Case 1:12-cv-01543-AJN Document 86 Filed 05/18/12 Page 1 of 20
`USDCSDNY
`DOCUMENT
`ELECTRONICALLY FILED
`DOC#:
`DATE F-IL-E-D"'""'::l~M~A Y~1!"""18!!1.-"!2ir!'1r, O"!lftt12j
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`----------------------------------------------------------------------)(
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`.
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`I
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`WNET, ET AL.,
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`-v-
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`Plaintiffs,
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`AEREO, INC.,
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`Defendant,
`----------------------------------------------------------------------)(
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`ALISON J. NATHAN, District Judge:
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`12 Civ. 1543 (AJN)
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`OPINION
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`Plaintiffs, a group of corporate entities engaged in the production, marketing,
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`distribution, and transmission of television programs, filed a complaint against Defendant Aereo,
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`Inc. ("Aereo") contending that Aereo's services are unlawful. (Compl. ~~ 1-5,10-18). Aereo,
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`according to Plaintiffs, "take[s] broadcast television signals for the New York-area television
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`stations ... and retransmits them over the Internet to Aereo subscribers." (Compl. ~ 1).
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`Plaintiffs, allegedly the holders ofthe copyrights on at least some of the programs that Aereo
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`rebroadcasts, view Aereo's activities as violating their rights in this material. (Compl. ~ 19).
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`In particular, Plaintiffs assert three causes of action, styled as "Counts." Counts I and II
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`assert liability for, respectively, infringement of Plaintiffs' exclusive rights of public
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`performance and exclusive rights of reproduction under the Copyright Act, 17 U.S.C. § 101, et
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`seq. (Compl. ~~ 42-58). Count III is brought "in the alternative to Count I" and alleges that
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`Aereo is "guilty of unfair competition under the common law of the State of New York."
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`Compl. ~ 60). Plaintiffs claim that "by commercially exploiting Plaintiffs' programming and
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`broadcasting infrastructure without authorization," Aereo is "unfairly exploiting Plaintiffs'
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`Case 1:12-cv-01543-AJN Document 86 Filed 05/18/12 Page 2 of 20
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`property interests in their audiovisual works for Aereo' s own commercial benefit and in bad
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`faith." (Compl. ~ 60).
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`Aereo moves under Federal Rule of Civil Procedure 12(c) for judgment on the pleadings
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`on Count III. (Def. Mot. at 1-2). Aereo argues that Plaintiffs' unfair competition claim is one
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`that seeks to vindicate rights equivalent to those provided by the general scope of copyright law
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`and is therefore preempted under 17 U.S.C. § 301, the Copyright Act's express preemption
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`provision. Plaintiffs' opposition to Aereo's motion makes clear that their "unfair competition
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`claim for non-public performances is an alternative to their main claim under federal copyright
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`law based on public performances," in the event that the Court concludes that Aereo's service
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`does not infringe Plaintiffs' copyrights because it involves only private performances. (PIs.
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`Opp. at 1-2). For purposes of this motion the Court therefore assumes, but does not decide, that
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`Aereo's service involves a private performance not actionable under the Copyright Act.
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`Accordingly, Aereo's motion turns exclusively on a question of statutory interpretation(cid:173)
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`apparently one of first impression-regarding the breadth of preemption under § 301: does a
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`state law unfair competition claim founded on the private performance of copyrighted works
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`seek to vindicate rights that fall into the general scope of the exclusive rights created by the
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`Copyright Act? The Court concludes that it does and grants Aereo's Motion for Judgment on the
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`Pleadings.
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`I.
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`LEGAL BACKGROUND ON PREEMPTION UNDER § 301
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`A brief survey of preemption under the Copyright Act frames the issue. Section 301(a)
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`provides for preemption of state law causes of action that seek to protect rights "equivalent to"
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`the exclusive rights specified by the "general scope" of copyright protection. 17 U.S.C. § 301(a).
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`In relevant part, the statute provides that
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`Case 1:12-cv-01543-AJN Document 86 Filed 05/18/12 Page 3 of 20
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`all legal or equitable rights that are equivalent to any of the exclusive rights within
`the general scope of copyright as specified by section 106 ... in works of
`authorship that ... come within the subject matter of copyright .. are governed
`exclusively by this title. Thereafter, no person is entitled to any such right or
`equivalent right in any such work under the common law or statutes of any State.
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`17 U.S.C. § 301(a). A parallel provision, § 301(b), makes clear that the Copyright Act does not
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`preempt state laws governing "activities violating legal or equitable rights that are not equivalent
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`to any of the exclusive rights within the general scope of copyright as specified by section 106."
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`17 U.S.C. § 301(b).
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`Section 106, as these provisions suggest, articulates the exclusive property rights
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`Congress has chosen to provide in copyrighted works, including "(1) to reproduce the
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`copyrighted work;" "(2) to prepare derivative works based upon the copyrighted work;" "(3) to
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`distribute copies or phonorecords of the copyrighted work to the public;" "(4) to perform the
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`copyrighted work publicly;" and "(5) to display the copyrighted work publicly." 17 U.S.C. §
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`106. An individual who violates one or more of the rights articulated in § 106, as cabined by
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`subsequent sections of the Copyright Act governing principles such as fair use, see, e.g., 17
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`U.S.c. § 107, has engaged in copyright infringement. See 17 U.S.C. § 501(a); S.A.R.L. Louis
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`Feraud Int'l v. Viewfinder, Inc., 489 F.3d 474,479 (2d Cir. 2007).
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`The Second Circuit has construed § 301 to require application of a two prong test to
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`determine if a state law claim is preempted. First, courts consider the "subject matter
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`requirement" and assess whether the state law claim asserts rights in the type of works protected
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`by the Copyright Act. Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296,305 (2d Cir.
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`2004). Second, under the "general scope requirement," the rights provided by the state law claim
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`must be "equivalent to one of the bundle of exclusive rights already protected by copyright law."
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`Id. at 305. If both prongs are met, the state law claim is preempted.
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`The general scope requirement is satisfied "only when the state-created right may be
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`abridged by an act that would, by itself, infringe one of the exclusive rights provided by federal
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`copyright law. In other words, the state law claim must involve acts of reproduction, adaptation,
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`performance, distribution or display." Id. As part of the general scope inquiry, the Second
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`Circuit also applies an "extra element test" that provides that even if the state law claim is one
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`involving acts of reproduction, adaption, performance, distribution, or display, the claim will not
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`be preempted if it "include[ s] any extra elements that make it qualitatively different from a
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`copyright infringement claim." Id. at 305-06.
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`The question before the Court is whether § 301 is properly construed to preempt
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`Plaintiffs' New York law unfair competition claim, argued in the alternative, which seeks to
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`attach liability for the private performance of Plaintiffs' copyrighted works. In particular, the
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`Court must consider whether the "general scope requirement" for preemption is met by such a
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`claim.!
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`In sum, Aereo argues that because Plaintiffs' unfair competition claim is essentially one
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`imposing liability for the performance of copyrighted material, it is "equivalent to" the "general
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`scope" of the exclusive public performance right under § 106. (See, e.g., Def. Mot. at 2).
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`Plaintiffs respond that the exclusive performance right "specified by" § 106 is one of public
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`performance, not private performance, and that their unfair competition claim is, therefore, not
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`preempted because rights in private performances are not "equivalent to" any right provided by §
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`106.
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`I Neither the "subject matter requirement" nor the "extra element test" are at issue in this motion, as no party
`disputes that the works at issue are of the type protected by copyright, and Plaintiffs do not argue that the extra
`element test would save their claim from preemption. (Compl. ~~ 30, 43, 50; PIs. Opp. at 5, 7-9,22; Def. Mot. at 4-
`5).
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`II.
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`DISCUSSION
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`Statutory interpretation begins with determining whether the text of the statute has a plain
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`and unambiguous meaning, viewing the particular provision being construed in the context of the
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`statutory scheme as a whole. See Louis Vuitton Malletier S.A. v. Lf USA, Inc., _ F.3d _,2012
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`U.S. App. LEXIS 6391, at *68 (2d Cir. Mar. 29, 2012). lithe Court can ascertain the plain
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`meaning of the statutory provision from the text and statutory structure, it need not consider
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`other sources. See id. at *68-69. If the plain meaning is ambiguous the Court may consider
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`extrinsic materials, including the legislative history of the statute. See id. at *69.
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`A.
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`Statutory Text
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`Plaintiffs contend that § 301(a) unambiguously provides that state law claims imposing
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`liability for private performances of copyright materials are not preempted. Noting that
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`preemption under § 301(a) is defined by the rights "specified by section 106," Plaintiffs contend
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`that because the right of performance granted in § 106 is limited to "public" performances,
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`preemption under § 301 is similarly limited only to claims relating to public performances. (PIs.
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`Opp. at 11).
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`The difficulty with Plaintiffs' position is that while the reference in § 301 to the rights
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`"specified by section 106" at least partially defines the breadth of preemption, these words do not
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`stand alone. Section 301 provides that preemption applies not merely to the rights "specified by
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`section 1 06," but instead extends to the "general scope of the rights specified by section 1 06,"
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`resulting in a tension between the "specifi[ c]" rights enumerated in § 106 versus the "general
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`scope" of those rights.
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`Read in this context, the plain language of § 301 can be reasonably construed to foreclose
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`not just those state law claims that directly parallel the scope of the rights granted in the
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`Case 1:12-cv-01543-AJN Document 86 Filed 05/18/12 Page 6 of 20
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`Copyright Act. Rather, the "general scope" of the rights specified by § 106 arguably refers
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`broadly to the type of rights protected by copyright, including performance rights generally
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`rather than public performance rights specifically. In this case, preemption would extend to
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`those state laws that seek to impose liability for misappropriation of a person's creative works
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`based on the performance of such works, whether public or private.
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`Similarly, preemption applies to rights "equivalent to" the general scope of those
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`specified in § 106, not merely to the precise rights specified by § 106. Plaintiffs counter that
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`"equivalent to" in § 301 should be construed to mean "identical to," citing Ad Hoc
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`Telecommunications Users Committee v. FCC, 680 F.2d 790,801 (D.C. Cir. 1982), which
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`applied a similar interpretation to the "functional equivalency" test employed by the FCC in
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`regulating telecommunications. (PIs. Opp. at 11 n.3) However, Ad Hoc Telecommunications
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`Users Committee did not construe the meaning of "equivalent" in the context of § 301, and its
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`persuasive value is therefore limited. See id. Moreover, there are mUltiple definitions of the
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`word "equivalent," not all of which suggest that the term should be interpreted to mean
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`"identical." Merriam-Webster's Dictionary provides, for example, an alternative definition of
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`"like in signification or import." Given that the equivalency at issue in § 301 relates to the
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`"general scope" of the rights provided in § 106, the "equivalent to" language need not be read to
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`require that the rights at issue be identical.
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`Brief consideration of a counterfactual drafting of § 301 illustrates these points and, in
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`fact, suggests that Plaintiffs' interpretation of § 301 should be disfavored. Had Congress
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`intended the narrow scope of preemption that Plaintiffs argue for, it could have unambiguously
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`signaled this intent by drafting § 301(a) without the words "general" or "equivalent to,"
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`providing that "all legal or equitable rights within the scope of copyright as specified by section
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`Case 1:12-cv-01543-AJN Document 86 Filed 05/18/12 Page 7 of 20
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`106 ... are governed exclusively by this title." It did not do so and, Congress having decided to
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`include these modifiers, the Court is bound to give the words "equivalent to" and "general
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`scope" appropriate significance. See United States v. Aleynikov, _ F.3d _,2012 U.S. App.
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`LEXIS 7439, at *23-24 (2d Cir. Apr. 11,2012) ("[O]ne of the most basic interpretive canons [is]
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`that a statute should be construed so that effect is given to all its provisions, so that no part will
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`be inoperative or superfluous, void or insignificant.").
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`Contrary to Plaintiffs' argument, the Court finds that the plain text § 301(a) does not
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`unambiguously provide that their state law claim survives preemption. While Plaintiffs'
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`argument for narrow preemption finds support in § 301's reference to the rights "specified in" §
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`106, Aereo' s argument for a broader reading is supported by the reference to the "general scope"
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`of those rights.
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`B.
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`Statutory Structure
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`Considering § 301 in the context of the statutory scheme as a whole further suggests
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`preemption should not be limited to state law claims imposing liability for acts of public
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`performance, but does not itself resolve the conflicting textual argument articulated above. In
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`particular, Congress's careful definition of what constitutes a public performance,2 and its
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`decision not to create exclusive property rights to privately perform copyrighted works further
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`suggests that preemption should bar Plaintiffs' unfair competition claim. See Dole v. United
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`2 The full definition of to "perform or display a work 'publicly'" is
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`(1) to perform or display it at a place open to the public or at any place where a substantial number
`of persons outside of a normal circle of a family and its social acquaintances is gathered; or
`(2) to transmit or otherwise communicate a performance or display of the work to a place specified
`by clause (1) or to the public, by means of any device or process, whether the members of the
`public capable of receiving the performance or display receive it in the same place or in separate
`places and at the same time or at different times.
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`17 U.S.C. § 101.
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`Case 1:12-cv-01543-AJN Document 86 Filed 05/18/12 Page 8 of 20
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`Steelworkers of Am., 494 U.S. 26, 35 (1990) (in interpreting statutes, courts should look to the
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`whole law, and its object and policy); SEC v. DiBella, 587 F.3d 553, 572 (2d Cir. 2009) ("Where
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`an examination of the statute as a whole demonstrates that a party's interpretation would lead to
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`absurd or futile results plainly at variance with the policy of the legislation as a whole, that
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`interpretation should be rejected."). For example, Congress specifically excluded performances
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`to "a normal circle of a family and its social acquaintances" from the scope of copyright
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`protection by defining such performances as nonpublic. 17 U.S.C. § 101. Plaintiffs construction
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`of § 301, however, would impose no bar to the assertion of state law claims for precisely this
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`activity-the purely private viewing of copyrighted performances. Cf Cartoon Network LP,
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`LLLP v. CSC Holdings, Inc., 536 F.3d 121, 136 (2d Cir. 2008) (rejecting an interpretation of
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`"public performance" that would lead to "odd results" and "obviate any possibility of purely
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`private transmission" as contrary to congressional intent).
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`Moreover, Plaintiffs' contention that Section 301(a) does not preempt their New York
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`state law claim requires the unlikely conclusion that Congress extended copyright protection
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`only to "public performances" because Congress intended to provide an opportunity for
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`states to fill in the gaps with a varied regime of patchwork state regulation. This conclusion,
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`although not out of the question, is less plausible than the conclusion that Congress intended to
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`create a nationally uniform scheme of copyright protection and simply refused to create property
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`rights over private performances. See e.g., Barclays Capital Inc. v. Theflyonthewall. com, Inc.,
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`650 F.3d 876, 897 (2d Cir. 2011) (noting the importance of national uniformity under the
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`Copyright Act as a motivating factor for construing an exception to preemption narrowly and
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`that "central to the principle of preemption generally is the value of providing for legal
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`uniformity where Congress has acted nationally").
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`Case 1:12-cv-01543-AJN Document 86 Filed 05/18/12 Page 9 of 20
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`In short, § 301 could reasonably be read to support either Plaintiffs' or Aereo's position.
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`Although the better reasoned position based on the text of § 301 and its relation to the statutory
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`scheme as a whole is that Congress likely intended preemption to extend to state law claims
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`imposing liability for private performances of copyrighted works, the matter is not entirely
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`without ambiguity.
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`C. Legislative History
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`Concluding that the statutory text does not unambiguously resolve the question before it,
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`the Court turns to the legislative history for extrinsic evidence of congressional intent and finds it
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`squarely in support of preemption in these circumstances. See, e.g., Louis Vuitton Malletier S.A.,
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`_ F.3d _,2012 U.S. App. LEXIS 6391, at *69 ('''We turn to the legislative history only when
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`the plain statutory language is ambiguous or would lead to an absurd result. "') (quoting In re
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`Ames Dep 't Stores, Inc., 582 F.3d 422, 427 (2d Cir. 2009) (per curiam)).
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`As an initial matter, the legislative history of § 301 provides that the Copyright Act was
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`intended to provide a nationally uniform system of copyright and "avoid the practical difficulties
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`of determining and enforcing rights under the differing laws and in the separate courts of the
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`various States." H.R. REp. No. 94-1476, at 129 (1976), reprinted in 1976 U.S.C.C.A.N. 5659,
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`5745. Congress further intended preemption "to be stated in the clearest and most unequivocal
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`language possible, so as to foreclose any conceivable misinterpretation of its unqualified
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`intention that Congress shall act preemptively, and to avoid the development of any vague
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`borderline areas between States and Federal protection." H.R. REp. No. 94-1476, at 130 (1976),
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`reprinted in 1976 U.S.C.C.A.N. 5659, 5746.
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`These broad statements of purpose suggest three points in favor of finding that Congress
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`did not intend to limit preemption under § 301 only to state law claims that seek to vindicate
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`Case 1:12-cv-01543-AJN Document 86 Filed 05/18/12 Page 10 of 20
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`precisely the exclusive rights provided in § 106. First, the House Report's emphasis on national
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`uniformity confirms the Court's perspective that Congress likely did not envision the creation of
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`state law schemes imposing what is essentially copyright liability where Congress declined to
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`create such liability. Second, Plaintiffs' claim that Congress intended to allow state law to step
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`in to regulate private performances is contrary to Congress's "unqualified intention ... [to] act
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`preemptively, and to avoid the development of vague borderline areas between State and federal
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`protection." Third, that Congress intended to use the "clearest and most unequivocal language
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`possible" in providing for this preemption counsels in favor of the Court granting significant
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`weight to Congress's choice to extend preemption to the "general scope" of rights "equivalent
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`to" those provided by the Copyright Act.
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`More directly, the House Report states that § 301 's "preemption of rights under State law
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`is complete with respect to any work corning within the scope of the bill, even though the scope
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`of exclusive rights given the work under the bill is narrower than the scope of common law
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`rights in the work might have been." H.R. REp. No. 94-1476, at 131 (1976), reprinted in 1976
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`u.S.C.C.A.N. 5659, 5746. Plaintiffs' position, that Congress intended preemption to be limited
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`to state law claims asserting rights identical to those specified in § 106 and that state law may
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`broaden the effective reach ofthe copyright protection, is flatly contrary to this statement that
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`preemption is "complete" even when state law would provide for broader protection than the
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`exclusive rights Congress has provided.
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`Plaintiffs contend that this discussion of the narrower scope of protection under the
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`Copyright Act as compared to common law refers to Congress's decision to limit the types of
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`works for which copyright protection is granted, not to Congress's decision to limit the scope of
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`the exclusive rights provided in § 106. (PIs. Opp. at 16-17). They base this argument less on the
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`Case 1:12-cv-01543-AJN Document 86 Filed 05/18/12 Page 11 of 20
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`substance of the comment than on its location in the legislative history, arguing that the provision
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`is "sandwiched between paragraphs discussing uncopyrighted material that is nonetheless within
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`the subject matter of copyright." (PIs. Opp. at 16-17). This reading cannot be sustained. The
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`quoted sentence plainly discusses the nature and scope ofthe "exclusive rights given the work
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`under the [Copyright Act]" (i.e., the exclusive rights under § 106) that inhere in "works coming
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`within the scope of the bill."
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`The legislative history also lists the types of state law causes of action that Congress did
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`not anticipate as likely preempted, including rights to privacy, publicity, trade secrets,
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`defamation, and deceptive trade practices such as passing off and false representation.3 H.R. REp.
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`No. 94-1476, at 131 (1976), reprinted in 1976 U.S.C.C.A.N. 5659,5748. As noted by the House
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`Report in explaining why these rights should survive copyright preemption, these causes of
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`action vindicate rights "different in nature from the rights comprised in a copyright." H.R. REp.
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`No. 94-1476, at 131 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5748 (emphasis added). The
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`House Report also explained that "deceptive trade practices such as passing off and false
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`representation" were included in an effort to distinguish the types of unfair competition claims
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`that would survive enactment of § 301 from those that would not. H.R. REp. No. 94-1476, at 131
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`(1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5748. In contrast to each of these examples,
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`Plaintiffs' unfair competition law is, at core, an attempt to extend copyright protection beyond
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`3 The version of the statute on which the legislative history was commenting listed these examples of state law
`causes of action that would not be preempted by § 301, but this text was removed before the statute was enacted.
`See Theflyonthewall.com, 650 F.3d at 910 (Raggi, 1., concurring). Notwithstanding this removal, several Second
`Circuit decisions have relied on this commentary in discerning congressional intent regarding the bounds of
`preemption. Compare NBA v. Motorola, 105 F.3d 841,850 (2d Cir. 1997) (relying on this section of the legislative
`history); Computer Assocs. Int 'I v. Altai, 982 F.2d 693, 716-17 (2d Cir. 1992) (same); and Fin. Info., Inc. v. Moody's
`Investors Serv., Inc., 808 F.2d 204, 208-09 (2d Cir. 1986) (same) with Theflyonthewall.com, 650 F.3d at 910 (Raggi,
`1., concurring) (noting the confusing nature of this history and opining that "it is not clear what weight the Report
`excerpt quoted in NBA can bear in any assessment of whether a particular 'hot news' claim survives federal
`copyright preemption.")
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`the scope of the exclusive rights granted in § 106 and is not different "in nature" from a
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`copyright claim.4
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`Moreover, nothing in the legislative history of either §§ 101 or 106 suggests that
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`Congress declined to provide for exclusive rights over private performances because it intended
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`to leave a gap for state law to fill. Rather, the House Report suggests that Congress intended
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`private performances to be exempted from copyright protection: "Certain other performances
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`and displays, in addition to those that are 'private, , are exempted or given qualified copyright
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`control under sections 107 through 118." H.R. REp. No. 94-1476, at 63 (1976), reprinted in 1976
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`u.S.C.C.A.N. 5659, 5677 (emphasis added).
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`Against this evidence of congressional intent, Plaintiffs argue that in enacting § 301
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`Congress rejected draft language that "might have allowed preemption based on a looser
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`connection to the exclusive rights actually specified in § 106." (PIs. Opp. at 11, 17-18). In
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`particular, Plaintiffs note that an earlier version of § 301(a) provided preemption for "all rights in
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`the nature of copyright" and that this text was changed to the present wording of "rights ...
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`equivalent to any of the exclusive rights within the general scope of copyright," arguing that this
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`reflects the adoption of a more exacting standard. (PIs. Opp. at 11-12, 17 -18 (citing H.R. 4347,
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`89th Cong., 2d Sess. § 301(a) (1966))).
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`Even the text of § 301 as enacted, however, provides that preemption applies to rights
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`"equivalent to" those falling in the "general scope" of copyright, not merely preemption
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`applicable to state law claims asserting rights also provided by copyright. Regardless of whether
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`4 The House Report also noted that not all unfair competition claims asserting misappropriation would be preempted
`by § 301, noting that state law should continue to have the flexibility to preserve the so-called "hot news" exception.
`This portion of the legislative history is best read as articulating exceptions that prove the general rule that Congress
`intended that the typical misappropriation claim, such as Plaintiffs' unfair competition claim here, be preempted.
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`the previous version of § 301(a) may have more clearly reflected an intent to broadly preempt
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`state law claims imposing liability on private performances of copyrighted material, the text of §
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`301(a) as enacted still suggests such an intent. Moreover, Plaintiffs do not provide any
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`support-beyond the change in the statutory text itself.-for their claim that Congress chose the
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`"general scope" language rather than the "nature of copyright language" with an eye toward
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`restricting preemption. Although the legislative history explains that "the language in [§ 301] ..
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`. has been modified from [earlier drafts] so as to more exactly define the intent of Congress," S.
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`REP. 94-473, at 114 (1975), it does not indicate that this change was intended to narrow § 301 's
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`preemptive effect. With this in mind, Plaintiffs' argument cannot overcome the other evidence
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`in the legislative history demonstrating that their unfair competition claim should be preempted.
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`Finally, the Court notes that its reading of the legislative history is in full accord with the
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`conclusions of commentators who have considered this precise issue. See MELVILLE B. NIMMER
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`& DAVID NIMMER, NIMMER ON COPYRIGHT § 1.01(B)(1) & nA8 (2012); PAUL GOLDSTEIN,
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`GOLDSTEIN ON COPYRIGHT § 17.2.1.1 (2005) ("Although section 106(4) limits its right to public
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`performances, a state law that prohibited private performances would nonetheless come within
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`the general scope of the right. ... and thus be subject to preemption.").
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`D. Related Second Circuit Law
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`Although the Second Circuit has not spoken on the issue before the Court, both Aereo
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`and Plaintiffs argue divergent interpretations of Second Circuit cases articulating the general
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`scope requirement, each claiming that Second Circuit precedent supports their position. Here
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`too, the Court is persuaded that the weight of precedent supports a conclusion of preemption.
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`Arguing for preemption, Aereo cites statements by the Second Circuit that the general
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`scope requirement is met when "the state law claim ... involve[ s] acts of reproduction,
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`Case 1:12-cv-01543-AJN Document 86 Filed 05/18/12 Page 14 of 20
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`adaptation, performance, distribution or display," and emphasizes that the word "performance"
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`in these statements is not qualified by the word "public." (Def. Mot. at 5). E. g., Briarpatch, 373
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`F.3d at 305; see also Theflyonthewall.com, 650 F.3d at 893. Plaintiffs point out, however, that
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`the Second Circuit often precedes such language by enumerating the rights granted in § 106,
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`including that of "public performance." (PIs. Opp. at 13). See, e.g., Theflyonthewall.com, 650
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`F.3d at 893; Briarpatch, 373 F.3d at 305.
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`In support of their contrary position, Plaintiffs quote language, often found in these same
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`cases cited by Aereo, that note that the general scope requirement for preemption is met by state
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`law claims that impose liability for activity that "would, by itself, infringe one of the exclusive
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`rights provided by federal copyright law." E.g., Briarpatch, 373 F.3d at 305 (emphasis added);
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`see also, e.g., Computer Assocs. Int'l v. Altai, 982 F.2d 693, 716 (2d Cir. 1992). Plaintiffs
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`characterize this as the "test" for the general scope requirement, and argue that a private
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`performance does not "by itself' infringe one of the exclusive rights provided in § 106. (PIs.
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`Opp. at 12).
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`The Court does not assign great weight to either of these arguments, which amount to
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`parsing isolated statements from Second Circuit cases that did not consider the question the
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`Court now confronts, without regard to the logic underlying the decisions in those cases. Far
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`more persuasive are the holdings of and reasoning provided in the Second Circuit's precedent.
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`Reviewing these cases, three principles emerge that suggest, consistent with the statutory text
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`and structure as well as the legislative history, that the Second Circuit would extend preemption
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`to Plaintiffs' unfair competition claim in this case.
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`First, the Second Circuit has not restricted preemption to the precise scope of the
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`protections provided by the Copyright Act. In NBA v. Motorola, 105 F.3d 841,843-44 (2d Cir.
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`1997), plaintiffs asserted a state law claim of unfair competition by misappropriation based on
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`defendants' conduct in manufacturing a paging device, SportsTrax, which transmitted to
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`subscribers information-obtained from plaintiffs' broadcasts-from sporting events. The
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`Second Circuit held that the subject matter requirement for preemption was met, even though
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`neither the sporting events themselves nor the facts taken from those games were copyrightable
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`and, therefore, no copyright claim could be stated on those facts. See id. at 846-47. Analyzing
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`the NBA decision in a subsequent case, the Second Circuit explained that "[i]n deciding whether
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`a state-law claim is preempted by the Copyright Act, then, it is not determinative that the
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`plaintiff seeks redress with respect to a defendant's alleged misappropriation of un copyrightable
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`material- e.g., facts -
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`contained in a copyrightable work." Theflyonthewall.com., 650 F.3d at
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`892. Importantly, "the NBA panel thought it clear that what the NBA was seeking to protect fell
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`within the 'general scope of copyright. '" Id. at 893. As such, absent the extra-elements
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`applicable to misappropriation claims falling within what is referred to as the "hot news"
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`exception, preemption would have applied in that case. See NBA, 105 F.3d at 848-53.
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`As relevant here, the Second Circuit's holding in NBA, as further explained by
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`Theflyonthewall.com, establishes that preemption under § 301 is broader than those state law
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`claims for which a successful copyright claim can be stated. This is the case notwithstanding
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`that § 301 requires that the state law claim pertain to rights equivalent to the general scope of
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`those provided by copyright "in works of authorship that ... come within the subject matter of
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`copyright." 17 U.S.C. § 301. Thus, the Second Circuit adopted a broad approach to copyright
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`preemption in NBA even though the statutory text arguably supported a more restrictive view that,
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`was limited to preemption of claims asserting rights over the copyrighted works themselves.
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`Moreover, in rejecting an alternative approach of "partial preemption" as