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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 13–461

															_________________

															AMERICAN BROADCASTING COMPANIES,
INC.,et al., PETITIONERS v. AEREO, INC., fkaBAMBOOM LABS,
INC.

															on writ of certiorari to the united states
court of appeals for the second circuit

															[June 25, 2014]

															     Justice Breyer
delivered the opinion of the Court.

															     The Copyright Act of
1976 gives a copyright owner the “exclusive righ[t]” to “perform
the copyrighted work publicly.” 17 U. S. C. §106(4). The
Act’s Transmit Clause defines that exclusive right as including the
right to

															“transmit or otherwise communicate a
performance . . . of the [copyrighted] work
. . . to the public, 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.”
§101.

															We must decide whether respondent Aereo, Inc.,
infringes this exclusive right by selling its subscribers a
technologically complex service that allows them to watch
television programs over the Internet at about the same time as the
programs are broadcast over the air. We conclude that it does.

															I

															A

															     For a monthly fee,
Aereo offers subscribers broadcast television programming over the
Internet, virtually as the programming is being broadcast. Much of
this programming is made up of copyrighted works. Aereo neither
owns the copyright in those works nor holds a license from the
copyright owners to perform those works publicly.

															     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 sig-nals received
into data that can be transmitted over the Internet.

															     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.

															     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. See A
Dictionary of Computing 494 (6th ed. 2008) (defining “streaming” as
“[t]he process of providing a steady flow of audio or video data so
that an Internet user is able to access it as it is
transmitted”).

															     Aereo emphasizes that
the data that its system streams to each subscriber are the data
from his own personal copy, made from the broadcast signals
received by the particular antenna allotted to him. Its system does
not transmit data saved in one subscriber’s folder to any other
subscriber. When two subscribers wish to watch the same program,
Aereo’s system activates two separate antennas and saves two
separate copies of the program in two separate folders. It then
streams the show to the subscribers through two separate
transmissions—each from the subscriber’s personal copy.

															B

															     Petitioners are
television producers, marketers, distributors, and broadcasters who
own the copyrights in many of the programs that Aereo’s system
streams to its subscribers. They brought suit against Aereo for
copyright infringement in Federal District Court. They sought a
preliminary injunction, arguing that Aereo was infringing their
right to “perform” their works “publicly,” as the Transmit Clause
defines those terms.

															     The District Court
denied the preliminary injunction. 874 F. Supp. 2d 373 (SDNY
2012). Relying on prior Circuit precedent, a divided panel of the
Second Circuit affirmed. WNET, Thirteen v. Aereo, Inc., 712
F. 3d 676 (2013) (citing Cartoon Network LP, LLLP v. CSC
Holdings, Inc., 536 F. 3d 121 (2008)). In the Second Circuit’s
view, Aereo does not perform publicly within the meaning of the
Transmit Clause because it does not transmit “to the public.”
Rather, each time Aereo streams a program to a subscriber, it sends
a private transmission that is avail-able only to that subscriber.
The Second Circuit denied rehearing en banc, over the dissent of
two judges. WNET, Thirteen v. Aereo, Inc., 722 F. 3d 500
(2013). We granted certiorari.

															II

															     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”? We address these distinct questions in
turn.

															     Does Aereo “perform”?
See §106(4) (“[T]he owner of [a] copyright . . . has the
exclusive righ[t] . . . to perform the copyrighted work
publicly” (emphasis added)); §101 (“To perform . . . a
work ‘publicly’ means [among other things] to transmit
. . . a performance . . . of the work
. . . to the public . . . ” (emphasis
added)). Phrased another way, does Aereo “transmit . . .
a performance” when a subscriber watches a show using Aereo’s
system, or is it only the subscriber who transmits? In Aereo’s
view, it does not perform. It does no more than supply equipment
that “emulate[s] the operation of a home antenna and [digital video
recorder (DVR)].” Brief for Respondent 41. Like a home antenna and
DVR, Aereo’s equipment simply responds to its subscribers’
directives. So it is only the subscribers who “perform” when they
use Aereo’s equipment to stream television programs to
themselves.

															     Considered alone, the
language of the Act does not clearly indicate when an entity
“perform[s]” (or “transmit[s]”) and when it merely supplies
equipment that allows others to do so. But when read in light of
its purpose, the Act is unmistakable: An entity that engages in
activities like Aereo’s performs.

															A

															     History makes plain
that one of Congress’ primary purposes in amending the Copyright
Act in 1976 was to overturn this Court’s determination that
community antenna television (CATV) systems (the precursors of
modern cable systems) fell outside the Act’s scope. In Fortnightly
Corp. v. United Artists Television, Inc., 392 U. S. 390 (1968)
, the Court considered a CATV system that carried local television
broadcasting, much of which was copyrighted, to its subscribers in
two cities. The CATV provider placed antennas on hills above the
cities and used coaxial cables to carry the signals received by the
antennas to the home television sets of its subscribers. The system
amplified and modulated the signals in order to improve their
strength and efficiently transmit them to subscribers. A subscriber
“could choose any of the . . . programs he wished to view
by simply turning the knob on his own television set.” Id., at 392.
The CATV provider “neither edited the programs received nor
originated any programs of its own.” Ibid.

															     Asked to decide whether
the CATV provider infringed copyright holders’ exclusive right to
perform their works publicly, the Court held that the provider did
not “perform” at all. See 17 U. S. C. §1(c) (1964 ed.)
(granting copyright holder the exclusive right to “perform
. . . in public for profit” a nondramatic literary work),
§1(d) (granting copyright holder the exclusive right to “perform
. . . publicly” a dramatic work). The Court drew a line:
“Broadcasters perform. Viewers do not perform.” 392 U. S., at
398 (footnote omitted). And a CATV provider “falls on the viewer’s
side of the line.” Id., at 399.

															     The Court reasoned that
CATV providers were unlike broadcasters:

															“Broadcasters select the programs to be
viewed; CATV systems simply carry, without editing, whatever
programs they receive. Broadcasters procure programs and propagate
them to the public; CATV systems receive programs that have been
released to the public and carry them by private channels to
additional viewers.” Id., at 400.

															Instead, CATV providers were more like viewers,
for “the basic function [their] equipment serves is little
different from that served by the equipment generally furnished by”
viewers. Id., at 399. “Essentially,” the Court said, “a CATV system
no more than enhances the viewer’s capac-ity to receive the
broadcaster’s signals [by] provid[ing] a well-located antenna with
an efficient connection to the viewer’s television set.” Ibid.
Viewers do not become performers by using “amplifying equipment,”
and a CATV provider should not be treated differently for providing
viewers the same equipment. Id., at 398–400.

															     In Teleprompter Corp.
v. Columbia Broadcasting System, Inc., 415 U. S. 394 (1974) ,
the Court considered the copyright liability of a CATV provider
that carried broadcast television programming into subscribers’
homes from hundreds of miles away. Although the Court recognized
that a viewer might not be able to afford amplifying equipment that
would provide access to those distant signals, it nonetheless found
that the CATV provider was more like a viewer than a broadcaster.
Id., at 408–409. It explained: “The reception and rechanneling of
[broadcast television signals] for simultaneous viewing is
essentially a viewer function, irrespective of the distance between
the broadcasting station and the ultimate viewer.” Id., at 408.

															     The Court also
recognized that the CATV system exercised some measure of choice
over what to transmit. But that fact did not transform the CATV
system into a broadcaster. A broadcaster exercises significant
creativity in choosing what to air, the Court reasoned. Id., at
410. In contrast, the CATV provider makes an initial choice about
which broadcast stations to retransmit, but then “ ‘simply
carr[ies], without editing, whatever programs [it]
receive[s].’ ” Ibid. (quoting Fortnightly, supra, at 400
(altera-tions in original)).

															B

															     In 1976 Congress
amended the Copyright Act in large part to reject the Court’s
holdings in Fortnightly and Teleprompter. See H. R. Rep. No.
94–1476, pp. 86–87 (1976) (hereinafter H. R. Rep.) (The 1976
amendments “completely overturned” this Court’s narrow construction
of the Act in Fortnightly and Teleprompter). Congress enacted new
language that erased the Court’s line between broadcaster and
viewer, in respect to “perform[ing]” a work. The amended statute
clarifies that to “perform” an audiovisual work means “to show its
images in any sequence or to make the sounds accompanying it
audible.” §101; see ibid. (defining “[a]udiovisual works” as “works
that consist of a series of related images which are intrinsically
intended to be shown by the use of machines . . . ,
together with accompanying sounds”). Under this new language, both
the broadcaster and the viewer of a television program “perform,”
because they both show the program’s images and make audible the
program’s sounds. See H. R. Rep., at 63 (“[A] broadcasting network
is performing when it transmits [a singer’s performance of a song]
. . . and any individual is performing whenever he or she
. . . communicates the performance by turning on a
receiving set”).

															     Congress also enacted
the Transmit Clause, which specifies that an entity performs
publicly when it “transmit[s] . . . a performance
. . . to the public.” §101; see ibid. (defining “[t]o
‘transmit’ a performance” as “to communicate it by any device or
process whereby images or sounds are received beyond the place from
which they are sent”). Cable system activities, like those of the
CATV systems in Fortnightly and Teleprompter, lie at the heart of
the activities that Congress intended this language to cover. See
H. R. Rep., at 63 (“[A] cable television system is perform-ing when
it retransmits [a network] broadcast to its subscribers”); see also
ibid. (“[T]he concep[t] of public performance . . .
cover[s] not only the initial rendition or showing, but also any
further act by which that rendition or showing is transmitted or
communicated to the public”). The Clause thus makes clear that an
entity that acts like a CATV system itself performs, even if when
doing so, it simply enhances viewers’ ability to receive broadcast
television signals.

															     Congress further
created a new section of the Act to regulate cable companies’
public performances of copyrighted works. See §111. Section 111
creates a complex, highly detailed compulsory licensing scheme that
sets out the conditions, including the payment of compulsory fees,
under which cable systems may retransmit broadcasts. H. R.
Rep., at 88 (Section 111 is primarily “directed at the operation of
cable television systems and the terms and conditions of their
liability for the retransmission of copyrighted works”).

															     Congress made these
three changes to achieve a similar end: to bring the activities of
cable systems within the scope of the Copyright Act.

															C

															     This history makes
clear that Aereo is not simply an equipment provider. Rather,
Aereo, and not just its subscribers, “perform[s]” (or
“transmit[s]”). Aereo’s activities are substantially similar to
those of the CATV companies that Congress amended the Act to reach.
See id., at 89 (“[C]able systems are commercial enterprises whose
basic retransmission operations are based on the carriage of
copyrighted program material”). Aereo sells a service that allows
subscribers to watch television programs, many of which are
copyrighted, almost as they are being broadcast. In providing this
service, Aereo uses its own equipment, housed in a centralized
warehouse, outside of its users’ homes. By means of its technology
(antennas, transcoders, and servers), Aereo’s system “receive[s]
programs that have been released to the public and carr[ies] them
by private channels to additional viewers.” Fortnightly, 392
U. S., at 400. It “carr[ies] . . . whatever programs
[it] receive[s],” and it offers “all the programming” of each
over-the-air station it carries. Id., at 392, 400.

															     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
Fortnightly and Teleprompter.

															     We recognize, and Aereo
and the dissent emphasize, one particular difference between
Aereo’s system and the cable systems at issue in Fortnightly and
Teleprompter. The systems in those cases transmitted constantly;
they sent continuous programming to each subscriber’s television
set. In contrast, Aereo’s system remains inert until a subscriber
indicates that she wants to watch a program. Only at that moment,
in automatic response to the subscriber’s request, does Aereo’s
system activate an antenna and begin to transmit the requested
program.

															     This is a critical
difference, says the dissent. It means that Aereo’s subscribers,
not Aereo, “selec[t] the copy-righted content” that is
“perform[ed],” post, at 4 (opinion of Scalia, J.), and for
that reason they, not Aereo, “transmit” the performance. Aereo is
thus like “a copy shop that provides its patrons with a library
card.” Post, at 5. A copy shop is not directly liable whenever a
patron uses the shop’s machines to “reproduce” copyrighted
materials found in that library. See §106(1) (“exclusive righ[t]
. . . to reproduce the copyrighted work”). And by the
same token, Aereo should not be directly liable whenever its
patrons use its equipment to “transmit” copyrighted television
programs to their screens.

															     In our view, however,
the dissent’s copy shop argument, in whatever form, makes too much
out of too little. Given Aereo’s overwhelming likeness to the cable
companies targeted by the 1976 amendments, this sole technological
difference between Aereo and traditional cable companies does not
make a critical difference here. The subscribers of the Fortnightly
and Teleprompter cable systems also selected what programs to
display on their receiving sets. Indeed, as we explained in
Fortnightly, such a subscriber “could choose any of the
. . . programs he wished to view by simply turning the
knob on his own television set.” 392 U. S., at 392. The same
is true of an Aereo subscriber. Of course, in Fortnightly the
television signals, in a sense, lurked behind the screen, ready to
emerge when the subscriber turned the knob. Here the signals pursue
their ordinary course of travel through the universe until today’s
“turn of the knob”—a click on a website—activates machinery that
intercepts and reroutes them to Aereo’s subscribers over the
Internet. But this difference means nothing to the subscriber. It
means nothing to the broadcaster. We do not see how this single
difference, invisible to subscriber and broadcaster alike, could
transform a system that is for all practical purposes a traditional
cable system into “a copy shop that provides its patrons with a
library card.”

															     In other cases
involving different kinds of service or technology providers, a
user’s involvement in the operation of the provider’s equipment and
selection of the content transmitted may well bear on whether the
provider performs within the meaning of the Act. But the many
similarities between Aereo and cable companies, considered in light
of Congress’ basic purposes in amending the Copyright Act, convince
us that this difference is not critical here. We conclude that
Aereo is not just an equipment supplier and that Aereo
“perform[s].”

															III

															     Next, we must
consider whether Aereo performs petitioners’ works “publicly,”
within the meaning of the Transmit Clause. Under the Clause, an
entity performs a work publicly when it “transmit[s]
. . . a performance . . . of the work
. . . to the public.” §101. Aereo denies that it
satisfies this definition. It reasons as follows: First, the
“performance” it “transmit[s]” is the performance created by its
act of transmitting. And second, because each of these performances
is capable of being received by one and only one subscriber, Aereo
transmits privately, not pub-licly. Even assuming Aereo’s first
argument is correct, its second does not follow.

															     We begin with Aereo’s
first argument. What performance does Aereo transmit? Under the
Act, “[t]o ‘transmit’ a performance . . . is to
communicate it by any device or process whereby images or sounds
are received beyond the place from which they are sent.” Ibid. And
“[t]o ‘perform’ ” an audiovisual work means “to show its
images in any sequence or to make the sounds accompanying it
audible.” Ibid.

															     Petitioners say Aereo
transmits a prior performance of their works. Thus when Aereo
retransmits a network’s prior broadcast, the underlying broadcast
(itself a performance) is the performance that Aereo transmits.
Aereo, as discussed above, says the performance it transmits is the
new performance created by its act of transmitting. That
performance comes into existence when Aereo streams the sounds and
images of a broadcast program to a subscriber’s screen.

															     We assume arguendo that
Aereo’s first argument is correct. Thus, for present purposes, to
transmit a performance of (at least) an audiovisual work means to
communicate contemporaneously visible images and contemporaneously
audible sounds of the work. Cf. United States v. American Soc. of
Composers, Authors and Publishers, 627 F. 3d 64, 73 (CA2 2010)
(holding that a download of a work is not a performance because the
data transmitted are not “contemporaneously perceptible”). When an
Aereo subscriber selects a program to watch, Aereo streams the
program over the Internet to that subscriber. Aereo thereby
“communicate[s]” to the subscriber, by means of a “device or
process,” the work’s images and sounds. §101. And those images and
sounds are contemporaneously visible and audible on the
subscriber’s computer (or other Internet-connected device). So
under our assumed definition, Aereo transmits a performance
whenever its subscribers watch a program.

															     But what about the
Clause’s further requirement that Aereo transmit a performance “to
the public”? As we have said, an Aereo subscriber receives
broadcast television signals with an antenna dedicated to him
alone. Aereo’s system makes from those signals a personal copy of
the selected program. It streams the content of the copy to the
same subscriber and to no one else. One and only one subscriber has
the ability to see and hear each Aereo transmission. The fact that
each transmission is to only one subscriber, in Aereo’s view, means
that it does not transmit a performance “to the public.”

															     In terms of the Act’s
purposes, these differences do not distinguish Aereo’s system from
cable systems, which do perform “publicly.” Viewed in terms of
Congress’ regula-tory objectives, why should any of these
technological differ-ences 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. Why would a subscriber who wishes to watch a
television show care much whether images and sounds are delivered
to his screen via a large multisubscriber antenna or one small
dedicated antenna, whether they arrive instantaneously or after a
few seconds’ delay, or whether they are transmitted directly or
after a personal copy is made? And why, if Aereo is right, could
not modern CATV systems simply continue the same commercial and
consumer-oriented activities, free of copyright restrictions,
provided they substitute such new technologies for old? Congress
would as much have intended to protect a copyright holder from the
unlicensed activities of Aereo as from those of cable
companies.

															     The text of the Clause
effectuates Congress’ intent. Aereo’s argument to the contrary
relies on the premise that “to transmit . . . a
performance” means to make a single transmission. But the Clause
suggests that an entity may transmit a performance through
multiple, discrete transmissions. That is because one can
“transmit” or “communicate” something through a set of actions.
Thus one can transmit a message to one’s friends, irrespective of
whether one sends separate identical e-mails to each friend or a
single e-mail to all at once. So can an elected official
communicate an idea, slogan, or speech to her constituents,
regardless of whether she communicates that idea, slogan, or speech
during individual phone calls to each constituent or in a public
square.

															     The fact that a
singular noun (“a performance”) follows the words “to transmit”
does not suggest the contrary. One can sing a song to his family,
whether he sings the same song one-on-one or in front of all
together. Similarly, one’s colleagues may watch a performance of a
particular play—say, this season’s modern-dress version of “Measure
for Measure”—whether they do so at separate or at the same
showings. By the same principle, an entity may transmit a
performance through one or several transmissions, where the
performance is of the same work.

															     The Transmit Clause
must permit this interpretation, for it provides that one may
transmit a performance to the public “whether the members of the
public capable of receiving the performance . . . receive
it . . . at the same time or at different times.” §101.
Were the words “to transmit . . . a performance” limited
to a single act of communication, members of the public could not
receive the performance communicated “at different times.”
Therefore, 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.

															     We do not see how the
fact that Aereo transmits via personal copies of programs could
make a difference. The Act applies to transmissions “by means of
any device or process.” Ibid. And retransmitting a television
program using user-specific copies is a “process” of transmitting a
performance. A “cop[y]” of a work is simply a “material objec[t]
. . . in which a work is fixed . . . and from
which the work can be perceived, reproduced, or otherwise
communicated.” Ibid. So whether Aereo transmits from the same or
separate copies, it performs the same work; it shows the same
images and makes audible the same sounds. Therefore, when Aereo
streams the same television program to multiple subscribers, it
“transmit[s] . . . a performance” to all of them.

															     Moreover, the
subscribers to whom Aereo transmits television programs constitute
“the public.” Aereo communicates the same contemporaneously
perceptible imagesand sounds to a large number of people who are
unre-lated and unknown to each other. This matters because,
although the Act does not define “the public,” it specifies that an
entity performs publicly when it performs at “any place where a
substantial number of persons outside of a normal circle of a
family and its social acquaintances is gathered.” Ibid. The Act
thereby suggests that “the public” consists of a large group of
people outside of a family and friends.

															     Neither the record nor
Aereo suggests that Aereo’s subscribers receive performances in
their capacities as owners or possessors of the underlying works.
This is relevant because when an entity performs to a set of
people, whether they constitute “the public” often depends upon
their relationship to the underlying work. When, for example, a
valet parking attendant returns cars to their drivers, we would not
say that the parking service provides cars “to the public.” We
would say that it provides the cars to their owners. We would say
that a car dealership, on the other hand, does provide cars to the
public, for it sells cars to individuals who lack a pre-existing
relationship to the cars. Similarly, an entity that transmits a
performance to individuals in their capacities as owners or
possessors does not perform to “the public,” whereas an entity like
Aereo that transmits to large numbers of paying subscribers who
lack any prior relationship to the works does so perform.

															     Finally, we note that
Aereo’s subscribers may receive the same programs at different
times and locations. This fact does not help Aereo, however, for
the Transmit Clause expressly provides that an entity may perform
publicly “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.” Ibid.
In other words, “the public” need not be situated together,
spatially or temporally. For these reasons, we conclude that Aereo
transmits a performance of petitioners’ copyrighted works to the
public, within the meaning of the Transmit Clause.

															IV

															     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. 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.

															     For one thing, the
history of cable broadcast transmissions that led to the enactment
of the Transmit Clause informs our conclusion that Aereo
“perform[s],” but it does not determine whether different kinds of
providers in different contexts also “perform.” For another, an
entity only transmits a performance when it communicates
contemporaneously perceptible images and sounds of a work. See
Brief for Respondent 31 (“[I]f a distributor . . . sells
[multiple copies of a digital video disc] by mail to consumers,
. . . [its] distribution of the DVDs merely makes it
possible for the recipients to perform the work themselves—it is
not a ‘device or process’ by which the distributor publicly
performs the work” (emphasis in original)).

															     Further, 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. See Brief for United States as Amicus Curiae 31
(distinguishing cloud-based storage services because they “offer
consumers more numerous and convenient means of playing back copies
that the consumers have already lawfully acquired” (emphasis in
original)). In addition, an entity does not trans-mit to the public
if it does not transmit to a substantial number of people outside
of a family and its social circle.

															     We also note that
courts often apply a statute’s highly general language in light of
the statute’s basic purposes. Finally, the doctrine of “fair use”
can help to prevent inappropriate or inequitable applications of
the Clause. See Sony Corp. of America v. Universal City Studios,
Inc., 464 U. S. 417 (1984) .

															     We cannot now answer
more precisely how the Transmit Clause or other provisions of the
Copyright Act will apply to technologies not before us. We agree
with the Solicitor General that “[q]uestions involving cloud
computing, [remote storage] DVRs, and other novel issues not before
the Court, as to which ‘Congress has not plainly marked [the]
course,’ should await a case in which they are squarely presented.”
Brief for United States as Amicus Curiae 34 (quoting Sony, supra,
at 431 (alteration in original)). And we note that, to the extent
commercial actors or other interested entities may be concerned
with the relationship between the development and use of such
technologies and the Copyright Act, they are of course free to seek
action from Congress. Cf. Digital Millennium Copyright Act, 17
U. S. C. §512.

															*  *  *

															     In sum, having
considered the details of Aereo’s practices, we find them highly
similar to those of the CATV systems in Fortnightly and
Teleprompter. And those are activities that the 1976 amendments
sought to bring within the scope of the Copyright Act. Insofar as
there are differences, those differences concern not the nature of
the service that Aereo provides so much as the technological manner
in which it provides the service. We conclude that those
differences are not adequate to place Aereo’s activities outside
the scope of the Act.

															     For these reasons, we
conclude that Aereo “perform[s]” petitioners’ copyrighted works
“publicly,” as those terms are defined by the Transmit Clause. We
therefore reverse the contrary judgment of the Court of Appeals,
and we remand the case for further proceedings consistent with this
opinion.

															It is so ordered. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 13–461

															_________________

															AMERICAN BROADCASTING COMPANIES, INC.,et al., PETITIONERS
v. AEREO, INC., fkaBAMBOOM LABS, INC.

															on writ of certiorari to the united states court of appeals for
the second circuit

															[June 25, 2014]

															     Justice Scalia, with whom Justice
Thomas and Justice Alito join, dissenting.

															     This case is the latest skirmish in the
long-running copyright battle over the delivery of television
programming. Petitioners, a collection of television networks and
affiliates (Networks), broadcast copyrighted programs on the public
airwaves for all to see. Aereo, respondent, operates an automated
system that allows subscribers to receive, on Internet-connected
devices, programs that they select, including the Networks’
copyrighted programs. The Networks sued Aereo for several forms of
copyright infringement, but we are here concerned with a single
claim: that Aereo violates the Networks’ “exclusive righ[t]” to
“perform” their programs “publicly.”17 U. S. C. §106(4).
That claim fails at the very outset because Aereo does not
“perform” at all. The Court manages to reach the opposite
conclusion only by disregarding widely accepted rules for
service-provider liability and adopting in their place an
improvised standard (“looks-like-cable-TV”) that will sow confusion
for years to come.

															I. Legal Standard

															     There are two types of liability for
copyright infringement: direct and secondary. As its name suggests,
the former applies when an actor personally engages in infringing
conduct. See Sony Corp. of America v. Universal City Studios,
Inc.,464 U. S. 417,433 (1984). Secondary liability, by
contrast, is a means of holding defendants responsible for
infringement by third parties, even when the defendants “have not
themselves engaged in the infringing activity.” Id., at 435. It
applies when a defendant “intentionally induc[es] or encourag[es]”
infringing acts by others or profits from such acts “while
declining to exercise a right to stop or limit [them].”
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,545 U. S.
913,930 (2005).

															     Most suits against equipment
manufacturers and service providers involve secondary-liability
claims. For ex-ample, when movie studios sued to block the sale
ofSony’s Betamax videocassette recorder (VCR), they argued that
Sony was liable because its customers were making unauthorized
copies. See Sony, supra, at 434–435. Record labels and movie
studios relied on a similar theory when they sued Grokster and
StreamCast, two providers of peer-to-peer file-sharing software.
See Grokster, supra, at 920–921, 927.

															     This suit, or rather the portion of it
before us here, is fundamentally different. The Networks claim that
Aereo directly infringes their public-performance right.
Accordingly, the Networks must prove that Aereo “perform[s]”
copyrighted works, §106(4), when its subscribers log in, select a
channel, and push the “watch” button. That process undoubtedly
results in a performance; the question is who does the performing.
See Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F. 3d
121, 130 (CA2 2008). If Aereo’s subscribers perform but Aereo does
not, the claim necessarily fails.

															     The Networks’ claim is governed by a
simple but profoundly important rule: A defendant may be held
directly liable only if it has engaged in volitional conduct that
violates the Act. See 3 W. Patry, Copyright §9:5.50 (2013). This
requirement is firmly grounded in the Act’s text, which defines
“perform” in active, affirmative terms: One “perform[s]” a
copyrighted “audiovisual work,” such as a movie or news broadcast,
by “show[ing] its images in any sequence” or “mak[ing] the sounds
accompanying it audible.” §101. And since the Act makes it unlawful
to copy or perform copyrighted works, not to copy or perform in
general, see §501(a), the volitional-act requirement demands
conduct directed to the plaintiff’s copyrighted material, see Sony,
supra, at 434. Every Court of Appeals to have considered an
automated-service provider’s direct liability for copyright
infringement has adopted that rule. See Fox Broadcasting Co. v.
Dish Network LLC, 747 F. 3d 1060, 1066–1068 (CA9 2014); Cartoon
Network, supra, at 130–131 (CA2 2008); CoStar Group, Inc. v.
LoopNet, Inc., 373 F. 3d 544, 549–550 (CA4 2004).[ 1 ] Although we have not opined on the issue, our cases
are fully consistent with a volitional-conduct requirement. For
example, we gave several examples of direct infringement in Sony,
each of which involved a volitional act directed to the plaintiff’s
copyrighted material. See 464 U. S., at 437, n. 18.

															     The volitional-conduct requirement is
not at issue in most direct-infringement cases; the usual point of
dispute is whether the defendant’s conduct is infringing (e.g.,
Does the defendant’s design copy the plaintiff’s?), rather than
whether the defendant has acted at all (e.g., Did this defendant
create the infringing design?). But it comes right to the fore when
a direct-infringement claim is lodged against a defendant who does
nothing more than operate an automated, user-controlled system.
See, e.g., Fox Broadcasting, supra, at 1067; Cartoon Network,
supra, at 131. Internet-service providers are a prime example. When
one user sends data to another, the provider’s equipment
facilitates the transfer automatically. Does that mean that the
provider is directly liable when the transmission happens to result
in the “reproduc[tion],” §106(1), of a copyrighted work? It does
not. The provider’s system is “totally indifferent to the
material’s content,” whereas courts require “some aspect of
volition” directed at the copyrighted material before direct
liability may be imposed. CoStar, 373 F. 3d, at
550–551.[ 2 ] The defendant may be held directly
liable only if the defendant itself “trespassed on the exclusive
domain of the copyright owner.” Id., at 550. Most of the time that
issue will come down to who selects the copyrighted content: the
defendant or its customers. See Cartoon Network, supra,
at131–132.

															     A comparison between copy shops and
video-on-demand services illustrates the point. A copy shop rents
out photocopiers on a per-use basis. One customer might copy his
10-year-old’s drawings—a perfectly lawful thing to do—while another
might duplicate a famous artist’s copyrighted photographs—a use
clearly prohibited by §106(1). Either way, the customer chooses the
content and activates the copying function; the photocopier does
nothing except in response to the customer’s commands. Because the
shop plays no role in selecting the content, it cannot be held
directly liable when a customer makes an infringing copy. See
CoStar, supra, at 550.

															     Video-on-demand services, like
photocopiers, respond automatically to user input, but they differ
in one crucial respect: They choose the content. When a user signs
in to Netflix, for example, “thousands of . . . movies
[and] TV episodes” carefully curated by Netflix are “available to
watch instantly.” See How [D]oes Netflix [W]ork?, online at
http://help.netflix.com/en/node/412 (as visited June 20, 2014, and
available in Clerk of Court’s case file). That selection and
arrangement by the service provider constitutes a volitional act
directed to specific copyrighted works and thus serves as a basis
for direct liability.

															     The distinction between direct and
secondary liability would collapse if there were not a clear rule
for deter-mining whether the defendant committed the infringing
act. See Cartoon Network, 536 F. 3d, at 132–133. The
volitional-conduct requirement supplies that rule; its purpose is
not to excuse defendants from accountability, but to channel the
claims against them into the correct analytical track. See Brief
for 36 Intellectual Property and Copyright Law Professors as Amici
Curiae 7. Thus, in the example given above, the fact that the copy
shop does not choose the content simply means that its culpability
will be assessed using secondary-liability rules rather than
direct-liability rules. See Sony, supra, at 434–442; Cartoon
Network, supra, at 132–133.

															II. Application to Aereo

															     So which is Aereo: the copy shop or the
video-on-demand service? In truth, it is neither. Rather, it is
akin to a copy shop that provides its patrons with a library card.
Aereo offers access to an automated system consisting of routers,
servers, transcoders, and dime-sized antennae. Like a photocopier
or VCR, that system lies dormant until a subscriber activates it.
When a subscriber selects a program, Aereo’s system picks up the
relevant broadcast signal, translates its audio and video
components into digital data, stores the data in a user-specific
file, and transmits that file’s contents to the subscriber via the
Internet—at which point the subscriber’s laptop, tablet, or other
device displays the broadcast just as an ordinary television would.
The result of that process fits the statutory definition of a
performance to a tee: The subscriber’s device “show[s]” the
broadcast’s “images” and “make[s] the sounds accompanying” the
broadcast “audible.” §101. The only question is whether those
performances are the product of Aereo’s volitional conduct.

															     They are not. Unlike video-on-demand
services, Aereo does not provide a prearranged assortment of movies
and television shows. Rather, it assigns each subscriber an antenna
that—like a library card—can be used to obtain whatever broadcasts
are freely available. Some of those broadcasts are copyrighted;
others are in the public domain. The key point is that subscribers
call all the shots: Aereo’s automated system does not relay any
program, copyrighted or not, until a subscriber selects the program
and tells Aereo to relay it. Aereo’s operation of that system is a
volitional act and a but-for cause of the resulting performances,
but, as in the case of the copy shop, that degree of involvement is
not enough for direct liability. See Grokster, 545 U. S., at
960 (Breyer, J., concurring) (“[T]he producer of a technology which
permits unlawful copying does not himself engage in unlawful
copying”).

															     In sum, 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.[ 3 ] That conclusion does not necessarily
mean that Aereo’s service complies with the Copyright Act. Quite
the contrary. The Networks’ complaint alleges that Aereo is
directly and secondarily liable for infringing their
public-performance rights (§106(4)) and also their reproduction
rights (§106(1)). Their request for a preliminary injunction—the
only issue before this Court—is based exclusively on the
direct-liability portion of the public-performance claim (and
further limited to Aereo’s “watch” function, as opposed to its
“record” function). See App. to Pet. for Cert. 60a–61a. Affirming
the judgment below would merely return this case to the lower
courts for consideration of the Networks’ remaining claims.

															III. Guilt By Resemblance

															     The Court’s conclusion that Aereo
performs boils down to the following syllogism: (1) Congress
amended the Act to overrule our decisions holding that cable
systems do not perform when they retransmit over-the-air
broadcasts;[ 4 ] (2) Aereo looks a lot like a cable
system; therefore (3) Aereo performs. Ante, at 4–10. That reasoning
suffers from a trio of defects.

															     First, it is built on the shakiest of
foundations. Perceiving the text to be ambiguous, ante, at 4, the
Court reaches out to decide the case based on a few isolated
snippets of legislative history, ante, at 7–8 (citing H. R.
Rep. No. 94–1476 (1976)). The Court treats those snippets as
authoritative evidence of congressional intent even though they
come from a single report issued by a committee whose members make
up a small fraction of one of the two Houses of Congress. Little
else need be said here about the severe shortcomings of that
interpretative methodology. See Lawson v. FMR LLC, 571 U. S.
___, ___ (2014) (Scalia, J., concurring in principal part and
concurring in judgment) (slip op., at 1–2).

															     Second, the Court’s reasoning fails on
its own terms because there are material differences between the
cable systems at issue in Teleprompter Corp. v. Columbia
Broadcasting System, Inc.,415 U. S. 394 (1974), and
Fortnightly Corp. v. United Artists Television, Inc.,392 U. S.
390 (1968), on the one hand and Aereo on the other. The former
(which were then known as community-antenna television systems)
captured the full range of broadcast signals and forwarded them to
all subscribers at all times, whereas Aereo transmits only specific
programs selected by the user, at specific times selected by the
user. The Court acknowledges this distinction but blithely
concludes that it “does not make a critical difference.” Ante, at
10. Even if that were true, the Court fails to account for other
salient differences between the two technologies.[ 5 ] Though cable systems started out essentially as dumb
pipes that routed signals from point A to point B, see ante, at 5,
by the 1970’s, that kind of service “ ‘no longer
exist[ed],’ ” Brief for Petitioners in Columbia Broadcasting
System, Inc. v. Teleprompter Corp., O. T. 1973, No. 72–1633, p. 22.
At the time of our Teleprompter decision, cable companies
“perform[ed] the same functions as ‘broadcasters’ by deliberately
selecting and importing distant signals, originating programs,
[and] selling commercials,” id., at 20, thus making them curators
of content—more akin to video-on-demand services than copy shops.
So far as the record reveals, Aereo does none of those things.

															     Third, and most importantly, even
accepting that the 1976 amendments had as their purpose the
overruling of our cable-TV cases, what they were meant to do and
how they did it are two different questions—and it is the latter
that governs the case before us here. The injury claimed is not
violation of a law that says operations similar to cable TV are
subject to copyright liability, but violation of §106(4) of the
Copyright Act. And whatever soothing reasoning the Court uses to
reach its result (“this looks like cable TV”), the consequence of
its holding is that someone who implements this technology
“perform[s]” under that provision. That greatly disrupts settled
jurisprudence which, before today, applied the straightforward,
bright-line test of volitional conduct directed at the copyrighted
work. If that test is not outcome determinative in this case,
presumably it is not outcome determinative elsewhere as well. And
it is not clear what the Court proposes to replace it. Perhaps the
Court means to adopt (invent, really) a two-tier version of the
Copyright Act, one part of which applies to “cable companies and
their equivalents” while the other governs everyone else. Ante, at
9–10, 16.

															     The rationale for the Court’s
ad hoc rule for cable-system lookalikes is so broad that it
renders nearly a third of the Court’s opinion superfluous. Part II
of the opinion concludes that Aereo performs because it resembles a
cable company, and Congress amended the Act in 1976 “to bring the
activities of cable systems within [its] scope.” Ante, at 8. Part
III of the opinion purports to address separately the question
whether Aereo performs “pub-licly.” Ante, at 10–15. Trouble is,
that question cannot remain open if Congress’s supposed intent to
regulate whatever looks like a cable company must be given legal
effect (as the Court says in Part II). The Act reaches only public
performances, see §106(4), so Congress could not have regulated
“the activities of cable systems” without deeming their
retransmissions public performances. The upshot is this: If Aereo’s
similarity to a cable company means that it performs, then by
necessity that same characteristic means that it does so publicly,
and Part III of the Court’s opinion discusses an issue that is no
longer relevant—though discussing it certainly gives the opinion
the “feel” of real textual analysis.

															     Making matters worse, the Court
provides no criteria for determining when its cable-TV-lookalike
rule applies. Must a defendant offer access to live television to
qualify? If similarity to cable-television service is the measure,
then the answer must be yes. But consider the implications of that
answer: Aereo would be free to do exactly what it is doing right
now so long as it built mandatory time shifting into its “watch”
function.[ 6 ] Aereo would not be providing live
television if it made subscribers wait to tune in until after a
show’s live broadcast ended. A subscriber could watch the 7 p.m.
airing of a 1-hour program any time after 8 p.m. Assuming the Court
does not intend to adopt such a do-nothing rule (though it very
well may), there must be some other means of identifying who is and
is not subject to its guilt-by-resemblance regime.

															     Two other criteria come to mind. One
would cover any automated service that captures and stores live
television broadcasts at a user’s direction. That can’t be right,
since it is exactly what remote storage digital video recorders
(RS–DVRs) do, see Cartoon Network, 536 F. 3d, at 124–125, and
the Court insists that its “limited holding” does not decide the
fate of those devices, ante, at 16–17. The other potential
benchmark is the one offered by the Government: The
cable-TV-lookalike rule embraces any entity that “operates an
integrated system, substantially dependent on physical equipment
that is used in common by [its] subscribers.” Brief for United
States as Amicus Curiae 20. The Court sensibly avoids that approach
because it would sweep in Internet service providers and a host of
other entities that quite obviously do not perform.

															     That leaves as the criterion of
cable-TV-resemblance nothing but th’ol’
totality-of-the-circumstances test (which is not a test at all but
merely assertion of an intent to perform test-free, ad hoc,
case-by-case evaluation). It will take years, perhaps decades, to
determine which automated systems now in existence are governed by
the tradi-tional volitional-conduct test and which get the Aereo
treatment. (And automated systems now in contemplation will have to
take their chances.) 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. Indeed, the difficulties inherent in the
Court’s makeshift approach will become apparent in this very case.
Today’s decision addresses the legality of Aereo’s “watch”
function, which provides nearly contemporaneous access to live
broadcasts. On remand, one of the first questions the lower courts
will face is whether Aereo’s “record” function, which allows
subscribers to save a program while it is airing and watch it
later, infringes the Networks’ public-performance right. The
volitional-conduct rule provides a clear answer to that question:
Because Aereo does not select the programs viewed by its users, it
does not perform. But it is impossible to say how the issue will
come out under the Court’s analysis, since cable companies did not
offer remote recording and playback services when Congress amended
the Copyright Act in 1976.

															*  *  *

															     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.

															     We came within one vote of declaring
the VCR contraband 30 years ago in Sony. See 464 U. S., at
441, n. 21. The dissent in that case was driven in part by the
plaintiffs’ prediction that VCR technology would wreak all manner
of havoc in the television and movie industries. See id., at 483
(opinion of Blackmun, J.); see also Brief for CBS, Inc., as Amicus
Curiae, O. T. 1982, No. 81–1687, p. 2 (arguing that VCRs “directly
threatened” the bottom line of “[e]very broadcaster”).

															     The Networks make similarly dire
predictions about Aereo. We are told that nothing less than “the
very existence of broadcast television as we know it” is at stake.
Brief for Petitioners 39. Aereo and its amici dispute those
forecasts and make a few of their own, suggesting that a decision
in the Networks’ favor will stifle technological innovation and
imperil billions of dollars of investments in cloud-storage
services. See Brief for Respondents 48–51; Brief for BSA, The
Software Alliance as Amicus Curiae 5–13. We are in no position to
judge the validity of those self-interested claims or to foresee
the path of future technological development. See Sony, supra, at
430–431; see also Grokster, 545 U. S., at 958 (Breyer, J.,
concurring). Hence, 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. I conclude, as the
Court concluded in Sony: “It may well be that Congress will take a
fresh look at this new technology, just as it so often has examined
other innovations in the past. But it is not our job to apply laws
that have not yet been written. Applying the copyright statute, as
it now reads, to the facts as they have been developed in this
case, the judgment of the Court of Appeals must be [affirmed].” 464
U. S., at 456.

															     I respectfully dissent. Notes 1 An unpublished decision of the Third
Circuit is to the same effect. v. , 242 Fed. Appx. 833, 836–837
(2007) (). 2 Congress has enacted several
safe-harbor provisions applicable to automated network processes,
see, –(b), but those provisions do not foreclose “any other
defense,” §512(), including a volitional-conduct
defense. 3 Because I conclude that Aereo does
not perform at all, I do not reach the question whether the
performances in this case are to the public. See at
10–15. 4 See Teleprompter Corp. v. Columbia
Broadcasting System, Inc. , 415 U. S. 394 (1974); Fortnightly
Corp. v. United Artists Television, Inc. , 392 U. S. 390
(1968). 5 The Court observes that “[t]he
subscribers of the and cable systems . . . selected what
programs to display on their receiving sets,” but acknowledges that
those choices were possible only because “the television signals,
in a sense, lurked behind the screen, ready to emerge when the
subscriber turned the knob.” at 10. The latter point is
dispositive: The signals were “ready to emerge” because the cable
system—much like a video-on-demand provider—took affirmative,
volitional steps to them there. As discussed above, the same cannot
be said of the programs available through Aereo’s automated
system. 6 Broadcasts accessible through the
“watch” function are technically not live because Aereo’s servers
take anywhere from a few seconds to a few minutes to begin
transmitting data to a subscriber’s device. But the resulting delay
is so brief that it cannot reasonably be classified as time
shifting.

Summary: The Supreme Court ruled that Aereo, a company that offered broadcast television programming over the internet, infringed on copyright laws by transmitting copyrighted content without a license. Aereo's service allowed users to watch TV programs online as they were being broadcast, and the court decided that this violated the copyright owner's exclusive right to perform their work publicly. The case centered on the Transmit Clause of the Copyright Act of 1976, which gives copyright owners control over transmitting their work to the public through any device or process. The court's decision considered the technological complexity of Aereo's service, which used antennas, servers, and transcoders to provide programming to subscribers, and concluded that it infringed on public performance rights.