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Open Internet

Cloud Computing Threatened in Aereo Supreme Court Case

CDT and a group of trade association allies warned the Supreme Court today that the stakes in the Aereo case go well beyond just television. In an amicus brief, we explained to the Court that the wrong approach to this case could undermine the cloud computing industry by creating new legal risks for services that store and transmit data from remote locations. We urged the Court to avoid any such approach. In the brief, we didn’t take a position on the legality of Aereo’s particular service, which enables users to watch local broadcast programming over the Internet.

CDT believes that cloud computing plays an important role in facilitating online innovation and speech. It makes powerful computing resources once available only to large entities now broadly available via shared platforms, in a manner that is efficient, secure, flexible, and scalable.

With that in mind, back in 2007 CDT helped lead a coalition that defended Cablevision’s right to offer a digital video recorder device that stored user-recorded programs on a remote server instead of on a hard drive in a set top box. Our point was that copyright law shouldn’t discriminate against products that use the Internet to provide storage and computing functions from remote locations – in other words, cloud computing. The Second Circuit Court of Appeals ultimately agreed, establishing a crucial legal foundation for the growth of cloud computing.

Now, Aereo’s opponents are urging the Supreme Court to toss aside key elements of the earlier Cablevision decision. They seek to interpret copyright’s “public performance” right in a way that could raise serious legal questions for services that enable remote access to data recorded or stored by users. Our brief today, like our December brief in a similar case before the D.C. Circuit Court of Appeals, stressed that an overly broad view of the public performance right would chill the promise and progress of cloud computing.

Hopefully our brief, and the broad participation it garnered from trade associations representing communications and technologies industries, will help drive home to the Court that the lurking issues for cloud computing are real and significant. We should find out this summer whether the Supreme Court heeds the warning.