Coming clean on technological neutrality

It is not a case that draws much attention from higher education circles, but the case of WNET et al. v Aereo has drawn an amicus brief that should worry anyone who is interested in how copyright law serves or inhibits innovation and competition.  What is most disturbing is that the gross misunderstanding of how copyright law is supposed to work has come from former U.S. Registrar of Copyright Ralph Oman, now a “Professional Lecturer” in IP at the George Washington law school.

The case is brought by television broadcasters against a service that offers to take broadcast TV off the air and stream what it receives to its online subscribers.  I have no opinion on the merits of the case, although it is interesting to note, as this outraged post about Oman’s brief does, that the service was carefully structured to try to remain within the boundaries of the law as the courts have interpreted it.  And, as someone who has long wanted to “cut the cable,” I might be interested in the Aereo service if it is upheld.  But it is not the arguments or the merits that should concern us, it is the approach that former Registrar Oman takes in his brief on behalf of the plaintiffs.  Here is the central quotation that is so troubling:

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. That is especially so if that technology poses grave dangers to the exclusive rights that Congress has given copyright owners. 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.

This is an extraordinary statement, suggesting that the Copyright Act was intended to force all innovators to go to Congress before beginning any service that might threaten some established form of exploiting the rights of copyright holders.  It is a recipe for economic suicide in a digital world, apparently willing to sacrifice the gains we can make through rapid innovation, new markets, and online opportunities to the goal of protecting the legacy industries from any need to adjust their business models.

More to the point, the law is not silent or ambiguous on how new technologies and business that are built on them should proceed.  Registrar Oman starts his brief by stating that,

There can be no serious dispute as to whether rights under the Copyright Act are broad, subject only to specific, narrow limitations enacted by Congress and that new developments in technology are not supposed to be able to truncate those rights.

To make this statement, Registrar Oman conveniently forgets fair use, which is not mentioned once in his brief.  Now I do not know if a serious fair use defense was raised on behalf of Aereo (they are apparently in the Appeals Court over the refusal of the District Court judge to grant a preliminary injunction).  But fair use is in our law, even if Registrar Oman (who helped draft the 1976 Act) apparently does not like it.  In fact, it is the first of the exceptions to the exclusive rights that is listed in the Act, and it is not specific and narrow.  It is deliberately open-ended and flexible, giving our law space to accommodate new technologies (like the VCR) and even new business models (like Google).  Apparently Registrar Oman wants to ignore fair use, and would prefer to force each of those new technologies and businesses to go to Congress for explicit permission before offering their products and services.  How much economic growth and how many new jobs would be lost if Congress and our courts took this approach?

The real problem with this brief, or perhaps the place where it is most honest, is that it seems to completely jettison the argument that copyright law should be technologically neutral.  It is ironic because the content industries often use that assertion to suggest that precedents from the print environment should be applied, when they are favorable to those industries, directly to digital activities.  For example, the plaintiffs in the Georgia State case used the claim that copyright is supposed to be technologically neutral to support its analogy between what GSU was doing with electronic reserves and the earlier cases about printed coursepacks.  In fact, the plaintiffs in that case even complained that the judge had applied a different standard to digital copies, which was nonsense.  At that point, technological neutrality was a battle cry.  But now, when such neutrality would seem to favor Aereo, Registrar Oman argues on behalf of the rights holders that every new technology should be treated differently, presumed to be illegal, and subjected to legislative scrutiny before being allowed.  What has happened?

The most obvious difference is that in the GSU case, the rights holders thought that the argument about technological neutrality would help them.  They hoped the Judge would ignore the distinction between the coursepack cases, in which a commercial intermediary was involved, and the entirely non-profit, educational situation at GSU.  By asserting that “the same law” applied in print and in the digital realm, they were hoping to obscure a substantive difference behind a rhetorical smoke screen.  As I have noted before, talk of technological neutrality is often more of a rhetorical strategy than an actual commitment.  In the Aereo case, the law as it stands looks more favorable to Aereo’s business model, so this brief on behalf of the rights holders takes a new and shocking tack by asserting that every new technology should be presumed to be infringing until proven otherwise.  Registrar Oman seems to be saying that we should not even try to apply the current law to new situations, but to presume that new technologies are always bad things and make their proponents argue their case to Congress before any new innovation is allowed.

The problem, of course, is that the GSU plaintiffs were right; the law really is supposed to be technologically neutral.  The same law is supposed to apply in both the print and the digital realm.  Where the GSU plaintiffs were wrong was in the application, not in the principle they stated.  And where Registrar Oman is wrong is in suggesting that we cannot even try to apply the law to new technologies.  The presences of fair use in our statute is testimony to the intention to give US copyright law the flexibility to adapt to new technologies, so it is no surprise that the former Registrar can only make his argument by ignoring its existence.

Technological neutrality is something that copyright laws need to strive for, because it is what avoids the need to make large-scale changes in the law every time a new technology — the player-piano, the radio, or the video recorder — comes along.  But it is a goal from which the law often falls short.  As Tomas Lipinski argues in this article, the control that the content owners want to assert over digital uses has had the effect of undermining the principle of technological neutrality.  It is a compelling, and distressing, argument; if one needs additional evidence for it, one need look no farther than the radical proposal made by former Registrar Oman to treat each new technology with suspicion and presumptive condemnation.  Presumable Oman’s brief is just another strategy, made to assist a particular plaintiff and with no thought about the consequences his argument would have as policy.  Because those consequences would be disastrous.