Thanks, that's less hyperbolic than the title, but I don't think you've quite captured what he's saying either. I think he's saying if you invent a new tech, YouHolodeck, you're not magically exempt from copyright law and you can't just post existing copyrighted material ("but it's different, it's holographic"). Existing laws should apply, without needing constant updating ("on the internet", "in the holodeck", "in the singularity").

If you want an exception you have to ask for it, you don't get one by default. That does not mean the new technology is illegal. If Disney says no Mickey Mouse in holospace, then no Mickey Mouse in holospace, but you're still going to be free to post holos of your local street corner mime doing his thing.

>I think he's saying if you invent a new tech, YouHolodeck, you're not magically exempt from copyright law and you can't just post existing copyrighted material ("but it's different, it's holographic"). Existing laws should apply, without needing constant updating ("on the internet", "in the holodeck", "in the singularity").

I don't agree that he's saying that. The issue is that (leaving DRM circumvention tools aside) standard copyright law doesn't prohibit distribution technologies at all, just infringement. Hollywood doesn't like that -- they want to be in charge of what distribution technologies people are allowed to create, regardless of what they're used for. So their end run around it has two parts: 1) They refuse to sanction the use of the new technology for their own content, and then 2) they argue that because it isn't sanctioned by the major players, substantially all use must be infringing and dissemination of the technology itself (regardless of use) therefore induces that infringement and has no substantial non-infringing use.

It isn't about Mickey Mouse and the local mime. Aereo doesn't pick which channels its users watch. Its users can use the technology to watch PBS broadcasts (e.g. of your local mime) that are distributed under Creative Commons or other permissive licenses, or Presidential speeches that as U.S. government works fall immediately into the public domain, or use the technology to record video that the users have negotiated a separate license for with the copyright holders, or make a variety of legal fair uses of the plaintiffs' copyrighted material. Or the users can use it for blatant infringement, e.g. to record sitcoms and burn them to DVDs to sell in the street. But that's all between the copyright holders and the individual users. Aereo is just providing the technology -- and Hollywood is trying to stop the technology, not the infringement.

Did you read the amicus that Techdirt is (poorly) summarizing? Because I read your comment and I can't find anything in it that refers to what Oman actually said. You instead seem to be arguing about what "the content industry" "wants". The content industry obviously wants a lot of silly things, but we're discussing a specific court filing --- more importantly, that's what 'tedunangst is talking about, and so if you're not talking about Oman's filing it's very weird to say he's wrong.

In the filing (which rabidsnail quoted above) Oman makes the argument that not enjoining use of a technology (rather than an identifiable act of infringement of a particular work in a specified context) is to exempt the distribution technology from copyright liability. That is clearly nonsense -- find a user using it for an act of blatant infringement and you'll be able to collect damages or enjoin that infringement. But that isn't what they're asking for. They aren't trying to stop just the infringement, they are (as I said) trying to stop the technology itself.

They're asking for a veto -- not on using new technology to distribute Mickey Mouse, but on using new technology for anything because someone could (and probably will) use it to distribute Mickey Mouse.

Saying that the vendor of a product carries the burden of persuasion that their product isn't solely intended for infringement is very different from suggesting that all technology should be enjoined by default. Do you think Oman is also arguing that copy shops should be enjoined by print rightsholders? If you'd read the whole amicus, rather than a quote out of context, you might have to ask yourself that question.

>Saying that the vendor of a product carries the burden of persuasion that their product isn't solely intended for infringement is very different from suggesting that all technology should be enjoined by default.

I'm not clear on how it's different. If the product is solely intended for infringement then it gets enjoined, right? So they're arguing that by default, unless the vendor can prove otherwise (the vendor having the burden of proof), the product should get enjoined on request.

A judge has to determine that the product is solely intended to infringe, just as they've had to do since the Betamax case.

So he's saying that we should have exactly what we always had? New technologies were never exempt from following copyright law.

What he's really saying is that he doesn't like that some technologies are actually legal (like Aereo), not because they're new, but because they fall under fair use conditions. And so he wants to kill them by making them "illegal until proven legal".

That is what I think he's saying. I know, it's disappointing when it's not rage worthy. (And if I'm wrong and it is rage worthy, is there any point to reading about it besides getting all ragey?)

As for Aereo, I like what they're doing (and wish it were available in more places), but even so, I think they're navigating a fine line between the letter and the spirit of the law.

You don't want to lose sight of the fact that he's using this argument to support an injunction; what he's doing isn't quite as benign as saying "all existing laws should apply", because the existing laws don't promise preliminary injunctions in every case where technology butts up against copyright.

On the other than, this is a case involving a product that has no purpose other than the one that the content producers say directly infringe their rights; in other words, it is at first blush a better than average candidate for an injunction.

But then back on the other hand, he's making general points, not points narrowly tailored to cases like Aereo.

It's the "or silent" bit that's remarkable. If something's not against the law...it's not against the law.

I don't think that is what he is saying. I think the key sentence is the first one, not the last in the quote: 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.

In other words, the burden rests with the one exploiting a new technology that invades someone's copyright. He is not saying that the burden of legality rests on the new entrant, just that the burden is there when it requires an exception to someone else's already-legislated rights.

Not really. We have a common law system in the US, which is presumed to be flexible. If you want the kind of legal system where nothing exists unless it's spelled out, then you'd be happier living under a civil law system, such as that found in , say, France, or in most Latin American countries. In a common law system, you shouldn't necessarily need to rewrite the law for every new thing that comes down the pipe; in other words, just because you have a new technical way of sharing content, you're not exempted from the moral obligation not to do so without permission (as spelled out in existing law).

Now most objections to the copyright regime, including my own, are with the spirit of the law. I don't think it's right that copyright protection should extend to a work for an entire lifetime after the death of the author, or for longer than the typical human lifespan. Nor do I think it should be extendable retroactively. I'd prefer to see copyright terms similar to patent ones, of 20 or 30 years. That requires making pretty low-level changes in the law, which is a difficult and tedious process involving a great deal of opposition - which sucks. On the other hand, I don't think it'as acceptable to a) infringe freely because you think it's the morally superior course - whether you agree or not, people who choose to rely on the law as it is currently written to manage their assets are entitled to do so, or b) try to circumvent the spirit of the law by reaching for ever-more obscure technicalities - 'the law doesn't explicitly prohibit laser-light transmission through water, so if I spray my DVDs before ripping them I'm not breaking the law!'

Of course, this makes for a more restrictive world in the legal sense, because it's not that easy to get laws changed when there are powerful economic interests aligned against one. However, subversion of the law by technical means is basically trickery, and my experience is that that either leads to harsher laws or ends in absurdities. We've seen what happens with harsher laws - because of indifference and intransigence on the part of the internet community, we've ended up with monstrosities such as the DMCA, with its wildly excessive penalties for sharing media, which are designed to offset the low probability of enforcement (employing an economic concept known as an indifference curve, which has a sound theoretical foundation but depends on people being rational utility maximizers...which they're not, most of the time). As for absurdity, you get things like eruvs, in which Jewish Rabbis get around ancient religious prohibitions on activity during the Sabbath by redefining the entire local neighborhood as a single dwelling place, which involves setting up a corporation to own a loaf of bread and paying people to walk around once a week to ensure that all bridges and other infrastructure are still standing (see http://www.jweekly.com/article/full/28452/wire-to-wire/ for a full explanation).

If we want to really remedy the copyright situation, the best way forward is not to invent ever more obscure and devious ways to transmit files, but to automate and smooth the process of granting and administering copyrights. There is no reason that a copyright holder cannot waive some rights voluntarily, which includes partial waiver: I could paint a picture and specify that it is copyrighted until today's date in 2017, at which point it enters the public domain, say, or offer any number of creative licensing terms. The problem is licensing is that it's tedious to read and administer unless you're a lawyer, which is why the Creative Commons thing has taken off so well. Now if we automate that, there's no reason that we couldn't see shortened copyright terms emerge voluntarily as market equilibria; the law would still offer long copyright terms by default, but in a world of automated licensing such maximal terms would correspond to an excessively high price, and demand would flow towards competing products with more favorable terms. If this can be demonstrated to yield more lawful economic activity than copyright maximalism, then it's more likely to be formalized in law and provide copyright licensees with more rights than they currently enjoy.