Cloud Computing and the RIAA

By Asher Kest

Reviewed by Cynthia Amis

Cloud computing is becoming an ever more popular computational resource, obviating the need for a localized hard drive or software. The convenience of having multiple devices with the ability to tap into the same resources from different platforms and the sharing and networking capabilities implied therein has led to widespread development of cloud computing platforms, and increasing adoption in the private and now the public sector.

As the cloud system is put into use, it has drawn attention to a number of legal issues that such an operating system presents, such as the nature of jurisdiction when a cloud network is used in committing a crime. The ever-vigilant RIAA is now concerned as well; the file sharing capabilities of cloud computing seem to be a concern, as any platform with the ability to spread copyrighted materials seems to be. The RIAA has now filed legal action against the cloud computing service Box.net, one of the popular providers of such services. Box.net was started with partial funding from well-known investor Mark Cuban, and has been called “the Facebook of cloud computing.”

The RIAA filed a 512(h) subpoena[1], which is essentially an action to identify whether or not contributory infringement has taken place, and to allow the contributory party the chance to remove the offending material under the safe harbor provisions of the Digital Millenium Copyright Act (DMCA). The safe harbor provision and the attendant notice and takedown aspects have been used in the past to obtain the compliance of ISP providers in removing infringing material on the internet. There has been some controversy regarding this aspect of the DMCA, however, as the desire to avoid contributory liability has led to what some think is an abuse of the system beyond what the law actually protects in copyright; many consider the use of such provisions to often be intimidation to obtain the result that large copyrighting entities desire.

To RIAA on the other hand, the threat presented to their copyrights by cloud computing is not unlike peer to per platforms such as Limewire and data storage websites such as Rapidshare. Although Limewire recently settled an infringement case with the RIAA for $105 million, the Rapidshare model of file sharing to enable copyright infringement shows no signs of slowing at present.

Although the RIAA appears to be pursuing a similar direction to their pursuits of copyright protection on the internet, it may be more problematic in regards to cloud computing. Cases such as MGM Studios, Inc. v. Grokster, Ltd.[2] Have illustrated that software and other platforms that are primarily used for copyright infringement may be held liable, even if there is a genuine use associated with them. However, seemingly more relevant to cloud computing technology is the Sony Corp. of America v. Universal City Studios, Inc. case,[3] where the Supreme Court held that because the primary use of Sony’s video recording technology was not infringing, Sony could not be held contributorily liable for other, infringing uses. Given the widespread recognition of cloud computing’s possibilities for business and public use, it would be a tough case to make that platforms such as Box.net are responsible for contributory infringement. Although online “storage lockers” have been held liable in the past, as in UMG v. MP3.com,[4] in this case there is no copying of the copyrighted materials, and furthermore cloud computing primary use does not involve media files per se.

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