Former Copyright Boss: New Technology Should Be Presumed Illegal Until Congress Says Otherwise

from the wtf dept

One of the reasons why we live in such an innovative society is that we've (for the most part) enabled a permissionless innovation society -- one in which innovators no longer have to go through gatekeepers in order to bring innovation to market. This is a hugely valuable thing, and it's why we get concerned about laws that further extend permission culture. However, according to the former Register of Copyrights, Ralph Oman, under copyright law, any new technology should have to apply to Congress for approval and a review to make sure they don't upset the apple cart of copyright, before they're allowed to exist. I'm not joking. Mr. Oman, who was the Register of Copyright from 1985 to 1993 and was heavily involved in a variety of copyright issues, has filed an amicus brief in the Aereo case (pdf).

As you hopefully recall, Aereo is the online TV service, backed by Barry Diller, that sets you up with your very own physical TV antenna on a rooftop in Brooklyn, connected to a device that will then stream to you online what that antenna picks up. This ridiculously convoluted setup is an attempt to route around the ridiculous setup of today's copyright law -- something that Oman was intimately involved in creating with the 1976 Copyright Act. The TV networks sued Aereo, but were unable to get an injunction blocking the service. Oman's amicus brief seeks to have that ruling overturned, and argues that an injunction is proper.

But he goes much further than that in his argument, even to the point of claiming that with the 1976 Copyright Act, Congress specifically intended new technologies to first apply to Congress for permission, before releasing new products on the market that might upset existing business models:
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, to put it mildly, crazy talk. He is arguing that anything even remotely disruptive and innovative, must first go through the ridiculous process of convincing Congress that it should be allowed, rather than relying on what the law says and letting the courts sort out any issues. In other words, in cases of disruptive innovation, assume that new technologies are illegal until proven otherwise. That's a recipe for killing innovation.

Under those rules, it's unlikely that we would have radio, cable TV, VCRs, DVRs, mp3 players, YouTube and much, much more. That's not how innovation or the law works. You don't assume everything innovative is illegal just because it upsets some obsolete business models. But that appears to be how Oman thinks the world should act. Stunningly, he even seems to admit that he'd be fine with none of the above being able to come to market without Congressional approval, because he approvingly cites the dissent in the Betamax case (which made clear that the VCR was legal), which argues that the VCR should only be deemed legal with an act of Congress to modify the Copyright Act. You would think that the success of the VCR in revitalizing the movie industry would show just how ridiculous that is... but in Oman's copyright-centric world, the rules are "first, do not allow any innovation that upsets my friends."

Elsewhere, he argues -- quite correctly -- that Aereo's design was clearly done with the help of lawyers to stay on the legal side of the line, but he gets the exact wrong lesson out of that:
The Aereo system 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 and shoehorn the Aereo business model into the Cablevision decision.
In other words, he's admitting that the system was designed carefully to remain on the right side of the law... but he's somehow upset that this is possible. In his incredible worldview, you should not be able to design around the contours and exceptions to copyright law -- because anything that upsets Hollywood is, by default, illegal.

Perhaps we've learned who put the clause in the '76 Act that explicitly says that the law should be used to stop disruptive innovation if it gets in the way of the status quo.

Either way, he goes on at length, claiming that his efforts in helping to put together the '76 Act and his other work on copyright were continually focused on benefiting the copyright holder. He never mentions that this is not the purpose of copyright law. It is the means. But the intent is to benefit the public. Oman does not ever seem to take that into consideration.
Indisputably, Congress drafted the Copyright Act to prevent the creative efforts of authors from being usurped by new technologies. That core principle is at the heart of the Copyright Act. Congressional intent would be undercut by any decision that would sanction the use of technologies which could be used indirectly to undermine its goals. Congress enacted a forward-looking statute that would protect those who create precisely so they have incentives to create.
Actually, that's quite disputable. The Copyright Act can only be designed to benefit the public. The means of doing so is by creating the ability of copyright holders to exclude, but that is hardly the only incentive to create. Allowing new technologies that disrupt old business models does not necessarily remove the incentive to create. Instead, as we've shown over and over again, the incentive to create appears to have increased greatly, even as respect for copyright has weakened tremendously over the past decade. So I fail to see how Congress' "intent" could possibly be undermined by new disruptive technologies coming along -- without permission -- and creating new and expansive markets that both help the public and provide new opportunities for content creators.


Reader Comments (rss)

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  1.  
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    Anonymous Coward, Sep 27th, 2012 @ 10:15am

    Trying to outpace the ACs with posts today Mike ? ;D
    Keep it up!

     

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    Lord Binky, Sep 27th, 2012 @ 10:20am

    When other countries are not limited in adoption of new technology, this sounds like a perfect way to destroy an economy. Now I see what you are up to.....

     

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    Anonymous Coward, Sep 27th, 2012 @ 10:22am

    Now here is a perfect example of Copyright stopping innovation.

     

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    Anonymous Coward, Sep 27th, 2012 @ 10:25am

    and yet again, presumed guilty unless able to prove innocence. this man is obviously still under the delusion that there is nothing more important than copyright and no industry more important than the entertainment industry. about time he was woken up!

     

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    Chris Rhodes (profile), Sep 27th, 2012 @ 10:27am

    I Cant Wait . . .

    . . . for Peak Permission Culture.

    We're almost there!

     

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  6.  
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    Jason, Sep 27th, 2012 @ 10:36am

    Obvious!

    Of course! This is SO OBVIOUS! Nothing stands in the way of newer new technology like current new technology! If it wasn't for the market inertia clay tablets, paper adoption would have been so much faster! Similarly the quill slowed down the shift to printing, which in turn is still plaguing the Internet.

    The reason not everyone can afford a top-end tablet today is because of your great^20 grandpappy's clay tablet. How are we EVER going to get the new new new new new thing, if people oh ever keep making new things??

    That's why IP is so important. The only way to promote the progress is to sit on the progress like a mean angry fat kid with daddy issues.

     

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  7.  
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    DannyB (profile), Sep 27th, 2012 @ 10:37am

    Technologies such as Gutenberg's printing press should have to apply to the Pope and the King for permission to exist. Wouldn't want to rock the boat with disruptive new technologies.

     

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  8.  
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    Lewis Carroll, Sep 27th, 2012 @ 10:38am

    Following the law is immoral

    "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 and shoehorn the Aereo business model into the Cablevision decision."

    Following the law is wrong, so we should pass a new law that requires lawful people to not do wrong by obeying the law.

    Also, the purpose of amicus briefs is to make recommendations to Congress.

    I am in favor of al of this.

     

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    Anonymous Coward, Sep 27th, 2012 @ 10:39am

    Sorry, Mr Ford. Motorized carriages are just too disruptive for the horse and buggy business. They could destabilize the economy. We can't give you approval to build the factory. Try China, I hear they have cheap labor.

     

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    average_joe (profile), Sep 27th, 2012 @ 10:43am

    Either way, he goes on at length, claiming that his efforts in helping to put together the '76 Act and his other work on copyright were continually focused on benefiting the copyright holder. He never mentions that this is not the purpose of copyright law. It is the means. But the intent is to benefit the public.

    Copyright, by design, benefits authors because that in turn benefits the public. I know that you think because it's the means it can be ignored, but that makes no sense. The means are an integral part of accomplishing the ends.

    The Copyright Act can only be designed to benefit the public.

    Nope. The Copyright Act is designed to benefit authors first because that in turn benefits the public. Pretending like it's not at all about benefiting authors makes zero sense. It's exactly about benefiting authors so that the public may also benefit.

    Instead, as we've shown over and over again, the incentive to create appears to have increased greatly, even as respect for copyright has weakened tremendously over the past decade.

    And yet you can't even find more than a couple authors to participate in your book club that do not rely on the copyright business model. You *want* to declare copyright dead, but you are FAR from proving that your alternative models are superior. Why don't you actually compete with copyright and win on a substantial scale before you declare "free" the winner? Copyright is winning by a mile. Your own book club is evidence of that.

    So I fail to see how Congress' "intent" could possibly be undermined by new disruptive technologies coming along -- without permission -- and creating new and expansive markets that both help the public and provide new opportunities for content creators.

    If your tech buddies are violating the rights of authors, then they are undermining Congress's undeniable intent to give authors exclusive rights. I know you're super-anxious to write out the parts where authors get exclusive rights, but the fact is that your alternative models have not proven themselves. Again, you can't even find more than a couple authors who subscribe to your alternative views to be featured in your book club. That says it all. Those authors for the most part rely on copyright, not on "free." Copyright is not about forcing authors to take the "opportunities" offered by your tech buddies. It's about giving authors the choice of how and where to distribute their works. Your buddies are turning that on its head. Calling it "innovation" is clever, but it's deceptive.

     

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    Anonymous Coward, Sep 27th, 2012 @ 10:43am

    To promote the progress of science and useful arts

    To promote the progress of science and useful arts, by . . .
    let[ting] 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.

     

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    Anonymous Coward, Sep 27th, 2012 @ 10:45am

    Sorry, Mister Bell. Your telephone system could be disastrous for the telegraphy business. We can't allow that.

     

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    Anonymous Coward, Sep 27th, 2012 @ 10:48am

    So you need to ask Congress to make something new. Why do we have another patent office then?


    Seems to be better to ask forgiveness than permission... Just do it without permission, then someone has to actually be able to shut you down by proving you infringed. That's a hell of a lot easier than getting Congress to agree on anything... that takes, an act of Congress?

     

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    :Lobo Santo (profile), Sep 27th, 2012 @ 10:49am

    Re: Well, color me surprised!

    9.9 of 10
    Finest trolling I've seen in a very long time!


    I never thought I'd hear you admit the truth. I am very impressed!

    Yes, you are exactly correct, copyright has always been about enriching the "authors" (as you put it, a graceful euphemism, btw) at the expense of the public.

    Glad to see that you're finally beginning to think upon the truth of the matter.

     

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    Anonymous Coward, Sep 27th, 2012 @ 10:51am

    Seriously, it's like Ayn Rand was a prophet. what-the-hell...

     

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    Anonymous Coward, Sep 27th, 2012 @ 11:00am

    Re:

    "...intent to give authors exclusive rights..."

    If only it really was for the benefit of the authors but mostly for that of the publishing industries who somehow managed to jack most of it from the authors and are those this whole circus is really meant to "protect".

     

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    Anonymous Coward, Sep 27th, 2012 @ 11:00am

    Guilty until proven innocent is apparently in style nowadays.

    I wish it would end like other internet fads, but I suspect it will not.

     

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  18.  
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    Anonymous Coward, Sep 27th, 2012 @ 11:08am

    Re: Re: Well, color me surprised!

    From the historical perspective, copyright was intended to benefit the publishers. It was designed by the stationers company to replace the monopoly on printing that they were losing. It was a switch from a monopoly based on control of technology, printing, to control based on copying the work. It almost certainly made little difference to the authors, who were selling their manuscripts to the publisher in either case.
    A side note, before the USA introduced copyright protection for foreign works, British authors made as much or more from their American publishers who could just cop[y the British book. Paying the Authors allowed them to print before the British publication, and therefore any American rivals.

     

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    EF, Sep 27th, 2012 @ 11:13am

    The envelope please.

    ...and the award for Best-Supporting-Douchebag goes to: Ralph Oman!!

     

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    Wally (profile), Sep 27th, 2012 @ 11:13am

    Re:

    All of this average_joe, and you missed the point. You're right about copyright as its meant to benefit everyone. However, this shouldn't apply at all to new technologies. If we applied the idea of getting congress approved new technologies, it would enable congress, who currently can be easily bought out, to become like the FDA. The process would most likely cause a delay in new, innovative ideas outside of books. For those who don't know, it costs MILLIONS and sometimes BILLIONS to get the FDA to approve of a new medication.

    Under the congress approval system, it would end up more expensive to get approval than it would to develope new technologies. In turn, this will delay new technologies from coming out to a point where the new technogy would become obsolete by the time of approval.

     

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    Tunnen (profile), Sep 27th, 2012 @ 11:17am

    Re:

    We're sorry Ford, your Model-T will be disastrous for the horse and cart industry.
    We're sorry Edison, your light bulb will be disastrous for the candle industry.
    We're sorry Gutenberg, your printing press will be disastrous to the scribing industry.
    We're sorry modern science, your thinking will be disastrous to the alchemy industry. =P

    (I know the Ford didn't make the first automobile nor Edison the first lightbulb. They are just who most people think of when mentioning that invention) =P

     

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  22.  
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    Tunnen (profile), Sep 27th, 2012 @ 11:20am

    Re:

    I believe the act of opening another patent office would infringe on the rights of the first. =P

     

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  23.  
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    Rikuo (profile), Sep 27th, 2012 @ 11:20am

    Re:

    "Nope. The Copyright Act is designed to benefit authors first because that in turn benefits the public. Pretending like it's not at all about benefiting authors makes zero sense. It's exactly about benefiting authors so that the public may also benefit."

    And at what point do you, Average_Joe, say that the "benefits to authors" is too much for society to pay? I say its too much when my natural born right to copy is taken away, when new technologies and business models are being threatened with being sued out of existence, when you have to ask permission to do anything at all.

    "If your tech buddies are violating the rights of authors"
    That's the problem. In order for innovation to occur, it will inevitably run afoul of copyright law at some point. Even if the engineers have every intent to stay within the law, copyright law is so badly written and does not work with reality, that the engineers will have to violate it in order to create the next big thing, the next great invention.

     

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  24.  
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    The eejit (profile), Sep 27th, 2012 @ 11:22am

    Re: Re: Re: Well, color me surprised!

    From the historical perspective, copyright was intended to benefit the mercantilist Guilds of London~.

    FTFY

     

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  25.  
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    gorehound (profile), Sep 27th, 2012 @ 11:27am

    Ralph Oman is lower than the ugliest looking turd.
    Great ideas to do great damage on USA.

     

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  26.  
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    Josef Anvil (profile), Sep 27th, 2012 @ 11:28am

    Re: Correct and so very wrong

    "Copyright, by design, benefits authors because that in turn benefits the public."

    Ding ding ding. That is correct. However, that design was corrupted by extending the term of copyright past the lifespan of generations of humans. Currently copyright benefits authors and it remains to be seen if it will at some point in the distant future, benefit the public. The internet will, in all probability, render copyright in its current form, obsolete within the next decade or two.

    "Those authors for the most part rely on copyright, not on 'free.'"

    Relying on revenue is a far cry from relying on copyright. Yes, authors do rely on revenue and yes, they can incorporate 'free' into their business model, but just because someone collects a fee for their work does not mean they rely on copyright. Instead they rely on paying fans. No amount of copyright laws can make someone buy something they don't want to buy. If authors relied on copyright, most would starve since it's so easy to find free versions of their work online now.

     

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    Baldaur Regis (profile), Sep 27th, 2012 @ 11:29am

    Indisputably, Congress drafted the Copyright Act to prevent the creative efforts of authors from being usurped by new technologies.
    Regardless if those new technologies further the exposure of the author to a larger public, which is the point where copyright maximalists and I part company.

    I understand the obligation of lawyers to assert the most preposterous ideas of their masters, with the only metric of success being how many people the lawyer can convince that the sky is, indeed, purple. But there must be a special sense of cynical obtuseness that copyright lawyers have to attain in order to say copyright promotes progress.

     

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  28.  
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    Mesonoxian Eve (profile), Sep 27th, 2012 @ 11:31am

    Re:

    This comment is borne of the truth, though. Original copyright was precisely for this reason: the church and state didn't want people to print their own stuff.

    Then, some pesky broad named "Queen Anne" decided to continue the tradition by listening to the same bogus stats as given her by the publishing industry of the era and thus, we've evolution in progress.

    It's amazing, too, this idiot's remarks about innovation while his industry gets the laws passed to make everything illegal anyway.

    If not illegal, definitely primer to allow trolls to feed like queens.

     

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  29.  
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    Mason Wheeler, Sep 27th, 2012 @ 11:32am

    Re: Re: Re: Well, color me surprised!

    I don't know where you get this idea from, but it's absolutely and completely wrong. Copyright wasn't designed to replace the monopoly that the Stationers' Company "was losing"; it showed up several years after that monopoly was already gone.

    It was designed to fix the chaos that the removal of that monopoly created, and it most certainly *did* make a real difference to the authors. Without a central authority to control publication, publishers started publishing whatever they felt like without any regards to the authors' wishes, or even to paying them for their work. The Statute of Anne, the original copyright act, was created to put a stop to that, to require publishers to get contractual permission from the authors before they published it.

    Yeah, that's right. Copyright was originally designed to prevent publishers from exploiting people. Today it's been twisted and perverted to the point that its principal use is to *facilitate* the exploitation of people by publishers, but historically (up until about 1970) that was not the case.

     

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  30.  
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    Zakida Paul (profile), Sep 27th, 2012 @ 11:32am

    Every day I read a story on Techdirt about yet another brain fart and I wonder "how will this be topped?". Then, without fail, the next day I read about another even bigger brain fart.

    What will it be tomorrow?

     

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  31.  
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    MrWilson, Sep 27th, 2012 @ 11:40am

    Re:

    Not to mention the fact that the process of appealing to Congress for permission to introduce new technology would of course be rigged in favor of the rejecting the applicants because the legacy companies are the ones who have the biggest lobbying and campaign contribution budgets, the revolving doors, and are buddy buddy with Congresspersons and Senators. So who would Congress support, some young startup with no reputation and no money and maybe not even a lawyer, or their IP maximalist friend who they played golf with last week and who has incriminating cellphone picks of them sniffing blow off a hooker's cleavage?

     

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  32.  
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    Josh in CharlotteNC (profile), Sep 27th, 2012 @ 11:47am

    Re: I Cant Wait . . .

    The pirates are building a waterslide on the downslope. Wheeee!

     

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  33.  
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    MrWilson, Sep 27th, 2012 @ 11:49am

    Re: Re: Correct and so very wrong

    The fact that they had to extend copyright duration proves that copyright wasn't originally intended purely for the benefit of the authors. If it was written with the authors in mind, why wouldn't it have been perpetual instead of limited? Why would you even bother to include the "to promote the progress" part either? If it were really solely for the benefit of authors, it would have restricted transfer of copyright control to non-authors and it would have expressly stated that it was for the benefit of authors.

     

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    Anonymous Coward, Sep 27th, 2012 @ 11:57am

    Does this mean the new iPhone 5 would be illegal?

     

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  35.  
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    Josh in CharlotteNC (profile), Sep 27th, 2012 @ 12:01pm

    Re:

    The means are an integral part of accomplishing the ends.

    What happens when there are better means?

    If the ends are to distribute books, you don't keep building monastaries and staffing them full of monks to make copies after the printing press comes around.

    When the means you use to accomplish the ends no longer makes sense, it's time to scrap that means and find a new one. No matter how many monk protection acts you pass, no matter how often you villify Gutenberg, you can't stop progress. Climb aboard or get run over.

     

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  36.  
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    Zakida Paul (profile), Sep 27th, 2012 @ 12:05pm

    Re:

    No, that's not a new technology ;)

     

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    Franklin G Ryzzo (profile), Sep 27th, 2012 @ 12:09pm

    Re: Re:

    Just a quick nit to pick...

    Blow is consumed off a hooker's asscrack. The cleavage is used for tequila shots. Please keep this in mind for future reference. I'd hate for you to find yourself at a Congressman's fundraiser and not be aware of proper hooker etiquette. :D

     

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  38.  
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    Jason, Sep 27th, 2012 @ 1:10pm

    Re: Obvious!

    "oh" should read "only", but it doesn't, and that's because of too much progress and not enough blind promotion!

     

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  39.  
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    MrWilson, Sep 27th, 2012 @ 1:13pm

    Re: Re: Re:

    My bad. I'll give you one guess as to whether I'd be more likely to be the young startup guy with no money or the IP maximalist who wrote the hooker etiquette guide.

     

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  40.  
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    greenbird (profile), Sep 27th, 2012 @ 1:13pm

    Re:

    This is especially scary given that those same disruptive technologies usually also challenge the government's ability to control the people.

     

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  41.  
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    Infogeek, Sep 27th, 2012 @ 1:14pm

    Re: Re:

    Wise words Tunnen!Google it on the wiki for people that do not know of this.

     

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  42.  
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    Jason, Sep 27th, 2012 @ 1:19pm

    Re: Re: Re: Re: Well, color me surprised!

    You're wrong. I don't know whether you suggest that he 1842 act was the first or you honestly believe the Statute of Anne was somehow more than nominally vesting copyright with the author.

    In either case you're wrong, or perhaps you have another view. Please feel free to clarify.

     

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  43.  
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    greenbird (profile), Sep 27th, 2012 @ 1:22pm

    Re: Re:

    Are you kidding? Apple probable has 500 patents on various aspects of the iPhone 5.

     

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  44.  
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    Dave Xanatos, Sep 27th, 2012 @ 1:39pm

    Re: Re: Re:

    Just re-read my copy of Emily Post and there is no mention of 'hooker etiquette' *anywhere*. Having this kind of knowledge available is what makes the internet AWESOME.

     

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  45.  
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    Milton Freewater, Sep 27th, 2012 @ 2:15pm

    Re:

    "If your tech buddies are violating the rights of authors, then they are undermining Congress's undeniable intent to give authors exclusive rights."

    You don''t know what "violating" means.

    You don't know what "exclusive" means, either.

     

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    Anonymous Coward, Sep 27th, 2012 @ 2:15pm

    How about rephrasing that. "Copyright proponents should be considered batshit insane, until a panel of at least ten shrinks says otherwise.."

     

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  47.  
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    Anonymous Coward, Sep 27th, 2012 @ 2:18pm

    Re: Re: Re:

    "No, that's not a new technology"

    "Apple probable has 500 patents on various aspects of the iPhone 5."

    Unfortunately, those two statements in no way conflict.

     

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  48.  
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    Milton Freewater, Sep 27th, 2012 @ 2:21pm

    Re: Re:

    On top of that, you don't know what "undeniable" means.

    If Congress's intent was undeniable, you would not have felt compelled to insist that it was.

    Good rule of thumb - any time a writer says "undeniably," "clearly" or "Obviously" it is because they are trying to push an argument they know is weak. Their insecurity causes them to add a redundant "really really" adverb or adjective to the sentence.

    in this case, Congress's intent was to give authors some limited rights. We as a nation will decide what those rights will be in every new instance, and that decision will not be dictated to us. Please keep having a problem with that.

     

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    Seegras (profile), Sep 27th, 2012 @ 2:22pm

    Re: Re: Correct and so very wrong

    That is correct. However, that design was corrupted by extending the term of copyright past the lifespan of generations of humans. Currently copyright benefits authors and its remains
    I fixed that. Obviously copyright past the lifespan of the author benefits its remains..

     

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  50.  
    icon
    Keroberos (profile), Sep 27th, 2012 @ 2:36pm

    Well, this answers any questions you could have about why copyright is so screwed up today. This guy is a f-ing moron. Going by his statement, any device that could reproduce, distribute or display copyrighted material is illegal by definition. I guess we should turn in for destruction all our photocopiers, fax machines, cassette recorders, cameras, TVs, VCRs, CD/DVD players/burners, computers, cell phones, MP3 players, e-readers, and tablets.

     

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  51.  
    identicon
    Lord Binky, Sep 27th, 2012 @ 2:43pm

    Re:

    Apply Godwin's law?

     

    reply to this | link to this | view in thread ]

  52.  
    icon
    Calvin (profile), Sep 27th, 2012 @ 2:43pm

    Sounds like a sure-fire way....

    for the USA to lose all competitive advantage in the world markets.
    Much as the current administration would like to think that USA law = world law, it currently doesn't and this is a sure-fire way to ensure it remains that way. It would be just too good an advantage for other countries to give up.

     

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  53.  
    identicon
    Angry Voter, Sep 27th, 2012 @ 2:50pm

    Are the media cabals of benefit to society?

    Before the US Civil War, all corporate charters in the US were for a limited time only.

    To be granted or renewed, a company had to prove that it was of benefit to society at large.

    Yes, you read that right, they had to prove they were of benefit to society at large - not just the owners or they would be dissolved. Operators were also held personally liable for the actions of the companies (passive 3rd party investors were not).

    It is screamingly obvious that the media cabal and the banking cabal are not of benefit to society at large and should be dissolved. Banks could be replaced by credit unions and the media cabal could be replaced by direct voluntary payment to authors. In an age of electronic distribution there is no need for stocking, distribution or advertizing and the corruption that it brings.

     

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  54.  
    identicon
    Anonymous Coward, Sep 27th, 2012 @ 2:50pm

    Re:

    Not only that. If you take his arguments to its fullest, you would see that the internet per definition is a problem for copyright since it is not confined to single markets and it is therefore dusruptive towards the monopoly sold by the copyright-holder... Another issue, specifically for EU: Teaching english has a hugely disruptive effect on market-separation since people in Germany can just buy copyrighted material in english from any english speaking country and when the prices are different on materials in each market, you will see an increase in parallel import and the nation in the most expensive countries outside the english speaking area will take a big hit to their market on copyrighted material (Germany aand France especially). That is what the combination of stronger communication through english in schools and the internet is doing and it is impossible to stop without completely selling out on democratic values (whatever they are in this day and age?)!

     

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  55.  
    icon
    Anonymous Monkey (profile), Sep 27th, 2012 @ 3:20pm

    Wait... WHAT ?!?

    "Former Copyright Boss: New Technology Should Be Presumed Illegal Until Congress Says Otherwise"

    IF, and this is a big if, that were true ... then:

    IBM, Apple, iNTEL, AMD, nVidia, ATI, Yahoo!, Google, and on and on and on

    WOULD NOT EXIST!
    period!
    end of discussion.
    It is the nature of innovation to disrupt so-called "status-quo" so as to improve and move society forward.
    It's how we learn, adapt, and grow, both personally and as a society. It's something to build on, and opens up new doors and ideas for further improvement and pursuit.

     

    reply to this | link to this | view in thread ]

  56.  
    identicon
    Anonymous Coward, Sep 27th, 2012 @ 3:30pm

    All DMCA notices should be presumed to be false, until proven otherwise.

     

    reply to this | link to this | view in thread ]

  57.  
    identicon
    Anonymous Coward, Sep 27th, 2012 @ 4:04pm

    Congress should be presumed illegal.

     

    reply to this | link to this | view in thread ]

  58.  
    identicon
    Scott, Sep 27th, 2012 @ 5:04pm

    Re: Re:

    I think there are people who want this sorta thing to happen.

     

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  59.  
    identicon
    Anonymous Coward, Sep 27th, 2012 @ 7:46pm

    Re: Re:

    After reading what Ralph Oman has said I want to invoke Poe's Law

     

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  60.  
    identicon
    Realist, Sep 27th, 2012 @ 8:40pm

    Old man should join his old friends and die making room for the new generation...

     

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  61.  
    identicon
    Anonymous Coward, Sep 27th, 2012 @ 11:07pm

    it's time you motherfuckers start electing a bunch of independent candidates into congress, if nothing else then just to get rid of the fake labels of democrat and republican that seem to have been created with the sole purpose of keeping the public busy arguing while the politicians do whatever they want.

     

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  62.  
    identicon
    Anonymous Coward, Sep 27th, 2012 @ 11:24pm

    U.S.A.

    If we apply the same philosophy the whole nation, every newborn American should be put in jail until they are proven innocent. Congratulations, America!

     

    reply to this | link to this | view in thread ]

  63.  
    identicon
    Euro Jackass, Sep 28th, 2012 @ 1:13am

    DO IT! It would be perfect fit for 96% religious population. And europe would have new renaissance :D

     

    reply to this | link to this | view in thread ]

  64.  
    icon
    chris (profile), Sep 28th, 2012 @ 3:49am

    Re: Re:

    That's the problem. In order for innovation to occur, it will inevitably run afoul of copyright law at some point. Even if the engineers have every intent to stay within the law, copyright law is so badly written and does not work with reality, that the engineers will have to violate it in order to create the next big thing, the next great invention.

    what you are describing is a kind of corollary to the innovator's dilemma, known to some as the pirate's dilemma. new technologies are illegal until the copyright powers that be cut some sort of blanket licensing deal. the phonograph was a violation of copyright until a licensing deal created a new industry. radio, cable TV, and the VCR all did too, until licensing deals created their respective industries.

     

    reply to this | link to this | view in thread ]

  65.  
    icon
    chris (profile), Sep 28th, 2012 @ 3:52am

    Re: Re:

    What happens when there are better means?

    the regimes built on the inefficiencies of the old means will do all that they can to prop up the status quo.

     

    reply to this | link to this | view in thread ]

  66.  
    identicon
    Ross, Sep 28th, 2012 @ 3:59pm

    Excellent Mwahahaha

    Does this mean that license plate scanner’s, facial recognition technology, domestic drones, NSA wiretapping technology, government email filters, new (police issue) laser speed guns and more need to go through the same process? If we need to push every new technical innovation than maybe the government will break itself in the process of having to navigate its own convoluted bureaucracy. Let’s hope for the B... THIS POST HAS BEEN DELETED FOR COPYRIGHT INFRINGMENT. PLEASE SIT QUEITLY AND WAIT FOR THE AUTHORITY.

     

    reply to this | link to this | view in thread ]

  67.  
    identicon
    monkyyy, Sep 28th, 2012 @ 9:15pm

    Re:

    agreed

     

    reply to this | link to this | view in thread ]

  68.  
    identicon
    Anonymous, Sep 28th, 2012 @ 11:32pm

    Wise quote

    Firstly, Oman is getting close to 90 years and he hardly uses any new technology. Whatever he did in the 70s is over.

    Why are we even quoting him? What he says hardly matters in light of the last 10 years innovation with respect to the Internet. So give the guy a break and do what matters. It's how the courts rule that will be the deciding factor. Not what Oman thinks.

     

    reply to this | link to this | view in thread ]

  69.  
    identicon
    Anonymous, Sep 28th, 2012 @ 11:32pm

    Wise quote

    Firstly, Oman is getting close to 90 years and he hardly uses any new technology. Whatever he did in the 70s is over.

    Why are we even quoting him? What he says hardly matters in light of the last 10 years innovation with respect to the Internet. So give the guy a break and do what matters. It's how the courts rule that will be the deciding factor. Not what Oman thinks.

     

    reply to this | link to this | view in thread ]

  70.  
    identicon
    Iwasapenguin, Sep 29th, 2012 @ 11:51am

    Re:

    Please! Anything to teach the US humility.

     

    reply to this | link to this | view in thread ]

  71.  
    identicon
    Brian, Sep 29th, 2012 @ 5:08pm

    Won't you please think of the children?

    Dear Congress,

    Please save us from our failing business model.

    Love, RIAA-MPAA.

     

    reply to this | link to this | view in thread ]

  72.  
    identicon
    Anonymous Coward, Sep 29th, 2012 @ 6:40pm

    Re: Re:

    Are you serious? People actually think Ford made the first car!?

    That is really messed up. On the level of thinking India is part of South America.

     

    reply to this | link to this | view in thread ]

  73.  
    identicon
    Anonymous Coward, Sep 29th, 2012 @ 8:28pm

    We're sorry Craig, your site...

    We're sorry Craig's List, your website will be disastrous to the New York Times and other publishers...

     

    reply to this | link to this | view in thread ]

  74.  
    identicon
    Jetdillo, Sep 30th, 2012 @ 2:40am

    Dear Mr. Orman

    It is (one of) my life's missions to infuriate, confound and defy people like you simply by thinking & creating, simply because I can.

     

    reply to this | link to this | view in thread ]

  75.  
    identicon
    BrianMC, Sep 30th, 2012 @ 3:28am

    Re: Re: Re: Re: Well, color me surprised!

    "Eejit", you say?

    Might not be too-far off the mark, since you've obviously never read The Statute of Anne.

    The first every copyright legislation was indeed granting a monopoly, but for a very limited time. It formed a pact between authors, publishers, and the public. At the end of the terms then granted as exclusive copyright, the public could do what they wished with the author's work.

    The upshot of books rapidly entering the public domain was The Enlightenment. Idiots like Oman are the heralds and champions of a new Dark Ages where knowledge is the exclusive purview of the modern-day equivalent of monasteries copying with quill and ink.

    "Your now, to own forever ...,/b>" Yeah, right.

     

    reply to this | link to this | view in thread ]

  76.  
    identicon
    Dodgy Geezer, Sep 30th, 2012 @ 11:01am

    A slight dorrection...

    "..(I know the Ford didn't make the first automobile nor Edison the first lightbulb. They are just who most people think of when mentioning that invention).."


    ...They are just who most AMERICANS think of when mentioning that invention...

    There, fixed that for you...

     

    reply to this | link to this | view in thread ]

  77.  
    identicon
    Anonymous Coward, Sep 30th, 2012 @ 1:58pm

    Re: A slight dorrection...

    No, it's pretty much the whole world there who think that Ford invented the car (it was actually the first car assembly line) and Edison invented the lightbulb (I'm not sure whether he did or not).

    When you think of 'person who invented cars', most American history textbooks have Ford as the person who did that.

     

    reply to this | link to this | view in thread ]

  78.  
    icon
    Bergman (profile), Sep 30th, 2012 @ 2:37pm

    Re: Re:

    I'm sorry Mr. Silent Movie Producer, your technology interferes with the profits of the live action theaters and will be banned henceforth.

     

    reply to this | link to this | view in thread ]

  79.  
    identicon
    Anonymous Coward, Sep 30th, 2012 @ 4:05pm

    Disruptive technology:

    The house I grew up in was built with carriage money made between 1870 and 1910. The house across the street, car money. The estate down the street, now a huge walled park: car money.

    This in New Haven, where we don't imagine cars being made. They weren't for long. (Like movies weren't made for long in Ithaca.)

    Or visit Bethlehem, PA. A vast place with huge empty steel mills. Inspires awe, but also a sadness. The town is hollow. What is missing is a great MUSEUM there. If it's senseless to mandate the continuation of industry, it would make sense to crowdsource a proper musuem.

    At the moment it is lacking. Who builds monuments to an ebbing tide?

     

    reply to this | link to this | view in thread ]

  80.  
    icon
    robincanada (profile), Oct 1st, 2012 @ 1:45am

    Ayn Rand must have thought even she was being very over-the-top in 1937 when she put exactly those comments into the mouths of "science" councillors of the nearly dead society in Anthem. Sadly, I think she wouldn't be shocked any more to hear some actual government thug making them...

     

    reply to this | link to this | view in thread ]

  81.  
    identicon
    Nick Daniels, Oct 1st, 2012 @ 6:10am

    Unfortunately reality...

    is incompatible with his world view. Innocence before guilt applies in all matters of law, and that's from the constitution. So making technology guilty of illegality before it is assumed innocent is very obviously the wrong approach. And would be struck down in court in 10 minutes, so why would you push for a scheme that you couldn't keep working? OH YA cause your old media and adaption is not something your good at, silly me.

     

    reply to this | link to this | view in thread ]

  82.  
    identicon
    Anonymous Coward, Oct 1st, 2012 @ 8:07am

    Re: Re: Re:

    He made the first mass producible car....

     

    reply to this | link to this | view in thread ]

  83.  
    identicon
    Peter Harrison, Oct 1st, 2012 @ 12:04pm

    This isn't about restricting technology. It's about protecting people like me.

    I am the author/creator of a number of written and programmatic creations, and I feel very strongly about people who take my creations and re-sell them without paying me royalties for my work, which is exactly what Aero TV is doing. They take broadcast materials and re-sell them without asking for permission from or paying royalties.

    Scrolling up a bit in the friend of the court brief that TechDirt cites, "The tension between technology and copyright law in general is not new. It has been with us since the beginnings of copyright law and the widespread use of the printing press. Congress, when it enacted the present Copyright Act, both addressed existing conflicts and anticipated future technological developments. It took pains to ensure that the statute was technology neutral and emphasized that the broad rights it intended authors to enjoy should not be circumvented and infringed by new technologies."

    This is exactly right. I, as an intellectual property owner, should not have to chase down and prove in court that I am entitled to be paid for the work I do each time so-and-so comes up with a new way to distribute my intellectual property. They may have full rights to their new technology, but they don't have the right to use that new technology to sell someone else's property.

    TechDirt quoted the Amicus breif out of context. If you expand the quote by one leading sentence you learn the true intent and meaning of his assertion:

    "The courts should not saddle the copyright owner with having to convince Congress to act to prohibit unauthorized Internet retransmissions. 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."

    In other words, he's not saying that Congress should have the right to approve new inventions, but that a Copyright owner's rights don't end each time someone invents something new. He's saying that the law should err in favor of the copyright owner unless Congress says otherwise.

    "In this case, the Court should “do as little damage as possible to traditional copyright principles” by finding in favor of the authors and enjoining the infringing activity. Congress can intervene to clarify the law if it chooses."

    Is this a "Permission Culture?" Well, frankly, when it comes to someone else's property, yes, you have to ask permission to borrow my car, and you have to ask permission to distribute the fruits of my digital labors.

    Does this inhibit creativity? No. It protects it.

    How about some examples of how this dos not inhibit creativity and invention? Apple created the iPod and iTunes, which were technical innovations that both introduced a new technology (indeed, a new cultural icon) *and* a way to reward music artists for their work. Ditto Kindle and Nook. Ditto the DVD player and Hulu.

    The difference between these inventions and Aero TV is they invented/created the whole deal, a cool invention *and* a way to use those inventions without stealing from others. Aero, on the other hand, is a half-baked innovation that depends on stealing *from the exact same content creators that the iPod, Kindle, Nook, DVD player, and Hulu provide a means to compensate* in order to make a buck.

    I know the entertainment sector has lobbied Congress to do some annoying things. I think they were wrong to extend the lifetime of copyright protections for things like movies and other group works well beyond the lifetime of their original creators, a move that protects corporate profits but does nothing for the actual content creators or the public's interest.

    This issue is bigger than that. It's about protecting people like me, the little guys who earn a living from the articles, computer programs, videos, and other content and products they create.

    TechDirt should amend this article to tell the whole story instead of cherry-picking facts and quoting out of context to create drama.

     

    reply to this | link to this | view in thread ]

  84.  
    icon
    average_joe (profile), Oct 1st, 2012 @ 12:18pm

    Re: This isn't about restricting technology. It's about protecting people like me.

    Best post on TD in quite some time. Thanks, Peter.

     

    reply to this | link to this | view in thread ]

  85.  
    identicon
    peterR, Oct 1st, 2012 @ 12:33pm

    Civilisations have ended many times because they resisted change either because of stultifying religious traditions or by some kind of precautionary principle.

    If we want to survive into the future then we must face an unlimited number of both known and unknown problems. The solutions can only come if we encourage a continual stream of innovations.

     

    reply to this | link to this | view in thread ]

  86.  
    identicon
    Peter Harrison, Oct 1st, 2012 @ 12:35pm

    Exactly. And you do that by supporting and protecting the innovators, not by providing a corporate entity like Aero TV with a way to steal from them.

     

    reply to this | link to this | view in thread ]

  87.  
    identicon
    Anonymous Coward, Oct 1st, 2012 @ 1:54pm

    Re: This isn't about restricting technology. It's about protecting people like me.

    In other words, he's not saying that Congress should have the right to approve new inventions, but that a Copyright owner's rights don't end each time someone invents something new. He's saying that the law should err in favor of the copyright owner unless Congress says otherwise.

    I'm not sure how you don't see that this approach is de facto requiring Congressional approval of all new technologies. If the law defaults to protecting copyright holders from invention, then lawmakers must overturn it in cases where they deem an invention to be okay.
    But then again, you've also managed to conflate physical and digital goods (and copyright infringement with theft, separately), falsely attribute the invention of the MP3 player and digital music distribution to Apple, and fail to spell Aereo correctly.

     

    reply to this | link to this | view in thread ]

  88.  
    identicon
    Peter Harrison, Oct 1st, 2012 @ 2:25pm

    Re: Re: This isn't about restricting technology. It's about protecting people like me.

    "I'm not sure how you don't see that this approach is de facto requiring Congressional approval of all new technologies. If the law defaults to protecting copyright holders from invention, then lawmakers must overturn it in cases where they deem an invention to be okay."

    Because the 1976 copyright law is about protecting the intellectual property rights' (copyright's) owner, not about limiting technology.

    Placed in a different context, let's say I invent a robot that can select and bag ripe apples from a grocery. Does my invention of this robot give me the right to roll it into the grocer, pull out sackfulls of their best apples, leave without paying, then take them out to the parking lot and sell them? If I followed your argument, under current laws about theft I'd have to get legal approval to build my robot because it could steal apples, when all the law actually says is that I can't steal the apples.

    Oh, and thank you for pointing out the spelling error for Aereo. Clearly the meaning behind what I said was not lost, as you were able to recognize exactly what I was talking about.

    I'm am equally impressed by your ability to create fiction, deciding that I attributed the invention of the MP3 player and digital music distribution to Apple, which is not what I said. Perhaps that's where you and I differ: I think the words on the page have distinct and clear meaning, where you opt to read in whole concepts that don't appear on the page or screen.

    Next I suppose you'll decide to convict people for murder for simply wishing someone would drop dead. No need to, you know, actually commit the crime.

    Then, I suppose I can expect no less from someone who disambiguates the concept of copyright ownership for a physical thing, like a book, from the exact same thing when it is in digital form. Has it occurred to you that modern books begin their lives as digital media, which is then licensed to a publisher for production in book form?

     

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  89.  
    identicon
    Anonymous Coward, Oct 1st, 2012 @ 4:19pm

    Re: Re: Re: This isn't about restricting technology. It's about protecting people like me.

    I'm am equally impressed by your ability to create fiction, deciding that I attributed the invention of the MP3 player and digital music distribution to Apple, which is not what I said. Perhaps that's where you and I differ: I think the words on the page have distinct and clear meaning, where you opt to read in whole concepts that don't appear on the page or screen.

    from earlier post
    Apple created the iPod and iTunes, which were technical innovations that both introduced a new technology
    The difference between these inventions and Aero TV is they invented/created the whole deal, a cool invention *and* a way to use those inventions

     

    reply to this | link to this | view in thread ]

  90.  
    identicon
    Peter Harrison, Oct 1st, 2012 @ 4:55pm

    Re: Re: Re: Re: This isn't about restricting technology. It's about protecting people like me.

    "Apple CREATED the iPod and iTunes, which were technical innovations that both INTRODUCED a new technology."

    Yup. No mention of inventing the MP3. The MPEG-2 and MPEG-3 formats where invented at Cornell and Columbia Universities, respectively. No mention of inventing a store, either.

    Apple did, on the other hand, earn several patents (the gold standard for determining who invented something) for the iPod menu system and scroll wheel, and for their iTunes store user interface. It was these inventions that made the iPod a success.

    You're still reading meaning into what I said that just isn't there. Jack and Jill did not go up the hill to fetch a pail of vodka, I never said Apple invented the MP3 or digital music distribution, and no one is arguing in court that Congress has to approve new technologies.

     

    reply to this | link to this | view in thread ]

  91.  
    identicon
    John Kannarr, Oct 2nd, 2012 @ 2:44pm

    Re: Anthem, by Ayn Rand, 1937

    "Should it be what they claim it is," said Harmony 9-2642, "then it would bring ruin to the Department of Candles. The Candle is a great boon to mankind, as approved by all men. Therefore it cannot be destroyed by the whim of one."

    "This would wreck the Plans of the World Council," said Unaminity 2-9913, "and without the Plans of the World Council the sun cannot rise. It took fifty years to secure the approval of all the Councils for the Candle, and to decide upon the number needed, and to re-fit the Plans so as to make candles instead of torches.... We cannot alter the Plans again so soon."

    - Anthem, 1937, Ayn Rand

     

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  92.  
    identicon
    Bevan, Oct 2nd, 2012 @ 4:09pm

    Copyright

    "And yet you can't even find more than a couple authors to participate in your book club that do not rely on the copyright business model. You *want* to declare copyright dead, but you are FAR from proving that your alternative models are superior. Why don't you actually compete with copyright and win on a substantial scale before you declare "free" the winner? Copyright is winning by a mile. Your own book club is evidence of that."

    Look on YouTube for this:
    Gaiman on Copyright Piracy and the Web

     

    reply to this | link to this | view in thread ]

  93.  
    identicon
    TerraHertz, Oct 2nd, 2012 @ 5:57pm

    If they want to use the legal system this way

    Will someone please patent the business method of legislating a nation into economic oblivion for ideological reasons, then sue bastards like Ralph Oman (and Obama) for patent infringement.

     

    reply to this | link to this | view in thread ]

  94.  
    identicon
    Floyd R Turbo (American), Oct 3rd, 2012 @ 4:46pm

    14 years copyright

    Copyright was originally for 14 years. It has been extended 5? times so that it is now the life of the copyright holder plus 75 years.
    .
    I would not be surprised to learn that Hollywood and the RIAA were responsible for the changes.
    .
    Patents were originally 17 years and are now 20?
    .

    Why the disparity? - Copyright is all about content vs. invention of new technology for patents.
    .
    The solution is obvious - make patents enforceable for the life of the inventor plus 75 years, and watch the RIAA squeal.

     

    reply to this | link to this | view in thread ]

  95.  
    identicon
    Bill, Oct 5th, 2012 @ 6:58am

    More Here Than Meets the Eye

    This guy seems to be smoking the crack pipe o' truth! What happened "[t]o 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" as the purpose of our copyright/patent system? And "limited times" means just that. More than a life in being plus 21 years is legally deemed to be in perpetuity under the common law. (Google: "Rule Against Perpituities"). The Framers had 14 years or so in mind before these works came into the public domain. Adjusted for increases in life expectancy, 21 years is about right. This is plenty of time for an invention, movie, book, song, etc. to be protected after which time it would be in the public domain.

    What bothers me is that Mr. Oman is no slouch. His resume is impressive: http://en.wikipedia.org/wiki/Ralph_Oman he should (and does) know better.

    There's more here than meets the eye. It is unlikely that he put in a 28 page amicus brief, spent mucho time, and paid for the appellate printing on his own. He [improperly] uses the prestige of his former position with the Copyright Office on the cover page of the brief itself by announcing that he was the former Register of Copyrights of the United States." Methinks he and/or his law firm was hired by one of the big boys who stands to really gain by a reversal in this case. Yet he submits the brief in his name only, leaving out the real party in interest. If you want to know who's really behind this amicus brief, follow the money.

     

    reply to this | link to this | view in thread ]


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