Top broadcast lawyer: Aereo case is not about cloud computing


One of the top lawyers for television broadcasters is pushing back on the tech industry’s argument that a copyright case in front of the Supreme Court could end cloud computing.

“Much is at stake in the Supreme Court's decision in this case. ... But what is not at stake is cloud computing,” Neal Katyal wrote in an op-ed in The Hollywood Reporter, discussing a case between broadcasters and video streaming service Aereo.

Katyal, former U.S. acting solicitor general, is a partner at Hogan Lovells and adviser to the broadcasters, including in their case against Aereo, which was argued in front of the Supreme Court earlier this month.

That case pits broadcasters against Aereo, a video streaming tech company that allows users to watch and record broadcast content over the Internet.

Broadcasters say that Aereo is violating copyright law because it does not compensate them for the programming it sells to users, but Aereo says that its service operates within copyright law because it uses cloud computing to store and transmit video programming that would be free over-the-air with an antenna.

The tech industry has largely sided with Aereo, urging the court to protect businesses models that rely on cloud storage, but broadcasters disagree.

“This case is not about cloud computing,” Katyal wrote in Wednesday’s op-ed. “The sky is not falling, and neither is the cloud.”

Katyal drew a distinction between Aereo and cloud-based services that involve legally purchased or licensed content, such as iTunes or Amazon.

“Licensed services like Netflix, Amazon and iTunes play by the rules, and that means their services are not at issue here. ... Aereo, on the other hand, is an illegitimate, unlicensed streaming service,” he wrote.

According to Katyal, the Supreme Court is also eyeing that distinction.

At oral arguments, justices “repeatedly mentioned the line between merely passive storage, on the one hand, and active content-distribution services, on the other,” he wrote.