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Supreme Court Debates Aereo's Fate

Justices seemed to be looking for a way ban Aereo without causing collateral damage to cloud computing.

blur geographic boundaries between public and private space and when software blurs the distinction between individual action and the action of an agent doing the individual's bidding. Is the consumer acting through Aereo's equipment or is Aereo responsible?

As Justice Kagan observed, "If Aereo has the hardware in its warehouse as opposed to Aereo selling the hardware to the particular end user, that is going to make all the difference in the world as to whether we have a public performance or not a public performance."

Aereo claims, and the Second Circuit Court agreed, that the performance it transmits is private, like Cablevision's cloud-based DVR. But Cablevision argues otherwise, characterizing Aereo's mini-antennas as an intermediate step in a public performance. What's more, the firm argues, Aereo's subscribers "have no fair use right to make copies merely so they can receive programming over an unlicensed television delivery service."

In a phone interview, Bruce Ewing, a partner in the New York office of Dorsey & Whitney, says he found it unusual that the core legal issue -- the definition of a public performance with regard to the Copyright Act -- wasn't adequately addressed by any of the justices. The legal issue, Ewing says, has been superseded by practical concerns about the consequences to technological innovation and the cloud computing industry if Aereo's approach is found unlawful.

"I think there is a struggle going on among those who spoke... the tone of their questions suggested they are not fond of Aereo's system," he says. "That's clearly not good for Aereo. On the other hand, they don't want to issue a ruling that stifles innovation or would give rise of other lawsuits." He says he doubts that the Supreme Court will overturn the 2008 Cablevision ruling. He also says that he expects the Court will rule against Aereo in the narrowest possible way.

That would minimize the collateral damage to the cloud-computing industry, but it would shirk the more difficult task of reconciling today's technology with the more limited possibilities contemplated by the 1976 Copyright Act.

Mobile, cloud, and BYOD blur the lines between work and home, forcing IT to envision a new identity and access management strategy. Also in the The Future Of Identity issue of InformationWeek: Threats to smart grids are far worse than generally believed, but tools and resources are available to protect them. (Free registration required.)