Former Copyright Boss: New Technology Should Be Presumed Illegal Until Congress Says Otherwise

One of the reasons why we live in such an innovative society is that we've (for the most part) enabled a permissionless innovation society -- one in which innovators no longer have to go through gatekeepers in order to bring innovation to market. This is a hugely valuable thing, and it's why we get concerned about laws that further extend permission culture. However, according to the former Register of Copyrights, Ralph Oman, under copyright law, any new technology should have to apply to Congress for approval and a review to make sure they don't upset the apple cart of copyright, before they're allowed to exist. I'm not joking. Mr. Oman, who was the Register of Copyright from 1985 to 1993 and was heavily involved in a variety of copyright issues, has filed an amicus brief in the Aereo case (pdf).

As you hopefully recall, Aereo is the online TV service, backed by Barry Diller, that sets you up with your very own physical TV antenna on a rooftop in Brooklyn, connected to a device that will then stream to you online what that antenna picks up. This ridiculously convoluted setup is an attempt to route around the ridiculous setup of today's copyright law -- something that Oman was intimately involved in creating with the 1976 Copyright Act. The TV networks sued Aereo, but were unable to get an injunction blocking the service. Oman's amicus brief seeks to have that ruling overturned, and argues that an injunction is proper.

But he goes much further than that in his argument, even to the point of claiming that with the 1976 Copyright Act, Congress specifically intended new technologies to first apply to Congress for permission, before releasing new products on the market that might upset existing business models:

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. This is, to put it mildly, crazy talk. He is arguing that anything even remotely disruptive and innovative, must first go through the ridiculous process of convincing Congress that it should be allowed, rather than relying on what the law says and letting the courts sort out any issues. In other words, in cases of disruptive innovation, assume that new technologies are illegal until proven otherwise. That's a recipe for killing innovation.

Under those rules, it's unlikely that we would have radio, cable TV, VCRs, DVRs, mp3 players, YouTube and much, much more. That's not how innovation or the law works. You don't assume everything innovative is illegal just because it upsets some obsolete business models. But that appears to be how Oman thinks the world should act. Stunningly, he even seems to admit that he'd be fine with none of the above being able to come to market without Congressional approval, because he approvingly cites the dissent in the Betamax case (which made clear that the VCR was legal), which argues that the VCR should only be deemed legal with an act of Congress to modify the Copyright Act. You would think that the success of the VCR in revitalizing the movie industry would show just how ridiculous that is... but in Oman's copyright-centric world, the rules are "first, do not allow any innovation that upsets my friends."

Elsewhere, he argues -- quite correctly -- that Aereo's design was clearly done with the help of lawyers to stay on the legal side of the line, but he gets the exact wrong lesson out of that:

The Aereo system was not designed for the purpose of speed, convenience and efficiency. With its thousands of dime-sized antennae and its electronic loop-the-loops, it appears 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. In other words, he's admitting that the system was designed carefully to remain on the right side of the law... but he's somehow upset that this is possible. In his incredible worldview, you should not be able to design around the contours and exceptions to copyright law -- because anything that upsets Hollywood is, by default, illegal.

Perhaps we've learned who put the clause in the '76 Act that explicitly says that the law should be used to stop disruptive innovation if it gets in the way of the status quo.

Either way, he goes on at length, claiming that his efforts in helping to put together the '76 Act and his other work on copyright were continually focused on benefiting the copyright holder. He never mentions that this is not the purpose of copyright law. It is the means. But the intent is to benefit the public. Oman does not ever seem to take that into consideration.

Indisputably, Congress drafted the Copyright Act to prevent the creative efforts of authors from being usurped by new technologies. That core principle is at the heart of the Copyright Act. Congressional intent would be undercut by any decision that would sanction the use of technologies which could be used indirectly to undermine its goals. Congress enacted a forward-looking statute that would protect those who create precisely so they have incentives to create.

Actually, that's quite disputable. The Copyright Act can only be designed to benefit the public. The means of doing so is by creating the ability of copyright holders to exclude, but that is hardly the only incentive to create. Allowing new technologies that disrupt old business models does not necessarily remove the incentive to create. Instead, as we've shown over and over again, the incentive to create appears to have increased greatly, even as respect for copyright has weakened tremendously over the past decade. So I fail to see how Congress' "intent" could possibly be undermined by new disruptive technologies coming along -- without permission -- and creating new and expansive markets that both help the public and provide new opportunities for content creators.