With respect to the exclusive right to distribute the work in copies or phonorecords (17 U.S.C. sec. 106(3)), the U.S. encounters the danger of insufficient international compliance even though it has long been recognized in the U.S., as a matter of statute and caselaw, that the right applies to digital files as well as to material copies.   But the authorities are inconsistent as to whether the distribution right extends both to offers as well as to actual deliveries of digital copies.  For the moment, only federal district courts have ruled on the question, but their rulings have ranged from simply asserting that the distribution right includes a making available right, to assimilating making available to “publication” (whose statutory definition encompasses offers to distribute), to requiring actual downloads.   The last group of decisions thus leaves a gap in U.S. coverage of the full range of the making available right.

With respect to the public performance right, the Second Circuit’s decisions in Cartoon Network v Cablevision and WNET v Aereo seriously compromised U.S. compliance with the WIPO Treaties because the court’s interpretation of the definition of “to perform publicly” excluded on-demand transmissions of broadcast and cable television content offered by remote storage and retransmission services, thus effectively reading asynchronous transmissions out of the statute.  In ABC v Aereo, which involved retransmissions of broadcast television programming captured by individualized antennas on Aereo’s premises and digitized and stored on Aereo’s servers, A 6-3 majority of the Supreme Court reversed the Second Circuit.  Justice Breyer’s opinion held that Aereo was “performing” the broadcast programming when the service captured the programming through the users’ individually-assigned antennas, then digitized, momentarily stored in individualized copies and retransmitted the programming to its subscribers at their request.  The majority also ruled that the performances were “to the public” notwithstanding each transmission’s origin in a separate subscriber-assigned copy.  The Court’s ruling on this point is consistent with the CJEU’s decision construing the making available right in TV Catchup, a 2014 controversy involving a similar technology.  What matters is not how many people are capable of receiving a particular transmission, but whether members of the public may receive the performance of the work.  The majority emphasized Aereo’s resemblance to cable retransmission operators, a service Congress in the 1976 Copyright Act unambiguously brought within the scope of the exclusive right of public performance.  Although the majority distinguished less cable-like transmission services, notably “cloud storage” models such as Dropbox, and RS-DVR services, it declined to elaborate on the implications of its holdings for these other kinds of internet-based enterprises.   Finally, the majority posited that in appropriate cases, even if the service is deemed to be “publicly performing” third party content, the fair use doctrine might excuse the transmission.

The dissenters (Scalia, joined by Thomas and Alito) did not address the “public” character of the performance because they contended that Aereo lacked sufficient volition to be “performing” the programming.   The dissenters distinguished video on-demand services, which exercise volition in the selection of content offered to consumers, from automated retransmission services, which simply relay an upstream transmission entity’s (in this case, the broadcasters’) selection of programming proposed to users.

The Supreme Court’s Aereo decision alleviates some concerns about the conformity of U.S. copyright law with international norms, but the limited scope of the decision allows other shortcomings to persist.  Thus, the court has reaffirmed the reach of the public performance right with respect to:

near-real time individualized digital retransmissions to members of the public of broadcast content (akin to cable retransmissions);

a-synchronous transmissions to members of the public when the primary value of the service to its customers is to transmit performances of content the customers did not themselves store with the service, or regarding which the customers did not enjoy some possessory relationship to a copy or right to access

Although the Court did not expressly state that the public performance right encompassed offers to transmit performances as well as actual performances, the logic of the decision points toward the broader (and internationally harmonious) interpretation.

The majority did not apply a specific “volition” predicate to determine whether a retransmission service “performs” the content it communicates, but it acknowledged the possibility that in some instances the end-user might be deemed the “performer.”

The Court has not directly spoken to the following issues:

Whether remote storage services are publicly performing content stored at the direction of their customers (but the opinion strongly suggests those services are not publicly performing);

Whether “volition” is a predicate to determine whether a remote storage service “makes” the consumer-requested copies created and retained on its servers;

Perhaps most importantly, because Aereo concerned only the public performance right, the Court did not have occasion to address whether the distribution right encompasses offers to distribute digital copies, or is limited to actual distributions of digital copies.  As a result, the greatest gap in U.S. compliance with its international obligation to implement the “making available” right remains unremediated.

Jane C. Ginsburg is the Morton L. Janklow Professor of Literary and Artistic Property Law at Columbia University School of Law, and Faculty Director of the Kernochan Center for Law, Media and Arts.

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As applied to hyperlinks, these findings lead to the following conclusions: (i) The making available right covers links that enable members of the public to access specific protected material; (ii) the making available right does not cover links that merely refer to a source from which a work may subsequently be accessed.

It is irrelevant whether the link takes the user to specific content on a third-party website, or whether the linking site retains a frame around the content, so that the user is not aware that she is accessing the content from a third-party website.

It is also irrelevant to the act of offering access whether the work made available through the link is itself infringing: it is the act of offering that triggers the making available right, and that act is the same whatever the copyright status of the work that is made available.

There is obviously no infringement of the “making available” right where the rightholder's decision whether and under which conditions the targeted content is made available on the internet is respected. In contrast, this means in particular that linking to targeted content infringes the “making available” right if (i) the content is initially made available without the rightholder’s consent, or (ii) technical protection measures have been circumvented or (iii) the availability of the content, even if initially disclosed over the Internet with consent, otherwise clashes with the declared or clearly implied will of the rightholder.

Accordingly, courts should not introduce a general presumption of the rightholder’s consent to further communication to the public of what initially has been posted on the Internet with the rightholder’s consent, since this would amount to introducing an exception or limitation to the right, while general exceptions to the scope of the “making available” right require legislative action. This finding does not exclude that a court may be inclined to infer such consent to permit the link based on the individual circumstances of a case.

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