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Fordham 21st Annual Conference on Intellectual Property Law and Policy: Performance Rights in Copyright: Public, Private or Digital? Cablevision: How It and Its Doctrines Have Fared Around the World
April 5, 2013
First and most important, the Transmit Clause directs courts to consider the potential audience of the individual transmission. If that transmission is capable of being received by the public the transmission is a public performance; if the potential audience of the transmission is only one subscriber, the transmission is not a public performance. Second and following from the first, private transmissions-that is those not capable of being received by the public-should not be aggregated. It is therefore irrelevant to the Transmit Clause analysis whether the public is capable of receiving the same underlying work or original performance of the work by means of many transmissions.
Third, there is an exception to this no-aggregation rule when private transmissions are generated from the same copy of the work. In such cases, these private transmissions should be aggregated, and if these aggregated transmissions from a single copy enable the public to view that copy, the transmissions are public performances. Fourth and finally, any factor that limits the potential audience of a transmission is relevant to the Transmit Clause analysis.
Relevant Authorities
Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F. 3d 121(2nd Cir. 2008) RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd,, [2010] SGCA 43 (1 December 2010) National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd, [2012] FCAFC 59, reversing Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2), [2012] FCA 34
RecordTV Pte Ltd v TV Singapore Pte Ltd, [2010] SGCA 43 (1 December 2010)
Did RecordTVs iDVR time shifting service which enabled users to record, playback, and a view free over-the-air TV infringe broadcaster copyrights in their broadcasts and programs? It operated in three modes: SIS-one copy for every subscriber;
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National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd, [2012] FCAFC 59
Did the TV Now service time shifting service which enabled individual subscribers to record and watch TV programming infringe copyright?
The service makes 4 copies of each broadcast program; one per format in which it may be viewed by the user.
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A comparable result has been reached under the U.S. Digital Millennium Copyright Act, which in part codified the result in Religious Technology Center v. Netcom On-line Communication Services, Inc., 907 F.Supp. 1361 (N.D. Cal. 1995), where it was observed, at pp. 1369-70:
These parties, who are liable under plaintiffs theory, do no more than operate or implement a system that is essential if Usenet messages are to be widely distributed. There is no need to construe the Act to make all of these parties infringers. Although copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendants system is merely used to create a copy by a third party. See also M. B. Nimmer, Nimmer on Copyright (loose-leaf ed.), vol. 3, at p. 12B-13.
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Fox Television Stations, Inc. v. BarryDriller Content Systems, PLC 2012 WL 6784498 C.D.Cal.,Dec. 27, 2012)
Did BCS service which rented each subscriber an antenna, transcoder, and hard disk to enable them to watch or record and watch free over-the-air broadcast TV directly infringe studio copyrights? Are the transmissions of the performances to the public? Assuming that Defendants accurately describe their technologywhich Plaintiffs disputeSecond Circuit law would support Defendants' position, because cases there have held that where a transmission of a work over the internet is made from a copy of a work made at the direction of and solely for use by single user, there is no public transmission. But, that Second Circuit law has not been adopted in the Ninth Circuit, and this Court would find that the Ninth Circuit's precedents do not support adopting the Second Circuit's position on the issue. Instead, the Court would find that Defendants' transmissions are public performances, and therefore infringe Plaintiffs' exclusive right of public performance.
McCarthy Ttrault LLP / mccarthy.ca / 12350541
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Questions
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