Cloud Broadcast Content Storage Service Legality Upheld by U.S. Court

NEWS ANALYSIS: The U.S. Court of Appeals in New York has refused to shut down Aereo, a service that lets users record live broadcast content in the cloud for later consumption.

A service that lets you record live television programs in the cloud for later replay does not infringe on copyrights and should not be shut down. That’s the decision of the U.S. Court of Appeals for the Second Circuit in New York in a case that pitted the major broadcasters against a tiny startup company that stores content in the cloud.

While the court decision was aimed specifically at Aereo, it would apply to any individual or service that was recording and storing broadcast content in the cloud.

Aereo provides a service that features individual Internet-accessible television receivers, each with its own “antenna” and each with access to cloud storage. Aereo lets subscribers view shows in real time, with a slight delay, or for replay at a later time. Subscribers use Aereo as a way to time shift television shows and as a way to skip commercials, just as they might do with a DVR (digital video recorder) at home.

The difference between Aereo and a DVR is that customers don’t have to buy the DVR equipment, which is expensive. The fact that the system uses individual receivers and antennas means that Aereo isn’t considered a cable television service, which also is covered by copyright rules. Instead, the only significant difference between Aereo and an over-the-air television receiver with a DVR attached is that Aereo uses the cloud for storage and has the receiver a distance away from the user rather than at the user’s home or office.

The major television networks said that Aereo was infringing on their copyrights because the cloud-based storage made it a public performance. The court disagreed and held that the use didn’t infringe.

The networks are upset because they worry that people might skip commercials or watch a television show at a time other than the time that they intended, thus upsetting their carefully designed marketing plans. To the networks, those marketing plans really are sacred because they are their cash cows. They don’t really like views deleting commercials from programming stored on DVR’s. But they can’t do anything about that either.

But the decision has implications that reach far beyond just the practice of having television receivers at a distance. The copyright lawsuit sought to strike a distinction between storing program material at home on a VCR or DVR, which is already allowed, and storing it in the cloud, for which there hasn’t been any clear precedent. Now there is.

But the decision also means that it’s legal to store lawfully obtained copyrighted material in the cloud. You’re probably already doing this with a variety of cloud services ranging from Skydrive to iCloud. Had this decision gone the other way, this practice might have been illegal.

“This case was not just about broadcast television; it was a test of the legitimacy of the cloud computing industry,” said Ed Black, president and CEO of the Computer and Communications Industry Association, in a prepared statement. CCIA filed a brief in support of Aereo. “Today, the Second Circuit agreed with us that users should be able to access their own, lawfully acquired content in the cloud without the fear of being branded pirates.”

In his statement, Black noted that the television networks and movie studios have a long history of battling technology because of their fear that it might cost them money.

“As technology evolves, the battles to block it are unfortunately similar to those faced decades ago. Too often still, some entrenched businesses would rather sue rather than evolve,” Black said in his prepared statement.

“We saw that in the 1980s when TV and movie makers tried to block the Betamax so consumers couldn’t record content to watch later, and again with the Aereo case as more people use the Internet to watch programs later. Today’s ruling is a victory for consumers, but also for the growing cloud industry that will now be able to better offer opportunities for [viewers] to watch the content they want on the device of their choice.”

It’s worth noting that despite the fierce opposition of the networks and studios to any advance in technology, including the cloud, the ultimate outcome has consistently been that they make more money when they embrace the technology than they ever do while fighting it.

But perhaps more important, the decision in the Second Circuit means that it’s legal to store your data in the cloud. This means that if you want to back up your music to your Carbonite storage, or you want to store a book chapter in Evernote, you’re not violating copyright law.

What the court figured out was that the cloud was effectively an extension of the computer you’re using and the fact that it’s not physically present at your home or office is beside the point. It’s still your storage, and if you obtained the copyrighted material legally, then you can store it in the cloud just as you can store it on the hard disk on your computer.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...