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]