IP Lawyers Tell Copyright Office To Stop Screwing The Public By Opposing Cable Box Reform

from the get-the-hell-out-of-the-way dept

Last week we noted how the cable industry was distorting the definition of copyright to try and fend off the FCC’s attempt to bring competition to the cable box market. Through misleading editorials and leveraged relationships with beholden lawmakers, the cable industry has been successfully convincing some regulators that we can’t bring competition to the cable box or we’ll face a piracy and copyright apocalypse.

Dig deeper and you’ll find that copyright has nothing to do with the proposed changes being tabled. The FCC’s proposal simply requires (pdf) that cable providers deliver their existing programming, sans CableCARD, to third party set tops with an eye toward boosting competition. The FCC has stated repeatedly that under their plan, cable providers can utilize the standards and copyright protection of their choice to make this happen, keeping existing DRM in place (for better or worse). Again, it’s important to understand that for cable providers this fight is about control and $21 billion in annual rental fees.

Annoyingly it’s not just clueless politicians, cable lobbyists and entertainment industry editorials pushing the narrative that the cable box fight is about copyright. The Copyright Office has joined the cable and entertainment industry in opposing the FCC’s plan because… copyright. This support has had a major impact on the FCC’s efforts, with some of the commissioners that originally voted yes on the proposal (Mignon Clyburn, Jessica Rosenworcel) now starting to waffle in large part thanks to Copyright Office warnings.

Not too surprisingly, the Copyright Office’s opposition to a major consumer-friendly policy has raised eyebrows among numerous IP Lawyers, who fired off a letter to Acting Librarian of Congress David Mao this week warning the Office that it’s wandering too far afield:

“We understand that the Copyright Office has expressed concern that the FCC?s proposal, if implemented, would lead to the infringement of copyright. We do not share that concern, particularly in light of the legal and technical measures contemplated in the NPRM for protecting copyrighted content from illegal copying.”

The letter is quick to argue that the Office’s attempt to massively extend copyright to protect cable control over every aspect of the cable box runs in stark contrast to the limitations set forth in the Supreme Court’s Sony v. Universal decision. As such, the letter politely suggests it might be nice if the Office adhered to the law and stopped giving regulators and politicians bad advice on this subject:

We urge you to oversee the Copyright Office pursuant to Section 701(a) of the Copyright Act to ensure that the Office dispenses advice to policy makers that is reasonably consistent with settled principles of copyright law. When the Office acts to advise Congress on matters within its purview, it must do so in a way that seeks to further the Copyright Act?s primary goal of rewarding creators for the public?s ultimate benefit. Interpretations of copyright law that operate to expand copyright entitlements into copyright-adjacent fields of commerce run counter to Supreme Court precedent and the copyright system?s goal of increasing public access to knowledge and information.

Among the letter’s five signatories is Annmarie Bridy, who, in a statement of her own, again makes it clear that bringing competition to the cable box is not going to usher forth the piracy and copyright apocalypse:

“We pointed out in our comments that the FCC?s proposal is fully attentive to the content protection issues that could arise from opening up cable programming streams to non-cable equipment manufacturers. The cable box, in other words, is not a copyright Pandora?s box; it can be opened carefully, in a way that both protects copyright holders and enables overdue innovation in the way that cable subscribers access content for which they?ve paid.”

While it’s helpful for experts to warn the Copyright Office it’s actively harming the public interest here, the damage may have already been done. The FCC, already under fire for net neutrality rules and new broadband privacy protections, has descended into internal bickering over whether cable box competition will harm copyright, consumer privacy, puppies, and a wide variety of other vibrant red herrings put forth by cable lobbyists, entertainment industry allies, and the Copyright Office. Unless something changes in the next few months, it seems entirely likely that the FCC’s plan will, quite intentionally, get buried in committee.

Again that may not be the end of the world. With the streaming market evolving the cable box is a doomed relic anyway; the FCC’s plan would simply have accelerated its demise by five years or more. Losing this fight may also give the FCC more time to focus on more important issues for the health and future of the video marketplace, like broadband competition and the use of zero rating and usage caps to thwart alternative streaming providers. Still, the FCC’s plan would have not only saved consumers millions, it would have given consumers access to better, cheaper, more open and innovative hardware than ever before.

Shame then that the Copyright Office couldn’t be bothered to give politicians and regulators some real device on this subject: namely that the cable industry’s opposition to cable box competition is little more than a sound wall of disinformation, delivered by an an army of for-hire sycophants, fueled entirely by the ham-fisted desire to retain monopoly control in the face of inevitable evolution.

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