Aereo and FilmOn X: Internet Television
Streaming and Copyright Law
Emily M. Lanza
Legislative Attorney
January 13, 2014
Congressional Research Service
7-5700
www.crs.gov
R43359

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Aereo and FilmOn X: Internet Television Streaming and Copyright Law

Summary
Aereo and FilmOn X stream television programming over the Internet for a monthly subscription
fee. Aereo and FilmOn’s technology permits subscribers to watch both live broadcast television in
addition to already-aired programming. Their use of this development in technology has triggered
multiple lawsuits from broadcasting companies alleging copyright violations. These cases reveal
not only multiple interpretations of copyright law and its application to new and developing
technologies but also a possible “loophole” in the law, which some have accused Aereo and
FilmOn of exploiting.
The Copyright Act of 1976 provides copyright holders with the exclusive right to control how
certain creative content is publicly performed. Of particular interest to courts in recent cases
against Aereo and FilmOn was the meaning of the Copyright Act’s “transmit clause” that
determines whether a performance is private or public and within the scope of the public
performance right. Specifically, the courts have been divided as to what constitutes a
“performance to members of the public” for the purposes of the transmit clause.
During the past two years, groups of broadcasters have filed lawsuits against Aereo and FilmOn
alleging that the retransmissions of their programs by these companies have violated their right of
public performance. While both FilmOn and Aereo use similar technology, the courts have
disagreed about whether this technology infringes upon the copyright holder’s right of public
performance. In 2013, the U.S Court of Appeals for the Second Circuit in WNET v. Aereo
affirmed the lower court decision ruling that the transmissions by Aereo did not infringe the
plaintiffs’ public performance right. However, district courts in the District of Columbia (Fox
Television Stations v. FilmOn X) and California (Fox Television Stations v. BarryDriller Content
Systems) have held that FilmOn’s retransmissions did violate the right of public performance.
The Second Circuit held that Aereo’s transmission of broadcast programs is not a public
performance because Aereo is transmitting a copy of the program made by Aereo available not to
the public at large but only to a specific subscriber. However, the D.C. and California district
courts have disagreed with this interpretation. These courts have held that the retransmission by
FilmOn of the broadcasters’ copyrighted material is a public performance and therefore violates
the broadcasters’ copyright. For the D.C. and California district courts, the one-copy-per-
subscriber technology of FilmOn does not exclude the company from the public performance
right when the service is transmitting the same underlying program to various subscribers.
These decisions, however, do not mark the end of litigation over these issues. The parties have
filed appeals in the circuit courts and a petition for writ of certiorari in the U.S. Supreme Court.
Additionally, two bills in the 113th Congress address issues related to Internet television
streaming. These bills, the Television Consumer Freedom Act of 2013 (S. 912) and the Consumer
Choice in Online Video Act (S. 1680), would enhance consumer choice regarding online
television programming, a service marketed by both Aereo and FilmOn.

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Aereo and FilmOn X: Internet Television Streaming and Copyright Law

Contents
Aereo and FilmOn Technology ........................................................................................................ 2
1976 Copyright Act & Public Performance Right ........................................................................... 3
Transmit Clause ......................................................................................................................... 3
Transmission or Other Communication .............................................................................. 4
Performance of the Work..................................................................................................... 4
Members of the Public Capable of Receiving the Performance .......................................... 4
Separated Geographically or Temporally ............................................................................ 5
Aereo’s Interpretation of the Transmit Clause .................................................................................. 6
Performance of the Work ........................................................................................................... 6
Members of the Public Capable of Receiving the Performance ................................................ 7
Dissent ....................................................................................................................................... 7
FilmOn X’s Interpretation of the Transmit Clause ........................................................................... 8
Performance of the Work ........................................................................................................... 8
Members of the Public Capable of Receiving the Performance ................................................ 9
Future Litigation .............................................................................................................................. 9
Related Legislation in the 113th Congress ...................................................................................... 11

Contacts
Author Contact Information........................................................................................................... 12

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ompanies such as Hulu, Netflix, and Amazon have changed how many people watch
television programming by offering on-demand, online streaming to their computers,
C mobile devices, and gaming consoles.1 Aereo and FilmOn X also stream television
programming over the Internet for a monthly subscription fee. Unlike the other companies,
however, the technology of Aereo and FilmOn permits subscribers to watch both live broadcast
television and already-aired programming without licenses. This development in technology has
triggered multiple lawsuits alleging copyright violations by these companies. The litigation
reveals not only multiple interpretations of copyright law and its application to new and
developing technologies, but also a possible “loophole” in the law, which some have accused
Aereo and FilmOn of exploiting.2
The Copyright Act of 1976 provides copyright holders with the exclusive right to control how
their work is reproduced, adapted, distributed, publicly displayed, or publicly performed.3 The
issue before the courts in the lawsuits against Aereo and FilmOn X is whether a retransmission of
copyrighted broadcasts over the Internet without a prior agreement with the copyright holder
violated the copyright holder’s right of public performance.
In 2012, the U.S. District Court for the Southern District of New York, in ABC v. Aereo, denied
certain broadcasters’ request for a preliminary injunction against Aereo.4 The plaintiffs argued
that Aereo’s service of transmitting copyrighted television programs contemporaneously with
over-the-air broadcasts violated their right of public performance. The defendant, Aereo, in turn
argued that the performances were not public but private because each user could access only
his/her specially made copy of the program. The district court agreed with Aereo’s argument. That
same year, the plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit in WNET v.
Aereo. The Second Circuit, in a split appellate panel, affirmed the district court decision ruling
that the transmissions by Aereo did not infringe the plaintiffs’ public performance right.
FilmOn X modeled its system on Aereo and its recent endorsement by the courts. However,
FilmOn has not enjoyed the same legal success as Aereo, despite the similar arguments made by
both the plaintiffs and defendant in the Aereo cases. In the 2012 case Fox Television Stations v.
BarryDriller Content Systems, the U.S. District Court for the Central District of California found
that FilmOn’s retransmission of certain television programs violated the copyrights of several
broadcasters.5 In 2013, the U.S. District Court for the District of Columbia found, in Fox
Television Stations v. FilmOn X, that FilmOn’s retransmission of the plaintiffs’ copyrighted
programs over the Internet violated their right of public performance because FilmOn
retransmitted copyrighted works to members of the public without the plaintiffs’ prior
permission.6
This report will examine the courts’ interpretation of the public performance right in the context
of the Aereo and FilmOn cases. The report begins with a discussion of the technology used by

1 See, e.g., Jeff Bercovici, How Amazon and Netflix Are, and Aren’t, Changing TV, FORBES, November 14, 2013,
http://www.forbes.com/sites/jeffbercovici/2013/11/04/how-amazon-and-netflix-are-and-arent-changing-tv/.
2 See George Winslow, Diller: Aereo Is ‘Not a Loophole; It is a Right,’ BROADCASTING & CABLE, April 29, 2013,
http://www.broadcastingcable.com/news/technology/diller-aereo-not-loophole-it-right/49951.
3 17 U.S.C. §106.
4 ABC v. Aereo, 874 F.Supp. 2d 373 (S.D.N.Y. 2012).
5 Fox Television Stations, Inc. v. BarryDriller Content Systems PLC, 915 F. Supp.2d 1138 (C.D. Cal. 2013).
6 Fox Televisions Stations Inc. v. FilmOn X LLC, No. 13-758 (D.D.C. 2013).
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Aereo and FilmOn. The report then examines the public performance right, specifically the
“transmit clause,” in the Copyright Act. Next, the report discusses the interpretation of the
transmit clause and public performance right by the courts in the Aereo and FilmOn cases. The
report concludes with a brief overview of future litigation by these parties and related legislative
proposals in the 113th Congress.
Aereo and FilmOn Technology
Competitors Aereo and FilmOn X use similar technology, with only minor distinctions but no
legally meaningful differences, to retransmit broadcast television to their subscribers.7 Both
companies allow subscribers to view and/or record live broadcast programming. Unlike most
other digital video recorders (DVR) that require a television, Aereo and FilmOn allow users to
view programming on their computers or mobile devices, similar to services offered by Hulu and
Netflix.8 However, Aereo and FilmOn, unlike Hulu and Netflix, have not negotiated any licensing
agreements with the content providers. Content providers have even accused Aereo of “stealing
content” while Aereo has defended its service as a new player in the media market.9
In order to watch a program, the Aereo/FilmOn subscriber first logs into an account on the
website. The subscriber then either selects to watch a program as it is aired or chooses to record a
program that will be aired later.10 When a subscriber selects to watch a currently airing program,
Aereo/FilmOn transmits to the subscriber a webpage from which he/she can watch the television
program at roughly the same time as the current broadcast. While viewing this program, the
subscriber can pause, rewind, and record the program with the system retaining a copy until the
subscriber watches it later. These features allow the subscriber to watch a program even after the
over-the-air broadcast has ended. The Aereo and FilmOn systems, therefore, provide the
functionality of both a television antenna and a DVR.11
When a subscriber selects to watch or record a program, the web browser sends a request to the
Aereo/FilmOn application server.12 The application server then sends information about the
subscriber and the selected program to the antenna server. The antenna server allocates a specific
antenna to that subscriber. These antennas receive the broadcast television channels, from which
the subscriber selects the programming. Depending on the type of subscription, most of the
subscribers are assigned a different antenna each time they select a program. However, no two
subscribers are using a single antenna at the same time.13

7 FilmOn X, No. 13-758 at FN 4. The differences between FilmOn and Aereo systems are “minor distinctions in the
sequence in which signals are processed.” However, “the systems are essentially the same, and the parties agree that
there are no legally meaningful differences.”
8 ABC, 874 F.Supp. 2d at 377. For more information about DVR technology, see CRS Report RL34719, Cartoon
Network LP v. CSC Holdings, Inc.: Remote-Storage Digital Video Recorders and Copyright Law, by Kate M. Manuel.
9 The Future of TV: How Do Networks Plan to Stay Competitive? PBS NEWSHOUR, September 25, 2013,
http://www.pbs.org/newshour/bb/media/july-dec13/comcast_09-25.html.
10 WNET v. Aereo, 712 F.3d 676, 681-82 (2d Cir. 2013).
11 Id. at 682.
12 Id.
13 FilmOn X, No. 13-758 at *5.
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The selected antenna then receives the incoming broadcast signal. The antenna server receives the
data from the antenna and then sends it to another server where a copy of the program is saved to
a large hard drive in a directory reserved for that particular subscriber.14 Regardless of whether
the subscriber has selected to watch or to record a program, the system streams the program from
the hard drive copy of the program in the user’s directory on the server.15 The difference between
the two viewing modes is when the streaming occurs: after six-seven seconds of programming
has been saved on the hard drive for the “watch” option or when the subscriber chooses to view
the program.
The courts have highlighted three technical details of significance.16 First, Aereo and FilmOn
assign individual antennas to each subscriber even if two or more subscribers are watching or
recording the same program. Second, the system creates a separate copy of the program, stored in
the subscriber’s personal directory. Third, each subscriber can only access and watch the copy
specifically made for his/her account. No other subscriber can view that particular copy.
1976 Copyright Act & Public Performance Right
The 1976 Copyright Act provides copyright holders with exclusive rights to control certain uses
of their works.17 These exclusive rights include “in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion pictures and other audiovisual works” the right to
do and to authorize the public performance of the copyrighted work.18
The Copyright Act defines “public performance or display” as
(1) to perform or display it 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; or (2) to transmit or otherwise communicate a performance or display of the work
to a place specified by clause (1) or to the public, by means of any device or process,
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.19
The second part of the above definition, known as the “transmit clause,” is the focus of the courts’
legal analysis in the Aereo and FilmOn cases.
Transmit Clause
Congress added the “Transmit Clause” during the 1976 revisions of the previous copyright laws
in order to accommodate developing technologies. The transmit clause identifies four elements
that trigger a public performance: (1) a transmission or other communication, (2) of a
performance of the work, (3) to members of the public who are capable of receiving the

14 WNET, 712 F.3d at 682.
15 Id.
16 Id. at 683.
17 17 U.S.C. §106.
18 17 U.S.C. §106(4).
19 17 U.S.C. §101.
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performance, and (4) where the transmission either is to a public or semi-public place, or is to
members of the public who may be separated geographically or temporally or both.20
Transmission or Other Communication
The first element incorporates the Copyright Act’s definition of “transmit.” Under the Copyright
Act, a transmission of a performance or display is a “communicat[ion] by any device or process
whereby images or sounds are received beyond the place from which they are sent.”21 Congress
intended this broad definition “to include all conceivable forms and combination of wired or
wireless communications media, including but by no means limited to radio and television
broadcasting as we know them.”22 Similarly, the U.S. Court of Appeals for the Ninth Circuit, in
Columbia Pictures Industries, Inc. v. Professional Real Estate Investors, Inc., held that to transmit
a public performance “at least involves sending out some sort of signal via a device or process to
be received by the public at a place beyond the place from which it is sent.”23
Performance of the Work
The second element requires the transmission to involve a performance of the work. The
Copyright Act defines “to perform” as “to recite, render, play, dance, or act it, either directly or by
means of any device or process or, in the case of a motion picture or other audiovisual work, to
show its images in any sequences or to make the sounds accompanying it audible.”24
For certain mediums, such as literary works, courts distinguish between the transmission of the
work itself and the transmission of a performance or recitation of the work.25 However, such a
distinction does not reasonably apply to audiovisual works. For example, television broadcasts
may be characterized as performances transmitted by the studio of another performance of an
underlying work (that particular television show).26 In this context, courts may need to consider
whether the broadcast or a retransmission of that broadcast is a separate performance itself
compared to the performance of the underlying work.
Members of the Public Capable of Receiving the Performance
The third element addresses the basic nature of the public performance right. While the Copyright
Act does not explicitly define “public,” the definition of a “public performance” indicates that
“public” includes spaces accessible to the public or places outside of the normal gatherings of the
family.27 However, courts have interpreted “public” to include a broader range of people in places
that traditionally are considered nonpublic. The U.S. District Court for the Northern District of
California held in On Command Video Corp. v. Columbia Pictures Industries that transmitting a

20 17 U.S.C. §101.
21 Id.
22 H.Rept. 94-1476, at 64.
23 Columbia Pictures Industries, Inc. v. Professional Real Estate Investors, Inc., 866 F.2d 278, 282 (9th Cir. 1989).
24 17 U.S.C. §101.
25 Kent D. Stuckey, INTERNET AND ONLINE LAW, §6.08(4).
26 Id.
27 See 17 U.S.C. §101.
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video rental to a guest in his hotel room constituted a transmission of a public performance
because of the commercial nature of the rental even though the viewing itself occurred in a “non-
public” place.28
Courts have relied upon the phrase “capable of receiving the performance” as the primary
qualifier for determining whether a potential recipient is public or private. Interpretation of this
phrase has been the primary issue in the cases leading up to the Aereo and FilmOn decisions. In
Cartoon Network LP v. CSC Holdings, Inc. (“Cablevision”)29, the Second Circuit stated that
“capable of receiving the performance” means “capable of receiving a particular transmission of a
performance” because the transmission is itself a performance.30 This case involved a remote
storage digital video recorder (RS-DVR) service that streamed a unique playback copy of a
television program stored on a subscriber’s individual hard drive.31 The Second Circuit held that
because the “RS-DVR playback transmission is made to a single subscriber using a single unique
copy produced by that subscriber” the playback transmissions were not public performances and,
therefore, did not infringe upon the plaintiffs’ exclusive right of public performance.32 According
to the court, this element of the “transmit clause” requires consideration of the potential audience
of a particular transmission and not of the underlying work, as the potential audience for any
copyrighted work is the general public. Cablevision’s RS-DVR system enabled each subscriber to
access that particular playback copy available only to that particular subscriber.33
Separated Geographically or Temporally
The development of technology triggered the last element: transmission either is to a public or
semi-public place, or is to members of the public who may be separated geographically or
temporally or both. Because of greater accessibility generated by developing technologies, a
performance no longer needs to occur in a single place such as a theater but can often occur in a
more private place such as a home or a car.
However, receiving a transmission at different times and/or different places does not diminish the
public nature of the performance. In Columbia Pictures Industries, Inc. v. Redd Horne, Inc., a
video store transmitted at different times the same copy of a film to multiple customers, who each
viewed the film in a private room in the store.34 The U.S. Court of Appeals for the Third Circuit
held that these transmissions were public performances. Even though the customers viewed the
film in traditionally private rooms at different times, the transmission of the single copy of the
film still served as a public performance.35

28 On Command Video Corp. v. Columbia Pictures Industries, 777 F.Supp. 787, 790 (N.D. Cal. 1991).
29 See CRS Report RL34719, Cartoon Network LP v. CSC Holdings, Inc.: Remote-Storage Digital Video Recorders
and Copyright Law, by Kate M. Manuel.
30 Cartoon Network LP v. CSC Holdings, Inc. (“Cablevision”), 536 F.3d 121, 134-35 (2d Cir. 2008).
31 See CRS Report RL34719, Cartoon Network LP v. CSC Holdings, Inc.: Remote-Storage Digital Video Recorders
and Copyright Law, by Kate M. Manuel for a discussion about RS-DVR playback transmissions.
32 Cablevision, 536 F.3d at 139.
33 Id. at 136.
34 Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 749 F.2d 154 (3d Cir. 1984).
35 Id. at 159.
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Aereo’s Interpretation of the Transmit Clause
In 2012, a group of broadcasters filed copyright infringement actions against Aereo in the U.S.
District Court for the Southern District of New York. In American Broadcasting Companies v.
Aereo, the district court denied the plaintiffs’ motion for a preliminary injunction barring Aereo
from transmitting television programs.36 In WNET v. Aereo, the plaintiffs appealed the district
court’s denial to the U.S. Court of Appeals for the Second Circuit.37 On April 1, 2013, the Second
Circuit affirmed the district court’s ruling that refused to grant the injunction against Aereo. The
court held that Aereo’s transmissions of broadcast television programs were not public
performances under the Copyright Act because the transmissions are of unique copies created at
the user’s request.38 The following discussion will examine the Second Circuit’s interpretation of
the transmit clause in reaching this decision. The court focused on two out of the four elements of
the transmit clause discussed above: “performance of the work” and “members of the public
capable of receiving the performance.” These factors contribute to the alleged “loophole” used by
Aereo’s one-antenna-per-subscriber service to avoid infringing the public performance right.
Performance of the Work
The Copyright Act defines “performance”39 as specific actions such as reciting, rendering,
playing, or showing of images. However, for broadcasts and retransmissions, courts must
determine which “performance” is at issue when considering whether the transmission violated
the copyright holder’s public performance right.
The specific issue before the Second Circuit in Aereo was what performance triggers the analysis
in the Copyright Act’s transmit clause: the broadcast of the program or the specific transmission
created by Aereo. The plaintiffs in Aereo argued that the court should consider each of Aereo’s
transmissions in the aggregate in order to determine whether they are public performances
because the transmissions are of the same underlying program watched by many members of the
public.40
The Second Circuit dismissed this interpretation, stating that the plaintiffs’ argument misreads the
transmit clause. For the Second Circuit, the performance at issue was the particular transmission
created by the Aereo system for that specific user.41 Each of Aereo’s transmissions was an
independent performance because each transmission is a unique copy by Aereo’s system.42 These
transmissions were not equal to the original broadcast performance. Equating them as such,
according to the court, would disregard the transmit clause’s specific inquiry regarding a
particular transmission. In reaching this conclusion, the Second Circuit relied upon its previous

36 ABC, 874 F.Supp. 2d at 375.
37 WNET, 712 F.3d at 680. The case name is different on appeal because two groups of plaintiffs initially filed separate
copyright infringement actions against Aereo. They later proceeded before the district court in tandem before together
seeking the appeal.
38 WNET, 712 F.3d at 696.
39 17 U.S.C. §101.
40 WNET, 712 F.3d at 690-91.
41 Id. at 691.
42 Id. at 690.
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decision in Cablevision, which held that individual copies made by an RS-DVR system were the
performances at issue.43
Members of the Public Capable of Receiving the Performance
This analysis led to the Second Circuit’s next point concerning the transmit clause and the
composition of the audience to trigger a public performance. Similar to their argument concerning
performance, the plaintiffs argued that “members of the public” includes the potential audience
for the broadcast and not the individual transmission.44 According to the court however, the
relevant inquiry under the transmit clause concerning definition of “public” is “the potential
audience of a particular transmission, not the potential audience for the underlying work or the
particular performance of that work being transmitted.”45 The Second Circuit supported this
interpretation of the transmit clause by stating that the potential audience for the underlying work
could include anyone, making the differentiation between public and nonpublic performances
irrelevant.46
Reiterating a similar argument in Cablevision, the court referred to the presence of “to the public”
in the transmit clause to support the supposition that not all transmissions are automatically public
performances.47 The court further acknowledged that Aereo has designed its retransmission
system to accommodate this distinction in the Copyright Act. Each user has a specific antenna
transmitting a specific copy of the program only to that user.48 When an Aereo subscriber selects
to watch or record a program, Aereo’s system creates a unique copy of that program that is
accessible on the hard drive only by that subscriber. Therefore, the Second Circuit concluded that
the potential audience of that particular transmission is only one subscriber who is capable of
receiving that particular transmission/performance.49
Dissent
The dissent in WNET v. Aereo focused on criticizing the majority’s understanding and analysis of
the transmit clause. First, the dissent stated that Aereo’s transmissions are public performances
within the plain meaning of the statute. Using a dictionary definition of “public,” the dissent
maintained that anything not transmitted to oneself is a communication to a member of the public
and, therefore, Aereo is engaging in a public performance for each of its transmissions.50
The dissent also referred to the legislative history of the transmit clause to show that Congress
anticipated developing technology such as Aereo’s system. For the dissent, the addition of the
“different times/places” phrasing to the transmit clause demonstrated Congressional intent that

43 WNET, 712 F.3d at 689-90.
44 See id. at 690.
45 Id. at 691.
46 Id.
47 Id. at 694. The Second Circuit in Cablevision argued that because only one person could access the specific copy
made by the RS-DVR, the potential audience for that particular performance consisted of that single person.
48 Id. at 693-94.
49 Id. at 690.
50 Id. at 698.
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the public performance right encompass a broad scope.51 Specifically for the dissent, the House
Report’s explanation that “if the transmission reaches the public in [any] form” the transmission
comes within the scope of the public performance right, verified his interpretation.52
The dissent also found Aereo’s system distinct from the RS-DVR technology at issue in
Cablevision.53 Cablevision’s RS-DVR system produced copies of material that Cablevision
already had a license to retransmit while Aereo’s system enables it to transmit material to
subscribers without a license. Thus, according to the dissent, the Cablevision analysis of the
transmit clause should not even apply to Aereo.54
FilmOn X’s Interpretation of the Transmit Clause
In the 2013 case Fox Television Stations, Inc. v. BarryDriller Content Systems PLC, the plaintiffs,
several broadcast television networks, brought an action against FilmOn in the U.S. District Court
for the Central District of California.55 The plaintiffs alleged that FilmOn’s retransmission of their
broadcasts infringed their copyright, specifically the right of public performance. Unlike in Aereo,
the district court granted a partial injunction against the defendant from offering its content in that
particular area of the country.56
A year later, the same plaintiffs brought another suit against FilmOn in the U.S. District Court for
the District of Columbia, in Fox Television Stations, Inc. v. FilmOn X LLC, alleging the same
violation of rights.57 While FilmOn’s arguments relied upon the Aereo decision in the Second
Circuit, the district court granted the injunction for the plaintiffs, citing FilmOn’s violation of the
plaintiffs’ public performance right of their copyrighted works.58
In both cases, the courts found that the retransmissions of broadcast content over the Internet
were public performances and therefore infringed the plaintiffs’ exclusive rights. The following
sections will examine the district courts’ interpretation of the transmit clause and why they found
violations of the transmit clause in these cases, despite the similarities in technology with Aereo.59
Again the courts’ analysis focuses on the same two elements of the transmit clause: “performance
of the work” and “members of the public capable of receiving the performance.”
Performance of the Work
Both the D.C. and California district courts emphasized the scope of “performance” in the
transmit clause in finding that FilmOn violated the plaintiffs’ right to public performance. For the

51 WNET, 712 F.3d at 700.
52 WNET, 712 F.3d at 701 (citing H. Rept. 94-1476, at 64).
53 WNET, 712 F.3d at 701-02.
54 Id. at 703.
55 BarryDriller, 915 F. Supp.2d at 1140.
56 Id. at 1148.
57 FilmOn X, No. 13-758 at *1.
58 Id. The geographic scope of the injunction is limited to the Ninth Circuit.
59 The D.C. and California district courts are not bound by the decision issued in the Second Circuit because they are
located in different circuits.
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California district court in BarryDriller, the performance that triggers the transmit clause is that of
the copyrighted work itself and not the retransmission of its performance.60 According to the
California district court, the Copyright Act does not justify the Second Circuit’s focus in Aereo on
the uniqueness of the individual copy from which the transmission is made.61 Instead, the court
stated that the Copyright Act directs the court to look at the performance of the underlying
copyrighted work.
The D.C. district court further clarified in its opinion that “performance” refers to a
communication of the original over-the-air broadcast of a copyrighted work and not just the
retransmission itself.62 The court cited legislative history of the Copyright Act, specifically the
House Report’s explanation of “public performance.”63 According to the Report, Congress
intended “public performance” to include “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,”
supporting the court’s broad interpretation of “performance.”64
Members of the Public Capable of Receiving the Performance
In addition to defining the scope of “performance” in the transmit clause, the D.C. district court
considered the definition of “public,” dismissing the Second Circuit’s interpretation. For the D.C.
district court, “public” in the transmit clause includes “any member of the public who accesses
the FilmOn service.”65 The court stated that the determination of whether an audience is public
should not depend on technological access and development, including how television signals are
transmitted and received. The Second Circuit’s emphasis of the one-antenna per subscriber aspect
of the system in Aereo ignored, according to the D.C. district court, the single tuner server, router,
and encoder that communicate with all of the antennas.66 Additionally, the D.C. district court
found that Congress did not intend the development of new technologies to circumvent the public
aspect of the transmit clause when it enacted this provision to include communication “by any
device or process.”67 Moreover, because the relationship between FilmOn and the subscribers was
commercial, the transmission/performance for this court is public regardless of where or how the
consumption takes place.
Future Litigation
The contrasting outcomes of these lawsuits demonstrate two different interpretations of the
transmit clause in the Copyright Act, specifically the meaning of “performance” and “members of
the public capable of receiving the performance.” The Second Circuit in the Aereo cases
interpreted “performance” in the transmit clause as the specific transmission created by Aereo for
that user and not the transmission of the underlying work. For the Second Circuit, if the

60 BarryDriller, 915 F. Supp.2d at 1144.
61 Id. at 1144-46.
62 FilmOn X., No. 13-758 at *26-28.
63 Id. at *26.
64 FilmOn X., No. 13-758 at *26 (citing H.Rept. 94-1476, at 5676-77).
65 FilmOn X., No. 13-758 at *25.
66 Id. at *26-27.
67 Id. at *27.
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transmission of the underlying work triggered the public performance right, then every
performance would be public and not private. However, the D.C. and California district courts
dismissed this reasoning and used legislative history to interpret “performance” to mean that of
the underlying work.
Likewise, the courts disagreed as to the scope of “members of the public capable of receiving the
performance.” Similar to its reasoning regarding “performance,” the Second Circuit held that
“members of the public” includes only those capable of receiving the particular transmission copy
created by Aereo. Because each subscriber receives a unique copy, the transmission is not a
public performance. The D.C. district court, however, did not use technological access to define
“members of the public” but looked at the potential audience for the service. The D.C. district
court supported this interpretation by stating that Congress did not intend the development of
technology, including this method of Internet television streaming, to bypass copyright
protections.
These different interpretations foreshadow further litigation on this subject and possible issues for
appeal. The Second Circuit in WNET v. Aereo acknowledged that its decision that Aereo’s service
is a private transmission was prompted primarily by stare decisis and the earlier holding in
Cablevision. The court emphasized that it is “bound by the decisions of prior panels until such
time as they are overruled either by an en banc panel of our Court or by the Supreme Court.”68
Here, the court has acknowledged the prospect of future litigation.69 However, the Second Circuit
denied the plaintiffs’ petition for rehearing en banc.70
In January 2014, the U.S. Supreme Court granted a petition for writ of certiorari filed by the
plaintiffs (petitioners) in WNET v. Aereo.71 In the petition, the petitioners argued that the Second
Circuit decision, WNET v. Aereo, is “a fundamentally flawed reading of the Transmit Clause.”72
According to the petitioners, the transmit clause requires the inquiry to focus on whether the
public “is capable of receiving the performance” and not “whether it is capable of receiving the
transmission” as interpreted by the Second Circuit.73 The petitioners also argued that the Second
Circuit decision raises questions as to the viability of the current broadcast programming model
and harms the broadcast television industry, specifically restricting their ability “to control how
their programming is used by others.”74 In its answer, Aereo reiterated the arguments made in
WNET v. Aereo that its transmissions are not public performances because each transmission is a
“unique copy of a performance of a work, created at the direction of the user, [and] is transmitted
only by and to that user.”75 Aereo also argued that the Copyright Act distinguishes between those

68 WNET, 712 F.3d at 695 (citing U.S. v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004)).
69 Barry Werbin, WNET v. Aereo, THE ENTERTAINMENT, ARTS AND SPORTS LAW BLOG (April 1, 2013 1:110 PM),
(http://nysbar.com/blogs/EASL/2013/04/wnet_v_aereo.html).
70 WNET v. Aereo, 722 F.3d 500 (2d Cir. 2013).
71 Docket for 13-461 ABC v. Aereo, http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-461.htm.
72 Petition for Writ of Certiorari, ABC v. Aereo, No. 13-461 at 25, http://sblog.s3.amazonaws.com/wp-content/uploads/
2013/11/ABCvAereo_11Oct13.pdf.
73 Id. at 26 (emphasis in original).
74 Id. at 32, 34.
75 Response to Petition for Writ of Certiorari, ABC v. Aereo, No. 13-461 at 14 http://sblog.s3.amazonaws.com/wp-
content/uploads/2013/12/13-461-Aereo-response-brief.pdf.
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“capable of receiving” a transmission and actually “receiving it” to support their conclusion that
the unique copy received only by a specific user is a private performance.76
FilmOn has filed an appeal with the U.S. Court of Appeals for the District of Columbia Circuit to
lift the injunction issued by the D.C. district court in Fox Television Stations v. FilmOn X.77
FilmOn has argued that the near-nationwide injunction set by the D.C. district court places the
company at an “unfair competitive disadvantage” with Aereo, which is expanding its service
throughout the country.78
Related Legislation in the 113th Congress
In its analysis of WNET v. Aereo, the Second Circuit alluded to the opportunity for congressional
action. Specifically, the court discussed differences in technology in 1976 and 2013 and the
resulting difficulty in distinguishing between private and public transmissions.79 In deciding that
Aereo’s service is a private transmission, the court concluded that “unanticipated technological
developments have created tension between Congress’s view that retransmissions of network
programs by cable television systems should be deemed public performances and its intent that
some transmissions be classified as private.”80 By emphasizing this conflict between the law and
developing technology, the court has highlighted an opportunity for congressional action and
clarification of the Copyright Act.81
Several bills introduced during the 113th Congress would implicate the various parties in the
Aereo and FilmOn cases. The Television Consumer Freedom Act of 2013,82 introduced by
Senator John McCain, would impact the market in which companies such as Aereo, FilmOn, and
the broadcasters are competing. The act would allow cable providers to offer to subscribers “a la
carte” programming: programming on a per-channel basis rather than as part of a package.83 The
bill would also deny broadcasters their spectrum licenses if they moved big event programming
from broadcast television to cable.84 Many of the Aereo plaintiffs have threatened this action in
response to Aereo’s success in the courts.85

76 Id. at 15.
77 Wendy Davis, FilmOn X Asks Appeals Court to Lift Ban, ONLINE MEDIA DAILY, December 6, 2013,
http://www.mediapost.com/publications/article/214993/filmon-x-asks-appeals-court-to-lift-ban.html.
78 Id.
79 WNET, 712 F.3d at 695.
80 Id. at 695.
81 For further discussion on the current statutory framework for online distributors, see CRS Report R42722, Online
Video Distributors and the Current Statutory and Regulatory Framework: Issues for Congress, by Charles B. Goldfarb,
Kathleen Ann Ruane, and Patricia Moloney Figliola and CRS Report R43248, Updating the Statutory Framework for
Communications for the Digital Age: Issues for Congress, by Charles B. Goldfarb and Patricia Moloney Figliola.
82 S. 912.
83 S. 912, §3.
84 S. 912, §4.
85 See Joe Flint, John McCain introduces Television Consumer Freedom Act of 2013, L.A. TIMES, MAY 9, 2013,
http://www.latimes.com/entertainment/envelope/cotown/la-et-ct-mccain-cable-
20130509,0,2224732.story#axzz2nIMEmfk9.
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The Consumer Choice in Online Video Act,86 introduced by Senator Jay Rockefeller, seeks to
increase consumer choice and competition in the online video programming marketplace. The bill
would prohibit content distributors from engaging in unfair or deceptive practices.87 The bill also
contains provisions that would address antenna rental services, such as Aereo, specifically. These
provisions would exempt these services from paying certain retransmission fees.88 However,
these provisions assume that the online video provider is legally operating and obtaining content,
stressing further clarification from the courts concerning the legal status of companies such as
Aereo and FilmOn X.

Author Contact Information

Emily M. Lanza


Legislative Attorney
elanza@crs.loc.gov, 7-6508



86 S. 1680.
87 S. 1680, §201.
88 Id.
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