Prof. Doug Lichtman, UCLA School of Law
April 30, 2014
As copyright aficionados well know, the Aereo case raises what is widely perceived to be a thorny issue: If Aereo engages in public performance, wouldn’t that same logic imply that cloud storage providers like DropBox also engage in public performance? Arguing at the Supreme Court last week, Paul Clement tried to answer this “parade of horribles”-style question by offering a not-so-compelling analogy to car dealers and valet parking services. At that same oral argument, Malcolm Stewart tried to answer a few versions of the question, too, although he ultimately seemed to concede that he simply did not have a good response.
Me? I do not understand why the answer isn’t simply a loud, unbashful acknowledgment that yes, cloud storage can indeed constitute public performance.
Start with the core example. Suppose that several users each independently upload a digital copy of a copyrighted program, for example an episode of “Seinfeld.” If DropBox were to stream that content back to each relevant user, DropBox would be using discrete copies of the same performance to generate discrete transmissions to different users at different times. I write that sentence awkwardly in order to make clear the analogy to Aereo. Like Aereo, DropBox would be working with multiple discrete digital copies of the same copyrighted content. And, like Aereo, DropBox would be engaged in one-to-one transmission, where each copy would lead to a specific transmission to a specific user. So, does that mean that DropBox in this situation would be engaged in the unauthorized public performance of copyrighted content? Um, yes.
Note what I am not saying. I am not saying that DropBox should or could be held liable for this act of public performance. After all, Section 512 of the Digital Millennium Copyright Act already provides a safe harbor that protects DropBox from any exposure. As that provision makes clear, an entity that infringes copyright because it is using materials uploaded by a user cannot be held liable so long as it satisfies some specific conditions that (roughly) combine to ensure that the infringement is inadvertent rather than fully intentional.
I also am not arguing against what I understand to be the conventional wisdom that DropBox is not Aereo. Indeed, I submit that my approach honors the conventional wisdom even more than an approach that would let both Aereo and DropBox off the hook. After all, those of us who are intuitively sympathetic to DropBox presumably are not sympathetic because we have some hard-to-articulate intuitive sense about what it means to engage in public performance, but instead because we recognize that DropBox is innocent in a way that Aereo is not: DropBox does not know what it is streaming, whereas Aereo was built to stream broadcast television without permission. Huzzah! Section 512 is explicitly built on that same intuition.
So what’s with all the hand wringing, the car analogies, and the humble admissions that this is somehow a hard question? There is a black-letter-law answer to the question about cloud computing. The answer is that cloud storage providers might well infringe the public performance right, but Congress has already absolved those providers from liability under Section 512 of the DMCA.
Aereo is an easy case. There is no “parade of horribles” to worry about in the sense of there being some string of innocent technologies that might accidentally be included in the precedent that an Aereo condemnation would create. There is only one horrible here, Aereo, and the Supreme Court should shut that one down come June.