In the most anticipated Copyright decision this term, the Supreme Court today ruled, 6-3 (opinion by Breyer, dissent Scalia) that Aereo’s service for watching broadcast TV online violates the Copyright Act. Briefly: Aero operates a large number of tiny antennas. Subscribers pick a program they want to watch, and get exclusive access to an antenna. That antenna then receives the broadcast in question, sets it up on a private folder for that user in the cloud, and then streams it to him/her over the Internet. The broadcast networks sued, claiming that Aereo’s actions constituted an infringing public performance of their content.
There is and will be endless discussion about this case, because it may very well have enormous implications for cloud computing (the opinion tries very hard to limit itself: it includes an entire section about why it doesn’t apply to cloud computing, and the argument hinges on an analogy to cable TV and specific statutory language adopted in 1976 to deal with cable TV). But there’s something else more interesting, I think, under the radar. I sort of saw it in the opinion, but it came into sharp focus in Scalia’s dissent, so I’ll start there.
Scalia argues that copyright infringement has a volitional component: you have to try to do the specific infringing act. Citing some concurring case law, he then argues that Aero has not actually done anything at all except respond in an automated way to what its subscribers have done. All the system does is deliver content you select without its assistance in that selection. Since to ‘perform’ has a volitional component, and since Aero’s service is automated and not volitional, Aero does not ‘perform’ the works in question, publicly or not. As examples, he distinguishes a photocopier (which does not in any way select what the user copies) from Netflix (which carefully curates its library of streaming materials from the universe of possible materials). Breyer relies on an analogy to cable-TV, and Scalia is targeting that: cable is a lot more like Netflix than the photocopier, since cable makes decisions about what content to carry. As he puts it, “deliberately selecting and importing distant signals, originating programs, [and] selling commercials … mak[es] them curators of content—more akin to video-on-demand services than copy shops. So far as the record reveals, Aereo does none of those things” (internal citations omitted).
The distinction being made – the user selects what to pay attention to versus the provider curates – goes to the heart of one of the more important normative issues behind the rise of the Internet (and of the neoliberal theories invoked by Silicon Valley startups): to what extent does the rise of the Internet erode any meaningful sense of a ‘public’ sphere? Set aside for a moment the race, gender and class (an embarrassed etc. goes here) problems with any actually existing public sphere. As numerous commentators have noted (see, for example, here and here), there are problems for democracy and civil society when one never has chance encounters with things that one might not like, or might not have selected had she known what was coming. Mass media may get a lot of things wrong, and be terrified to report anything neither friendly to its corporate owners nor handed to it on a presidential spoon, but reading a newspaper like the New York Times is still very different from getting the feed from a liberal blog. The newspaper tries to gauge, however imperfectly, what “the public” wants to hear; the liberal blog tries to gauge what people like its self-selected subscribers want to hear. The same distinction applies to broadcast TV, on the one hand, versus the trajectory that runs from cable TV through to video on demand, on the other: for the cable-to-VOD trajectory, you are paying the company to select content that you, individually, will like (cable is basically a monopoly within a geographic area, so they don’t have to try very hard at this. But even cable offers sports or movie bundles). In other words, the cable-to-VOD experience is fundamentally privatized, a little more like living in a gated community or a suburb with a strong HOA, and a little less like living in an apartment on a public street overlooking the famous speaker’s corner.
What Scalia’s dissent shows is that, although it sounds a lot like these other privatized things, Aero actually worked in the opposite direction: even though it was a Silicon Valley startup, it used private equipment to reproduce the experience of being a member of the public. You could watch the same network shows as anybody else, and no intermediary was trying to curate the content to fit its profile of you as an individual.
If we turn now to the opinion, we see precisely a conflation of “public” and “individual subscribers.” The decision hinges on the claim that Aero (a) performs content (b) for/to the public. But the construction of public here is the DailyMe. Here are two passages that support that interpretation.
“Aereo’s argument … relies on the premise that “to transmit . . . a performance” means to make a single transmission. But the Clause suggests that an entity may transmit a performance through multiple, discrete transmissions. That is because one can “transmit” or “communicate” something through a set of actions. Thus one can transmit a message to one’s friends, irrespective of whether one sends separate identical e-mails to each friend or a single e-mail to all at once. So can an elected official communicate an idea, slogan, or speech to her constituents, regardless of whether she communicates that idea, slogan, or speech during individual phone calls to each constituent or in a public square.”
You heard it here first: individual phone calls to people in their homes are equivalent to a speech on the public square. Second:
“The subscribers to whom Aereo transmits television programs constitute “the public.” Aereo communicates the same contemporaneously perceptible images and sounds to a large number of people who are unrelated and unknown to each other. This matters because, although the Act does not define “the public,” it specifies that an entity performs publicly when it performs at “any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” The Act thereby suggests that “the public” consists of a large group of people outside of a family and friends”
Neoliberalism for the win: a whole bunch of people sitting alone in their living rooms with the blinds drawn, looking at the same content, constitute the “public” as long as they don’t know each other. By doing the same activity alone in different places, they have “gathered.” “Public” is thus a principle of aggregation – enough individuals do the same thing and it’s “public” – but no longer a question of content curation or its lack. That tradition of understanding the publicness of speech simply disappears, occluded by the satisfaction of individualized preferences.
I don’t know the caselaw behind the 1976 statutory language well enough to argue the hermeneutic point. But it does look like that, even though a Silicon Valley startup lost, Silicon Valley won today.