It looks like Chief Justice Roberts is again considering moving beyond “calling balls and strikes” as he famously stated was his job during his confirmation hearings. In yesterday’s argument, the Chief said during an exchange with Aereo’s counsel, Malcolm Stewart, “All I’m trying to get at, and I’m not saying i’ts outcome determinative or necessarily bad, I’m just saying your technological model is based solely on circumventing legal prohibitions that you don’t want to comply with, which is fine. I mean, that’s –you know, lawyers do that. But I’m just wondering why–whether you can give me any technological reason, apart from compliance with a particular legal issue, for your technological mind.”
Mr. Stewart’s response pretty much showed that compliance with the Copyright Act and the Sony decision were precisely the reason that Aereo implemented the technological scheme it chose. And why should it not have been so? The role of the court here is to judge whether the 2nd Circuit’s reading of the Act is correct, not whether one’s motive was to take advantage of the way Congress drafted the law in order to build a business. I’m quite confident that no member of Congress had any inkling of the many coming iterations of digital media that would have to be analyzed in relation to the transmission and public performance definitions within the Act. From the primary report on the bill that amended the Act, H.R. Rept. 94-1476 at 63:
“Under the definitions of ‘perform,‘ ‘display,‘ ‘publicly,‘ and ‘transmit‘ in section 101, the concepts of public performance and public display cover not only the initial rendition or showing, but also any further act by which that rendition or showing is transmitted or communicated to the public. Thus, for example: a single is performing when he or she sings a song; a broadcasting network is performing when it transmits his or her performance (whether simultaneously or from records); a local broadcaster is performing when it transmits the network broadcast; a cable television system is performing when it retransmits the broadcast to its subscribers; and any individual is performing whenever he or she plays a phonorecord embodying the performance or communicates the performance by turning on a receiving set. Although any act by which the initial performance or display is transmitted, repeated, or made to recur would itself be a ‘performance‘ or ‘display‘ under the bill, it would not be actionable as an infringement unless it were done ‘publicly,‘ as defined in section 101. Certain other performances and displays, in addition to those that are ‘private,‘ are exempted or given qualified copyright control under sections 107 through 118.
“To ‘perform‘ a work, under the definition in section 101, includes reading a literary work aloud, singing or playing music, dancing a ballet or other choreographic work, and acting out a dramatic work or pantomime. A performance may be accomplished ‘either directly or by means of any device or process, ‘ including all kinds of equipment for reproducing or amplifying sounds or visual images, any sort of transmitting apparatus, any type of electronic retrieval system, and any other techniques and systems not yet in use or even invented.”
Addressing the meaning of “public performance,” on p. 64 the report goes on to say,
“Under clause (1) of the definition of ‘publicly‘ in section 101, a performance or display is ‘public‘ if it takes place ‘at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.‘ One of the principal purposes of the definition was to make clear that, contrary to the decision in Metro-Goldwyn-Mayer Distributing Corp. v. Wyatt, 21 C.O.Bull. 203 (D. Md. 1932), performances in ‘semipublic‘ places such as clubs, lodges, factories, summer camps, and schools are ‘public performances‘ subject to copyright control. The term ‘a family‘ in this context would include an individual living alone, so that a gathering confined to the individual’s social acquaintances would normally be regarded as private. Routine meetings of businesses and governmental personnel would be excluded because they do not represent the gathering of a ‘substantial number of persons.‘
“Clause (2) of the definition of ‘publicly‘ in section 101 makes clear that the concepts of public performance and public display include not only performances and displays that occur initially in a public place, but also acts that transmit or otherwise communicate a performance or display of the work to the public by means of any device or process. The definition of ‘transmit ‘– to communicate a performance or display ‘by any device or process whereby images or sound are received beyond the place from which they are sent‘– is broad enough to include all conceivable forms and combinations of wires and wireless communications media, including but by no means limited to radio and television broadcasting as we know them. Each and every method by which the images or sounds comprising a performance or display are picked up and conveyed is a ‘transmission,‘ and if the transmission reaches the public in my form, the case comes within the scope of clauses (4) or (5) of section 106.
“Under the bill, as under the present law, a performance made available by transmission to the public at large is ‘public‘ even though the recipients are not gathered in a single place, and even if there is no proof that any of the potential recipients was operating his receiving apparatus at the time of the transmission. The same principles apply whenever the potential recipients of the transmission represent a limited segment of the public, such as the occupants of hotel rooms or the subscribers of a cable television service. Clause (2) of the definition of ‘publicly‘ is applicable ‘whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.‘”
The language of the Act, as shown in this report, intended to cover future technologies, although Congress had no way to envision the details of those technologies. The question for the Supreme Court to answer is whether the majority opinion or the dissent in the Second Circuit Opinion is correct in its interpretation of public performance. If a company provides the equipment for members of the public to, at each member’s sole direction and within each’s sole discretion, make a copy and then view a performance as contemplated in Sony, is that company “making a performance available to the public at large.”
The fact that Aereo adopted its scheme in order to comply with its counsel’s reading of case law under the Act is of no import to how the Chief Justice or any of his colleagues should rule. It is, rather, a proper issue for Congress to consider in any future contemplation of amending the Act.
The post title and its opening sentence about judicial activism are not the real issue, for the truth about judicial activism is that is is exclusively in the eyes of the beholder. When an appeals court rules against your position, you and others on your side will invariably accuse the court of judicial activism. If all judges were not activists, the common law would never change.