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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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« Google as "The Copyright Court of Last Resort" | Main | What is the Solicitor General Arguing in Aereo? »

March 10, 2014

Performance Rights, Aereo, and the Cloud

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Posted by Alan Wexelblat

For people who are tired of legal minutae, here's the one liner: Matt Schruers argues at the Disruptive Competition blog that if Aereo loses it will be a big setback for a lot of cloud computing efforts.

That's a fairly big claim to make. As we've discussed from the start Aereo is a kind of weird cloud play itself that is using a particular interpretation of a previous case under which its admittedly crazy set-up ought to be legal. Broadcasters have challenged that and it's likely that SCOTUS will clarify or overturn that ruling in this case.

Schruers points out that this pivots on the question of public performance rights. If Aereo is allowing you to access your legally obtained copies of programs from a cloud server (essentially a remote DVR) then no public performance is happening and thus those rights are not implicated. If the Cartel's theory is correct, though, then the fact that Aereo has all these individual copies doesn't matter - what matters is that the material is being made available to multiple members of the public.

Now stop and think: multiple copies of legally obtained files, made available to multiple members of the public, individually and at different times. If that sounds to you like what Dropbox, SkyDrive, iCloud, and Google Drive (to use Schruers' list) are doing, then you begin to see the problem. If the Cartel prevails in this case it would be a throat-punch for every cloud storage service of every kind, everywhere. As Schruers puts it:

Because all commercial content is likely to be stored and streamed to more than one user eventually, cloud services would have to assume that everything they make available online would ultimately implicate some public performance right.

As usual, the Obama administration is on the wrong side of this one, filing a brief in support of the Cartel and arguing for overturning Cablevision, the base case here.

Comments (1) + TrackBacks (0) | Category: Laws and Regulations


COMMENTS

1. J. S. Greenfield on March 15, 2014 5:46 AM writes...

While I would agree that the Solicitor General's brief falls on the wrong
side, it most assuredly did not argue for overturning Cablevision. On the
contrary, it specifically argued that Aereo should be deemed infringing,
but that the Court did not need to reverse the ruling in Cablevision to do
so.

This is the biggest problem in the SG's argument -- it ends up
contradicting itself, by arguing that Aereo is infringing for reasons that
apply equally to other services it argues should be deemed not to infringe.

Then also, their basic argument for why Aereo should be deemed infringing
is flawed.

For details, see:

http://cimc-greenfield.com/2014/03/03/us-government-sides-with-broadcasters
-on-aereo-contradicting-itself-in-the-process/

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