I signed on to an amicus brief in the Aereo case. It’s a very narrow brief; it doesn’t address the specific doctrinal issues around the public performance right. Instead, it responds to a very odd argument raised by former Register of Copyrights Ralph Oman in an amicus brief of his own. Drawing on language in the dissent from the Sony case, he had argued that:
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.
In the brief, I and my dozens of cosigners respond that this is exactly the opposite of what the Supreme Court held. As the Court explained:
The judiciary’s reluctance to expand the protections afforded by the copyright without explicit legislative guidance is a recurring theme. Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.
We flesh out this point, showing that the overwhelming weight of judicial precedent and scholarly opinion uniformly hold that the courts should interpret the Copyright Act as Congress wrote it, without introducing an artificial and misguided presumption against new technologies. Temple’s David Post wrote the brief and did a terrific job of making this simple point clearly and forcefully.