I’m puzzled by much of the commentary on the Aereo case. Much of it echoes a point in Scalia’s dissent, namely that ruling against Aereo puts all sorts of cloud computing services at risk. After all, if it’s a copyright infringement for Aereo to rent you an antenna and some hard disk space, then why shouldn’t it be an infringement for, say, Google to rent you cloud storage that allows you to copy—and potentially share—copyrighted music?
I think David Post has the answer right:
The majority is at pains, in several places, to say that the case is just about broadcast television and the re-transmission of broadcast signals. Not about cloud storage, or streaming services, or gaming platforms, or anything else. Just broadcast TV, and what you may or may not do with over-the-air broadcast signals. Congress has made a choice about those signals; anyone who re-transmits them (like the cable companies do) has to pay royalties to the broadcasters. If that’s what it means … the decision has nothing to say about any other content-delivery or content-storage platforms that deal with the vast array of non-broadcast-TV content.
The Aereo case turns almost entirely on the fact that Aereo was retransmitting TV signals, which are covered by a very specific statute. Despite Scalia’s huffing and puffing, I simply don’t see how this applies to cloud storage platforms.
Beyond that, there’s another crucial distinction: Aereo was explicitly in the business of retransmitting content that was almost 100 percent copyrighted. That’s fundamentally different from a third-party service—email, cloud storage, etc.—that can be used for infringing purposes but has a generally legitimate intent. The Supreme Court has ruled in cases like this before, and it’s why VCRs and Gmail are still around even though people sometimes use them to copy and share copyrighted material with each other, while Napster is dead.
It’s hard not to conclude that much of the opposition to the Aereo decision is based on a simple libertarian dislike of enforcing copyright law at all. But like it or not, commercial TV is almost entirely copyrighted content, and the stations that produce it have every right to control how it’s distributed. The fact that current copyright law is overly expansive doesn’t really affect that.
POSTSCRIPT: It’s interesting that we’ve seen back-to-back decisions that, to my mind, were confirmed in diametrically opposite ways. In the Aereo case, Aereo thought it had discovered a clever loophole in copyright law, but the court ruled against them. The general intent of the law was more important. In the recess appointment case, Senate Republicans found a clever loophole to stay technically in session, and the court ruled that this was perfectly fine. The fact that it was a hypertechnical sham didn’t move them.
