New Content-Delivery Tech Should Be Presumed Illegal, Says Former Copyright Boss

TrueSatan writes "Reminiscent of buggy whip manufacturers taking legal action against auto makers, the former U.S. Register of Copyrights, Ralph Oman, has given an amicus brief in the Aereo case (PDF) stating that all new content-delivery technology should be presumed illegal unless and until it is approved by Congress. He adds that providers of new technology should be forced to apply to Congress to prove they don't upset existing business models."

Comments

Congress

[roman_mir]

Congress has no Constitutional authority to authorise or not authorise technology for its use.

Re:Congress

[tepples]

How does Congress lack this authority? Congress has already banned particular technologies in the purported interest "to promote the progress of science and useful arts".

Re:Congress

[Voogru]

That's called breaking the law.

The Congress also passed bills that allow the government to kill people with no due process of law, doesn't mean it has the authority to do it.

Re:Congress

[Joce640k]

"There has grown in the minds of certain groups in this country the idea
that just because a man or corporation has made a profit out of the
public for a number of years, the government and the courts are charged
with guaranteeing such a profit in the future, even in the face of changing
circumstances and contrary to public interest. This strange doctrine is
supported by neither statute or common law. Neither corporations or
individuals have the right to come into court and ask that the clock
of history be stopped, or turned back."

- Heinlein, Life Line, 1939

Re:Congress

[Type44Q]

"Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices."

- Thomas Jefferson

Re:Congress

[amiga3D]

If these guys had their way we'd still have all music on Vinyl LP's and Movies could only be viewed in a theater or on broadcast television.

Re:Congress

[J'raxis]

Congress has no Constitutional authority to...

As if that stops them from doing anything they want.

Re:Congress

[Anonymous Coward]

Are you saying that "unconstitutional" is not "illegal"? Then why is there a constitution?

Re:Congress

[causality]

"Yes. The drug war is evil."

Wrong on the first part; agreed on the second. The fact that the drug war is evil, stupid, in my opinion unconstitutional, and clearly a war against personal freedoms, in no way, shape, or form means that the supreme court has ruled that it is illegal.

You're depending on the court to settle that matter for you? The same court which approved abusing eminent domain to raise tax revenues?

Tell me this. Why was it necessary to ratify a new Constitutional amendment to give the government power to prohibit alcohol, which was then repealed... but it is not necessary to apply the exact same process to different substances?

I have never seen anyone explain that. Sure, I am certain they can expand the Commerce Clause to mean they can rape your wife anytime they want, because they might buy condoms first, and buying condoms affects interstate commerce .. but c'mon. At some point you have to call the absurd absurd.

Re:Congress

[causality]

So who is left to check congress if they decide they have the authority to violate the Constitution?

Your answer is in the mirror. If you keep reelecting them, what incentive is there for them to obey the law?

If you had no parties and all candidates ran on public money, that would work.

If you had a multitude of parties, and a single transferrable vote type of system, that would work.

But two parties with a winner-takes-all system, that does not work. You know what colluding duopolies would do to an industry? They do worse when there is both money AND power involved. If you want a far less powerful central government, expressed in terms of $$ and in terms of number of laws on the books, for whom would you vote? Realistically?

Re:Congress

[causality]

Because of the founding legal precept that all that is not explicitly disallowed is allowed. It is a foundational notion of the clComnon Law and indeed of liberty.

Yeah, for you and me. Not for the federal government. They are not supposed to have ANY POWER WHATSOEVER except for those specific powers the Constitution allows.

Re:Congress

[RKBA]

The Supreme Court erred by ruling certain drugs illegal. Anything abhorrent to the Constitution (regardless of what the Supreme Court may say), is not only illegal it is also null and void. Enforcing that reality is the problem. We the people are the ultimate arbiter of what is constitutional or not because we can (at least theoretically) dissolve the Constitution and government if we choose - although it would not likely be done without violence. Here is something Thomas Jefferson had to say about it:

[How] to check these unconstitutional invasions of...rights by the Federal judiciary? Not by impeachment in the first instance, but by a strong protestation of both houses of Congress that such and such doctrines advanced by the Supreme Court are contrary to the Constitution; and if afterwards they relapse into the same heresies, impeach and set the whole adrift. For what was the government divided into three branches, but that each should watch over the others and oppose their usurpations?
~ Thomas Jefferson to Nathaniel Macon, 1821.

Re:Congress

[jklovanc]

Tell me this. Why was it necessary to ratify a new Constitutional amendment to give the government power to prohibit alcohol, which was then repealed... but it is not necessary to apply the exact same process to different substances?

It was not necessary to ratify a new Constitutional amendment to prohibit alcohol. They could have done it by passing a law. They probably did it by amendment because it was harder to do at the time and harder to change afterwards. A simple law can be passed and repealed at any time; constitutional amendments are much more difficult. In fact there were many state laws prohibiting alcohol.

Re:Congress

[Registered Coward v2]

Tell me this. Why was it necessary to ratify a new Constitutional amendment to give the government power to prohibit alcohol, which was then repealed... but it is not necessary to apply the exact same process to different substances?

The 18th amendment did not give the government an additional power to regulate a specific product; they could already do that. Many states in fact already outlawed the sale of alcohol; and its regulation and taxation was begun almost immediately after the founding of the US.

What it did do was remove the states ability to regulate alcohol by giving the US Congress the power to establish nation wide laws and preempt state and local laws. The Volstead Act provided the specific law and punishments for violating the law. As with most laws that attempt to legislate one narrow view of "morality" it failed miserably. Repealing the 18th did not make alcohol says legal across the US; it simply returned the regulatory power to the states and localities. As a result, the US has a patchwork of laws; some of which result in odd situations such as Jack Daniels being able to manufacture alcohol but not be able to sell or provide samples at the distillery since it is in a dry county where the sale is illegal but not the manufacturer.

Re:Congress

[fafalone]

The Constitution is one of those quaint historical items, like the Magna Carta. Sure it might have some good ideas, but it's just not applicable to today's society, so we have to treat it more as guidelines than an actual binding document.

At least, that's the impression conveyed by the laws congress passes and the courts uphold. It's a "living document", so if it says "Congress shall make no law...", well, the meaning of that is ambiguous.

It's a sad state of affairs.

Re:Congress

[Patch86]

That would presumably be "possession of an illegal weapon" or "possession of hazardous materials without a licence which proves that you're competent to do so". Both of which seem basically sensible rules.

Possession of a computer programme that's capable of copying data seems like a rather less pressing problem to us mere plebs.

Re:I don't even

[snsh]

I think the appropriate response is "He appears to have the mindset that the world can owe you a living."

Innovation we are against it!

[Dyinobal]

Makes me think of Scribes guild destroying printing presses and making them illegal. Who needs better technology when the stuff we have right now is making us so much money?

\

The inherit short sightedness of a profit driven society is frightening to behold. Over the last dozen years so I understand why so many people believed in the communist society that the original USSR and other such countries had intended. Sadly those don't work nearly as well either.

I think we need to either move towards a socialistic society, or admit that we suck at self government and hurry up and invent AIs that can be our benevolent over lords. Assuming we can keep from programming human faults into them. Which is doubtful.

Re:Innovation we are against it!

[Jane Q. Public]

"The inherit short sightedness of a profit driven society is frightening to behold. Over the last dozen years so I understand why so many people believed in the communist society that the original USSR and other such countries had intended. Sadly those don't work nearly as well either."

It has nothing to do with being profit-driven. It has to do with being greed-driven. Contrary to the belief of many, they're not the same things. A free market depends on mutual, voluntary trade. When people try to base it on greed instead, it ceases to work properly.

Re:Innovation we are against it!

[Jane Q. Public]

"But, let's be honest here. With humanity, they are the same thing."

I am being honest, and no they are not. Apparently I have a bit more faith in humanity than you do.

"As soon as you inject money into any human-based endeavor, greed perverts the whole thing. Sometimes it takes longer than other times, but it happens without fail."

Not "as soon as", but you addressed that yourself. Okay. So the system has become corrupt (I think we can agree on that). What then to do?

It isn't "everybody" who is involved in the corruption. I continue to believe that most people have benevolent (if self-interested) motives.

Reboot? Another revolution? Hard to say. It's taken 200 years to get this bad; Jefferson predicted only 20.

One of the plaintiffs is PBS.

[webbiedave]

They sure as hell won't be getting a donation from me this year.

no new dance steps....

[Roskolnikov]

Wow, to preserve current business models all new thoughts should be reviewed..... yep, clearly representing the people,er, businesses on this one, innovative ideas need not apply, I try not to fan boi this much but imagine if iTunes online music sales had to clear congress first? I imagine those that lobby would have had a lot of fun with that one, clearing congress is a lot harder than convincing one label to sell online, this doesn't protect anyone other than those currently milking the masses..... Please, show this man the door, he has clearly lost his way.

Re:I don't even

[Adriax]

Pray the judge understands that type of setup wouldn't chill online innovation, it would stop it completely with no hope ever.
You couldn't even start to create anything new, because you would be committing a crime by researching how to create an illegal thing. Like someone trying to research new methods to produce meth in their garage...

Dear lord, this guy is so completely off his rocker it's no wonder the US is as fucked up as it is.

What an idiot

[msobkow]

So if you have a new and potentially disruptive technology, you shouldn't be allowed to go into business because you'll hurt the existing providers?

Tough shit! That's something called "progress" and "innovation."

Suck it up, cupcake -- you're a dinosaur!

Re:What an idiot

[shutdown -p now]

It's not just that, read the full text of the amicus. It has some pretty insane stuff of its own, like when he gets to examples of "wrong things".

In the Copyright Act that followed these decisions, Congress dealt
decisively, in a technologically-neutral way, with retransmissions using
community antenna technology. It determined that a CATV company—
which built an antenna on the top of a mountain in rural areas to intercept
and retransmit, over a cable wire to its customers in the valley below, the
copyrighted over-the-air broadcasts of television programs—was publicly
performing that programming. See S. REP. NO. 94-473 at 78-82 (1975)
(discussing how community antenna or cable providers that do not comply
with the compulsory license created by the Copyright Act infringe
broadcaster’s rights of public performance); REGISTER OF COPYRIGHTS,
SUPPLEMENTARY REG.’S REPORT ON THE GEN. REVISION OF THE U.S.
COPYRIGHT LAW, at 42 (H. Comm. Print 1965) (“[W]e believe that what
community antenna operators are doing represents a performance to the
public of the copyright owner’s work.”); H.R. REP. NO. 94-1476, at 89
(1976) (“[C]able systems are commercial enterprises whose basic
retransmission operations are based on the carriage of copyrighted program
material and . . . copyright royalties should be paid by cable operators to the
creators of such programs.”). Had the technology at the time required the
CATV company to install an individual antenna for every customer in the
valley below or even retransmit through a single copy made for each
individual, rather than using a single antenna serving the entire community
or a single “master” copy, it is inconceivable Congress still would not have
viewed that retransmission business to be making a public performance.
Indeed, that it defined performances to include any device or process means
that it actually anticipated such variations in transmission technology and
included them as performances to the public. To be plain, it was not the
means of retransmission but rather the retransmission itself that Congress
cared about. That is what caused the harm to copyright owners.

In other words, if you take a publicly broadcast signal, and rebroadcast it to someone who cannot otherwise receive it because of interference from the terrain (not even because the person behind the broadcast wanted to deliberately exclude that region!), it "causes harm to copyright owners" - and this guy thinks that it's a great idea to ban such nasty things.

The man who wore his ass for a hat

[djl4570]

This jackass is wearing his ass for a hat. Such fuckwittery would have prevented deployment of the transistor. Except for a few niches, the transistor rendered the vacuum tube obsolete in about twenty years. It would have prevented deployment of the turbine engine because they rendered radial engines obsolete. If he were left in charge we would all be using SNA because Ethernet would not be permitted.

Re:The man who wore his ass for a hat

[stephanruby]

He adds that providers of new technology should be forced to apply to Congress to prove they don't upset existing business models.

Also, don't you love his thinking. He's asking that new tech companies be required to prove a negative.

With that kind of thinking: the iPhone, the iPod, the internet, the photocopy machine, the phonograph, the telegraph, the telephone, the television, the radio, penicillin, aspirin, etc. could never have seen the light of day (or all those technologies would just have become black market technology, and that policy would just have turned all of us into criminals for even using them).

No, that's not what he said

[russotto]

He argues that copyright protection holds regardless of the technological means used to engage in an action which constitutes infringement, which is true as far as it goes. He further argues that Aereo is committing infringement and claiming it's not because of mere technological details, and there he's on shakier ground.

But actually his argument fell apart a bit earlier than his discussion of Aereo, when he disputes the Cablevision decision:

To be consistent with that entirely correct analysis, if, instead of a subscriber sending an electronic instruction to Cablevision or Aereo to make a copy by pressing a âoerecordâ button, the customer had sent an email to one of their employees with instructions to make a copy and transmit a performance, there would be no question as to the direct liability of Cablevision or Aereo. Copyright liability should not turn on minor technical features as to whether âoerecordâ instructions are communicated by verbal commands, pressing a button, sending an email or as a result of automated functions.

I am sorry, Mr. Oman, but that is not a "minor technical feature". My giving instructions to a machine and my giving instructions to a human being are a very different thing. The human being can make a choice, he can say "Mr. Russotto, to make that copy would be an infringement of copyright and I will not do so". The machine is a machine, it does what it's told, and direct liability is rightly placed on the person who told it to do something.

Best I can tell, Aereo is claiming its retransmissions do not amount to public performance because each individual is getting his own transmission. That is, it's not one public performance but many private ones. This is indeed splitting hairs, but since when has the law been opposed to splitting hairs?

17 USC 101 is quite clear that it does not matter "whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times." However, it does matter whether there is one performance or many; if I set up a booth where one person can view a DVD, it's not a public performance if 100 people view the same DVD in sequence; it's 100 private performances. Similarly, if I have 100 such booths with 100 such (identical) DVDs and everyone watches them at once, it's still 100 private performances. However, if I rig up one DVD player to play one DVD to all those booths, it's a public performance.

USA seeks to outlaw technology

[realitycheckplease]

So he wants to tie up technology development in the USA while the rest of the world leaps ahead? Sounds like a brilliant plan to me, seeing as I'm not in the USA. ;) I guess at least it stops patent wars if it's illegal to invent new technology. Sounds like another payday for the lawyers though. And whoever said "existing business models" are legally immune to future changes. Slave traders had an "existing business model" once upon a time. Lots of shop floors got automated. Business models change, technology advances, adapt and survive, or die like the dinosaur you aspire to be!

Re:I don't even

[NoNonAlphaCharsHere]

Governor Le Petomane: We have to protect our phoney baloney jobs here, gentlemen!
We must do something about this immediately!
Immediately! Immediately!
Harrumph! Harrumph! Harrumph!
Group: Harrumph! Harrumph! Harrumph!
Le Petomane: Hey! I didn't get a Harrumph outta that guy!
Hedy (That's Hedly) Lamar: Give the governor a harrumph!

Thanks for making copyright look even worse

[bzipitidoo]

How is copyright to be killed off? Give guys like this a megaphone.

What words could possibly be more damaging to copyright than this proposal to turn it into a blatant fascist tyranny? Plus, making everyone wonder if all supporters of copyright are just as stupid also hurts it. Such proposals do more to kill off copyright than any words Lessig, the EFF, or any other pro technology boffins could say. Go, Ralph, go!

Re:Thanks for making copyright look even worse

[J'raxis]

How is copyright to be killed off? Give guys like this a megaphone.

Careful what you wish for. Virtually every useful product that one might want to make and sell nowadays is presumed illegal until it's approved by some regulatory agency or another. Give this guy a bullhorn and the ignorant general public might agree with him, just like they have again and again in the past with those examples I cited.

At least he's being honest

[gman003]

It's not like this isn't what all the established media companies are thinking. They all want this. At least he has the (courage|stupidity|ego) to stand up and say "we're against anything new because it might stop us making money".

Plus, it makes it ridiculously easy to argue against his point. This is a man who just weakened his entire team's position, because he spoke, on the record and in an official capacity. We should make sure this guy never gets fired, because he's actually *helping* our side by being so blatantly wrong.

Just curious

[Anonymous Coward]

Can they prove that the CURRENT delivery models were approved by Congress? How many years are they liable for subverting the previous deliver models and business methods?

Capitalism ?

[morcego]

Humm, in my book, upsetting existing business models is the essence of capitalism. And that is a very good thing.

stop attacking the thinking, attack the source

[circletimessquare]

of course the guy is a fuckwit. this is besides the point

you cannot and would not be able to stay stupid things and represent the people if in fact you were actually representing the people. however, our democracy is becoming plutocracy: you can't get elected unless you get a lot of money, and you can't get a lot of money until you kiss the feet of the moneyed aristocracy

i like democracy. i like my country. i recognize that it won't be easy. but somehow, we the people must win back our own country from financial interests. i said: it won't be easy. you basically want the guys strung out on the heroin of wealthy donors to pass laws against wealthy donors. good luck to us, we'll need it

it is however, the most valid fight before us as a people and a nation, and something the left and the right can join in together and find common cause in. that is in spite of those on the left and the right who swallow the corporate propaganda that keeps us divided against each other at both of our losses

Re:I don't even

[SuperTechnoNerd]

That would make the music and record industries very happy. And that is a part of their grand plan. To stop this dam tech shit that's eating into their profits and taking their control.

Meanwhile, In India.........

[mormop]

A couple of students, backed with money from a Chinese bank, come up with a distribution mechanism that is so brilliant in its simplicity that it becomes a worldwide hit in everywhere except the US where Congress is so busy farting around trying to please their corporate sponsors that they get left several years behind.

Three years later In America, when congress realises that the rest of the world doesn't give a shit what they think and has progressed onto different and more profitable business model, everyone realises that Ralph Oman had been a complete and utter twat but by then it too late. Well done Ralph Oman, well done......

Before you act shocked...

[J'raxis]

Before you act shocked about this, exactly how is this different than any other products sold nowadays?

It's illegal to make and sell electronic hardware without approval from the FCC. It's illegal to make and sell most any food products without approval from a state-level health agency. It's illegal to make and sell any medical products without approval from the FDA. It's illegal to make and sell any motorized vehicles without approval from multiple safety bodies. So now, we can simply add "content delivery technology" to the list of things the government presumes is guilty of... whatever, until you prove it's not.

Isn't it great to live in a "free" country? Aren't you glad you're free?

Re:Before you act shocked...

[Anonymous Coward]

The main difference being in that all of those cases there could be serious hazardous side-effects if done wrong (potentially fatal).

Re:I don't even

[amiga3D]

It's a commonly held opinion by a lot of people. They feel they have a right to other people's money. I can kind of understand the poor ramming their hands in my pockets but these rich fuckers are too much.

Why stop with new technology?

[TFAFalcon]

So why not extend this to all creative works? Every new work should be submitted to congress for approval before it can be published. After all it might upset someone or compete with the works already available on the market!

Re:Constitutional challenge to the DMCA

[Anonymous Coward]

No, that's nonsense. If a system is unjust, then it is unjust. Some things are more important than money, and one of those things is freedom. Should we hold back automation so people can keep their jobs? Think of the numerous people in the past who lost their jobs thanks to technology; tough luck. Move on or die.

Re:Constitutional challenge to the DMCA

[Austerity Empowers]

Just because it upsets a business model, does not make it bad for the economy or the citizens of the country. It makes it bad for those whose business models it upsets, but they also have the choice to change with the times or lose their money.

There are a few places where we desperately need some business models being upset, curtailed or destroyed for the benefit of the citzens: telecom carriers, cable carriers, IP holders in general and a few overgrown gorillas who have become oppressive. It's best that the government itself stays out of this as much as possible, or at least just acts as a facilitator (i.e. pork money thrown to enemies of these beasts).

An example of something that worked well: for a few years the government gave independent service providers cheap access to "the last mile" customers. Consumers got cheap, highly functioning, unlimited broadband, with excellent service and a selection of options that served our needs. For a few years our telecom system wasn't an embarrassment. Unfortunately, the government reversed itself, and those advantages have been slowly sucked away, or "unlimited" redefined to mean something that doesn't mean unlimited, virtually no competition and basically a selection of the same shitty service served the same way. I can't argue that what the government did isn't a little scary and vaguely communist, but it absolutely was positive change while it lasted.

If the same scenarios can be created without government involvement (i.e. a new, natural competitor that disrupts the status quo), we have the actual ideal of a capitalist economy that works. Unfortunately IP law being what it is, does not allow competition by definition. The purpose of the law makes sense, but the government needs to spend less time and energy policing it. Basically if you are a pirate, you could go to jail if the government chases you. But the government won't be funded to chase all but the worst offenders. The way to regulate this is market based pricing: as long as media companies can get away with charging us $20 for what costs $1 in China, we are overpolicing our IP. As long as region locks exists, we are overpolicing our IP.

Re:Constitutional challenge to the DMCA

[sumdumass]

I doubt he would get laughed out of court. Because not only would he argue article 1, he would argue 9th amendment as in it limits the copyright clause and the interstate commerce clause and that because the DMCA authorizes the library of congress to designate what technology can be circumvented but creates a situation where it cannot legally be circumvented by the lay person.

He would also have to argue that the WPPT and WTC WIPO treaties as ratified are unconstitutional too seeing how the DMCA is a product to comply with them. But if the anti-circumvention clauses of the DMCA is granted then the supremacy clause would also kick in because regardless the content of a treaty, it has to be made pursuant to and in line with the constitution.

Either way, those are some legitimate questions that would need to be answered if brought up. Laughing wouldn't really be on the table. On the other hand, he would have to show cause in order to get the case heard which is highly unlikely to happen without being in jeopardy of the punishment of the laws. It would cost lots of money.

Who is John Galt?

[xombo]

It's the Equalization of Opportunity Act!!!

The Eldred Bill in a nutshell

[tepples]

One way to take the wind out of the copyright's sails would be to have the IRS collect a periodic token "intellectual property tax" on subsisting copyrights in works published more than 50 years ago. Under this Eldred tax scheme, copyright could not be enforced on works in arrears.