Former top US copyright bureaucrat thinks all communications/entertainment technology should be illegal until Congress approves it

Ralph Oman, the former bureaucrat who served as Register of Copyrights to the US Copyright Office, has filed an amicus brief in the lawsuit against Aereo, a company that makes server racks with thousands of tiny aerials that are used to capture over-the-air broadcast TV and transmit it to viewers using the Internet, with each viewer getting her own antenna.

Oman's brief argues that the intention of the US Congress in passing the 1976 Copyright Act was to establish a regime where anyone who's got an idea for using technology to change the way we interact with copyrighted works was to force that person to get permission from Congress before they made it into a product.

In other words, Oman believes that in America, the law says that all innovation that touches on copyright is presumptively illegal, and each idea must be individually vetted by Congress before being brought to market: "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."

Ars Technica's Techdirt's Mike Masnick is his usual incandescent self on the subject:

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."

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


    1. Fired for not getting paperwork in on time. He was ideologically opposed to the pencil sharpener, thus unable to write since the inkwell went passe.

  1. It would be worthwhile to put this fellow through an episode like the one in “it’s a Wonderful Life” where he lives in the alternate universe that would have existed if his idea had been implemented in 1976. No VCRs, no iPod, no DVDs, no web browsers, none of the stuff that connects people today.

    1. It’s worse that that—I don’t think congress ever explicitly sanctioned soup cans connected with string.

    2. It would be worthwhile to put this fellow through an episode like the one in “it’s a Wonderful Life” where he lives in the alternate universe that would have existed if his idea had been implemented in 1976.

      Or a wood chipper. Six of one, half a dozen of another.

      1. I’m confused, you mean to say he should be sent through a half dozen wood chippers, and then six times through a seventh, or the other way around?

  2. I think the claim is even worse that it sounds — we assume it only applies to “disruptive” technology. But how would we know if the technology is disruptive? So doesn’t that mean that ALL innovation and technology would have to be approved by Congress first, so they either check to make sure the technology is not disruptive, or proven otherwise.

    Of course the problem is, innovation is SUPPOSED to be disruptive.

    1.  Flat earth maps to globes? That technology has not been approved by current House of Representatives. Do not disobey or ye will fall off the edge of the earth!

    2. “So doesn’t that mean that ALL innovation and technology would have to be approved by Congress first”

      Then you get Anthem.

  3. Following Ralph Omans logic, the printing press would never have appeared either, education of the masses would never have prospered and culture enjoyed by the masses would never have progressed beyond a rich minority’s hobby. Politicians didn’t have the balls during the VHS / Betamax era to debate and create a fair way to handle copyright for the public and the content owners, they chickened out and kept kicking the debate into the long grass hoping the issue would solve itself, wow politicians not dealing with long term issues, what a shocker, not!

    1.  There was a LOT of opposition to the printing press at the time.  Especially once they started printing bibles cheap enough that any reasonably well off person could buy one, even if they weren’t a priest.

      1. And in languages other than Latin no less!

        Heh, i ran into a claim once that the first print runs were seen as the work of the devil as the individual bibles were too similar. Until then each group of scribes put their personal flurish on the part they worked on, meaning that each bible was visually distinct.

    2. Or, the printing press would have been invented and approved for use only by those vetted by a manipulative, white, millionaire class, homophobic, race and gender biased government, thereby creating Fox News!

  4. Um, that’s not what it says.

    What it says is that *using* a new technology to do something which is arguably copyright infringement should be considered copyright infringement unless and until Congress says otherwise. He’s saying this is NOT an old delivery system using antennas which we have rules in place for. It is a new delivery system which uses antennas and then does a bunch of other stuff in a totally new way and therefore using it to distribute copyrighted material without the permission of the holder of copyright is… copyright infringement.

    If you use the system to distribute things which are not copyrighted, or for which you have acquired a license to distribute thusly, you’re golden, and he wouldn’t have anything to say about it.

    1.  It’s dubious whether this distribution is copyright infringement. It’s something that the courts will have to decide.

      The problem with his idea that new technology should be approved by Congress is that it would be very difficult to get approval, because congresscritters tend to be conservative old farts.

    2.  so make new technology, but dont use it or sell it without the expressed written permission of congress?
      and thats better somehow? that makes all the difference to you?
      how about this: fuck copyright. it’s a nice idea, like communism, but it clearly doesnt work. fuck it, get rid of it. we don’t need it anymore its just holding back innovation and creativity the very things its supposed to protect.

      1. How about, fuck bureaucrats, and fuck congress.

        It’s about time we designed a nice, simple, bottom-up way of organising our shit. Pretty sure we have the means, these days…

    3. Totally new way? It is basically what cable has done since forever, except now the cable is the internet rather than a physically distinct cable. Packet switched networks, what TCP/IP is, basically acts as a common carrier for anything that can be turned into digital information. This in much the same way that if you could turn anything into audio, you could have it delivered anywhere with a phone connection.

  5. And it’s not like Congress is really up to date on technology issues either. This is after all, the same august body that gave us Ted “The Internet is a series of Tubes” Stevens. If it was up to them, your office would look like the set of Mad Men.

    1. For some of them their offices likely look just like said set, and they consider it the height of a now degenerate world.

  6. Wait, what? Aereo builds data centers that host tons of tiny TV antennas, each of which belongs to a single customer, so they can rip the signal for that customer from that antenna and put it on a pipe so you can tune into the feed at home with your iPad?

    That must be the singlehandedly most stupid rube goldberg claptration in IT I’ve heard of in a long time. Whichever law requires this should be scrapped immediately.

    1. As best i can tell, it is not specifically a law, but an application of a judicial settlement within a slightly new sphere. The settlement was about “cloud” based DVR services, where the service provider agreed to keep cryptographically separate copies for each customer even when they all record the exact same program for the exact same length for time. Meaning that for 100 customers there needs to be 100 copies that once decrypted will produce the exact same checksum, meaning they are in essence the same file, rather than a single file and a list of pr customer time stamps. It is the “color of bits” issue gone absurd.

    2. I’m not a lawyer, but the one-antenna-per-customer workaround is due to the requirements on rebroadcasting TV feeds. Recording a local TV channel’s broadcast and DVR’ing it onto the Internet for mass numbers of people stands to make a measurable impact on the station’s ad revenue and such. I don’t know the specifics, but there are bound to be portions of FCC regulations, or state/federal law, that basically make being a pirate repeater station prohibited and you’re going to need lawyers if you try.

      Aereo gets around this by just extending the distance between a customer and their antenna to include the Internet (since streaming content you have the right to view is legal), and then they just lease you a TV antenna and entitle you to control the dial on it. It’s for your household only, it’s just not attached to the shingles. That’s the legal tangle and their engineering around it.

      Edit: Just marking that this is my 500th comment on BB, and I’ve garnered exactly 1,444 likes. I’m at a lukewarm friendship status with the community, yay! :D

      1. Does that include pre-Disqus comments that got dragged into the system? I went from 3K comments to 10K comments overnight at one point. That of course, kills your comment / like ratio.

        1. I don’t believe it does, as I’m fairly sure I remember seeing my comment count in the loooow double-digits soon after Disqus was put in, and I’d definitely made more pre-Disqus comments than what I remember seeing.

  7. This is the same Congress that the GOP won’t allow to take a vote even on things which they all agree on? Yeah, that’ll work.

    As near as I can see, if Aereo is illegal, so are all antennas since it isn’t conceptually any different than putting on on my roof. Which then implies, of course, that all spectrum allocated to broadcast television is being deliberately wasted and should be repossessed immediately. They are, after all, only allowed to use it in the public interest, not own it.

    1. Yep, you could basically build the same at home. One antenna, one PC with a tv tuner card, some software to channel hop and digitize, and a web server to provide access from outside the home.

      1. It’s not like it’s geeky either: it means buying a USB dongle. Tah Dah!   This option has been available for over a decade.

        More recently it’s gotten more sophisticated. The DVR software on the iMac extends itself peripherally so the TV is also on your iPhone/iPad, anywhere in the world with a 3G connection. Watch live, change channels, watch recordings, program, etc.

        Aereo probably wouldn’t even exist were it not for the cable rebroadcasting companies killing the internet rebroadcasting companies in the mid-90s. 

        EyeTV would (Mac/PC/Android) probably exist anyway:

  8. There is a gotcha to federal rules. It doesn’t much matter what you think the rules say. I once filed for some microwave links because a rule making permitted me to use some frequencies formerly unavailable. The application was bounced back at me. The reason was that it wasn’t the intent of the new rules that I should use those frequencies. The rules themselves didn’t forbid my usage. Reading the rules was thus a waste of time. To determine intent I needed to read all the document(s) of the entire rule making procedure. How’s that for a fence to jump over? 

  9. You know, I often feel like I am an enlightened individual capable of rational, intelligent conversations with people with whom I vehemently disagree, and that I can prevent knee-jerk reactions to obtain positive discussion and innovation.  And then guys like this open their mouths and I’m back to fantasizing about punching them in the face.

    1. I save my vehement disagreement for the irrational; I find arguments with intelligent people to be relatively dry, hair-splitting affairs.

      Vehement disagreement and face-rearranging urges tend to be peas in a pod with me… IMO the biggest problem with the world is the number of utter fuckwits on it.

    1. When are we gonna get our pitchfork on and get around to bloody well eviscerating these fucking racketeers?

      I for one would vastly prefer to go down swinging than spend the rest of my life fellating the Man.

  10. That’s a coincidence, I don’t think people should be appointed to high government positions until the public approves it, unless of course they actually earned that position through hard work and talent.

  11. Great plan! Partisan deadlocked Congress not killing economy fast enough /satire type off
    Seriously, this would assure that those that have keep and those who invent, innovate weep. Give the Have More’s financial managers a heads up anytime someone comes up with a great idea? Yeah, that’s the way to keep all the money in very few hands. 

  12. Does anybody else remember that idiotic Ayn Rand story where the guy invents a new kind of light, but the council of elders (or whatever) tells him it’s evil and won’t allow him to share it? I think Ralph Oman read it too and missed the point. What’s more frightening to me is that the cartoonishly overdone and badly written villains from an Ayn Rand story seem to have come to life.

    Is he serious? Or is he being bribed enough that he doesn’t care how stupid he is? In all seriousness, what is going on here? What is going through his head (besides a stiff breeze) that could possibly justify such a clearly idiotic conclusion? And more frighteningly, how could someone so obviously stupid get to such an important position in government? I know we have a lot idiots in government. I know ignorance, greed and general feebleness is pretty common. But this is weaponized stupidity. The flaws in his statements are so obvious as to make your head hurt from realizing that you’re actually expected to refute them (since they should refute themselves, immediately upon their utterance). This is like killing cartoonists for blasphemy. That’s how stupid this is.

    Who even gave this person a forum? Who asked this idiot what he thought about anything? What fucking rabbit hole did I fall into this morning where something like this can actually be proposed unironically and not be immediately ignored by the world at large?

  13. Ask Congress permission? Bwaaahahahahaha! That’s hilarious. How he things the legislative branch even has that kind of authority is beyond me.

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