Is Aereo About TV Or The Cloud?

Julianne Pepitone's review of the upcoming US Supreme Court case American Broadcasting Companies, Inc. versus Aereo nicely covers the case's implications on two big industries, old and new: television and cloud computing. (P.S. Thanks for the shout-out to me, Julianne!) The potential impact on the TV industry is pretty clear, but the cloud? I'm not a lawyer, but the issue is likely to turn on the difference between the copy being in the cloud or in your home.

In 1984, the Supreme Court upheld the right of individuals to make a recording of a television program for their private viewing in what has become known as the Betamax case. So far, lower courts have used this precedent, in combination with Aereo's clever technical design, to say Aereo is legal. For the Supreme Court to rule against Aereo, it will have to find that some aspect of their model is different from a VCR. 

And there it is: The VCR sits in your living room, while Aereo is in the cloud. No doubt ABC and the broadcast industry will make the case that this is a crucial difference and since Aereo is the entity sitting on these copies of their programming, Aereo is infringing on their copyright. It will be fascinating to see the arguments in detail and see how the Court views them.

Julianne notes in her article:

If the court rules against Aereo, the startup and its supporters warn the ramifications could put other services that use remote, or cloud-based, storage -- Google Drive, Dropbox, remote DVRs and many more -- at risk. Any of those outcomes depend on the scope of the Supreme Court’s decision.

This seems like a stretch: The Aereo case is primarily about content ownership and copyright. When a consumer or a company puts documents, photos, etc. in the cloud, they make a conscious choice with items they own. The still have full control over whom they share their content with, and one of the benefits of cloud is that it is theoretically less vulnerable to hacking than a private network; thus no unauthorized person can get their hands on it.

The issue in Aereo is about whether the content owners give up some control since they have made a conscious decision to put their programming onto the public airwaves that anyone can grab for the price of an antenna, and whether renting the antenna and storage capability in a remote data center is different than buying and installing it on your own home. The cloud here seems incidental to the core issue, IMHO.

These two uses of the cloud seem so distant that the Aereo case is unlikely to impact cloud computing. Would you argue the case differently?