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After Aereo, the Cloud Comes Under Scrutiny

Discussions of the Aereo case on broadcast copyrights often include references to the Cablevision court case in 2008 and its importance to “cloud” computing.

The case of Cartoon Network LP v. CSC Holdings Inc., decided by the U.S. Court of Appeals for the 2nd Circuit, was one of the cloud’s most important, said Matthew Schruers, vice president of law and policy at the Computer & Communications Industry Association, which wrote a joint amicus brief with Mozilla in support of Aereo.

“What Cablevision said is if a service makes a work available to a user over the Internet, that the user put there — so you put it in the cloud and then the cloud kind of plays it back to you — that’s a private performance not regulated by the Copyright Act,” he said.

The case, he said, involved a remote digital video recorder and Cablevision essentially argued that “our lives would be a lot easier if all our customers had a TiVo but the TiVo was on our premises, not the customer’s premises.”

“But the complaint was, ‘Well hey, you’re performing these works over the Internet to … your customers even though it’s your customer’s box, your system is doing the transmitting,’ and the court said, ‘No, that’s private,’” he said.

When that decision was handed down, Schruers said, “lots of cloud services said, ‘Wow, if we give people  . . .  a place to put their own stuff, we will not be publicly performing when our consumers — our users — play back their stuff to themselves.’”

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