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Court's Aereo Decision Narrow Enough for Some, Continues to Raise Questions for Others

But the case largely succeeded in not placing the legal environment that the cloud computing operates in doubt, he said.

Similarly, Emery Simon, counselor for the Business Software Alliance, saw the decision as a narrow one. He didn’t see “direct or very imminent” impacts on computers and software.

The court’s decision that Aereo looks like a cable service affected a “pretty narrow segment of businesses,” he said.

The Business Software Alliance had also filed an amicus brief in support of neither party, but only expressing concern over the potential impact on cloud computing.

The concern, Simon said, was that the case would somehow undermine cloud computing’s architecture, but the court came up with a pretty narrow holding, he said.

And while there might be a desire for more clarity, the decision doesn’t create “new kinds of risks,” he said.

But Grimmelmann sees a lack of clarity as a problem. The majority didn’t provide clear answers, he said, to the question of how to limit the holding to things that attempt to imitate cable. They didn’t articulate what would differentiate other technologies, he said.

Grimmelmann contended the decision could have unintended consequences for cloud services and other consumer devices.

For example, the majority gave a set of arguments on why something like Dropbox, which allows users to store material for access on multiple devices, might be different, but they’re confusing, he said.

Grimmelmann also said the court majority wasn’t clear on the question of direct and indirect infringement of copyright, but regardless, if, as the majority says, Aereo was performing, why wouldn’t that also apply to a pending case dealing with Dish’s Hopper DVR?

Matthew Schruers, vice president of law and policy at the Computer & Communications Industry Association, of which Aereo is a member, said the justices were clear they didn’t intend for there to be broad implications, but it’s difficult to say how lower courts will interpret the opinion.

The decision somewhat validated concerns the CCIA laid out in a joint amicus brief with Mozilla in support of Aereo, he said.

“I don’t think Dropbox has serious legal liability,” he said at a panel event, but with more features getting added to existing cloud services, he said he’s increasingly concerned that someone could say that “under Aereo, you kind of look like you’re exercising a right, therefore you’re liable.”

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