A DVR in the Cloud Is Still a DVR, and Still Legal

Today, David Post and I filed an amicus brief for ourselves and thirty-four other law professors, arguing that Aereo should win its Supreme Court case. Its service, which lets users record live TV and stream the recordings back to themselves, is functionally identical to a VCR, and it has been settled law for three decades that consumers have a fair use right to use VCRs.

The broadcasters suing Aereo have tried to portray it as being more like a cable network; they argue that it is in the business of retransmitting live TV. But if Aereo retransmits anything, then so do you every time you hit play on your Streambox or your uploaded Dropbox videos. Streambox and Dropbox aren’t cable networks, and neither is Aereo. The broadcasters’ entire theory—that Aereo directly infringes the public performance right—is a gerrymander, an attempt to hide the ball and obscure the fact that it helps consumers record live TV for their own personal consumption.

My long-time readers may remember that I’m not personally a fan of Aereo. But when the Supreme Court took the case, I stepped forward to write an amicus because the issues are much larger than any one company. Others have emphasized the danger the broadcasters’ theory poses to consumer products and cloud computing. Our brief notes the danger the case poses to the integrity and coherence of copyright law itself: the broadcasters’ theory mixes up direct and secondary infringement, confuses the reproduction and public performance rights, and disregards consumers’ fair use rights. It is a “dangerous shortcut” through copyright law.

I am particularly grateful to my co-author, David Post, for his immense effort in pulling the brief together. (Of the two of us, only he is admitted to the Supreme Court bar, so it bears his name as counsel of record.) I am at once proud of and humbled by the many distinguished copyright experts who signed on. And I hope the brief does some good in helping the Supreme Court shape healthy copyright law for our digital future.