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All in the Timing

Hi, everybody! I’ll be contributing here occasionally. This is a cross-post from my personal blog, the Laboratorium.

On Wednesday, Judge Nathan issued a decision in ABC v. Aereo, a.k.a. the “tiny antennas” case. Aereo rebroadcasts over-the-air TV signals on the Internet. Other services, from iCraveTV to ivi have tried this same business model, and uniformly gone down to defeat in the courts. But Aereo broke the streak; Judge Nathan denied the TV networks suing it a preliminary injunction, holding that they hadn’t shown a likelihood of success in proving that Aereo was infringing on their copyrights.

(A bell rings softly.)

The only significant difference between Aereo and its ill-fated predecessors is that Aereo doesn’t use a single antenna to capture the TV signals. Instead it uses an array of antennas—eighty on each circuit board—to assign each subscriber her own antenna for as long as she wants to watch TV live or to record TV shows for later. This is a ridiculous distinction, and I have previously written that, “In any sane world, Aereo would not exist.” But under the Second Circuit precedent of Cartoon Network v. CSC Holdings (the “Cablevision” case), this result was close to compelled.

Cablevision was a case about a “remote DVR,” essentially a TiVo in the cloud at the cable company’s facilities rather than in the customer’s home. Cablevision took incoming TV signals and passed them through a buffer holding 1.2 seconds of signal at a time. If a customer wanted to record a program, the video signal was split and a copy saved on a portion of a hard drive reserved for the customer. The customer could then, at any later time, hit “play” and the video would be streamed from her unique copy on the remote hard drive to her home TV set. In a careful opinion that requires closed and repeated reading, the Second Circuit held that nothing Cablevision was doing constituted copyright infringement. (The case did not confront the question of whether its customers were infringers, or whether Cablevision might be liable if they were.)

The portion of the opinion most obviously relevant to Aereo dealt with the playback streaming from the remotely stored copy to the subscriber’s TV. This was not a “public” performance, held the court, because the “universe of people capable of receiving” the transmission consisted of exactly one: the subscriber. One person does not “the public” make. A series of prior cases had held that repeated individual performances for different people could constitute “public” performances. (I previously summarized these cases when I correctly predicted that Zedvia’s DVD-based Internet streaming business model would fail in the courts.) In order to distinguish them, Cablevision held that it was the use of a single unique copy for each subscriber that made the difference.

Aereo picked up this idea and ran with it: hence the individual tiny antennas. When a user wants to record a program for later viewing, she is assigned an antenna and a unique copy of the program is stored on Aereo’s hard drives for her. Later, when she watches the recorded program, it’s streamed from this unique copy. Indeed, even Aereo’s “watch live” feature is bounced through a hard drive copy before it starts streaming to the user. The only difference is that the “live” hard drive copy is deleted as soon as the viewer stops watching. This is an obvious Cablevision play, and Judge Nathan held that the cases were effectively indistinguishable.


The networks’ most-sustained attempt to distinguish Cablevision focused on the timing of playback. They argued that because the Cablevision copies were time-shifted—i.e., viewed at a later time—this “br[oke] the chain of transmission” so that the transmissions from the cable channels to Cablevision and from Cablevision DVRs to subscribers should be counted separately for purposes of assessing whether the allegedly infringing transmission is “to the public.” In contrast, where the retransmission happens contemporaneously or nearly so—as with the Aereo “watch live” feature—the chain is unbroken, and the retransmission should be counted together with the original transmission. This has the transitive effect of counting all the retransmissions together with each other, and hence making them all one big transmission “to the public,” hence infringing.

Judge Nathan rejected this argument. Nothing in Cablevision’s public-performance holding explicitly referred to time-shifting. Moreover, the networks were unable to provide her with a convincing line as to when a transmission has been time-shifted by enough that it breaks the chain. They proposed a test of “complete” time-shifting: i.e., watching a program after its original broadcast has ended. But Judge Nathan made medium shrift of this proposed test:

For example, as Plaintiffs would have it, an Aereo user who begins watching a recording of the Academy Awards, initially broadcast at 6:00 pm, one minute before the program ends at 11 :00 pm has not allowed the chain of transmission to be broken, despite the nearly five hours of time-shifting that has occurred. In contrast, a user who begins watching a standard half-hour sitcom just a minute after its initial broadcast ends would “break the chain of transmission” for that program after just 31 minutes of time shifting. These examples suggest the extent to which Plaintiffs’ position regarding “complete” time-shifting is unmoored from its foundation in “breaking the chain of transmission.”


I would like to suggest that if one is inclined to look at time-shifting as the chain-breaker—and there needs to be some chain-breaker, or the very concept of a “public” performance is meaningless as applied to Internet streaming—then there is an elegant test hiding in plain sight in another part of the Cablevision opinion. It is not a test that would have helped the networks in Aereo, which is likely one reason they didn’t raise it. But it does direct our attention to the crucial issues in Internet streaming cases.

Recall that Cablevision’s remote DVR passed all of the incoming signals through a 1.2-second revolving buffer. In another part of the Cablevision opinion, the Second Circuit held that this buffer copy was not an infringement of the reproduction right, because it was not stored “for a period of more than transitory duration.” Focusing on how long a copy endures enabled the court to distinguish other cases that had held that in-memory copies of computer programs could infringe, even though the copies vanish when the computer is turned off. (Not actually true, but who’s keeping track of little factual quibbles like that?) Those copies, the Cablevision court explained, endured for minutes or more, unlike the “copies” in Cablevision’s buffer, which vanished in less than two seconds.

Thus, if one is looking for a temporal test, Cablevision already supplies one. The buffer-copy portion of the opinion explains that a copy is permanent enough to count as a potential infringement of the reproduction right if endures “for a period of more than transitory duration” (somewhere between a few seconds and a few minutes, based on the cases we have). Why not use this same period to measure whether a tape-delay is long enough to count in distinguishing two transmissions for purposes of the public performance right?

There is an obvious conceptual economy in reusing the same test in two places. But the elegance of this solution, I think, goes deeper. It keeps buffer-based business models from slipping through the cracks between the different exclusive rights. A rebroadcaster will always be engaged in either a reproduction or a public performance. To see why, consider the two cases. If the rebroadcaster uses transient buffers that are overwritten rapidly, then the chain of transmission is unbroken, which means each of its streams is considered part of the original broadcast and the public performance right is implicated. If the rebroadcaster uses more permanent buffers, then the performances may not be public, but the buffers themselves count as reproductions. There is no way to design the system that does not implicate one right or the other.


That is as it should be. The real legal issues at stake in Aereo, like those in Zediva, ReDigi (see also), the DISH Hopper, and Cablevision itself are the same ones that have been at stake since Sony and before: Which personal uses of media are fair uses, and when should companies face liability for helping individuals make those uses? If Aereo wins, it ought to be because consumers have a fair use right to make and view personal copies of TV programs to which they already have access, and that Aereo is entitled to help them make and view those copies—not because its system is engineered never to implicate the Copyright Act. If DISH loses, it ought to be because consumers do not have a fair use right to make a wholesale copy of an entire week’s worth of primetime programming and DISH is not entitled to help them make that copy—not because DISH rather than its users “makes” those copies.

Copyright owners and technology companies have spent decades quietly avoiding these personal-use fair use questions. This has not been healthy for the development of copyright law or for media technology. Fair use focuses on market realities and user experiences; it is holistic and sensitive to context. By avoiding these questions, copyright law has instead focused on articulating, in ever more excruciating detail, the boundaries of the exclusive rights. These doctrines are reductionist: they focus on the hidden technical details of a system.

Cablevision is itself an example of the phenomenon in action. Cablevision agreed not to raise a fair use defense; the copyright owner plaintiffs agreed not to raise any secondary liability arguments. The case therefore dealt only with Cablevision’s own direct liability for operating the remote DVRs. Its holdings—particularly the slippery, much-maligned, and much-misunderstood “volitional conduct” holding—have to be understood in this context. They reflect a court trying to reach a sensible overall result without employing the doctrine—fair use—best suited to its intuitions about the case. And they reflect a court making narrow and technically precise rulings deep in the weeds of copyright doctrine—but which have turned out to have implications far beyond the facts of the case.


Although I have misgivings about Cablevision’s turn and although I see Aereo in terms of the road not taken, I still find myself admiring Judge Nathan’s opinion. It’s a good illustration of the difference between a trial court and its appellate hierarchy. The Second Circuit or the Supreme Court might rethink the shape of public performance doctrine, distinguishing Cablevision or putting it on a different footing. But a District Court applying Cablevision is bound to apply it faithfully, as Judge Nathan does. Her application of it to Aereo is true to its letter and spirit. The unique-copy test is the law as handed down by the Second Circuit, and under that test, Aereo wins.

At least for now, that is. Left open in the opinion is the question of whether the entire tiny antenna gimmick is an elaborate sham. The networks provided an expert to opine that each circuit board with eighty alleged tiny antennas attached to it in fact constitutes a single big antenna. Aereo put forward its own experts to opine au contraire, and Judge Nathan found their evidence more convincing. But much of this was due to tactical issues: the networks didn’t have their expert testify, and so they lost a significant credibility finding. It’s best to regard this piece of their argument as “not proved” rather than “definitively rejected.” You can bet it’ll be back as the case proceeds.