Aereo to Supreme Court : Kill Us, and You'll Kill the Cloud
Aereo to Justices: Kill Us, and You'll Kill the Cloud
By Joshua Brustein
April 22, 2014
The U.S. Supreme Court heard arguments on Tuesday about
the legality of Aereo, the Internet-television company that offers access to
broadcast television channels via thousands of tiny antennas. While the case
has been largely framed as a fight over the future of television, Aereo argues
that it is also vital to the world of cloud computing. This seemed to resonate
with at least some justices, who expressed concern that they would drag down
unrelated services by ruling against Aereo. “Are we somehow catching other
things that would really change life and shouldn’t,” said Justice Stephen
Breyer, according to the Associated Press. The answer lies in whether you think
Aereo is more like a schoolteacher’s Dropbox account or a kind of nefarious
Kinko’s (FDX).
Aereo and its backers say that making cloud services
responsible for policing copyright violations will imperil the entire idea of
allowing users to access information that exists on remote servers instead of
on their own hard drives. In an amicus brief, the Consumer Federation of
America and the Consumers Union raise the example of a teacher who takes
various video clips from copyrighted sources at school, then uploads them to
her Dropbox account to work on the lesson plan from home. In this analogy,
Aereo is Dropbox, a simple way to move files around. The teacher’s actions
would be legal under fair use, they argue. “However, if this Court were to find
that providing a consumer-selected video from a cloud storage source represents
a public performance, as Petitioners assert, the ability of Dropbox to legally
provide this teacher with access to her own files would—at the very least— be
subject to serious question.”
The broadcasters dismiss this comparison. “There is an
obvious difference between providing storage for content that the end-user
independently possesses and making the content itself available to anyone who
pays a fee. There are legitimate services that use cloud computing technology
to do the latter, but unlike Aereo, they pay for licenses to exploit the
content,” they write in a filing to the court. A legal precedent is the
so-called cloud DVR, where a cable company allows subscribers to record shows,
store them on the company’s servers, and then access them later. The Supreme
Court has ruled that such services do not violate copyright, because the
company has already reached a distribution deal with the copyright owner.
The broadcasters’ analogy of choice is a copy machine.
They say that Aereo is arguing that it’s like a copy machine, a convenient way
to consume the content someone that someone already possesses legally. But copy
machines aren’t much use if you don’t have anything to duplicate. A service
like Dropbox is just a copy shop, but a service like Aereo is like a copy shop
where the machines are pre-loaded with copyrighted works that the shop doesn’t
have the rights to distribute. “The purveyor of such a machine could not avoid
liability because the user must push the button,” they write. “That is true
regardless of whether the technology for making the copies is located in the
copy shop, the user’s home, or ‘the cloud.’”
Brustein is a writer for Businessweek.com in New York.
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