...the Court seemed to recognize some of the ways in which a cloud storage platform might distinguish itself from Aereo and from the result reached in this case – beyond merely “not looking like” a cable company.
Perhaps to the relief of those who saw this case as a potential setback for cloud computing technology, the majority opinion took great pains to emphasize what it was not deciding in addition to what it was. And it seems clear that at least one of the many things that was not decided was whether a cloud storage platform, such as Dropbox or iCloud, would run afoul of the copyright laws’ protection of the “public performance” right in providing access to video recordings and other copyrighted content stored by its users.
Indeed, in noting what was not being decided, the Court seemed to recognize some of the ways in which a cloud storage platform might distinguish itself from Aereo and from the result reached in this case – beyond merely “not looking like” a cable company. For example, the Court noted that it has “not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content.”
Additionally, in noting that the term “the public” “does not extend to those who act as owners or possessors of the relevant product,” the Court seems to suggest that an instance in which a user of a cloud-based storage platform purchases copyrighted content – and then stores it in the cloud for personal playback on demand – would not implicate the “public performance” right at issue in this case, at least because the user lawfully owns and possesses that content.
Nevertheless, it will be interesting to see what new issues may arise in this case once it returns to the lower court, particularly in view of the concerns raised by Justice Scalia in his dissent, such as how, if at all, the Court’s opinion will affect the legality of Aereo’s “record” function. For now, however, the majority’s limited ruling with respect to Aereo and its technology should not affect – and hopefully will not have a chilling effect on – future development of cloud computing technologies.
[Rajit Kapur is an intellectual property attorney at law firm Banner & Witcoff. He has handled a broad range of intellectual property issues in a number of different technical areas, including matters involving computer software, mobile devices, Internet applications, video games, graphical user interfaces, and financial products and services, among others.]