WNET v. Aereo

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

You may also like...

9 Responses

  1. David Lang says:

    Are you aware of the Comcast case where it was ruled that it was perfectly legitimate for Comcast to run a DVR for every customer in their central facility?

    what’s the difference between Comcast doing so and Aereo doing so?

  2. Bruce Boyden says:

    I think Gerard is suggesting that Cablevision is wrongly decided too.

    I agree the statute clearly seems to state that 1 million transmissions of a work to individuals at different places and times constitute a public performance. The difficult question, it seems to me, is whether those separate transmissions are *Aereo’s* performance, or the users’ performances. The tricky part is that it’s a user action that gets Aereo’s (and Cablevision’s) equipment to make the recording and then, either at the same time or later, transmit it. But it can’t be the case that just any service that stores and transmits audiovisual content at a user request publicly performs that content. (Even one transmission is enough to be a public performance if it is to a member of the public.) Otherwise garden-variety file storage sites are in trouble. On the flip side, I’m not sure how under the Second Circuit opinion even unauthorized video-on-demand services would infringe on the public performance right. I think there is a distinction to be made, but it is not immediately obvious.

    • Unauthorized VOD is easily distinguished under the Second Circuit holding. VOD is served from a single copy (or a handful of copies, for technical reasons) used to serve many users. As such, any performances _are_ to the public.

      (And if a provider attempted to avoid public transmissions by making separate copies for each ordering user, then they would infringe by virtue of having made those copies. Unlike a DVR and linear channels, there is no fair use privilege to record/timeshift VOD.)

  3. David Lang says:

    I’ll note that if the systems being located in comcast’s datacenter instead of at the users house makes a difference, it will cripple cloud computing because of the liability that the cloud datacenters would gain (they are after all providing the equipment for people to use)

  4. Gerard Magliocca says:


    Arguably this is a problem for Congress to solve by amending the statute, just as they did by adding the transmission prong in the 1970s after the Court (correctly) held that cable operators were not “performing” by “transmitting” broadcast signals.

  5. With all due respect, the analysis above is superficial, and simply wrong. The statute does not reference “events.” It references “performances,” and that’s a huge difference.

    The Second Circuit already addressed the basic argument you make (which was made in much greater detail, and with multiple variations, by plaintiffs) in both _Cablevision_ and _Aereo_, and their argument is compelling, As they observed, the transmit clause can’t be interpreted as you propose (to aggregate all performances of the same underlying work) without foreclosing the concept of non-public transmissions–which is completely antithetical to the plain language of the statute (as well as the legislative history, and Congress’s clear intent).

    The legislative history suggests that Congress in 1976 probably would have intended to include the likes of Aereo among those required to license retransmission, and they clearly attempted to use language that would cover new technologies. But they didn’t anticipate this particular development, and the language that they chose isn’t broad enough to cover it.

    The Court should affirm on the merits. Then Congress can step in if they see fit (and if Aereo prevails, I expect they will), and address the issue. (Hopefully, they will take the opportunity to fix the badly broken retransmission consent regime–which is the root cause of Aereo’s existence–at the same time.)

    For comprehensive information on this case, see:


  6. Gerard Magliocca says:

    A compulsory license (imposed by Congress, of course) could be a good solution.

  7. prometheefeu says:

    I’m not sure I understand. Let’s say I stick an extra antenna on my roof, hook it up to a DVR run a cable from the DVR to my neighbor’s TV and rent the whole setup to my neighbor. Is that an unauthorized retransmission? What if I instead put the antenna and DVR on their property?

  8. David Lang says:

    or the antenna on your property and the DVR on their property.