What is the Solicitor General Arguing in Aereo?

In a comment on yesterday's discussion of arguments against Aereo and their implications, J.S. Greenfield argues that I have mischaracterized the position taken by the US Government.

Greenfield points to his own blog entry that discusses what appear to be self-contradictory arguments the SG's office is making. Greenfield notes that there's an important question of "equipment rentals" involved and that one of the issues SCOTUS will need to consider is who is actually doing the "transmitting" of the signal from the cloud DVR to end device. It will make a great deal of difference if the Court decides that the end user is the one doing the transmitting (essentially, downloading their own data) versus Aereo doing the transmitting.

If you believe that latter position, then you can argue that Aereo's system is distinguishable from Cablevision's system because Aereo lacks a license to transmit, which Cablevision has. This would allow the Court to rule against Aereo as a company and business model while still allowing the existing Cablevision decision to stand. If that decision stands, then the threat to cloud storage systems is much less. Except Greenfield argues that distinction rests on (what I would characterize) as nonsense.

In specific he argues that the S.G.'s office brief points to "[a] centralized server and other shared equipment" as well as the way that Aereo dynamically allocates its resources to meet customer demand. Which is, work with me here, pretty much exactly what every other cloud storage provider does. Aereo's architecture may look insane but that doesn't mean it has to ignore basic computer science.

The bottom line in Greenfield's blog is that the government has not offered any logical way to distinguish this case from other potential cloud-storage provider cases and so we're right back where Matt Schruers said we were: If Aereo goes down, a whole lot of next-gen computing solutions are going to be in deep trouble.