In some respects, these actions overlap on various points.

On July 26, the Department of Justice published several advance notices of proposed rulemaking (ANPRMs) , including an ANPRM requesting comment on various issues related to extending the Department’s accessibility guidelines to goods, services, programs and activities provided to the public by the twelve categories of "public accommodations" that are currently covered by its regulations. Public comments will be accepted for 180 days after the publication date of the ANPRM. The three other notices released by the Department on the same day addressed movie captioning and video description, accessibility of next-generation 9-1-1 services, and certain kinds of electronic and information technology, such as POS devices, kiosks and ATMs.

Some of the areas covered by the Department of Justice ANPRMs are also covered by H.R. 3101, the "Twentieth Century Communications and Video Accessibility Act of 2010," which was voted on favorably by the House of Representatives on July 26 and is now pending in the Senate.  The Report accompanying the amended version of the bill is available here. A companion Senate bill, S. 3304, which is similar but not identical, passed the Senate on August 6. According to the statement of Rep. Edward Markey, author of the legislation, H.R. 3101 is aimed at making access to the Web easier through improved user interfaces for smart phones; requiring audible descriptions of TV on-screen action; making cable TV program guides and selection menus accessible to the visually impaired; requiring captioning of online TV; making closed captioning more accessible through improved remote controls; and requiring telecom equipment used to make calls over the Internet to be compatible with hearing aids.

The provisions of H.R. 3101 appear to be partially overlapped by a Federal Communications Commission Further Notice of Proposed Rulemaking seeking comment on potential revisions in its rules to ensure that individuals with hearing loss have the fullest possible access to wireless communications devices and services, which, among other things, requests comment on the extension of the agency’s rules to VoIP calls.

Web site operators should take particular notice of the Department of Justice proposal to extend the accessibility requirements of the Americans with Disabilities Act to Web sites. The ANPRM notes the conflicting rulings of the applicability of the ADA to Web sites. Compare National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006) ("[t]o limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute") with Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002)(Web site is only covered if it affects access to a physical place of public accommodation). But the Department takes the position that "the ADA mandate for ‘full and equal enjoyment’ requires nondiscrimination by a place of public accommodation in the offering of all its goods and services, including those offered via websites."

The discussion at the seminar was planned in advanced, and I felt vindicated on the day of the event when Ben Worthen’s Wall Street Journal Business Blog contained a post entitled Overuse Clouds Buzz Term’s Meaning, making precisely the same point, i.e., that the term is applied in a confusing way to many different technologies.

Well today, Ben Worthen has written of his vindication by no less than Larry Ellison, the CEO of Oracle, who admitted in a meeting with analysts that he doesn’t know what the term means either, referring to the computing industry as "fashion-driven" and the term as "gibberish." That won’t stop him from advertising Oracle products using the term, though, he allows: "I’m not going to fight this thing. But I don’t understand what we would do differently in the light of cloud computing other than change the wording of some of our ads. That’s my view."

So, in the midst of all these admissions of confusion, if you wish to get a good sense of the scope of the term, and of some of the specific types of technologies that it may describe, I highly recommend an InfoWorld article published last April, "What Cloud Computing Really Means," by Galen Gruman and Eric Knorr. The article categorizes and describes that various technologies that may be included in the term, and provides helpful examples of each.

And PS, if you would like to receive an invitation to next year’s New Media, Technology and the Law seminar in New York, please send me an e-mail at jneuburger[at]proskauer.com and I will add you to our mailing list. You can view the agenda for this year’s event here.

Added Mon. 9/23:

And now Steve Ballmer, CEO of Microsoft has jumped in, commenting that a group of venture capitalists were using the term completely differently than he was using it. As quoted by Jonathan Skillings on CNET, Ballmer commented: "I think when people talk about cloud computing they’re talking about taking some stuff, putting it outside the firewall, and perhaps putting it on servers that are also shared–or storage systems–that are also shared, perhaps with other companies that they know nothing about."