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.