On March 3, 2014, Steven Mason of McCarthy Tétrault filed an Amicus brief in the Supreme Court of the United States in the ABC, Inc. et al v. Aereo, Inc case, which will settle a long-standing controversy about the extent of the public performance right in U.S. copyright law.
Aereo's business model of re-transmitting TV broadcasts without a license has been contentious from its inception. Similar unlicensed services have been held to infringe copyright. But the Second Circuit Court of Appeals ruled in a split decision in Wnet, 13 v. Aereo, Inc., 712 F. 3d 676 (2d Cir. 2013) that Aereo's system was not a public performance, because each transmission was of a unique copy of a work created at a user's request.
However, the decision generated strong dissents within the Second Circuit and some other courts have reached the opposite conclusion. See, Community Television of Utah, LLC v. Aereo, Inc., No. 2:13 CV910DAK, slip OP. (D. Utah Feb. 2014), Fox Television Stations, Inc. v. Filmon X LLC, 2013 WL 4763414 (D.D.C. Sept. 5, 2013), Fox Television Stations, Inc. v. BarryDriller Content Systems, 915 F. Supp 2d 1138 (C.D. Cal. 2012).
The Supreme Court of the United States decided to hear the case after all parties asked the Court to take it.
The brief, which was signed by a "who's who" of rights holders, including the International Federation of the Phonographic Industry (IFPI), International Confederation of Societies of Authors and Composers (CISAC), the Australian Copyright Council (ACC), the British Copyright Council (BCC), the Canadian Media Production Association (CMPA), and the Society of Composers, Authors and Music Publishers of Canada (SOCAN), as well as a number of eminent international copyright scholars, argues that international copyright and trade treaties, including the Berne Convention, the WIPO Copyright Treaty, the North American Free Trade Agreement and the U.S.-Australia Free Trade Agreement, as well as the legislative history of the U.S. Copyright Act itself, render the Second Circuit's conclusion untenable.
The brief also highlights jurisprudence on the point from around the world, including the Supreme Court of Canada's 2012 decision in Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, which adopted a purposive and technologically neutral analysis to reject the premise underlying the Second Circuit's analysis: that each transmission should be considered in isolation, without reference to the "true character of the communication activity in question".
Reporter Simon Houpt described the brief in the Globe and Mail. Barry Sookman, also of McCarthy Tétrault and one of the co-authors and signatories of the brief, has also blogged about the filing.
It is very unusual for a Canadian law firm to file documents in the Supreme Court of the United States, as only U.S. lawyers can appear before the court. But Mr. Mason's recognized expertise as an IP litigator, his position as a member of the State Bar of California and McCarthy Tétrault's extensive credentials in international copyright law made him an excellent representative for some of the world's largest international rights holders.
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