 Analysis 
 
 In the digital age, perhaps only someone as old as Justice Stephen G. Breyer (or older) would fret about what might happen to a store that sells “phonograph records.” It is doubtful, in the extreme, whether there are any of those anymore, but no matter: Breyer and other Justices searched on Tuesday for ways to demonstrate that they want to be careful about what they do about today’s modes of entertainment. Under a compulsory license, Aereo would have to pay broadcasters for the content but wouldn't face the daunting task of negotiating for a license from each copyright owner. Once again, the broadcasters argued that hardware providers are not involved in the performance, but is just providing the tools needed for an end-user to access a private performance. “That’s different from an ongoing service, like a cable company or like Aereo,” said the broadcasters’ attorney, “who still owns all these facilities and they’re providing, through wire transmissions, these performances on an ongoing basis.” 
 
 AN ISSUE OF LOCATION 
 
 Justice Kagan asked the broadcasters to clarify the importance of distance and location in making this distinction. “In other words, if Aereo has the hardware in its warehouse as opposed to Aereo selling the hardware to the particular end-user, that is going to make all the difference in the world as to whether we have a public performance or not a public performance,” she asked. “There’s a fundamental difference between a service that… provides new content to all sorts of end-­users — essentially any paying stranger — and a service that provides a locker, a storage service,” argued the broadcasters, who used the analogous comparison of the difference between a car dealer and a valet parking service. “If I show up at the car dealership without a car, I’m going to be able to get a car. Both of them, he said, provide cars to the public, but the dealer is providing a car, while the valet parker provides a service. If what Aereo does is illegal, he argued, “every time somebody stores something in the cloud, whether it’s a song, a video image or the like, if it happens to be something that somebody else has stored in the cloud, the act of one person initiating it and perceiving it is going to implicate the public performance right, . “And that’s why the cloud computing industry is freaked out about this case, because they’ve invested tens of billions of dollars on the notion that a user-­specific, user-­initiated copy, when perceived by that person, is a private performance and not a public performance.” 
 
 THE DEATH OF THE CLOUD DVR? It was the best hope for Aereo, because that company — and its lawyers — have basically argued that the whole legal issue surrounding its system is solved because the individual consumer makes all of the choices; thus, no illegal public performance of copyrighted works. Regardless, Frederick said legality of the recordings wasn't at issue because, as the broadcasters recognized earlier in the case, the Supreme Court held in the Sony Betamax case that people have a fair-use right to record TV shows for later viewing.
– The Supreme Court heard oral arguments yesterday in ABC v. Aereo, a much-watched case that could have big implications for both cloud computing and broadcast television—implications the justices didn't seem comfortable with. Aereo allows users to record broadcast TV online and watch it at their leisure. The major broadcast networks are suing it for copyright violation, and stand to lose billions in fees cable companies pay to carry their programming. Aereo says it's simply renting users the equipment to do online what they can legally do at home. Here's how the arguments went: "If you're comfortable with the Supreme Court resolving disputes over technology, the transcript of Tuesday's oral arguments … should change your mind," writes Jon Healey at the LA Times. Stephen Breyer at one point made an analogy to "what used to be called a phonograph record store." He also worried that Aereo's antennas could "pick up every television signal in the world," which isn't true, Healey pointed out, "because the world isn't, you know, flat." The justices seemed skeptical of Aereo's business model. "It's not logical to me that you can make these millions of copies and essentially sell them to the public," Sonia Sotomayor said. John Roberts said the company was only using thousands of small antennas, instead of a few big ones "to get around copyright laws," the Wall Street Journal reports. But the justices also seemed genuinely worried that their decision could stifle innovation. Sotomayor asked what effect this would have on "the Dropbox and the iCloud." When the broadcasters' lawyers told them to "just be confident" that Aereo's service was different, Samuel Alito said, "I don't find that very satisfying. … I need to understand what effect it will have on these other technologies." Aereo's best hope is that the justices adhere to a lower court's Cartoon Network vs. Cablevision ruling, which held that customers could make DVR recordings on Cablevision's hard drives, writes Lyle Denniston at SCOTUSblog. At one point, Anthony Kennedy suggested lawyers pretend that decision had come from the high court. Ultimately, the justices didn't seem to like their options. "This is really hard for me," Sotomayor confessed. "I don't see how to get out of it," Breyer agreed.