Apr 032014

sean at podium30 international intellectual property law professors from around the world filed a brief in the U.S. Supreme Court today in ABC v. Aereo. Aereo is being accused of being directly liable for copyright infringement by supplying equipment for a remote DVR service that allows consumers to record and play back free-to-air television programming. The brief responds to arguments made by IFPI et al and some other amici supporting ABC that international copyright law — including the Berne Convention, WIPO Copyright Treaty and several Free Trade Agreements — control the case. This brief argues that international law is not controlling, but rather leaves countries free to hold that Aereo’s equipment only facilitates private copying by consumers.

The summary of argument in the brief explains:

Petitioners imply, and some supporting amici argue, that in applying Section 106(4) in this case, the Court should turn to international copyright treaties and free trade agreements as interpretive tools. Amici’s arguments rely on the Charming Betsy canon of statutory interpretation, which requires that, where possible, statutes “be construed so as not to conflict with international law or with an international agreement of the United States.” Invocation of the Charming Betsy canon in this case is misplaced because it would be contrary to Congressional intent and because international copyright agreements do not mandate any holding in this case.

Application of Charming Betsy would be contrary to Congress’s intent to leave U.S. Copyright law free from any international constraint not specifically enacted into the Copyright Act. Congress has repeatedly expressed that international copyright agreements are non-self-executing, intending that unaltered provisions of the Copyright Act, including Section 106(4), are not modified by any international obligation. Congress has been emphatic that United States law is “to prevail in conflict” with any Free Trade Agreement (“FTA”) provision, that no provision of an FTA “nor the application of any such provision . . . which is inconsistent with any law of the United States shall have effect,” and that nothing in an FTA may be “construed” to “modify any law of the United States.” This Court has not applied the Charming Betsy canon in a case involving provisions of a later-in-time non-self-executing agreement. This Court need not reach how Charming Betsy applies here, however, because there would be no conflict between a holding for Aereo and any international agreement.

There would be no conflict between a holding that Aereo does not publicly perform protected works through consumer use of its equipment and the provisions of the Berne Convention for the Protection of Literary and Artistic Works or the World Intellectual Property Organization Copyright Treaty. These agreements require recognition of a right to authorize “communication to the public,” including the “making available to the public” of protected works “in such a way that members of the public may access these works from a place and at a time individually chosen by them.” Enabling on-demand viewing in itself does not trigger the Article 8 right. If it did, every use of a home video recorder to transmit a copy from the recording device to a viewing device would be subject to copyright control.  The concept of a “public” communication is not defined in international copyright conventions, leaving that concept to be defined by domestic law. The agreements envisage that “the mere provision of physical facilities for enabling or making a communication” would not render providers directly liable for the transmissions of users of such infrastructure. These characteristics of the international treaty architecture leave U.S. courts and policy-makers free to define the use of Aereo’s equipment as creating only private performances by Aereo’s customers.

The cited FTA provisions are not relevant to this Court’s consideration. There would be no conflict between a holding for Aereo and the cited FTA provisions, which relate solely to the use of statutory licenses to authorize Internet retransmission.

Foreign law further evidences that no controlling international standard is applicable here. The law cited in the Petitioners’ and amici briefs is selective and mischaracterized. The cases cited, and the field viewed as a whole, would not conflict with a holding that Aereo does not publicly perform copyrighted works when its users record and play back content using its equipment. In fact, foreign law, though not controlling, predominantly supports Aereo’s position.