The United States Supreme Court interprets the term “the public,” as that term is used in the Copyright Act, 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. The Court has said that it does not extend to those who act as owners or possessors of the relevant product. And the Court has 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. In addition, an entity does not transmit to the public if it does not transmit to a substantial number of people outside of a family and its social circle.
Petitioners claimed that respondent violated their rights under the Copyright Act by selling a service that allowed subscribers to watch television programs over the Internet at about the same time the programs were broadcast over the air. The respondent claims that because it transmits from user-specific copies, using individually-assigned antennas, and because each transmission is available to only one subscriber, it does not transmit a performance “to the public.” A divided panel of the Second Circuit found that respondent did not perform “publicly” within the meaning of the Transmit Clause of the Copyright Act because it used technology which allowed it to stream programs to each subscriber by sending a private transmission that was available only to that subscriber.
Did the respondent perform “publicly” within the meaning of the Transmit Clause of the Copyright Act and thus, violated petitioners’ right under the Copyright Act?
Viewing the issue in terms of Congress’ regulatory objectives, the Court held that the behind-the-scenes technological differences do not distinguish respondent’s system from cable systems, which do perform publicly. The Court opined that Congress would as much have intended to protect a copyright holder from the unlicensed activities of respondent as from those of cable companies. Moreover, the subscribers to whom the respondent transmits constitute “the public” under the Copyright Act. This is because respondent communicates the same contemporaneously perceptible images and sounds to a large number of people who are unrelated and unknown to each other. In addition, neither the record nor the respondent suggests that respondent's subscribers receive performances in their capacities as owners or possessors of the underlying works. More importantly, the Court ruled that the statute makes clear that the fact that respondent’s subscribers may receive the same programs at different times and locations is of no consequence; what is important is it transmits a performance of petitioners' works “to the public.”