Sorry Innovators! Former Copyright Czar Argues that Inventors Who Might Possibly Infringe On Copyrights Should Have to Get Permission From Congress

Imagine a world in which inventors and innovators had to ask Congress for permission before releasing any new product that might possibly put current copyrights at risk. We probably wouldn’t have made it to the VCR stage of home video, much less found a market for pure digital distribution. Peer to peer sharing software would likely be outlawed, and even things like basic computer networks — which allow multiple users to share files — might be wiped from history.

Yet this is exactly the world imagined by Ralph Oman, the former U.S. Register of Copyrights. Oman held the title, which put him in charge of the U.S. Copyright Office, from 1985 through 1993, and previously helped draft the 1976 Copyright Act while working for the Senate Subcommittee on Patents, Trademarks, and Copyrights.

He still works on copyright issues today, and has filed an amicus brief in a dispute over Aereo, a streaming TV service that lets people access over the air TV broadcasts via the Internet. Predictably, Oman sides against Aereo.

But Mike Masnick at TechDirt catches him going much, much further than that. At one point, Oman seems highly annoyed that Aereo designed its system to be technically legal, writing the system seems to have "been designed by a copyright lawyer peering over the shoulder of an engineer to exploit what appeared to Aereo to be a loophole in the law and shoehorn the Aereo business model into the Cablevision decision." 

Yes, as Masnick has explained, Aereo's system is a workaround — a workaround built to stay with the legal boundaries established existing copyright laws. But Oman thinks inventors shouldn't be allowed to do that, at least not without permission. They ought to have to explicitly ask Congress for permission before taking a product to market. 

From Oman's brief:

Whenever possible, when the law is ambiguous or silent on the issue at bar, the courts should let those who want to market new technologies carry the burden of persuasion that a new exception to the broad rights enacted by Congress should be established. That is especially so if that technology poses grave dangers to the exclusive rights that Congress has given copyright owners.Commercial exploiters of new technologies should be required to convince Congress to sanction a new delivery system and/or exempt it from copyright liability. That is what Congress intended.

The idea, Oman argues, is that “the courts should not saddle the copyright owner with having to convince Congress to act to prohibit unauthorized Internet retransmissions.” But the inevitable effect would almost certainly be to substantially slow the pace of innovation, and likely prohibit many potentially useful inventions that might also be used to infringe upon copyrights. And judging by Oman's irritation with the fact that Aereo was designed to be legal, he apparently thinks that this should apply even to systems and technologies built with the explicit purpose of staying on the right side of the law. 

Even if you favor broad copyright protections, this seems like a deeply problematic balance, and an awfully high price to pay just to protect copyright owners from any possible threat. 

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  • Pro Libertate||

    I'm pro-IP, but the crap is like at 18 on a 10-point dial.

  • Caleb Turberville||

    I hated when Michael Keaton turned into Val Kilmer.

  • Red Rocks Rockin||

    "When you make a copy of a copy, it's not as sharp as, well, as the original."

  • ||

    "been designed by a copyright lawyer peering over the shoulder of an engineer to exploit what appeared to Aereo to be a loophole in the law and shoehorn the Aereo business model into the Cablevision decision."

    So they specifically designed the product to be in compliance with the law...and the opposing lawyer admits it.

    Why the fuck is this case not being thrown out of court?

  • Pro Libertate||

    Because our system is beyond merely broken.

    One thing about copyright in the U.S.--it's based on promoting general innovation: "The Congress shall have Power. . .To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

  • Another David||

    If you have a business that doesn't comply with copyright law, you're a criminal.

    If you have a business that does comply with copyright law, you're a clever criminal.

  • R C Dean||

    Couldn't any device that is capable of reading and storing data, or writing stored data, potentially be useful for copyright infringement?

  • Pro Libertate||

    You know, human brains make unauthorized copies of copyrighted works all of the time.

  • ||

    Cops should really start charging people for illegally recording them with their brains.

  • robc||

    You know, human brains make unauthorized copies of copyrighted works all of the time.

    I know you are kind of kidding there, but that is a major part of the reason I oppose IP. Because I own my thoughts.

  • Pro Libertate||

    Right now, you're okay, because it has to be in a tangible medium. But once we're able to backup our memories, well. . . .

  • robc||

    The problem is, when I convert MY thoughts to a tangible medium, I suddenly am in violation.

    And, yeah, just because we dont have the technology yet, doesnt mean we wont, which means Im not just right, but a visionary.

  • Peter Suderman||

    Don't give them any ideas.

    I do think that basic computing and network hardware would have made it through, perhaps in a crippled form, under a permission-first system. But you're certainly correct that extremely strong deference to Oman's view of the law could have prevented most personal computers.

  • VG Zaytsev||

    Yes, as Masnick has explained, Aereo's system is a workaround — a workaround built to stay with the legal boundaries established existing copyright laws. But Oman thinks inventors shouldn't be allowed to do that, at not without permission.

    So make it illegal to follow the existing law.

    Sheer genius, even Stalin would have been ashamed to propose that.

  • Geoff Nathan||

    I used to think the arguments against intellectual property as 'property' were flaky and out there. But the more I read and listen to people on the pro-copyright side, the more I think it's a disaster, with the potential to turn into a calamity.

  • robc||

    There is a reason that the FFs had to put a specific exception for copyright and patents in the constitution and didnt just let it fall under regular property laws...because it isnt.

  • Agammamon||

    ". . .the burden of persuasion that a new exception to the broad rights enacted by Congress should be established. That is especially so if that technology poses grave dangers to the exclusive rights that Congress has given copyright owners."

    Its a sad, sad day when even the head of the copyright office has no clue what te purpose of copyright is.

  • The Late P Brooks||

    Aereo designed its system to be technically legal, writing the system seems to have "been designed by a copyright lawyer peering over the shoulder of an engineer to exploit what appeared to Aereo to be a loophole in the law and shoehorn the Aereo business model into the Cablevision decision."

    Bastards!

    The Patent Office needs its own SWAT team.

  • ChrisO||

    It's worth noting that the idea of copyright was originally conceived (in Merry Olde England) as a method of censorship.

  • Robert||

    Does Aereo actually rent an antenna to each individual subscriber for the duration of each program?

  • Marty Feldman's Eyes||

    Copyright is severely broken, but I'm pessimistic that any revising of law could possibly end up better, rather than worse. See last year's not-nearly-publicized-enough shitty SCOTUS ruling, that it was perfectly ok to extend copyright protection to works that had been in the public domain for years. As shitty as current law is, every time it is revisited it gets worse. No hope. Ugh.

  • IceTrey||

    Why would you need an exception to BROAD rights?

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