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.