New Content-Delivery Tech Should Be Presumed Illegal, Says Former Copyright Boss

Vicarious liability is a basic principle of common law. It was not "invented by the courts". You can be vicariously liable for all sorts of things, not just copyright infringement. People mix this up because they've only heard of vicarious liability in terms of copyright infringement, and then in the context of famous court cases.

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.

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.

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".

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.