6/25. The Supreme Court issued its opinion in ABC v. Aereo, a case involving copyright and entertainment video programming, reversing the judgment of the U.S. Court of Appeals (2ndCir). That is, the Supreme Court ruled for the broadcasters: Aereo directly infringes the performance right.

Outline of this Article:
 • Introduction.
 • Facts.
 • Proceedings Below.
 • Supreme Court Proceedings.
 • Statute.
 • Majority Opinion
 • Breyer's Dicta on Implications for Other Technologies.
 • Dissenting Opinion.

Related Items in this Issue:
 • Reaction to Supreme Court Opinion in ABC v. Aereo
 • Impact of Supreme Court's Aereo Opinion on Cloud Computing
 • Statutory Sections Applied in ABC v. Aereo

Introduction. At issue is whether a company publicly performs, within the meaning of 17 U.S.C. § 106 and 17 U.S.C. § 101, a copyrighted television program when it retransmits a broadcast of that program to paid subscribers.

Whether and how the reasoning of Supreme Court might also impact cloud computing and other technologies is disputed. Justice Breyer, who wrote the opinion of the Court, tried to downplay the impact on other technologies. Justice Scalia wrote in dissent that this opinion will sow confusion.

The Court of Appeals ruled 2-1 in its April 1, 2013 opinion that Aereo's service is not a public performance within the meaning of the Copyright Act, and hence, Aereo does not directly infringe the exclusive rights of broadcasters. See, story titled "2nd Circuit Affirms in Aereo Copyright Cases" in TLJ Daily E-Mail Alert No. 2,544, April 2, 2013.

The Supreme Court ruled 6-3 that Aereo's service does directly infringe the exclusive performance right. Justice Stephen Breyer wrote the opinion of the Court, in which Justices John Roberts, Anthony Kennedy, Ruth Ginsburg, Sonia Sotomayor, and Elena Kagan joined. Justice Antonin Scalia wrote a dissenting opinion, in which Justices Clarnce Thomas and Samuel Alito joined.

Facts. ABC and the other petitioners produce, market, distribute, and broadcast television programming. They own copyrights in much of this. Aereo, the respondent, provides a service to consumers for a monthly fee that enables them to watch television programs, including those in which the petitioners hold copyrights. Aereo does not have petitioners' authorization or license.

Aereo's system is engineered to facilitate the assertion that it is not providing a public performance.

Justice Breyer (at left) wrote this summary of the Aereo's service. "Aereo’s system is made up of servers, transcoders, and thousands of dime-sized antennas housed in a central warehouse. It works roughly as follows: First, when a subscriber wants to watch a show that is currently being broadcast, he visits Aereo’s website and selects, from a list of the local programming, the show he wishes to see."

"Second, one of Aereo’s servers selects an antenna, which it dedicates to the use of that subscriber (and that subscriber alone) for the duration of the selected show. A server then tunes the antenna to the over-the-air broadcast carrying the show. The antenna begins to receive the broadcast, and an Aereo transcoder translates the signals received into data that can be transmitted over the Internet." (Parentheses in original.)

Third, rather than directly send the data to the subscriber, a server saves the data in a subscriber-specific folder on Aereo’s hard drive. In other words, Aereo's system creates a subscriber-specific copy -- that is, a “personal” copy -- of the subscriber’s program of choice."

Finally, wrote Justice Breyer, "Fourth, once several seconds of programming have been saved, Aereo’s server begins to stream the saved copy of the show to the subscriber over the Internet. (The subscriber may instead direct Aereo to stream the program at a later time, but that aspect of Aereo’s service is not before us.) The subscriber can watch the streamed program on the screen of his personal computer, tablet, smart phone, Internet-connected television, or other Internet-connected device. The streaming continues, a mere few seconds behind the over-the-air broadcast, until the subscriber has received the entire show." (Parentheses in original.)

Proceedings Below. WNET and other broadcasters filed their original complaint [36 pages in PDF] in the U.S. District Court (SDNY) on March 1, 2012, alleging direct and secondary liability for violation of both performance and reproduction rights.

The WNET plaintiffs alleged that Aereo offers an unlicensed subscription service that streams television programming over the internet to paying subscribers' computers, smart phones and tablets in violation of the broadcaster's exclusive rights of copyright (pubic performance right and reproduction right).

ABC and other broadcasters filed a second complaint (alleging violation of reproduction, distribution, and public performance rights) against Aereo on March 12, 2012, in the same District Court.

The District Court issued an opinion [PDF] on July 11 denying the plaintiffs' motions for a preliminary injunction on the direct infringement of the public performance right claim. That opinion is also reported at 874 F. Supp. 2d 373.

The District Court relied on the 2nd Circuit's 2008 opinion in Cartoon Network v. CSC Holdings, 536 F.3d 121. See, story titled "2nd Circuit Reverses in Remote Storage DVR Copyright Case" in TLJ Daily E-Mail Alert No. 1,806, August 5, 2008.

April 1, 2013, the Court of Appeals issued its divided opinion [62 pages in PDF] in WNET v. Aereo and ABC v. Aereo affirming the order of the U.S. District Court (SDNY) denying Aereo's motion for a preliminary injunction. See, story titled "2nd Circuit Affirms in Aereo Copyright Cases" in TLJ Daily E-Mail Alert No. 2,544, April 2, 2013.)

The majority held that Aereo's service, which captures, stores, and almost immediately retransmits broadcasters' programming, without license, to its own customers, for a fee, via a multitude of antennas, is not a public performance with the meaning of the Copyright Act, and hence, does not infringe the exclusive rights of broadcasters.

The dissent argued that Aereo's system is a sham, functionally equivalent to a cable system, constructed solely to exploit a perceived loophole in the Copyright Act, that must be viewed as a public performance in violation of the exclusive rights of broadcasters.

Supreme Court Proceedings. ABC and others filed a petition for writ of certiorari with the Supreme Court on October 11, 2013. The Supreme Court heard oral argument on April 22, 2014. See also, Sup. Ct. No. 13-461.

Aereo argued in its brief that the Court of Appeals correctly applied the Copyright Act, and it should be affirmed.

ABC and the other petitioners argued in their brief that the Court of Appeals incorrectly applied the Copyright Act to Aereo's service, and it should be reversed.

They wrote that "Aereo has built a business out of retransmitting broadcast television to members of the public without seeking authorization from or paying compensation to copyright holders. That is precisely the kind of unauthorized exploitation of copyrighted content that Congress enacted the transmit clause to prevent. Indeed, Aereo derives its competitive advantage in large part from the fact that its competitors pay for the rights to retransmit ``live TV´´ to the public -- as they must to avoid liability for copyright infringement -- while Aereo does not."

"But nothing about Aereo’s convoluted scheme of miniature antennas and gratuitous copies exempts its commercial retransmission service from the same rules that govern all others. Aereo's unauthorized retransmission of broadcast television to the public is obvious and unambiguous copyright infringement. Both the transmit clause and common sense foreclose any other conclusion."

Numerous parties filed amicus curiae briefs. The Office of the Solicitor General (OSG), which has broad influence on the Supreme Court's decisions to grant certiorari, and on the merits, backed the broadcasters.

The OSG wrote in its amicus brief that under the Copyright Act, "a company that retransmits copyrighted broadcast television programs must obtain a license". It continued that Aereo's "unauthorized Internet retransmissions violate these statutory requirements and infringe petitioners’ public-performance rights under 17 U.S.C. 106(4)."

The OSG added that "a decision rejecting respondent’s infringing business model and reversing the judgment below need not call into question the legitimacy of innovative technologies that allow consumers to use the Internet to store, hear, and view their own lawfully acquired copies of copyrighted works."

The National Association of Broadcasters (NAB) wrote in its amicus brief in support of the petitioners that "Quality broadcast television, delivered for free over the air by local stations, is a public good, as Congress has long recognized. But free over-the-air television is not cost-free and cannot be taken for granted. Aereo seeks to subvert a carefully constructed legal framework with a technological gimmick."

The NAB argued that "If the Court were to hold that Aereo's deliberately wasteful and inefficient system can successfully circumvent the plain meaning and purpose of the Copyright Act, it would strike a serious blow to the institution of free and innovative broadcast television. The Court should instead hold that Aereo's claimed loophole in the law does not exist."

In addition to briefs regarding the impact of this case on consumers' access to video programming, providers and proponents of cloud computing filed briefs, in support of Aereo. An entertainment service may involve transmissions from a computer network to individual users via individual antennas. Cloud computing too involves transmissions from a computer network to users via the internet. Aggregating Aereo's transmissions to find a public performance would impose copyright liability upon Aereo. Analogous aggregation of transmissions of copyrighted works might similarly impose copyright liability upon cloud service providers. Hence, advocates for cloud service providers filed amicus briefs.

The Computer and Communications Industry Association (CCIA) wrote in its amicus brief that "Adoption of petitioners' position would threaten one of the most important emerging industries in the U.S. economy: cloud computing. Cloud computing -- ubiquitous, on-demand network access to shared computing resources -- offers benefits for businesses and consumers."

The CCIA added that "The dramatic expansion of the cloud computing sector, bringing with it real benefits previously imagined only in science fiction, depends upon an interpretation of the Copyright Act that allows adequate breathing room for transmissions of content."

The BSA Software Alliance, while stating that its amicus brief is in support of neither side, also wrote that the Court's opinion could adversely impact cloud computing. It wrote that "adopting petitioners' argument would impose substantial burdens on cloud computing".

A collection of groups (including the Center for Democracy and Technology, CTIA Wireless Association, US Telecom, and others) also submitted a amicus brief in support of neither party that addresses cloud computing. They urge the Supreme Court not to take an approach that would harm cloud computing.

The American Cable Association (ACA), which represents small and medium sized cable operators that provide video, broadband internet and phone services, raised a different issue -- retransmission consent.

It wrote in its amicus brief that the Court of Appeals should be affirmed. It argued that "the exclusive right to perform a work publicly does not encompass a right to limit who can be in the audience, or to veto technologies used to gain reception of the licensed performance."

It reasoned that "Even though free, over-the-air broadcasts are a viable alternative to cable television, ACA members welcome the development of new technologies that allow their customers to have better reception of free over-the-air local television broadcasts, thereby creating a modest safety-valve against what smaller cable companies consider to be unfair and oppressive retransmission consent rates extracted by threat of blackouts that would leave customers with a ``dark´´ channel unless untoward price demands are met."

Statute. This case involves application of several clauses in the Copyright Act. First, Section 106, which is codified at 17 U.S.C. § 106, sets forth the exclusive rights of copyright. Subsection 106(4) provides that a copyright owner has the exclusive right "to perform the copyrighted work publicly".

Section 101, which is codified at 17 U.S.C. § 101, provides definitions. Although, the key definitions of "public" and "perform" were added by the Copyright Act of 1976, in reaction to lower court opinions regarding application of the Copyright Act to early cable television, and long before development of the IT based technology at issue in this case.

Section 101 provides that the term "perform" means "to recite, render, play, dance, or act it, either directly or by means of any device or process".

It also provides that the term "publicly" means to "to perform ... it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered" or "to transmit or otherwise communicate a performance ... of the work to a place" specified by the previous clause, "or to the pubic, by means of any device or process, whether the members of the public capable of receiving the performance ... receive it in the same place or in separate places and at the same time or at different times". (The clause beginning with the words "to transmit" is sometimes referred to as the "transmit clause".)

Majority Opinion. Justice Breyer wrote that "This case requires us to answer two questions: First, in operating in the manner described above, does Aereo ``perform´´ at all? And second, if so, does Aereo do so ``publicly´´?"

Justice Breyer concluded that "An entity that engages in activities like Aereo's performs." He reviewed the history of the Copyright Act's definition of the term "perform". He wrote that it was added to bring "community antenna television (CATV) systems (the precursors of modern cable systems)" within the Copyright Act. Breyer concluded that "Aereo's activities are substantially similar to those of the CATV companies that Congress amended the Act to reach."

He continued that "Aereo's equipment may serve a ``viewer function´´; it may enhance the viewer's ability to receive a broadcaster's programs. It may even emulate equipment a viewer could use at home. But the same was true of the equipment that was before the Court, and ultimately before Congress" in the cases leading up Congress's decision to amend the Copyright Act in 1976.

Having found that Aereo performs, he next addressed whether it performs publicly. He acknowledged that "an Aereo subscriber receives broadcast television signals with an antenna dedicated to him alone" and "One and only one subscriber has the ability to see and hear each Aereo transmission".

Nevertheless, Breyer wrote, "these differences do not distinguish Aereo’s system from cable systems, which do perform ``publicly.´´ Viewed in terms of Congress’ regulatory objectives, why should any of these technological differences matter? They concern the behind-the-scenes way in which Aereo delivers television programming to its viewers’ screens. They do not render Aereo's commercial objective any different from that of cable companies. Nor do they significantly alter the viewing experience of Aereo's subscribers."

Hence, Aereo both performs, and performs publicly, in direct violation of rights holders' exclusive performance rights.

Justice Breyer also wrote that "in light of the purpose and text of the Clause, we conclude that when an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it transmits a performance to them regardless of the number of discrete communications it makes" (at page 14), and that "an entity only transmits a performance when it communicates contemporaneously perceptible images and sounds of a work" (at page 16). Here, Justice Breyer uses words not found in the Copyright Act. These definitional phrases might be often quoted in future memoranda, briefs and opinions. However, whether this is a new definition, a restatement of the transmit clause of Section 101, or a definition taken from US v. ASCAP, 627 F.3d 64, at page 73, Justice Scalia in dissent labels this as "the Court's assumed definition".

Breyer's Dicta on Implications for Other Technologies. Having reached the conclusion that Aereo infringes the performance right, Breyer next addressed whether the legal analysis applied by the Court might be applied to other technologies other than Aereo's to find public performance, and infringement.

He noted that "Aereo and many of its supporting amici argue that to apply the Transmit Clause to Aereo's conduct will impose copyright liability on other technologies, including new technologies, that Congress could not possibly have wanted to reach." (At pages 15-16.)

"We agree that Congress, while intending the Transmit Clause to apply broadly to cable companies and their equivalents, did not intend to discourage or to control the emergence or use of different kinds of technologies. But we do not believe that our limited holding today will have that effect."

He elaborated that the present holding that Aereo performs "does not determine whether different kinds of providers indifferent contexts also ``perform.´´"

Also, he noted that "an entity only transmits a performance when it communicates contemporaneously perceptible images and sounds of a work."

Also, he wrote that "we have interpreted the term ``the public´´ to apply to a group of individuals acting as ordinary members of the public who pay primarily to watch broadcast television programs, many of which are copyrighted. We have said that it does not extend to those who act as owners or possessors of the relevant product. And we have not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content." (At page 16.)

Breyer also wrote that "courts often apply a statute's highly general language in light of the statute's basic purposes". Finally, he wrote that the fair use doctrine "can help to prevent inappropriate or inequitable applications of the Clause", citing the landmark 1984 betamax opinion, Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417.

However, he conceded that "We cannot now answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before us."

See also, related story in this issue titled "Impact of Supreme Court's Aereo Opinion on Cloud Computing".

Dissenting Opinion. Justice Scalia wrote in his dissent that the majority adopted a "looks like cable TV" standard that will "sow confusion for years to come".

Justice Scalia (at right) reasoned that this is a direct, not secondary, liability case. But, Aereo is not choosing what to copy -- its subscribers are. For this reason, Aereo is more like a photocopier than a video on demand service. Also, for this reason, Aereo cannot be held to perform.

"Aereo does not ``perform´´ for the sole and simple reason that it does not make the choice of content. And because Aereo does not perform, it cannot be held directly liable for infringing the Networks' public-performance right."

However, he added that "That conclusion does not necessarily mean that Aereo's service complies with the Copyright Act. Quite the contrary." He explained that the issue before the Supreme Court is merely the Court of Appeals' affirmance of the District Court's denial of a motion for preliminary injunction on the sole claim of direct infringement of the performance right. There are also claims in the District Court for secondary liability for infringement of both the performance and reproduction right.

He added that "the Court provides no criteria for determining when its cable-TV-look alike rule applies. Must a defendant offer access to live television to qualify?"

"It will take years, perhaps decades, to determine which automated systems now in existence are governed by the traditional volitional-conduct test and which get the Aereo treatment."

He also wrote that "The Court vows that its ruling will not affect cloud-storage providers and cable-television systems, see ante, at 16–17, but it cannot deliver on that promise given the imprecision of its result-driven rule."

He offered this summation. "I share the Court’s evident feeling that what Aereo is doing (or enabling to be done) to the Networks’ copyrighted programming ought not to be allowed. But perhaps we need not distort the Copyright Act to forbid it. As discussed at the outset, Aereo’s secondary liability for performance infringement is yet to be determined, as is its primary and secondary liability for reproduction infringement. If that does not suffice, then (assuming one shares the majority’s estimation of right and wrong) what we have before us must be considered a “loophole” in the law. It is not the role of this Court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes. Congress can do that, I may add, in a much more targeted, better informed, and less disruptive fashion than the crude ``looks-like-cable-TV´´ solution the Court invents today." (Parentheses in original.)

He concluded that "the proper course is not to bend and twist the Act's terms in an effort to produce a just outcome, but to apply the law as it stands and leave to Congress the task of deciding whether the Copyright Act needs an upgrade."

6/25. Many legislators and groups responded promptly after the Supreme Court released its June 25, 2014 opinion in ABC v. Aereo.

Congressional Reaction. Rep. Fred Upton (R-MI), Rep. Greg Walden (R-OR), and Rep. Bob Latta (R-OH), who are all members of the House Commerce Committee (HCC), but not the House Judiciary Committee (HJC), released a statement in which they wrote that this opinion shows that the Communications Act is in need of modernization.

The opinion is based on an application of the Copyright Act, which falls within the jurisdiction of the HJC. HCC members have long history of poaching on the jurisdiction of other Committees.

Rep. Bob Goodlatte (R-VA), Chairman of the HJC, and chief defender of its jurisdiction, stated in a release that "Today's Supreme Court decision reinforces the importance of the House Judiciary Committee’s ongoing review of our copyright law. The review is essential in determining whether the laws are still working in the digital age. It is my hope that we can identify improvements to our copyright laws that can benefit both the content community and the technology community, as well as consumers, by maintaining strong protections for copyrighted works and strong incentives for further innovation."

Sen. John Thune (R-SD) gave a speech written just prior to the release of the Aereo opinion. He stated that "A great deal has changed in the video market in just the past five years, let alone since we last passed comprehensive video legislation 22 years ago. When Congress wrote the Cable Act, it never envisioned telephone companies entering the TV space, let alone companies like Netflix, TiVo, Amazon, Apple, and YouTube revolutionizing how people watch video. And the Supreme Court will soon hand down a decision in the Aereo case that may have wide-ranging implications for the television industry."

Sen. Thune (at right) He said that "now is a good time for Congress to examine our laws to determine whether they are still relevant and whether they provide the foundation for continued video innovation and consumer choice. Just like telephone service, our video laws in large part reflect a monopoly market structure that no longer exists. And as with voice services, video services are quickly becoming applications that merely ride on top of the underlying competitive broadband network infrastructure. Failing to modernize these outdated laws would be a missed opportunity."

Sen. Thune is the ranking Republican on the Senate Commerce Committee (SCC).

Praise for the Opinion. Gordon Smith, head of the National Association of Broadcasters (NAB), stated in a release that the "NAB is pleased the Supreme Court has upheld the concept of copyright protection that is enshrined in the Constitution by standing with free and local television. Aereo characterized our lawsuit as an attack on innovation; that claim is demonstrably false. Broadcasters embrace innovation every day, as evidenced by our leadership in HDTV, social media, mobile apps, user-generated content, along with network TV backed ventures like Hulu."

"Television broadcasters will always welcome partnerships with companies who respect copyright law. Today's decision sends an unmistakable message that businesses built on the theft of copyrighted material will not be tolerated."

Criticism of the Opinion. Matthew Polka, head of the American Cable Association (ACA), stated in a release that the "ACA is concerned because it appears that the Supreme Court's Aereo ruling negatively affects the rights of small cable operators to utilize individual antenna-based delivery of broadcast services. "

He added that "the decision drew lines that are not clear as to what is acceptable and what is not and, as a result, will likely have a chilling effect on technology innovators. Although ACA is disappointed that bold, forward-thinking Aereo lost the direct infringement fight in this case, we are hopeful that the court has not slammed the door entirely on Aereo and other related pioneering technologies that enable online consumers to access freely available content."

Shirley Bloomfield of the NTCA Rural Broadband Association stated in a release that "The Aereo decision unfortunately leaves broadcasters immune from market pressure and free to demand exorbitant prices for the retransmission of broadcast content. This decision underscores the need for swift and deliberate reformation of the retransmission consent process to create an equilibrium in which broadcasters and video providers have equal power to negotiate fair content prices for the benefit of all video consumers."

Gary Shapiro (at right), head of the Consumer Electronics Association (CEA), stated in a release that "We are disappointed that the Supreme Court today ruled against innovator Aereo, but are pleased the Court said it favored future innovation and specifically referred to the Sony Betamax principles of fair use as a safety valve for new services and technologies."

Shapiro also stated that "the decision raises issues on the future of broadcasting. Given that consumers are increasingly choosing to view content ‘anytime/anywhere’ on smartphones and tablets, and only six percent of Americans rely exclusively on over-the-air television, we question how much longer broadcasters can claim to justify their use of public spectrum when they oppose innovative services like Aereo which expand their viewing audience."

Gene Kimmelman, head of the Public Knowledge (PK), stated in a release that "It is very unfortunate for consumers that the Supreme Court has ruled against Aereo, which has provided an innovative service that brings consumers more choices, more control over their programming, and lower prices."

"We're concerned that the court's misreading of the law leaves consumers beholden to dominant entertainment and cable companies that constantly raise prices and gouge consumers." Kimmelman added that this decision "makes it all the more important for the Department of Justice and Federal Communications Commission to guard against anti-competitive consolidation, such as the Comcast/Time Warner Cable merger."

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. The schedule for the week includes consideration of S 1681 [LOC | WW], the "Intelligence Authorization Act for Fiscal Year 2014", under suspension of the rules. The Senate passed S 1681 on June 11. The House passed HR 4681 [LOC | WW], the "Intelligence Authorization Act for Fiscal Years 2014 and 2015", on May 30. See, Rep. Cantor's schedule.

The Senate will meet at 10:00 AM.

Day three of a three day conference hosted by the Government Technology Research Alliance's (GRTA) Technology Council titled "Government IT Security Collaboration". On June 24 at 8:30 AM there will be a panel titled "Prioritizing Your Cyber Efforts: Managing Today's Threats, Preparing for Tomorrow, and Measuring Outcomes". The speakers will include Ann DiCamillo (Director of the DHS NPPD US-CERT) and Robin Williams (DHS NPPD Office of Cybersecurity and Communications). See, notice. Location: The Landsdowne, 44050 Woodridge Pkwy., Leesburg, VA.

8:00 AM. Politico will host an event titled "Financial Services Report: Preventing Third Party Cyberattacks". The speakers will include Larry Zelvin (Director of the DHS's NPPD's National Cybersecurity and Communications Integration Center), Greg Garcia (Financial Services Sector Coordinating Council), Mischel Kwon, and James Lewis (CSIS). See, notice. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

8:30 AM - 5:30 PM. Day one of a two day meeting of the Department of the Interior's (DOI) U.S. Geological Survey's (USGS) National Geospatial Advisory Committee (NGAC). The agenda includes "FirstNet Update". Free. Open to the public. The deadline to register to attend is June 20. See, notice in the Federal Register, Vol. 79, No. 104, May 30, 2014, at Pages 31128-31129. Location: South Interior Building Auditorium, 1951 Constitution Ave., NW.

9:00 AM - 12:15 PM. Day two of a two day meeting hosted by the Department of Energy's (DOE) Federal Energy Regulatory Commission (FERC) regarding "increasing real-time and day-ahead market efficiency through improved software". See, FERC's web page for this conference, and notice in the Federal Register, Vol. 79, No. 105, June 2, 2014, at Pages 31321-31324. Location: FERC, 888 1st St., NW.

9:30 - 10:30 AM. The Internal Revenue Service's (IRS) Electronic Tax Administration Advisory Committee (ETAAC) will meet by telephone conference call. Open to the public. See, notice in the Federal Register, Vol. 79, No. 103, May 29, 2014, at Pages 30930-30931.

POSTPONED. 10:00 AM. The House Homeland Security Committee's (HHSC) Subcommittee on Counterterrorism and Intelligence will hold a hearing titled "Detecting another Snowden: Building an Effective Insider Threat Program at the Department of Homeland Security". See, notice. Location: Room 311, Cannon Buklding.

10:00 - 11:30 AM. The Brookings Institution (BI) will host a speech by Brad Smith (Microsoft General Counsel) titled "The Future of Global Technology, Privacy, and Regulation". Webcast. Free. Open to the public. See, notice. Location: BI, 1775 Massachusetts Ave., NW.

10:30 AM. The House Judiciary Committee's (HJC) Subcommittee on Regulatory Reform, Commercial and Antitrust Law will hold a hearing on the proposed merger of AT&T and DirecTV. The witnesses will be Randall Stephenson (CEO of AT&T), Michael White (CEO of DirecTV), Ross Lieberman (American Cable Association), and John Bergmayer (Public Knowledge). See, notice. Location: Room 2141, Rayburn Building.

10:30 AM. The Senate Appropriations Committee's (SAC) Subcommittee on Financial Services and General Government will meet to mark up the FSGG appropriations bill. This includes appropriations for many agencies relevant to information and communications technology, including Federal Communications Commission (FCC), Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), and Financial Crimes Enforcement Network. See, notice. Location: Room 124, Dirksen Building.

1:00 - 5:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will host one of its series of meetings regarding privacy and facial recognition technology. See, notice in the Federal Register, Vol. 78, No. 235, December 6, 2013, at Pages 73502-73503. Location: American Institute of Architects, 1735 New York Ave., NW.

1:30 PM. The House Judiciary Committee's (HJC) Subcommittee on Courts, Intellectual Property and the Internet will hold a hearing titled "Trade Secrets: Promoting and Protecting American Innovation, Competitiveness and Market Access in Foreign Markets". The witnesses will be Richard Hertling (Covington & Burling, and the Protect Trade Secrets Coalition), David Simon ( Salesforce.com), Thaddeus Burns (Intellectual Property Owners Association), Chris Moore (National Association of Manufacturers). See, notice. Location: Room 2141, Rayburn Building.

2:30 PM. The Senate Judiciary Committee's (SJC) Subcommittee on Antitrust, Competition Policy and Consumer Rights will hold a hearing titled "The AT&T/DIRECTV Merger: The Impact on Competition and Consumers in the Video Market and Beyond". Sen. Amy Klobuchar (D-MN) will preside. Webcast. See, notice. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing on undisclosed matters. See, notice. Location: Room 219, Hart Building.

POSTPONED. 2:30 PM. The Senate Commerce Committee (SCC) will meet to mark up numerous bills. However, none relate to information or communications technologies. Location: Room 253, Russell Building.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Happy Hour". Location: Penn Social, 801 E St., NW.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. The schedule for the week includes consideration of S 1681 [LOC | WW], the "Intelligence Authorization Act for Fiscal Year 2014", under suspension of the rules. See, Rep. Cantor's schedule.

8:30 AM - 4:00 PM. Day two of a two day meeting of the Department of the Interior's (DOI) U.S. Geological Survey's (USGS) National Geospatial Advisory Committee (NGAC). The agenda includes "FirstNet Update". Free. Open to the public. The deadline to register to attend is June 20. See, notice in the Federal Register, Vol. 79, No. 104, May 30, 2014, at Pages 31128-31129. Location: South Interior Building Auditorium, 1951 Constitution Ave., NW.

9:00 - 11:00 AM. The Free State Foundation (FSF) will host an event titled "Reforming Communications Policy in the Digital Age: The Path Forward". Sen. John Thune (R-SD) and FCC Commissioner Ajit Pai will give keynote speeches. Free. Open to the public. Registration required. No CLE credits. No webcast. A continental breakfast will be served. See, notice. Location: Room SVC 209-08, Capitol Building.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Courts, Intellectual Property and the Internet will hold a hearing titled "Music Licensing Under Title 17". The witnesses will be Rosanne Cash (Americana Music Association), Delida Costin (Pandora), David Frear (SiriusXM Radio), Mike Huppe (SoundExchange), Cary Sherman (Recording Industry Association of America), Darius Van Arman (American Association of Independent Music), Charles Warfield (National Association of Broadcasters), and Paul Williams (ASCAP). See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee will meet to mark up numerous bills, including S __, a yet to be introduced bill titled the "Federal Information Security Modernization Act of 2014", S __, a yet to be introduced bill titled the "National Cybersecurity and Communications Integration Center Act of 2014", and HR 1232 [LOC | WW], the "Federal Information Technology and Acquisition Reform Act". See, notice. Location: Room 342, Dirksen Building.

11:00 AM. The House Homeland Security Committee's (HHSC) Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies will hold a hearing titled "How Data Mining Threatens Student Privacy". The witnesses will be Joel Reidenberg (Fordham University School of Law), Mark MacCarthy (Software and Information Industry Association), Joyce Popp (Idaho State Department of Education), and Thomas Murray (Alliance for Excellent Education). See, notice. Location: Room 311, Cannon Building.

2:00 PM. The Senate Finance Committee (SFC) will hold a hearing titled "Trade Enforcement: Using Trade Rules to Level the Playing Field for U.S. Companies and Workers". The witnesses will be Kevin Brosch (National Chicken Council), Leo Gerard (steelworkers' union), Mario Longhi (U.S. Steel Corp.), Bart Peterson (Eli Lilly and Company), and Richard Wilkins (American Soybean Association). See, notice. Location: Room 215, Dirksen Building.

2:00 - 3:30 PM. The Brookings Institution (BI) will host a panel discussion titled "China and its Neighbors: Changing Dynamics and Growing Uncertainty". The speakers will be Richard Bush (BI), Jaewoo Choo (BI), JoAnn Fan (BI), and Feng Zhu (BI). See, notice. Location: BI, 1775 Massachusetts Ave., NW.

3:00 PM. The Senate Foreign Relations Committee (SFRC) will hold a hearing titled "The Future of U.S. China Relations". The witnesses will be Daniel Russel (Assistant Secretary of State for East Asia and Pacific Affairs), Stapleton Roy (Woodrow Wilson International Center for Scholars), and Aaron Friedberg (Princeton University). See, notice. Location: Room 419, Dirksen Building.

6:00 - 7:30 PM. The DC Bar Association will host an event titled "Trademark Office Speaks". The speakers will be Deborah Cohn (Commissioner for Trademarks, USPTO), Gerard Rogers (Chief Administrative Trademark Judge, Trademark Trial and Appeal Board), Danny Awdeh (Finnegan Henderson), and John Nading (DLA Piper). The price to attend ranges from $20 to $35. Hors d'oeuvres will be served at 5:30 PM. For more information, call 202-626-3463. No reporters. No webcast. No CLE credits. See, notice. Location: DLA Piper, 500 8th St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to Part VI(B-H) of its Further Notice of Proposed Rulemaking (FNPRM) regarding closed captioning of video programming. The FCC adopted this FNPRM on February 20, 2014, and released it on February 24, 2014. It is FCC 14-12 in CG Docket No. 05-231. See, notice in the Federal Register, Vol. 79, No. 59, March 27, 2014, at Pages 17093-17106.

The House will meet at 9:00 AM for legislative business. The schedule for the week includes consideration of S 1681 [LOC | WW], the "Intelligence Authorization Act for Fiscal Year 2014", under suspension of the rules. See, Rep. Cantor's schedule.

Supreme Court conference day. See, October Term 2013 calendar.

8:00 AM. Politico will host an event titled "The Future of Mobile: Policy, Regulation, and the Way Forward". The scheduled speakers include Rep. Jason Chaffetz (R-UT) and Mignon Clyburn (FCC Commissioner). See, notice. Location: Newseum, 555 Pennsylvania Ave., NW.

9:30 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of S 2454 [LOC | WW], the "Satellite Television Access Reauthorization Act of 2014", and S 517 [LOC | WW], the "Unlocking Consumer Choice and Wireless Competition Act". Webcast. See, notice. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed meting to mark up undisclosed matters. No webcast. See, notice. Location: Room 219, Hart Building.

5:30 - 7:00 PM. The New America Foundation (NAF) will host a panel discussion titled "Digital Diplomacy and Proactive Monitoring: Challenges to Solutions". The speakers will be Julie Weckerlein (Department of Health and Human Services), Pablo Garcia Molina (Georgetown University), Christopher Harvin (Barbaricum and Sanitas International), and Josh Keating (Slate). Free. Open to the public. Webcast. See, notice. Location: NAF, Suite 400, 1899 L St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Emerging Trends and Laws in Emergency 911". The speakers will be __. CLE credits. No webcast. Prices vary. The deadline for registrations and cancellations is 5:00 PM on June 25. See, notice. Location: __.

EXTENDED FROM MAY 12. Extended deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (NPRM) regarding whether to eliminate or modify the network non-duplication and syndicated exclusivity rules. The FCC adopted and released this FNPRM on March 31, 2014. It is FCC 14-29 in MB Docket No. 10-71. See, notice in the Federal Register, Vol. 79, No. 69, April 10, 2014, at Pages 19849-19860, and Public Notice (DA 14-525) extending deadlines.

Rep. Cantor's schedule states that "no votes are expected in the House".

The House will not meet the week of June 30 through July 4, except for pro forma sessions. See, House calendar.

2:00 PM. The Department of State (DOS) will hold a meeting to discuss the rechartering of the International Telecommunications Advisory Committee (ITAC). The ITAC's current charter expires on August 9. The deadline to submit written comments is July 7. See, notice in the Federal Register, Vol. 79, No. 119, June 20, 2014, at Pages 35404-35405. Location: Room 4835, Truman Building, 2201 C St., NW.

Deadline for companies that use the Department of Commerce's (DOC) Bureau of Economic Analysis (BEA) eFile system to submit Form BE-15, titled "Annual Survey of Foreign Direct Investment in the United States". The deadline for companies that not use the BEA's eFile system is May 31, 2014. See, notice in the Federal Register, Vol. 79, No. 40, February 28, 2014, at Pages 11394-11395.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding regulation of maritime radio equipment and radar, and allowing on shore use of portable marine Very High Frequency (VHF) transmitters. The FCC adopted this NPRM on February 27, 2014, and released it on February 28. It is FCC 14-20 in WT Docket No. 14-36. See, notice in the Federal Register, Vol. 79, No. 62, April 1, 2014, at Pages 18249-18256.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) that requests comments on a proposal of the National Association of Broadcasters (NAB) to relax FCC rules that require the filtering of Travelers' Information Stations (TIS) audio frequencies between 3 and 20 kHz. The FCC released this PN on April 16, 2014. It is DA 14-508 in PS Docket No. 09-19. See, NAB's November 22, 2013, filing and notice in the Federal Register, Vol. 79, No. 103, May 29, 2014, at Pages 30788-30790.

EXTENDED FROM JUNE 2. Extended deadline to submit initial comments to the Copyright Royalty Judges (CRJ) in response to their notice in the Federal Register (FR) that requests comments on proposed rules regarding "filing notice of use and the delivery of records of use of sound recordings under two statutory licenses of the Copyright Act". This pertains to "reports of use of sound recordings for the statutory licenses set forth in sections 112 and 114 of the Copyright Act". See, FR, Vol. 79, No. 85, May 2, 2014, at Pages 25038-25049. See, story titled "CRJs Propose Record Keeping Requirements for Webcasters" in TLJ Daily E-Mail Alert No. 2,655, May 7, 2014. See, notice of extension.

12:00 NOON - 1:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Copyrights and Innovation: Understanding the Debate". The speakers will be Jerry Brito (GMU's Mercatus Center), Stan Liebowitz (University of Texas at Dallas), Tom Palmer (Atlas Economic Research Foundation), Mark Schultz (George Mason University School of Law), and Jeffrey Eisenach (AEI). Webcast. Free. Open to the public. See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

10:00 - 11:00 AM. The Privacy and Civil Liberties Oversight Board (PCLOB) will hold a meeting. Th agenda includes voting on the issuance of its report on the surveillance program operated pursuant to Section 702 of the Foreign Intelligence Surveillance Act (FISA). Section 702, which is codified at 50 U.S.C. § 1881a, contains the "outside" the US surveillance authority. See, notice in the Federal Register, Vol. 79, No. 119, June 20, 2014, at Page 35390. Location: __.

2:00 - 4:00 PM. The National Science Foundation's (NSF) Networking and Information Technology Research and Development(NITRD) Program's Middleware and Grid Interagency Cooridination (MAGIC) Team meets the first Wednesday of each month. See, notice in the Federal Register, Vol. 78, No. 226, November 22, 2013, at Page 70076. Location: NSF, 4201 Wilson Boulevard, Arlington, VA.

6/25. The technology at issue in ABC v. Aereo is Aereo's. However, the Supreme Court's opinion interprets a statute that applies generally. Justice Breyer in his opinion for the Court did make efforts, in dicta, to allay the concerns of others regarding the impact that his opinion might have on other technologies, including remote storage, cloud computing, and technologies yet to be invented.

There exist differences of opinion, and uncertainty, regarding how this court opinion will affect other technologies and services.

On the on hand, Victoria Espinel (at right), head of the BSA Software Alliance, stated confidently in a release that this opinion "is properly limited to the particular service in question, and wisely cautions against extending its rationale 'to discourage or to control the emergence or use of evolving technologies,' such as cloud-based technologies that hold great promise for every aspect of our economy and society."

She added that "The Court's opinion makes clear that its ruling is limited to services that are indistinguishable from cable systems' transmission of over-the-air broadcast signals, and we are confident that lower courts also will recognize that cloud services are fundamentally different, and therefore should not be impeded by the ruling in this case."

In contrast, Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that at oral argument "the Justices seemed to express an interest in not harming other Internet services, but the ruling unfortunately does not meet that goal. In the written opinion, a majority disclaimed any intention to regulate other technologies, but the net effect of this ruling casts a pall on investment in any innovation that can be construed to ‘perform’ copyrighted material."

Similarly, Bea Swedlow of the law firm of Honigman Miller Schwartz & Cohn stated in a release that while "The Court also made efforts to ease concerns -- raised at oral argument and in amicus briefing -- about the impact an adverse decision would have on the fledgling cloud industry ... Cloud-based companies should take little comfort from this opinion".

Craig Whitney of the law firm of Morrison & Foerster told TLJ that "the Court was attempting to keep its decision as narrow as it possibly could", and that it was trying "not to impact other technologies". But, said Whitney, cloud computing and other technologies "are going to have to face this opinion".

He said that the Court made interpretations of the terms "public" and "performance" that will be applied to providers of other technologies. He added that the Court's definition, "communicates contemporaneously perceptible images and sounds of a work", was "not necessarily evident before".

Whitney concluded that service providers with other technologies "will have to be mindful" of the Supreme Court's Aereo opinion.

David Sohn, General Counsel at the Center for Democracy and Technology (CDT), stated in a release that "The stakes in this case went well beyond television. The court heard that message, and responded with an opinion that attempts to limit its application to TV. In doing that, however, the decision fails to provide much clarity regarding how future courts should analyze emerging technologies".

He added that "while the decision doesn't directly undermine cloud computing, it leaves open significant questions about the legal foundations of cloud-based services. The full impact of today's decision will take time, and possibly additional litigation, to sort out".

See also, related story in this issue titled "Supreme Court Reverses in ABC v. Aereo".

Excerpts from 17 U.S. Code § 101 -- Definitions

To “perform” a work means 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 sequence or to make the sounds accompanying it audible.

To perform or display a work “publicly” means—
(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.

17 U.S. Code § 106 -- Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

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