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

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.

Reader Comments (rss)

 

DMCA protections....

One of the many idiocies that Spangler repeats is the notion that the Aero ruling won't affect cloud services, because those services are "already protected from liability for copyrighted material illegally uploaded to their services under the Digital Millennium Copyright Act." (Others, like amateur-turned-professional copyright maximalist Terry Hart, have made the same argument.)

For one thing, he's wrong, because a ruling against Aero would create infringement where there currently is none. If streaming from the cloud to a single user is a "public performance," then it wouldn't matter whether the user acquired the content legally. The streaming itself - not the acquisition of the content - would infringe on the public performance right.

Second, even if he were correct, requiring DMCA protections for what are now private performances would be disastrous for cloud services and anyone who uses them. If they got DMCA protections, it likely wouldn't be under 512(a) ("Transitory Digital Network Communications"). The content is actually hosted on the cloud provider's network, so they would be protected under 512(c) ("Information Residing on Systems or Networks At Direction of Users").

This is one of the sections of the DMCA that falls under the "notice and takedown" provisions. This means that the only way cloud services would escape libaility is if they allowed copyright holders to issue takedown notices of users private files.

It also includes the controversial "red flag" sections that were recently (and solely) used to find the MP3Tunes guy personally liable for millions. There is absolutely no way a company is going to risk that sort of liability for cloud services, especially if their officers must operate under the threat of personal liability.

The only possible way that cloud computing can continue to operate is if they don't need DMCA protection in the first place. And it should be obvious why they shouldn't. As long as a single copy of a copyrighted work is streamed to a single user, both the legal history and common sense dictate that it shouldn't be a public performance.

(I posted this same comment on the Variety story, so we'll see if there's a response.)
—Karl

(Flattened / Threaded)

  1.  
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    Karl (profile), Apr 2nd, 2014 @ 4:08pm

    DMCA protections....

    One of the many idiocies that Spangler repeats is the notion that the Aero ruling won't affect cloud services, because those services are "already protected from liability for copyrighted material illegally uploaded to their services under the Digital Millennium Copyright Act." (Others, like amateur-turned-professional copyright maximalist Terry Hart, have made the same argument.)

    For one thing, he's wrong, because a ruling against Aero would create infringement where there currently is none. If streaming from the cloud to a single user is a "public performance," then it wouldn't matter whether the user acquired the content legally. The streaming itself - not the acquisition of the content - would infringe on the public performance right.

    Second, even if he were correct, requiring DMCA protections for what are now private performances would be disastrous for cloud services and anyone who uses them. If they got DMCA protections, it likely wouldn't be under 512(a) ("Transitory Digital Network Communications"). The content is actually hosted on the cloud provider's network, so they would be protected under 512(c) ("Information Residing on Systems or Networks At Direction of Users").

    This is one of the sections of the DMCA that falls under the "notice and takedown" provisions. This means that the only way cloud services would escape libaility is if they allowed copyright holders to issue takedown notices of users private files.

    It also includes the controversial "red flag" sections that were recently (and solely) used to find the MP3Tunes guy personally liable for millions. There is absolutely no way a company is going to risk that sort of liability for cloud services, especially if their officers must operate under the threat of personal liability.

    The only possible way that cloud computing can continue to operate is if they don't need DMCA protection in the first place. And it should be obvious why they shouldn't. As long as a single copy of a copyrighted work is streamed to a single user, both the legal history and common sense dictate that it shouldn't be a public performance.

    (I posted this same comment on the Variety story, so we'll see if there's a response.)

     

    reply to this | link to this | view in thread ]

  2.  
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    Anonymous Coward, Apr 2nd, 2014 @ 4:26pm

    Cloud computing has been around longer than Aereo. How come no law suits against them on the grounds they now claim they're vulnerable? Chicken Little much?

     

    reply to this | link to this | view in thread ]

  3.  
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    That One Guy (profile), Apr 2nd, 2014 @ 5:09pm

    Read article, /then/ comment

    Because cloud computing based companies have, up until now, been protected by the Cablevision ruling, as being similar enough to fall under the same protections.

    However, should the ruling go against Aereo in this case, suddenly that 'protection' would vanish, as those that wanted to make companies like that personally liable would argue that if Aereo was found illegal, it would also follow that they were too, which would cause a massive mess.

    Of course, you'd know this had you actually read the article, given it's spelled out quite clearly why Aereo losing will mean trouble for other companies, and cloud computing in general.

     

    reply to this | link to this | view in thread ]

  4.  
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    garya (profile), Apr 2nd, 2014 @ 5:10pm

    Business Model

    Why isn't the TV industry following their own basic business model?!? They finance themselves by broadcasting to a 'large audience' and charge for the number of eyeballs looking at ads. Local broadcasting goes what, about 50 miles? Why not 'broadcast' your channel in the cloud as well. They could potentially reach Billions - World Wide Watching. Screw selling their product to cable, the eyeball count would be larger than they've ever ~dreamed~ of. The Cloud is just a brand new form of 'Public Airwaves'. Don't Fight It, USE IT!

     

    reply to this | link to this | view in thread ]

  5.  
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    Anonymous Coward, Apr 2nd, 2014 @ 5:32pm

    Re: Read article, /then/ comment

    That doesn't explain WHY cloud computing companies haven't been challenged before Aereo. The contention is that Aereo and cloud computing companies suffer from the same legal vulnerability. If thats true, why didn't the cloud computing companies get sued first? It seems theres a far bigger difference between the two.

     

    reply to this | link to this | view in thread ]

  6.  
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    Anonymous Coward, Apr 2nd, 2014 @ 5:45pm

    I think you need to clearly define cloud. The term "Cloud" is simply too broad for anyone's argument to be valid.

    Once you've properly defined it, then your arguments make sense. But what is cloud? LaaS? IaaS? PaaS? Even glorified VPSes are sold as "cloud" servers/services.

     

    reply to this | link to this | view in thread ]

  7.  
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    MrWilson, Apr 2nd, 2014 @ 5:46pm

    Re: Re: Read article, /then/ comment

    The contention is actually that because copyright maximalists don't like Aereo, they want to change the rules to say that Aereo is illegal, even though it is currently legal for the same reason that cloud computing services are legal. Cloud computing is not vulnerable unless their protections (the same that Aereo and all the rational observers of this case are saying that Aereo has) are taken away, all because copyright maximalists threw a hissy fit.

     

    reply to this | link to this | view in thread ]

  8.  
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    Anonymous Coward, Apr 2nd, 2014 @ 11:43pm

    Re: Re: Read article, /then/ comment

    Because somehow the copyright enforcers believe that suing Aereo instead of jumping the gun over other cloud computing companies would make them seem less like assholes.

    It's standard copyright enforcement procedure - you don't go after all the infringers; just the ones you're more likely to win against or bleed dry. Why sue a pirate when you can con several thousand dollars off some schmuck grandmother?

     

    reply to this | link to this | view in thread ]

  9.  
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    Jeffrey Nonken (profile), Apr 2nd, 2014 @ 11:46pm

    "Itís why you donít need a license to sing in the shower..."

    But for Heaven's sake, do NOT leave your window open.

     

    reply to this | link to this | view in thread ]

  10.  
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    PaulT (profile), Apr 3rd, 2014 @ 12:32am

    Re:

    This is one of the things I love about you ACs - you're completely unable to understand the consequences of any actions until they happen. Perhaps that's why you tirelessly defend the **AAs - you don't understand what's happening.

    Go on, just wave away all concerns, you'll be back to pretend they weren't foreseeable if things do get difficult for law-abiding cloud providers. At least you're not resorting to name calling and false accusations this time.

     

    reply to this | link to this | view in thread ]

  11.  
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    Bergman (profile), Apr 3rd, 2014 @ 1:03am

    "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."


    The basic concept behind all US laws makes laws rather like walking through a mine field. Any given patch of ground that doesn't contain a land mine is legal. Step on a land mine though, and you have problems. Aereo looks like a convoluted, tangled up knot because that's what they had to do to avoid standing on any land mines.

    The idea that tying yourself in knots to avoid breaking any laws whatsoever is proof that you are breaking the law or somehow shady is ludicrous in the extreme.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Apr 3rd, 2014 @ 1:48am

    Re: Re: Read article, /then/ comment

    It seems theres a far bigger difference between the two.

    No. It seems that either you did not read the article, or did not understand it, or trying to derail the discussion. Pick one.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Apr 3rd, 2014 @ 1:52am

    Re:

    The could being, well, cloudy - no wonder its definition's a bit unclear...

     

    reply to this | link to this | view in thread ]

  14.  
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    Anonymous Coward, Apr 3rd, 2014 @ 3:22am

    Re: Business Model

    Part of the model has changed. Local TV affiliates get paid by cable companies for retransmission on cable services. I suspect they like the second income stream more than the ad based income stream because they don't need a large sales force to sell ads just to cable companies.

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous Coward, Apr 3rd, 2014 @ 5:52am

    Re: Re: Read article, /then/ comment

    Because Aereo is a specific target and something needed to be first. How do you litigate against "cloud computing"? You need something a little more concrete than that and when Aereo showed up, I imagine litigious mouths started watering.

     

    reply to this | link to this | view in thread ]

  16.  
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    Leonardo (profile), Apr 3rd, 2014 @ 5:56am

    Broadcasters do not innovate and do not compete.

    NAB president Gordon Smith states before Congress: "Today, broadcasters compete with wireless companies, pay-TV providers and over-the-top services for eyeballs and advertising."

    Last I checked, retransmission fees are a corporate subsidy granted by Congress which needs to be eliminated so that this statement could be truthful. The broadcasters were given the over the air spectrum by Congress to provide Americans with Universal Access to their content (FREE) and quite frankly, the broadcasters have decided not to innovate and provide Universal Access in order to protect their retransmission fees and payTV model which certainlt is not free markets.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, Apr 3rd, 2014 @ 6:26am

    Re: Re: Re: Read article, /then/ comment

    How do you litigate against "cloud computing"?

    I'd guess that you'd litigate against a company engaged in it. Just like Aereo, the company is being sued- not the underlying concept or business model.

     

    reply to this | link to this | view in thread ]

  18.  
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    Ninja (profile), Apr 3rd, 2014 @ 6:30am

    Re:

    The idea that tying yourself in knots to avoid breaking any laws whatsoever is proof that you are breaking the law or somehow shady is ludicrous in the extreme.

    Yes, because legislation is easy to keep up with.

    http://www.cracked.com/article_19450_6-laws-youve-broken-without-even-realizing-it.html
    http://w ww.infowars.com/you-break-the-law-every-day-without-even-knowing-it/
    http://www.reddit.com/r/conspira cy/comments/1l4ago/the_average_american_breaks_at_least_three_laws_a/

    And some reading to enlighten you (though I have gone through parts of it only) http://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/1594035229/ref=sr_1_1?ie=UTF8&qid=13 82543575&sr=8-1&keywords=three+felonies+a+day

    So taking precautions to offer a service people want while not breaking laws means you are up to something. Nice.

     

    reply to this | link to this | view in thread ]

  19.  
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    Alt0, Apr 3rd, 2014 @ 8:46am

    OK I wont try to "pretend" I know exactly what this means like others here. The term cloud computing to me is Dropbox, Apple's "Cloud syncing my calendar" stuff like that.
    What Aereo seems like to me, is On Demand Cable TV or Apples Music Share services.

    If Comcast can rebroadcast a TV show or movie to my home through their cable box, what is Aereo doing that is any different?

    Excuse my ignorance on this.

     

    reply to this | link to this | view in thread ]

  20.  
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    Karl (profile), Apr 3rd, 2014 @ 11:37am

    Re:

    The term cloud computing to me is Dropbox, Apple's "Cloud syncing my calendar" stuff like that.

    The issue is whether a transmission of a unique copy of content, to a single person, is a "public performance" solely because the relationship between the person and the entity doing the transmitting is a commercial one.

    If that is the case, then Dropbox, Apple, etc. would be engaged in public performances when they allow you to stream content from your own Dropbox folders. Say, for example, that you put a movie in your Dropbox folder. Dropbox has a system that can transcode that movie to different codecs so that you can watch it on your phone or in a web browser (at school, work, whatever).

    Under the networks' theory, you watching that movie would constitute a "public performance" on Dropbox's part. That would mean that Dropbox is infringing on the movie studio's copyright. In order to avoid liability, Dropbox would have to institute a DMCA notice-and-takedown process on the movies that you stream to yourself, or work out some sort of financial deal with the studios.

    If Comcast can rebroadcast a TV show or movie to my home through their cable box, what is Aereo doing that is any different?

    Comcast can't do that without paying the people who make the TV show or movie. That's because they do not simply rebroadcast TV shows (and especially not movies). They have to actively choose which stations are on their networks; and they do not stream each TV station's signal to a unique subscriber, but to multiple subscribers at the same time. That's what makes it a public performance.

    Aero does not do that, at least as far as their antenna systems are concerned. Their antennas only pick up the signals that TV stations choose to broadcast over the air; and Aero can't pick and choose which TV stations their antennas pick up. Each antenna only transmits a single copy of the signal it picks up, to a single unique user.

    The networks want to make "public performance" include transmission of a single copy to a single unique user. Hence the problems for Dropbox.

     

    reply to this | link to this | view in thread ]

  21.  
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    BigKeithO, Apr 3rd, 2014 @ 2:48pm

    Re: Re:

    Well said.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Apr 4th, 2014 @ 3:36am

    Re:

    That's what I thought... you refuse to define cloud and you lump everyone together. Just wow.

    FYI: I'm 100% for Aereo, but they're not in Canada. I'm a cable cutter and watch exclusively online. And I sell cloud services that I designed and built myself from the ground up. There goes your theory.

    I think this article is 100% bullshit.

     

    reply to this | link to this | view in thread ]

  23.  
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    John Fenderson (profile), Apr 4th, 2014 @ 6:59am

    Re:

    A valid point. "Cloud computing" is more a marketing term than a technical term (to make a very old idea seem new again).

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Zonker, Apr 4th, 2014 @ 11:15am

    Let's play a game of where to draw the line between what is legal or should be legal among the following scenarios:

    1. You install a TV antenna on your property to receive and watch a local TV station yourself.
    2. You install a TV antenna on a rental property to receive and watch a local TV station yourself.
    3. You rent a TV antenna on your property to receive and watch a local TV station yourself.
    4. You rent a TV antenna on a rental property to receive and watch a local TV station yourself.
    5. You install a TV antenna on your remote property to receive and watch a distant TV station yourself.
    6. You install a TV antenna on a remote rental property to receive and watch a distant TV station yourself.
    7. You rent a TV antenna on your remote property to receive and watch a distant TV station yourself.
    8. You rent a TV antenna on a remote rental property to receive and watch a distant TV station yourself.

    Remember that these are the public free over-the-air broadcast TV stations everyone is familiar with. Now play the game again substituting every instance of "yourself" with "with family", then "with friends", then "with neighbors", then "with everyone". Where is and where should the line be drawn?

    Then consider that Aereo basically implements number 4 or number 8 for just yourself depending on your location relative to the antenna you rented, and your location can be anywhere in the world that is connected to the Internet. Why shouldn't Aereo be allowed to legally rent a TV antenna to you for numbers 4 or 8 above?

     

    reply to this | link to this | view in thread ]

  25.  
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    nasch (profile), Apr 5th, 2014 @ 12:28pm

    Re: DMCA protections....

    It also includes the controversial "red flag" sections that were recently (and solely) used to find the MP3Tunes guy personally liable for millions. There is absolutely no way a company is going to risk that sort of liability for cloud services, especially if their officers must operate under the threat of personal liability.

    Which I'm sure is exactly the outcome the **AAs are hoping for.

     

    reply to this | link to this | view in thread ]

  26.  
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    nasch (profile), Apr 5th, 2014 @ 12:31pm

    Re:

    How come no law suits against them on the grounds they now claim they're vulnerable?

    I don't remember exactly what Megaupload is being charged with, but it's certainly an example of going after a cloud service for copyright infringement.

     

    reply to this | link to this | view in thread ]

  27.  
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    nasch (profile), Apr 5th, 2014 @ 12:33pm

    Re: Re:

    And some reading to enlighten you

    I think you may have misunderstood Bergman's comment.

     

    reply to this | link to this | view in thread ]

  28.  
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    nasch (profile), Apr 5th, 2014 @ 12:56pm

    Re: Broadcasters do not innovate and do not compete.

    Last I checked, retransmission fees are a corporate subsidy granted by Congress which needs to be eliminated so that this statement could be truthful.

    Eliminate Congress? Interesting idea.... ;-)

     

    reply to this | link to this | view in thread ]

  29.  
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    nasch (profile), Apr 5th, 2014 @ 1:01pm

    Re:

    your location can be anywhere in the world that is connected to the Internet.

    I'm not sure that's true. There is some restriction to only those people who live within the antenna's broadcast area (New York). I'm not sure how it's done though, do you have to sign up with a physical address and then you can access it from anywhere, or do they attempt to make sure you are currently located somewhere appropriate when receiving the stream?

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Pragmatic, Apr 8th, 2014 @ 5:22am

    Re: Re:

    Neither does the DOJ - that's why they've deleted the evidence.

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Shaswat Shah, Apr 19th, 2014 @ 11:02am

    Cloud Computing

    This is information is truly Legit. Anyways thank you very much for sharing your valuable thoughts. I really Appreciated you article.

    Cloud Computing: Determining Future

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    Bhavna Singh, Apr 25th, 2014 @ 4:57am

    Cloud Technology

    Thanks for sharing this post. Because of growing business organizations need a large and remote data storage space at affordable price. And Cloud Hosting fulfill their requirement effectively.

     

    reply to this | link to this | view in thread ]


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