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."

One of the plaintiffs is PBS.

[webbiedave]

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

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.

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

[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: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.

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.