Those Who Insist Aereo Ruling Won't Impact Cloud Computing Don't Seem To Understand Cloud Computing

Copyright

from the or-copyright-law,-for-that-matter dept

A few weeks ago, we wrote about how the Aereo case, which will be heard by the Supreme Court in a few weeks, is likely to have a huge impact on the future of cloud computing, and went into detail to explain why. The primary issue is that, under copyright law, what Aereo is doing is effectively indistinguishable from what most cloud computing services do. However, a number of folks who really seem to dislike Aereo continually insist that the case will have no impact whatsoever on cloud computing. Variety’s Todd Spangler recently wrote a typical version of this argument, basically waving off the issue based on the idea that Aereo more or less feels different from Dropbox. But that fundamentally ignores the actual copyright issues at stake.

Matt Schruers has a blog post up at the Project Disco blog pointing out why this “cloud denialism” by the anti-Aereo crowd is both dangerous and misleading. It includes the money line that a bunch of folks have been quoting:

The only unifying characteristic I’ve discerned among the deniers is that none of them are actually in the business of providing cloud services.

Indeed, a bunch of companies and organizations that actually are involved in cloud computing businesses have weighed in on the case, warning how a ruling against Aereo might create serious problems for their businesses. The issue, again, is very narrowly focused on what is a “public” performance when transmitting a single copy of a file to an individual in their home. The problem with the broadcasters’ position is that they want to declare that transmitting multiple copies of a single work magically makes something “public,” even if each transmission is a unique copy that is transmitted only to the requesting subscriber. But that’s the same way cloud computing works, and it would create a massive headache.

And, honestly, while Schruers has that wonderfully quotable line above, what’s much more scary about the “cloud denialists” is they fundamentally don’t seem to understand copyright law, and are trying to twist it because they just hate what Aereo is doing. I am reminded of law professor Eric Goldman’s comment from a few years ago, that there are really two different copyright laws — normal copyright law and “file sharing copyright law,” where what’s actually stated in copyright law gets thrown out the window because OMG EVIL PIRATES! As Goldman points out, “it’s a mistake to think those two legal doctrines are closely related.”

As Schruers notes in his piece, it seems pretty clear that everyone recognizes Aereo is architected to create a private performance, not a public one, it’s just that folks on the copyright maximalist side of the scale don’t like that, and that leads them to want to just pretend the law says something different than it does:

Ultimately, when Spangler and others deniers dismiss the cloud-related issues and condemn Aereo’s complex technology as “a Rube Goldberg-like contrivance,” it strikes me as an implicit concession: ‘yes, Aereo’s technology is indeed designed to facilitate private performances, but since Aereo could also be engineered other ways, where the performance would be public, we’re just going to expand the definition of what’s public in order to sweep in Aereo too.’

This is a chillingly activist interpretation of copyright law. The boundary between public performances and private performances determines what copyright does and does not regulate. It’s why you don’t need a license to sing in the shower, but you do to sing on stage. It’s why you don’t need a license to put your music collection in the cloud, but you do if you want to launch a commercial streaming service. Redrawing that boundary in real time to ensure that Aereo doesn’t disrupt the way consumers now receive free over-the-air television is not a prescription for economic success.

Of course, this sort of issue has been present throughout the Aereo case. Pretty much everyone concedes that Aereo’s technical setup is insane — but it’s insane because that’s what the law requires to stay within its bounds. We’ve seen many, as described above, try to use this against Aereo. Multiple comments on various Aereo posts have people insisting that the convoluted setup of Aereo’s technology (individual antenna for each subscriber, distinct copies of the same programming for each user) shows that they’re trying to skirt around the law. However, it seems rather obvious that it’s the exact opposite. There is no logical reason to have this kind of setup except to be within the law. Aereo’s “insane” technological setup is much an indication of why it’s legal — and how screwed up copyright law is that this is the only legal way to build such a system.

Furthermore, for those who insist that Aereo is unrelated to cloud computing because it doesn’t look like what they think cloud computing looks like, Schruers points out that one of the most important rulings for cloud computing — the Cablevision remote DVR case — didn’t “look” like a cloud computing case either, but it helped spur massive investment in cloud computing by clarifying some key legal issues — much of which an anti-Aereo ruling might now destroy.

Notably, the “remote DVR” system in Cablevision, a 2008 case upon which much of the reasoning in Aereo has been based, and which provided legal certainty that ushered in a wave of extraordinary investment in cloud computing, didn’t look anything like Dropbox either.  Even though Cablevision’s remote DVR didn’t look like a cloud storage service, however, investors quickly concluded that the decision’s reasoning had legitimized storing users’ files in the cloud, and streaming them back.

The broadcasters and their supporters don’t want people to associate Aereo with cloud computing mainly because they hate what Aereo stands for. But their failure to understand both cloud computing and basic copyright law might seriously hinder important innovations well into the future.

Filed Under: cloud computing, copyright, public, transmission
Companies: aereo