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 wrote 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 is like a copy machine, a convenient way to consume content that someone already possesses legally. But copy machines aren’t much use if you don’t have anything to duplicate. A service such as Dropbox is just a copy shop, but a service like Aereo is like a copy shop whose machines are preloaded 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 wrote. “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.’”