• http://www.laweconcenter.org/ Geoffrey Manne

    See our (ICLE and CEI) amicus brief in Aereo (available here: http://www.laweconcenter.org/images/articles/aereo_amicus_icle_cei_final.pdf). What distinguishes Aereo and the cloud services you describe is the availability of a contractual relationship in which licensing terms can be adjusted, if needed, to accommodate what you describe (as happens with videos purchased and stored in Amazon’s Video Library). The point is – if you have legally licensed content that you store in the cloud, your license can accommodate that. But for Aereo, there is no such contractual relationship. Aereo just asserts that the broadcast license is essentially unlimited, but it’s not. There is no reason to read into a broadcast license a right for Aereo to do whatever it wants with broadcast content. (And no one disputes the content is copyrighted; this isn’t a fair use issue.) And end-users aren’t in a position to contract directly (unlike, by definition, legal content that end users place in the cloud). There is thus a limiting principle available that would prevent the presumptive application of a holding against Aereo to cloud services.

    • drwex

      I don’t see how that follows. By the logic of Betamax, the personal recorded copy is lawfully assigned to the person who recorded it. If I execute a license with Aereo that states “you can act as my DVR with your cloud server” how is that different?

      Your argument seems to rest on the idea that the consumer has no private rights in the content Aereo plays for each person, but I don’t think that’s true.

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