The Aereo Ouroboros

Here is the simplest way I think I can explain as to why the Aereo decision is circular. It hinges on the “volitional conduct” argument, and the Court’s use of loose analogical reasoning rather than attention to technical specifics of how systems operate and the potential audience for particular transmissions of content.

I am not asserting that I have some surefire way of determining volitional conduct in all copyright cases. Nor do I deny that a single one-to-one transmission cannot under some circumstances either be, or be part, of a public performance (the statute demands this). However, I think the Court’s “similarity” test is flawed, since reasoning by analogy between very different technological systems can have unpredictable results. Different people can reasonably see different systems as more or less similar–in the Cablevision case, for instance, broadcasters argued that the service is question was “just like” a video-on-demand service that would require a license, rather than “just like” a DVR that would not.

The Supreme Court’s analysis only works if you assume that Aereo is similar to a cable system instead of assuming that it is similar to an antenna. The court provides no grounds for making one assumption rather than the other; rather, it runs the analysis while assuming that Aereo is like a cable system, and the result of this anlaysis (that Aereo is infringing) is what seems to inform the Court’s view that Aereo is similar to a cable system to begin with. That is, there is no way to decide that Aereo has an “overwhelming likeness” to a cable system unless you are already assuming that it publicly performs.

Court’s analysis with the “It’s like cable” assumption.

Step One:

Aereo is the volitional actor because it is similar to cable systems (which are volitional actors).

Thus, “An entity that engages in activities like Aereo’s performs.”

Step Two:

Whether Aereo performs “publicly” depends on some relationship of privity between the viewers and the content.

When a home viewer records TV from over the air, the viewer has “privity” with those lawful fair use copies because the viewer is the volitional actor. (The Court does not make this argument expressly but I believe this would be the correct analysis under its test.)

But an Aereo user is not the volitional actor. So the Aereo user has no privity with the copies the Aereo system makes.

Step Three:

Aereo is therefore a public performer.

Alternate reality: Court’s analysis with the “It’s like cable” assumption.

Step One:

Aereo is not a volitional actor because it is similar to other equipment providers (which are not volitional actors).

Thus, an entity that engages in activities like Aereo’s does not perform.

Step Two:

A user cannot perform publicly to himself so Aereo cannot be secondarily liable.

Also, an Aereo user, as the volitional actor, has a relationship of privity with the recorded content, which is a further reason he cannot publicly perform.

Step Three:

Aereo does perform (and therefore cannot publicly perform). Its users do not publicly perform either, so Aereo cannot be secondarily liable.

I don’t think either of these two ways of looking at Aereo are very good. Whether or not Aereo seems “similar” to cable or an antenna should not have much bearing on the Court’s analysis. That’s because many systems are “similar” to Aereo (many cloud computing services) but not similar to cable TV. Where does the “similarity” analysis end? If Aereo is not allowed because it is similar to cable TV, how do you justify allowing systems that are similar to an unlawful service such as Aereo? Copyright is unavoidably technical and to keep a distinction between “public” and “private” that is consistent and can apply to many different kinds of services I think that the Court should have attended to the technical design of the systems in question more closely. I’ve never been very happy with Cablevision’s “one copy = private performance” test but it at least provides clear guidance.