From: "Sean Flynn" <sflynn(a)wcl.american.edu> Date: March 24, 2014 at 1:03:45 PM PDT To: <ipprofs(a)listserv.law.unh.edu> Subject: [Ipprofs] Aereo Int'l brief Hi all, There is at least one more opportunity to sign a law prof brief in Aereo! Peter Jaszi, Margot Kaminski and I (with additional help from Kim Weatherall and Ariel Katz and others) have a draft brief on the international issues raised by the IFPI professors brief circulated to this list a couple weeks ago. A summary of arguments is included below. If you are interested in reviewing the draft, please let us know at pijip(a)wcl.american.edu and I can send you a draft. Comments will accepted until Wednesday MARCH 26 MIDNIGHT EST. As the summary notes below, this brief is only addressed to the international law issues primarily raised by the IFPI brief. It takes no position on the ultimate issue under US law. The brief is open for signature to all law professors teaching international, comparative US or foreign (to the US) copyright law. Given the international and comparative issues in this case, you need not be a U.S. professor to sign on. Please email pijip(a)wcl.american.edu with name and affiliation to sign on or comment. Thanks!! (Margot Kaminski, Peter Jaszi,). TABLE OF CONTENTS................................................... i TABLE OF AUTHORITIES........................................... ii STATEMENT OF INTEREST 1 SUMMARY OF ARGUMENT 1 ARGUMENT...................................................................... 3 A. The Charming Betsy canon is inapplicable to later-in-time non-self-executing agreements that Congress has repeatedly instructed do not modify U.S. law 5 B. The Charming Betsy canon is inapplicable because there is no conflict between Aereo’s position and international copyright agreements 11 1. The communication and making available rights in the Berne Convention and WCT do not apply to infrastructure providers that facilitate private copying and transmissions by consumers......................... 12 2. This question is without uniform resolution in the jurisprudence of other countries, further evidencing that there is no binding international standard 17 3. The provisions of U.S. Free Trade Agreements are inapposite because they regulate only the extension of statutory licenses to Internet rebroacasters 21 SUMMARY OF ARGUMENT In order to rule in favor of Aereo in this case, this Court needs to affirm only that a one-to-one transmission of a consumer-made copy back to that same consumer is a private performance, not a public performance, under Section 106(4) of the U.S. Copyright Act. Whether the copy is a lawful reproduction is not before this Court. Petitioners and some of the supporting amici argue that in applying Section 106(4) in this case, the Court should turn to international copyright treaties and trade agreements as interpretive tools. The argument relies on the Charming Betsy canon of statutory interpretation, requiring that, where possible, statues “be construed so as not to conflict with international law or with an international agreement of the United States,” Restatement (Third) of Foreign Relations Law, citing Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). The argument for application of the Charming Betsy doctrine in this case should be rejected. No provision of international law dictates or recommends Petitioners preferred interpretation of the U.S. Copyright Act. The executive branch has not identified a potential violation of U.S. international commitments by the Second Circuit decision in this case below, including in its brief before this Court. Nor is there any evidence that Congress intended to alter the interpretation of the Section 106 public performance right when it approved entry into any of the international agreements cited in this case. Indeed, quite the opposite is true. Petitioner and Amici are asking that this Court ignore explicit commands from Congress in implementing legislation that that the cited international commitments not modify the U.S. public performance right in any way. There would be no conflict between a holding for Aereo and the provisions of the Berne Convention for the Protection of Literary and Artistic Works, (Berne) and the World Intellectual Property Organization Copyright Treaty (WCT), which between them recognize of a “right of communication to the public,” including a right to make copyright protected subject matter available on demand. The Berne and WCT communication rights were drafted to leave a great deal of flexibility in local implementation. Most relevant to this case, the right to make works available on demand extends only to communications “to the public.” The concept of a “public” communication is not defined in international copyright conventions. This leaves member states free to define “public” in domestic implementation. In addition, the conventions envisage “the mere provision of physical facilities for enabling or making a communication” would not render such providers directly liable for the transmissions of the 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. 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, support, or would not conflict with, a holding that Aereo does not make works publicly available because users make the reproductions at issue and transmit those reproductions to themselves. Finally, the cited provisions of Free Trade Agreements (FTAs) are not relevant to this Court’s consideration. The Charming Betsy canon has no application to such agreements because in each Congress expressly declared that their provisions cannot survive any conflicting “construction” of U.S. law. Even if these clear statements were not sufficient to jettison application of the Charming Betsy canon, 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 rebroadcasting. This brief takes no position on the ultimate application of the U.S. Copyright to Aereo or its consumers. Sean M Fiil Flynn Associate Director Program on Information Justice and Intellectual Property (PIJIP) American University Washington College of Law 4801 Massachusetts Ave., NW Washington, D.C. 20016 (202) 274-4157 Connect with PIJIP on Facebook, Twitter, and LinkedIn: _______________________________________________ IPProfs mailing list IPProfs(a)listserv.law.unh.edu http://listserv.law.unh.edu/mailman/listinfo/ipprofs