Progress only by permission

By Scott Bradner

The Copyright Clause in the U.S. Constitution reads: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The copyright part of this clause -- the part referring to authors -- has become a stick to bludgeon technology not just to protect author's rights.

The U.S. Copyright Office (http://www.copyright.gov/) in the Library of Congress is the maintainer of the U.S. copyright system. In theory, the Copyright Office should be properly protecting the rights of authors while not interfering with activities that do not infringe on those rights. But a lot of the time it does not seem like the Copyright Office follows that theory. Far too often the Office seems eager to block technologies that have a chance of interfering rather than those that will, by necessity, interfere.

I said "seems" above because we could only judge the Copyright Office by its actions since we did not have a clear statement of its basic intentions, but now we have something quite close to such a statement.

Ralph Oman has filed an amicus brief (http://jstyre.com/misc/Oman_Amicus_20120921.pdf) in a US court case where two groups of broadcasters against Aereo (https://www.aereo.com/), a startup providing remote antennas to allow their subscribers to better receive over-the-air broadcasts. (http://news.cnet.com/8301-1023_3-57445346-93/aereo-case-is-a-struggle-for-tv-broadcasters/) I will not discuss the merits of the case itself but, instead, will focus on Oman's amicus brief.

This brief is important because of its author. Ralph Oman is a former Register of Copyrights of the U.S. According to the brief, he was also "personally involved in the drafting and passage of what became the Copyright Act of 1976." He claims to speak with authority about the purpose and intent of the law.

Oman's picture is of a totally one-sided law. It is extremely rare in his brief for Oman to even mention any rights other than the rights of copyright holders. In Oman's world there are essentially no rights other than copyrights and the whole world is subservient to those rights unless Congress decides to create "specific, narrow limitations" to those rights. Oman is even against "the use of technologies which could be used indirectly" to undermine his view of the goals of the Copyright Law. The fact that a technology's main purpose has nothing to do with infringing on copyright is irrelevant in Oman's view -- such techn0ology should not permitted to be used if someone might figure out a way to violate someone's copyright. He wants courts to support his view "by finding in favor of the copyright holder (absent, of course, a statutory exception, when it is reasonable to do so."

Oman believes in Congress, which he describes as "the body institutionally able to balance the delicate interests of the sometimes-interests involved in high-stakes copyright matters." That is a different Congress than I have observed. The Congress I see is one which is genetically incapable of understanding anything technical and almost always kisses the feet of the copyright industry, from which generous campaign donations flow.

In his brief, Oman says "commercial exploiters of new technologies should be required to convince Congress to sanction a new delivery system and/or exempt it from copyright liability." In Oman's world, Congress would have had to deliberate and pre approve of the Internet, music players, digital recorders, VCRs, personal computers, tablets and any of a thousand innovations of the last 30 years just because they might be able to be used to violate someone's copyright. Try to image what Oman's world would actually look like - maybe close to the world of 1963, before the Internet and before the Supreme Court decided the Betamax case.

Oman's view is a breathtakingly anti-technology, anti-innovation and anti-progress view. But it does help explain the actions of the US Copyright Office.

disclaimer: Harvard could deal with a world that Oman's view would have created since it did for hundreds of years but that does not mean that Harvard can not deal with progress as well. In any case, the above review of Oman's world view is mine alone.