Cloud confusion sparked by Aereo ruling’s ‘guilt by resemblance’


Depending who you ask, companies producing cloud technologies ought to either shudder or shrug after the US Supreme Court ruled against Web streaming service Aereo on Wednesday.

In short: There is a lot of confusion about the future of the cloud after the ruling.

From one point-of-view, Aereo isn’t all that different from other providers of cloud-based services. The company takes something that consumers legally have access to — free over-the-air TV broadcasts — and puts it in the cloud for consumers to watch, either live or through DVR storage. Google, Apple, Dropbox, and other cloud providers do resemble that sort of model in a sense.

And that’s where the concern comes from. Aereo is illegal because it “looks a lot like a cable system” — not because it actually violates copyright law, Justice Antonin Scalia wrote in his dissent to the Supreme Court’s majority opinion. He describes the concept as “guilt by resemblance.”

As for what that means for the cloud: “The Court vows that its ruling will not affect cloud-storage providers and cable-television systems … but it cannot deliver on that promise given the imprecision of its result-driven rule,” Scalia wrote.

Thus, other cloud technologies in existence — or that could be developed in the future — have grounds to worry that “guilt by resemblance” could apply to them too. As one writer in the Guardian puts it, one stark possibility is that future courts “will decide that those ‘behind-the-scenes technological differences’ aren’t so important either – imperiling a wide array of innovative cloud computing services.”

Or not. Anderson Duff, a former media law clerk for NBC who’s now an attorney with Wolf Greenfield in Boston, believes the chance of chilling effects from the ruling are negligible. The specifics of the case should ensure that the precedent doesn’t apply to cloud companies who aren’t trying to make a business using broadcast content, Duff said. “I don’t see it as having a dramatic effect on these other business models,” he said. “I think it’s been a little bit overblown.”

The disagreement about what the Aereo decision really means for the cloud will likely persist for some time.

Scalia’s prediction: Because of the “guilt by resemblance” approach taken by the court, the ruling “will sow confusion for years to come.”

Image of a stormy cloud via Shutterstock.

Kyle Alspach has worked in journalism in Massachusetts since 2005 and was one of the original staff writers at BetaBoston.
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