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Public Knowledge: ‘Copyright Office STB analysis flawed’

The United States Copyright Office has sent a letter to Congress claiming that the Federal Communications Commission’s set-top box proposal “could interfere with copyright owners’ rights to license their works, and [could] restrict their ability to impose … conditions on the use of those works.”

US public interest advocacy group Public Knowledge finds that the Copyright Office has relied on factual inaccuracies and a deeply flawed legal analysis to challenge the FCC’s efforts to protect consumers and competition in the set-top box market.

According to John Bergmayer, Senior Staff Attorney at Public Knowledge, under the Copyright Office’s analysis, the interests of consumers are irrelevant, and fair use is an obstacle to be overcome. “This letter is another example of how the Copyright Office has become dedicated to the interests of some copyright holders – as opposed to providing an accurate interpretation of copyright law,” he contends.

“It is strange that such a detailed legal analysis, provided at the request of some members of Congress, fails to address the FCC’s statutory mandate. Congress already told the FCC to promote set-top box competition. Copyright licensing negotiations take place against a backdrop of laws passed by Congress and implemented by agencies like the FCC – they are not a means for cable or programming companies to bypass the Communications Act,” he argues.

“Among the letter’s many inaccuracies is a failure to understand that many of the outcomes it posits as negative consequences of the FCC’s proposal already exist in the marketplace today, without harming either the interests of pay-TV providers or programmers. For instance, the Copyright Office mistakenly says that CableCARD devices are ‘hard-wired’ devices — but with just one CableCARD device, a family can already watch its cable subscription on multiple devices throughout the home. The FCC’s goal is to replace the outdated CableCARD regime with modern technology that is more likely to achieve broad consumer adoption. But the Copyright Office’s analysis would challenge even these existing consumer products. Indeed, the logical consequence of the Copyright Office’s analysis is that rightsholders and distributors should have veto power over fair use and control over all consumer devices,” he suggests.

“The FCC must reject the Copyright Office’s attempt to broadly expand the scope of copyright law at the expense of competition, consumer welfare, and other policy goals – while running roughshod over fair use, a critical and constitutionally-required component of copyright. It must bear in mind that the Copyright Office is merely an office within the Library of Congress and that courts give its opinions on the interpretation of copyright law no particular weight. We hope that the incoming Librarian of Congress can ensure that the Copyright Office adopts a posture that recognises the rights of consumers and does not imagine that the policy views of some industry incumbents should override the Communications Act,” he concludes.

Public Knowledge wishes to highlight the following points (among others) as troubling, inaccurate or misleading:

  • The document claims that the FCC’s NPRM would require copyright owners to give their content away for free exploitation by third party devices. (p. 7)
    • False. The FCC’s proposal does not require delivery of content to third parties — it would allow consumers to use the devices of their choice. When a viewer watches Hulu on a Macbook, it would be wrong to say that Hulu is “delivering” programming to Apple. (Also, the Copyright Office seems to think there is a legal distinction between a “passive” device like a television set, and a more sophisticated device like a set-top box or a computer. There is not.)
  • The document claims that the FCC proposal would allow for all sorts of repackaging and retransmission of MVPD programming by the third parties. (p. 10)
    • False. Nothing in the FCC’s proposal would allow for the repackaging and public performance of content. It is about allowing consumers to watch programming they have already paid for, on the device of their choice. The FCC proposal could, and should, allow for consumers to make lawful fair uses of programming.
  • The Office’s analysis elides over the rights of consumers and encourages parties to contract around fair use in order to obtain “certainty.” (p. 7)
    • While two parties are free to negotiate amongst themselves, they cannot bargain away the rights of third parties. What the Copyright Office advocates is encouraging distributors to negotiate away their consumers’ rights without those consumers’ consent.
    • While your cable provider can agree not to build DVR features into its equipment, that cannot and does not make it illegal for consumers to record their favorite shows at home. If anything, this drives home the importance of creating a competitive device marketplace, so that consumers can engage in lawful uses without having to rely on the magnanimity of upstream actors.
  • The Copyright Office describes itself as “the expert agency created by Congress … to administer the Nation’s copyright laws.” (p. 1)
    • The Copyright Office does not “administer the Nation’s copyright laws” — the federal courts do. The Copyright Office is not an administrative agency in the vein of the EPA or the FCC.
  • The Copyright Office claims that “the Proposed Rule may be understood to create a new statutory license that requires the entirety of the copyrighted programming offered by MVPDs to be delivered to third parties…” (p. 11)
    • The Proposed Rule does not force any copyright owner, or MVPD, to offer their programming to anyone against their will. Consumers still need to be subscribers in order to receive programming.

 

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