We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.
The Supreme Court’s Aereo decision last year raised two significant questions for the tech industry. First, would lower courts apply the Supreme Court’s public performance holding narrowly only to services that looked like Aereo (which in turn looked to the Court like the community antenna services of the 1970s), as the Court directed, or would they apply it more broadly to other types of online services? Second, would lower courts interpret the Court’s reluctance to use the word “volition” as an indication that direct infringement liability did not require volitional conduct?
The summary judgment order in Fox v. Dish Network released earlier this week by the U.S. District Court for the Central District of California emphatically answered both of those questions in a manner favorable to the tech industry. (For detailed summaries of the decision, see here and here.) The district court rejected Fox’s suggestion that Aereo was “a game-changer that governs the outcome of its copyright claims….” The district court observed that “in an effort to cabin the potential over-reach of its decision,” the Aereo Court “specifically cautioned that its ‘limited holding’ should not be construed to ‘discourage or to control the emergence or use of different kinds of technology.” The district court carefully proceeded to distinguish the Dish Anywhere with Sling service from Aereo. (The Dish Anywhere service allows a subscriber to view a program recorded on his set-top box on another device.) In particular, the district court noted that Dish had a license to transmit programs to the subscriber’s set-top box, while Aereo did not have a license to transmit programs to the user’s computer.