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TV Viewers, the Cloud Computing Industry, and Internet Users Watch Supreme Court Copyright Clash

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TV watchers and anyone who cares about cloud computing as a proven engine for economic progress should be paying close attention to the U.S. Supreme Court Tuesday. It is considering what may be its most important intellectual property case this year: a dispute between ABC and other broadcasters against New York-based tech startup, Aereo. Aereo allows users to "watch live TV online... no cable required." But innovative Aereo has seen plenty of legal strings attached since its February 2012 launch in New York City.

Traditional broadcasters have fought unsuccessfully to put Aereo out of the business of enabling the public to more easily access what's broadcast on the public's airwaves. The resolution of this plot in the Supreme Court this month matters immediately to millions of TV viewers, but it will also foreshadow the future of access to legal content stored on the Internet.

My technology trade organization is arguing in an amicus brief with the Mozilla Corporation that the legal questions before the court may severely impact other innovative cloud computing services. If Aereo is successfully attacked, many cloud-based Internet services will be greatly endangered. The high court should not let this happen, including for reasons that extend far beyond the obvious broadcasting issues.

Aereo enables people to stream to themselves content they're lawfully entitled to receive. Aereo's technology lets users access free, over-the-air broadcast television on Internet-enabled devices, basically by renting them a dime-sized antenna that can be tuned to the subscriber's local broadcasts. Many cloud-based products that include iCloud, SkyDrive, Google Drive, Dropbox, and web-based apps like email operate in similar ways.

But broadcasters argue that even if people are entitled to receive what is broadcast on the public airwaves, that sending it over the Internet makes it a "public performance." The idea that you're entitled to receive your own stuff over the Internet is essential to fulfilling the promise of the cloud.

The value of cloud storage is that all our digital assets and files are instantly available to us all of the time, wherever we are, perpetually backed up. That promise can't be realized if you need permission to send yourself your own stuff. This is why a Supreme Court ruling against Aereo could endanger billions of investment in the cloud computing sector.

A landmark 2008 Second Circuit decision in the pivotal "Cablevision" case helped solidify the legal standing of cloud computing, bringing with it much needed clarity and a subsequent surge of investment and growth for the cloud sector. The broadcasters now petitioning the Supreme Court, however, insist that "any device or process" that transmits works to the public creates a public performance, each of which must be licensed as a new copyright work and paid for. Given that cloud services could be a "device or process," this might mean cloud providers need to license every file in the cloud, every time they give users access to their own remotely-stored content -- an unworkable and ultimately fatal mandate for the industry.

This case may have begun around how to watch what's on the public airwaves, but it will be a drama played out on all of our Internet screens, potentially at the expense of the U.S. economy.

To its credit, Aereo took the unconventional position of agreeing to a Supreme Court review for a case it had previously won, opting against a "wasteful war of attrition" against broadcasters, instead calling for a transparent debate on the merits. The resolution of this debate, however, will go beyond the fortunes of any one company and speaks to the very heart of one of the fastest growing sectors of the technology industry.

 
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