CLOUD COMPUTING
satisfi ed. What it doesn’t say is that the person responsible for the ‘electronic storage area’—the cloud—is also not liable for the infringement,” he says.
“On the face of the exception, the cloud provider is not put in a better position than it is in currently.”
Ownership
Another ambiguity that oſt en rears its head in issues of digital copyright is the question of content ownership. Of course, the rules that govern ownership in a digital context simply aren’t as straightforward as they are in the physical world.
“If you have a CD, you own the CD, or the physical piece of plastic—but
that kind of
thinking hasn’t been converted into ownership of the digital equivalent,” says Rendle.
English law hasn’t arrived at any decision on whether you can have an ownership interest over these fi les, he adds.
T is can be, and will continue to be, problematic, as long as the cloud industry continues to expand and services shut up shop in the midst of increasing competition.
When US authorities shut down Megaupload, a fi le-sharing site that works in much the same way as a cloud, they cut off users’ access to countless personal fi les that were legitimately stored with the service.
One such user to lose access to his fi les was Kyle Goodwin.
According to the Electronic Frontier
Foundation, an organisation that seeks to protect digital rights, when it fi led a brief on behalf of Goodwin proposing a way for the court to hold the government accountable for its actions, the government claimed that Goodwin had lost his property rights over the data by storing it on a cloud computing service.
“You certainly don’t own any rights in data per se,” says Rendle. “When you download a music track, or e-book, you don’t have any ownership rights over that piece of data.
“What hasn’t been properly clarifi ed is what ownership interest you have over an intangible version of what you would have owned with a physical CD or book.”
T e defi nition of ownership in the digital world is in fl ux. “People talk about ownership in terms of transfer and ability to access,” Rendle continues.
26 Trademarks & Brands Online Volume 3, Issue 2
“We need an exception to IP infringement to enable you to transfer a digital fi le in a way you can’t for a CD or physical product.”
Is cloud computing a public performance?
While there is little case law to refer to when dealing with copyright issues in the cloud, the American Broadcasting Companies v Aereo case, currently being argued at the US Supreme Court, may have implications on how the cloud computing industry works.
Aereo is a US-based TV service that allows
subscribers to watch live and time-shiſt ed television broadcasts over the internet. A group of US TV networks, including ABC and Fox, sued Aereo shortly aſt er its launch in 2012, claiming the service infringes their copyright .
T e case will decide whether Aereo’s
retransmissions of live TV programmes are “public performances”, which would be a potential infringement of copyright.
Groups including the public interest group the Center for Democracy & Technology and T e Soſt ware Alliance, an association of technology companies, have fi led amicus briefs warning of the case’s implications
for cloud computing,
which underpins the working practices of countless businesses.
“Adopting such an overly broad approach to the public performance right would call into question a variety of established and mainstream services. It could impair technological progress by establishing an irrational legal preference for local technologies over networked ones,” the Center for Democracy & Technology said in its brief.
“It could threaten the great promise of cloud computing for individual users, businesses, and economic growth,” it added.
“IF YOU HAVE A CD, YOU OWN THE CD, OR THE PHYSICAL PIECE OF PLASTIC—BUT THAT KIND OF THINKING HASN’T BEEN CONVERTED INTO OWNERSHIP OF THE DIGITAL EQUIVALENT.”
Although it’s not a particularly new
technology—it emerged at the same time as the internet—cloud computing is comfortably within the maturity phase of IT research and advisory fi rm Gartner’s ‘hype cycle’ for emerging technologies, which models the rate of adoption of certain technologies; it is now enjoying its ‘plateau of productivity’.
Aereo should provide some answers to the unanswered questions, and it can’t be long before other cases, which may or may not be directly related to cloud technology, will do the same.
www.trademarksandbrandsonline.com
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