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