Clear Skies Ahead: Why the Supreme Court’s Decision in Aereo Should Have Limited Copyright Implications on Cloud Technology – Note by Mark Cikowski

From Volume 89, Number 4 (May 2016)

Despite Justice Scalia’s dissent and the claims of Aereo and its amici, this Note will argue that, when viewed on the whole, any potential fears that the Aereo decision could implicate the legality of cloud-based technology or affect copyright infringement analysis with respect to this industry are likely unwarranted. First, there are substantial structural differences between how Aereo operated and how cloud-based services (particularly remote storage systems) continue to run. Second, the Aereo decision is a narrow response particularly attenuated to that company’s practice of functioning like a traditional cable system while failing to pay the fees required by such systems when they rechannel broadcast networks’ signals. Thus, because the case addresses such a specific factual scenario, its holding is unlikely to be extended to other cloud-based services. To illustrate this point, Part I will discuss Aereo’s technology to clarify how the system physically functioned to stream practically live television through the Internet. Part II will analyze the key reasons why the Supreme Court found this particular technology to violate the networks’ rights, while also analyzing Justice Scalia’s concerns about potential fallout from the majority opinion, particularly with respect to the cloud industry. And finally, Part III will contrast Aereo’s technological infrastructure with that of several common cloud-computing service providers and will examine the shortcomings of the argument that Aereo leaves in flux: the legality of cloud-computing services and the copyright infringement analysis with respect to those services.