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:
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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.
Electronic Frontier Foundation copyright attorney Corynne McSherry has news about Barclays v FlyOnTheWall.com, a case that asked the Second Circuit Court of Appeals to rule on whether the "Hot News" doctrine could be applied in the digital era. "Hot News" is an obscure corner of law that lets newsagencies treat publicly available facts as property and prevent others from reporting on them for a set time.
In Fly, the court heard argument that FlyOnTheWall.com was endangering the business-models of several financial recommendation services that provided stock-tips by reporting on those tips as soon as they were published. The court's decision is instructive:
The adoption of a new technology that injures or destroys present business models is commonplace. Whether fair or not, that cannot, without more, be prevented by application of the misappropriation tort... The Firms are making news; Fly, despite the Firms' understandable desire to protect their business model, is breaking it.
The court found in Fly's favor, and ruled that the "Hot News" doctrine is even narrower than previously thought, and can only be applied in true "free riding" cases where one news-entity is copying a competitor verbatim -- Merrill Lynch, Morgan Stanley, and Lehman Brothers and the other plaintiffs aren't news agencies, they're news. Their stock tips are newsworthy. When Fly reported on them and undermined their profitability, it was tough noogies (an incredibly underused legal concept, IME).
EFF was amicus on the case, and filed comments with Citizen Media Law Project and Public Citizen asking the court to find as it did. Read the rest