Aereo Decision—What About Cloud Computing?

A recent Legal Broadcast Network report discussed the Supreme Court’s decision in American Broadcasting Cos. v. Aereo, Inc., focusing on the effect the decision would immediately have on Aereo’s future. In this report, attorney Craig Whitney discusses some broader aspects of the case.

Craig Whitney

Craig Whitney

Aereo’s business model uses cloud computing to deliver stored television signals that are gathered by individual antennas, one per customer. The ruling in the Aereo case avoided any language that would damage the cloud computing industry, limiting itself to the facts of the case and the Aereo technology. Aereo could still carry on its business, but only by paying television companies for rebroadcast rights. Aereo has not abandoned the fight.

The case also involves the question of who is infringing copyrights—Aereo or the end user. Whitney notes that Justice Scalia made this point about the difference between direct and secondary liability for infringement, citing the MGM v. Grokster decision. Grokster was secondarily liable; the user was the primary infringer. Justice Scalia’s point in his dissent was that Aereo was also merely a secondary infringer, so the majority opinion was incorrect.

The Court did not hold that viewers and downloaders were different types of users. Whitney opines that people will always try to innovate. The Court’s intention here was to provide an interpretation of the law already existing. “Clarity in the law is always helpful,” Whitney notes, so that innovators will understand the rules and know the limits of what they can legally do.

Craig Whitney is Of Counsel in the Litigation Department of the New York office of  Morrison & Foerster LLP and a member of the firm’s Intellectual Property Group. Mr. Whitney’s practice involves a broad range of complex intellectual property and other commercial litigation matters, focusing primarily on copyright and trademark infringement litigation. The Legal Broadcast Network is a featured network of the Sequence Media Group.