretation would imply that the Internet is not an “other communications channel” under § 111. We cannot conclude that § 111 unambiguously requires otherwise.
Nor can we conclude that the Copyright Act‘s broad purposes compel the conclusion that Internet-based retransmission services are eligible for compulsory licenses under § 111. Rather, we see powerful arguments that such a reading could very well undermine the balance of interests Congress attempted to strike when it designed § 111. That is especially so when § 111 is viewed in the context of its enactment.
In brief, when Congress passed the Copyright Act of 1976, it overturned two earlier Supreme Court decisions which had held that cable systems were not liable for copyright infringement on the theory that they did not actually “perform” the works they retransmitted at all. Teleprompter Corp. v. Columbia Broad. Sys., Inc., 415 U.S. 394, 408 (1974); Fortnightly Corp. v. United Artists Television, 392 U.S. 390, 399 (1968). Congress therefore acted to restore a measure of protection to copyright owners. At the same time, however, Congress recognized that cable systems served an important public good, by enabling geographically distant and isolated communities to receive over-the-air broadcasts that would otherwise not reach them. But in 1976 the cable industry was a fledgling one; cable systems had little market power and little ability to overcome the considerable transaction costs they would incur if they had to negotiate individual licenses directly with copyright owners. Congress responded to these economic conditions by enacting § 111, which relieved cable systems of the need to sit down with every copyright holder before retransmitting their copyrighted broadcast works. Section 111 also helped protect the infrastructure investments cable systems have undertaken in the years prior to the Act. And the broadcast companies and copyright owners benefitted to some extent as well, insofar as they could now reach viewers they would not otherwise have been able to access. Fundamentally, however, § 111 was Congress‘s attempt to balance the socially useful role cable systems had come to play, on the one hand, against the property interests and creative incentives of copyright holders, on the other.
One could reasonably conclude that extending § 111 to Internet-based retrans-
To be sure, we agree with FilmOn that there are important values on its side of the equation as well. Still, our conclusion from this discussion is a predictable one: the array of competing interests at stake does not unambiguously counsel for or against a broad reading of § 111.
Additionally, throughout its brief FilmOn invokes the statute‘s legislative history. Unsurprisingly, however, there is plenty of legislative history to go around, as Fox and the Copyright Office make extensive use of it as well. At best, we think the legislative history is a wash; it certainly does not compel the conclusion that § 111 must be interpreted to be “technology agnostic,” or that Internet-based retransmission services must be deemed “cable systems.” To the extent the legislative history provides relevant evidence of § 111‘s meaning, we would defer to the Copyright Office‘s interpretation of it, seeing as the Copyright Office has a much more intimate relationship with Congress and is institutionally better equipped than we are to sift through and to make sense of the vast and heterogeneous expanse that is the Act‘s legislative history.
Finally, we note two additional reasons to reject FilmOn‘s argument that § 111 must be read to encompass Internet-based retransmission services.
As courts have explained in the past, compulsory licenses represent a “limited exception to the copyright holder‘s exclusive right to decide who shall make use of his [work],” and courts should not “expand the scope of the compulsory license provision beyond what Congress intended ... nor interpret it in such a way as to frustrate that purpose.” Fame Publ‘g Co. v. Ala. Custom Tape, Inc., 507 F.2d 667, 670 (5th Cir. 1975). Such canon supports a narrow construction of § 111.
Additionally, as Fox points out, interpreting § 111 so as to include Internet-based retransmission services would risk putting the United States in violation of certain of its treaty obligations. An age-old canon of construction instructs that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804). FilmOn does not have a satisfactory answer to this argument.
For the foregoing reasons, we cannot accept FilmOn‘s argument that § 111 must be read in such a way as to make Internet-based retransmission services eli-
IV
Because the statute does not speak clearly to the precise question before us, we must decide how much weight to give the views of the Copyright Office. The Copyright Office has published its views on the meaning of § 111 through a few different channels. We group them into two broad categories.
First, in 1992 and again in 1997 the Office engaged in notice-and-comment rulemaking in order to decide whether burgeoning retransmission technologies-specifically, satellite and microwave retransmission systems-could be classified as “cable systems” under § 111. The 1992 and 1997 rulemakings did not purport to consider Internet-based retransmission services. In the final rules’ preambles, however, the Office stated broadly “that a provider of broadcast signals [must] be an inherently localized transmission media of limited availability to qualify as a cable system.” Cable Compulsory Licenses: Definition of Cable Systems, 62 Fed. Reg. 18,705-02, 18,707 (April 17, 1997) (codified at
That brings us to the second batch of Copyright Office interpretations relevant to this litigation. Since 1997, the Office has on at least four occasions specifically and unequivocally said that, in its view, Internet-based retransmission services are not “cable systems” under § 111, but it has not done so in connection with any rulemaking. Instead, the Office has communicated its position largely through official reports and testimony before Congress.
A
The first question is whether Chevron or Skidmore provides the proper framework to structure our analysis.3 The
To resolve this issue, we would be required to rule on constitutional questions that could have outsized consequences relative to this case-such as determining whether the Library of Congress is a legislative or executive agency.4 However, it is clear the Copyright Office is entitled to at least Skidmore deference. E.g., Alaska Stock, LLC v. Houghton Mifflin Harcourt Pub. Co., 747 F.3d 673, 684-85 (9th Cir. 2014) (“[W]e defer to the Copyright Office‘s views ... to the extent that those interpretations have the power to persuade.“). And, whether Chevron or Skidmore applies ultimately does not affect the conclusion we reach. We therefore adhere to the “well established principle ... [that] the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case” and will proceed under the Skidmore framework. See Bond v. U.S., 134 S. Ct. 2077, 2087 (2014) (citing Escambia County v. McMillan, 466 U.S. 48, 51 (1984)).
B
Under Skidmore, and having already determined that the meaning of § 111 is ambiguous on the precise question before us, we must now ask whether the Copyright Office‘s interpretation is persuasive and reasonable. To do so we review “the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements.” U.S. v. Mead Corp., 533 U.S. 218, 228 (2001) (citing Skidmore, 323 U.S. at 140).
First, the Office‘s decision to reject Internet-based retransmission services because they do not use a localized retransmission medium finds sufficient support in the text, structure, and basic purposes of the Copyright Act. Such interpretation aligns with § 111‘s many instances of location-sensitive language, including “head-ends,”
Furthermore, confining “cable systems” to localized retransmission media is a sensible way to construe the phrase “other communications channels” so that it does not sweep in every possible retransmission technology. The Office‘s position is not rigidly originalist, as its ability to accommodate Satellite Master Antenna Television systems demonstrates. Rather, it is a plausible attempt to maintain the balance Congress struck between the public‘s interest in ever-improved access to broadcast television and the property rights of copyright holders. “The interpretation makes considerable sense in terms of the statute‘s basic objectives,” Barnhart, 535 U.S. at 219, as well as its text.
The Office has maintained a consistent position on this issue since it first expressed its views in 1992. 57 Fed. Reg. at 3292; 62 Fed. Reg. at 18,707. In articulating its position the agency has consistently referenced the statute‘s text, structure, and legislative history. E.g., 57 Fed. Reg. at 3292; see also id. at 3290 (endorsing the view that “the terms of section 111, when considered as a whole, make it obvious that the license is directed to localized transmission services,” and that § 111 “do[es] not have any application to a nationwide retransmission service such as satellite carriers.“). Since 1997, the Office has on at least four occasions explicitly concluded that Internet-based retransmission services are not “cable systems” under § 111.
Lest there be any doubt, we note that for years Congress has indisputably been aware of the Office‘s position that Internet-based services are ineligible under § 111, and yet “Congress has frequently amended or reenacted the relevant provisions without change.” Barnhart, 535 U.S. at 220. As the district court for the District of Columbia recounted:
Congress has been fully aware of the Copyright Office‘s longstanding interpretation. Despite this awareness, Congress has neither amended the text of § 111 nor enacted a separate compulsory-licensing scheme to include Internet-based retransmission services. However, Congress has repeatedly amended the statute in other respects. For example, it amended the cable system definition to include the term ‘microwave’ and enacted the licensing scheme for satellite providers. As recently as 2014, ... Congress amended the Copyright Act without rejecting or altering the Copyright Office‘s interpretation.
Fox Television Stations, 150 F.Supp.3d at 26-27 (internal citations omitted); see also ivi I, 765 F.Supp.2d at 616 (same). “These circumstances provide further evidence-if more is needed-that Congress intended the Agency‘s interpretation, or at least understood the interpretation as statutorily permissible.” Barnhart, 535 U.S. at 220; see also Greenhorn Farms v. Espy, 39 F.3d 963, 965 (9th Cir. 1994).5
V
FilmOn and other Internet-based retransmission services are neither clearly eligible nor clearly ineligible for the compulsory license § 111 makes available to “cable systems.” The Copyright Office says they are not eligible. Because the Office‘s views are persuasive, and because they are reasonable, we defer to them. The judgment of the district court is therefore
REVERSED.
DIARMUID F. O‘SCANNLAIN
UNITED STATES CIRCUIT JUDGE