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Ex-copyright chief: clear disruptive tech through Congress

updated 11:15 pm EDT, Sat September 29, 2012

Claim: new media delivery channels should be illegal before review

In an amicus brief in the Aereo television Internet streaming case, the former Register of Copyrights, Ralph Oman has claimed that new distribution methods of potentially copyrighted material should be cleared through Congress for approval before the technology hits the market. Oman goes so far in his brief to claim that when the US copyright law revision in 1976 that Congress specifically intended new technologies to apply before potentially disrupting existing distribution methods and other businesses associated with the release.

From the brief, which was intended to help convince the court to disallow the Aereo technology, Oman said "Whenever possible, when the law is ambiguous or silent on the issue at bar, the courts should let those who want to market new technologies carry the burden of persuasion that a new exception to the broad rights enacted by Congress should be established."

Aereo's service enables users to view broadcast television stations in HD via Internet connections. The company connects each subscriber to their own dedicated antenna, rather than redistributing and sharing the signal from a few antennas, however the tuners and antennas are all centralized in data centers. Aereo shot back in court, declaring that its method of using one micro antenna for each customer made the web, iPad, and TV streaming legal. Viewers have the option of cloud-based DVR storage, but they can only access their own recordings.

Oman argued that the Aereo service "was not designed for the purpose of speed, convenience and efficiency. With its thousands of dime-sized antennae and its electronic loop-the-loops, it appears to have been designed by a copyright lawyer peering over the shoulder of an engineer to exploit what appeared to Aereo to be a loophole in the law." The court responsible for hearing the myriad of lawsuits generated by the technology has disagreed in a preliminary hearing, and Aereo is still streaming the New York broadcasters.

The ex-chief goes on to say that if the new technology could disturb the status quo of existing businesses that "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."

Oman's claims before the court seem to intend that any new technology needs to prove its legality under existing laws before it is even allowed to exist. Oman doesn't address how exactly the government should address the technology, nor does he specify at exactly what point the development of potentially infringing technologies are illegal.

There is a passage in the copyright law of 1976, specifically 17 USC 810(b)(1)(d), that states the law can be used to "minimize any disruptive impact on the structure of the industries involved and on generally prevailing industry practices" which is likely what Oman is referring to in his brief. This part of the copyright statute is claimed as defense for the exorbitant rates established in 2002 and retroactive to the date of signing the Digital Millennium Copyright Act in 1998 that streaming media purveyors and organizations like Sirius XM must pay. [via TechDirt]


by MacNN Staff



  1. Geoduck

    Junior Member

    Joined: 01-14-10

    I'm of two minds about this
    1: That's the stupidest thing I ever heard. This guy is utterly wrong and he needs to go back to the home before he hurts himself.
    2: That's the stupidest thing I ever heard. This guy is right and Congress needs to remove this paragraph before it further cripples US industry.
    Either way this is a stupid concept.
    If this were the case then companies making jets would have had to apply to Congress for permission to sell aircraft and the lobbying from piston aircraft engine companies would have prevented them from getting it.
    The same thing would have happened when calculators replaced adding machines, PCs replaced typwriters and ledger books, and when the MP3 player replaced the Walkman CD player.
    It's a stupid concept.

  1. The Vicar

    Junior Member

    Joined: 07-01-09

    Regardless of what the intentions of Congress may have been in 1976, I don't trust Congress when it comes to technology. Or the Supreme Court, for that matter. By and large, these people live in a bubble; not only do they not know how "regular" people live these days -- nearly half of the members of Congress, don't forget, are millionaires -- but they are so insulated from everyday life that they usually have only the faintest idea what technology is like. They don't know what a smartphone is, or YouTube, or why it might be a good thing for cell phones to charge with USB, or any of a million small-but-obvious things that any normal person picks up pretty quickly, because they have people to use technology for them. They don't need a smartphone to be a servant for them because they have actual employees who are servants. (And, of course, these days practically all conservatives have morphed into brain-dead anti-science neanderthals, and they make up about half of the government, which doesn't help either.) Letting these people make decisions about which technology should be "permitted" is utterly ridiculous.

  1. aroxnicadi

    Fresh-Faced Recruit

    Joined: 06-03-11

    That the last thing you want a bunch of dumb politicians doing. They can't seem to balance a budget, what makes you think they would give a hoot about disruptive tech unless of course they could profit from it like they do wars.

  1. The Vicar

    Junior Member

    Joined: 07-01-09

    That's not necessarily true. They could balance the budget. But to do so they would have to either raise taxes on the rich, cut the military by 50% or more (it's already over half the discretionary budget!), or both, and they don't want to do any of that. So instead they try to winnow out bits and pieces from the non-military side and convince the non-rich that it's okay to raise taxes on them instead of the people who could actually afford it.

    And the sad thing is that enough people think this is okay to keep them going.

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