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.’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.
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.
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.
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Filed Under: cloud computing, copyright, public, transmission
Companies: aereo
Reader Comments
The First Word
“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.)
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DMCA protections....
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.)
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Re: DMCA protections....
Which I'm sure is exactly the outcome the **AAs are hoping for.
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Read article, /then/ comment
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.
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Re: Read article, /then/ comment
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Re: Re: Read article, /then/ comment
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Re: Re: Read article, /then/ comment
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?
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Re: Re: Read article, /then/ comment
No. It seems that either you did not read the article, or did not understand it, or trying to derail the discussion. Pick one.
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Re: Re: Read article, /then/ comment
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Re: Re: Re: Read article, /then/ comment
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.
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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.
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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.
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Business Model
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Re: Business Model
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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.
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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.
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But for Heaven's sake, do NOT leave your window open.
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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.
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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.
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I think you may have misunderstood Bergman's comment.
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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. 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.
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Re: Broadcasters do not innovate and do not compete.
Eliminate Congress? Interesting idea.... ;-)
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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.
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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.
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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?
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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?
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Cloud Computing
Cloud Computing: Determining Future
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Cloud Technology
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