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 The FCC’s goal is to replace the outdated CableCARD regime with modern technology that is more likely to achieve broad consumer adoption.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: