Forgot your password?
typodupeerror
Crime Government Piracy Technology

New Content-Delivery Tech Should Be Presumed Illegal, Says Former Copyright Boss 379

Posted by Soulskill
from the opting-out-of-common-sense dept.
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."
This discussion has been archived. No new comments can be posted.

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

Comments Filter:
  • Congress (Score:5, Insightful)

    by roman_mir (125474) on Saturday September 29, 2012 @07:02PM (#41502195) Homepage Journal

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

    • Re:Congress (Score:5, Interesting)

      by tepples (727027) <tepples&gmail,com> on Saturday September 29, 2012 @07:12PM (#41502253) Homepage Journal
      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 (Score:5, Insightful)

        by Voogru (2503382) on Saturday September 29, 2012 @07:18PM (#41502305)

        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.

        • "That's called breaking the law."

          So when Albert Hoffman [wikipedia.org] used technology to synthesize a little substance called LSD [wikipedia.org] and they subsequently made the use of that technological breakthrough to manufacture it illegal, they were actually breaking the law?

        • by shaitand (626655)

          Having the authority to do something is defined by being able to do it, not by existing laws. It is the Constitution that lacks the authority to hinder congress.

          It all started with the courts discovering they had the authority to take the people's power of direct representation via juries away. That meant the people no longer had veto authority on laws on a case by case basis. At that point congress was the only check on the judicial in their appointment blocking capacity. Congress then made funding conditi

          • It is not the job of the U.S. Constituion to restrict the acts of congress but the People and until the People decide that Congress and the government have overstepped the Limits established by The People, nothing that congress does is ilegal even if it's against the Constitution.

      • 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.

        • As far as I can tell, contributorily infringing a copyright is either explicitly disallowed or so entrenched in case law that it might as well be.
        • Re:Congress (Score:5, Insightful)

          by causality (777677) on Saturday September 29, 2012 @09:41PM (#41503101)

          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 (Score:5, Insightful)

      by Joce640k (829181) on Saturday September 29, 2012 @07:20PM (#41502311) Homepage

      "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 (Score:5, Informative)

        by Type44Q (1233630) on Saturday September 29, 2012 @07:56PM (#41502547)
        "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

        • by guttentag (313541)

          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 other words, no one copied the concept of copyright from England because they feared retaliation for violating England's copyright on the exclusive use of the idea of copyright. How interesting that if the United States had respected England's right to the exclusive use of the idea, we would be permitted to copy whatever we like, but because of the United States' brazenly lawless violation of copyright we are headed toward a state in which one may not copy anything.

      • Re:Congress (Score:4, Insightful)

        by amiga3D (567632) on Saturday September 29, 2012 @08:00PM (#41502581)

        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.

        • 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.

          Ahh! Fond memories! We should be so lucky.

    • You might have heard of something called interstate commerce [wikipedia.org]? Take the word technology out of the equation because it is a red herring. Or, to reframe it another way to help your mind grasp it if you find that objectionable, hold in mind the reality that the railroad was nothing less than bleeding edge technology at the time it was enacted. If they don't have the ability to regulate interstate commerce, nobody has told them in the last 130+ years.
      • I'm pretty sure that putting limits on the interstate commerce clause is exactly what Chief Justice did [washingtonpost.com] in the recent affordable care act case.

        read up on it. in the furor over "omg he betrayed conservatives everywhere he's a villain! lynch him!" hysteria, the true legacy of his phrasing of the majority decision was pretty much overlooked.

        • Well then you need to read this again: "Basically, the court ruled that Congress can regulate existing interstate commercial activity, but it can’t directly force people to enter into a market" - [emphasis added]
        • Yes, the chief justice's portion of the opinion (which no other justice joined) limited the commerce clause. It's unclear whether that part of the opinion will be viewed as dicta or binding precedent by the courts; strong arguments have been made both ways. But it doesn't really matter in a practical sense, because the clearly binding portion of the opinion of the court gave Congress a blueprint on how to enact commerce mandates within the bounds of the constitution. And because that power was derived from
    • Re:Congress (Score:4, Insightful)

      by J'raxis (248192) on Saturday September 29, 2012 @08:06PM (#41502625) Homepage

      Congress has no Constitutional authority to...

      As if that stops them from doing anything they want.

    • by Shoten (260439)

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

      Whip up a batch of ricin or sarin at home, then tell Congress you did it. Let me know what prison you end up in so I can come by to verify that you still believe this.

      • Re:Congress (Score:5, Insightful)

        by Patch86 (1465427) on Sunday September 30, 2012 @06:15AM (#41504969)

        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.

  • by Anonymous Coward

    Naturally, the new thing is unfair to whatever the old thing was.... Consumers should suffer, not the businesses which fail to adapt.

    • I think you mean workers that fail to adapt, as the technological changes occur too quickly, and causes a vicious boom/bust cycle of "general glut" in the economy.

  • by Dyinobal (1427207) on Saturday September 29, 2012 @07:10PM (#41502245)

    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.

    • by Jane Q. Public (1010737) on Saturday September 29, 2012 @08:49PM (#41502855)

      "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.

      • by ATMAvatar (648864)
        With a rational, intelligent species, greed-driven and profit-driven may indeed be independent things. But, let's be honest here. With humanity, they are the same thing. 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.
        • by Jane Q. Public (1010737) on Sunday September 30, 2012 @02:29PM (#41507435)

          "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.

  • by webbiedave (1631473) on Saturday September 29, 2012 @07:13PM (#41502257)
    They sure as hell won't be getting a donation from me this year.
  • Don't just stifle innovation, but make it outright illegal.

    I can see the new /. article now: Linus Begrudgingly Admits Romney Isn't Biggest Idiot After All.

  • by Roskolnikov (68772) on Saturday September 29, 2012 @07:13PM (#41502265)

    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.

    • by Z34107 (925136)

      It's insane, but not unprecedented. A quote [techdirt.com] from the Copyright Act, in the context of how the copyright royalty board should set rates:

      To minimize any disruptive impact on the structure of the industries involved and on generally prevailing industry practices.

    • by TubeSteak (669689)

      "There has grown up in the minds of certain groups in this country the notion that 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 the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to the public interest. This strange doctrine is not supported by statute nor common law. Neither individuals nor corporations have any right to come into court and ask that the clock of

  • by Anonymous Coward

    "Red flag locomotive act 1865" all over again?

  • Some money-grubbing conservatives may get scared otherwise. Some ancient money-making schemes may stop to work. That is completely unacceptable. I strongly suggest we all move back into caves.

    • by yacc143 (975862)

      Cool idea, that would put the US on the way to a planned economy (see USSR), a decade or two, and the USA is history.

    • by Zordak (123132)

      Some money-grubbing conservatives may get scared otherwise. Some ancient money-making schemes may stop to work. That is completely unacceptable. I strongly suggest we all move back into caves.

      Um, you realize that it's primarily the Democrats the entertainment industry has in their pockets, don't you? I mean, sure, there are plenty of corrupt Republicans kowtowing to their corporate overlords, but don't let your blind partisan hatred lead you to believe your guys are a bunch of virtuous heroes.

  • What an idiot (Score:5, Insightful)

    by msobkow (48369) on Saturday September 29, 2012 @07:17PM (#41502289) Homepage Journal

    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 (Score:5, Informative)

      by shutdown -p now (807394) on Saturday September 29, 2012 @11:23PM (#41503539) Journal

      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.

    • It will be particularly touching when he claims that this farce is somehow connected to capitalism and the American way. I might even shed a tear (of laughter) while listening to it; the man truly has no shame.

  • by djl4570 (801529) on Saturday September 29, 2012 @07:17PM (#41502297) Journal
    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.
    • by Type44Q (1233630)

      If he were left in charge we would all be using SNA because Ethernet would not be permitted.

      After The Collapse, you'll be using two coconut shells and some catgut... and you'll like it. :p

    • by stephanruby (542433) on Saturday September 29, 2012 @09:06PM (#41502923)

      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).

  • by russotto (537200) on Saturday September 29, 2012 @07:19PM (#41502307) Journal

    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.

  • by realitycheckplease (2487810) on Saturday September 29, 2012 @07:20PM (#41502313)
    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!
  • by bzipitidoo (647217) <bzipitidoo@yahoo.com> on Saturday September 29, 2012 @07:25PM (#41502345) Journal

    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!

  • by gman003 (1693318) on Saturday September 29, 2012 @07:27PM (#41502359)

    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.

  • That works. And if a few slip through, kill the people who have them. Again, that worked fine for the CCCP.

  • by Nom du Keyboard (633989) on Saturday September 29, 2012 @07:29PM (#41502375)

    Existing business models need to die - sooner rather than later.

  • How is this any different from attempts to license printing presses?

    Sons of bitches.

    This is a line that the bastards should never cross.

  • Just curious (Score:4, Interesting)

    by Anonymous Coward on Saturday September 29, 2012 @07:31PM (#41502385)

    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 ? (Score:4, Interesting)

    by morcego (260031) on Saturday September 29, 2012 @07:31PM (#41502387)

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

  • Radio would have kept TV off the air. Movies would have kept TV off the air. No cable... Forget satellite. Toss that ebook reader.
  • 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

  • by mormop (415983) on Saturday September 29, 2012 @07:50PM (#41502519)

    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......

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

    ...lining that fucker up against the wall can almost certainly be presumed illegal... but I'm not going to suggest that it would actually be wrong. :)

  • by ThorGod (456163) on Saturday September 29, 2012 @07:55PM (#41502541) Journal

    See, in the US, something is considered legal until it is outlawed. Contrast this with the Spanish system, where everything is outlawed until it is legalized.

    And apparently this guy was part of the US government at some point? "former U.S. Register of Copyrights"

    • by J'raxis (248192)

      Really. See this post [slashdot.org] I just made. Virtually every product someone might try to make and sell nowadays in the U.S. is presumed illegal until it's approved by some regulatory body.

      What this bureaucrat is proposing is far from ground-breaking. It's just a tiny, incremental increase in the power the government in this supposedly "free" country already has.

  • First, let me say I'm generally in agreement with the copyright holders in that "it's their stuff and people are stealing"... it is their stuff and people are stealing it. That said, they really have no right to control general content delivery systems. The attempt to make the VCR illegal for example was one of the many things they've done over the years that is just wrong.

    Do people have a right to rip them off? No. But they don't have a right to dictate the evolution of our technology either.

    What's the bal

  • by J'raxis (248192) on Saturday September 29, 2012 @08:04PM (#41502605) Homepage

    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?

  • by TFAFalcon (1839122) on Saturday September 29, 2012 @08:39PM (#41502815)

    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!

  • ... Congressional certification that Blu-ray won't interfere with HD DVD business models?

  • by l3v1 (787564) on Saturday September 29, 2012 @09:08PM (#41502931)
    "to prove they don't upset existing business models"

    Which means any disruptive new tech - which would be everything really good - would be dead at birth. Such smarta** politicians should be all fired on spot and never again allowed to practice politics. Ignorance and influence are a very dangerous mix, as you all know all too well...
  • Who is John Galt? (Score:5, Insightful)

    by xombo (628858) on Sunday September 30, 2012 @01:19AM (#41503975)

    It's the Equalization of Opportunity Act!!!

Murphy's Law, that brash proletarian restatement of Godel's Theorem. -- Thomas Pynchon, "Gravity's Rainbow"

Working...