Why Is The Copyright Office Lying To Protect The Cable Industry's Monopoly Stranglehold Over The Cable Box?

from the defenders-of-the-status-quo dept

The FCC’s attempt to bring some much needed competition to the cable box has birthed an absolute torrent of lobbying shenanigans by the cable and entertainment industries. They’ve pushed a flood of misleading editorials in major papers and websites claiming the plan is somehow racist and will unveil a piracy apocalypse. They’ve nudged Congressional campaign contribution recipients to bash the plan as an extreme case of government over-reach. They’ve also managed to convince the press and some FCC staffers the idea is an attack on copyright, when copyright has absolutely nothing to do with it.

Quick background: under the FCC’s original proposal (pdf), the FCC wants cable companies to provide programming access to third-party hardware vendors without the need for a CableCARD, the goal being to generate competition in the space resulting in better, cheaper and more open cable boxes. Under the proposal cable operators would be able to use any copyright protection or DRM standard they choose to deliver this content to companies like Google, Amazon or TiVO — and the FCC has repeatedly stated any final rules would respect existing copyright and financial arrangements between cable and the customer.

But because the plan would cost cable providers $21 billion annually in rental fee revenue and result in more open cable boxes (more likely to direct viewers to third party streaming competitors), they’ve been trying to use a false definition of “copyright” to protect its monopoly stranglehold over cable hardware. And now, the cable industry has another ally in their attempt to mislead the press and public on this subject: The United States Copyright Office.

For months the Copyright Office has been quietly going around “educating” DC regulators and politicians on the FCC’s cable box reform plan, falsely claiming that the plan is an attack on copyright. These efforts have been effective in getting some of the FCC Commissioners that originally voted to approve the plan to waffle on their decision. The behavior resulted in a number IP lawyers (including Annmarie Bridy) recently warning the Office that it’s giving horrible advice and ignoring legal precedent as to the scope of copyright.

Undaunted, the Copyright Office this week doubled down on its misleading arguments, sending a letter to Congress (pdf) that’s absolutely jam-packed with claims ranging from the incredibly misleading to downright bullshit. At its core, the Office’s letter continues to pretend that the FCC?s NPRM would require copyright owners to give their content away for free exploitation by third party devices. That the FCC’s plan lets “big tech” hijack cable’s innovation and re-purpose it for all manner of nefarious use has been a cable lobbyist argument for the last year, and it pops up repeatedly in the structural underpinnings of the Office’s own argument:

“The Office’s principal reservation is that, as currently proposed, the rule could interfere with copyright owners’ rights to license their works as provided by copyright law, and restrict their ability to impose reasonable conditions on the use of these works through the private negotiations that are the hallmark of the vibrant and dynamic MPVD marketplace.”

Use of phrasing like “vibrant and dynamic” to describe the most-hated industry in the United States gives you a pretty solid sense of the objectivity of the Office’s argument. But again, this idea that third parties can simply take cable company programming, throw their own ads on it, and present it as their own isn’t what the FCC’s proposing. At all. All the same licensing arrangements, consumer cable pricing, advertising, and DRM will remain intact (for better or worse).

Throughout the letter, the Copyright Office repeatedly claims that copyright gives cable companies more control than they actually have. While copyright obviously gives an author some control over the copying and redistribution of their works, these rights can’t magically be extended wherever and whenever one chooses, especially, as the EFF this week argued in a great reply to the letter, when it conflicts with the rights of the end user:

“Once a copyright holder has released their work to paying customers, like cable subscribers, those customers have their own set of rights: to view TV programs at home or on the go, to skip around within the programs as they wish, to search for and organize the programs and other content they?re entitled to see, and to choose tools that enable them to do these things.

The Copyright Office?s letter implies that cable and content companies could create new rights for themselves just by writing them into private contracts between each other: the right to control which ?platforms and devices? customers can use, the right to limit time-shifting and other fair uses, and the right to ?exclude? other software from a customer?s device. While private companies are free to negotiate conditions like these between each other, nothing in the law gives copyright holders the power to impose those conditions on the whole world, snuffing out the rights of users.

Of course that’s precisely what the cable industry wants to do. For decades the cable industry has enjoyed a captive monopoly over cable hardware, resulting in expensive household rental fees and an erosion in consumer viewing rights. As the more open PC era arrived and challenged the inflexible mantra of traditional cable, the cable industry has worked harder on protecting this model than it has on evolving. Finally faced with a viable threat to monopoly hardware control, cable is falsely claiming that copyright gives it the right to continue imprisoning customers in an antiquated walled garden smelling faintly of old people and mothballs.

But here’s the important part: copyright law cannot be used for this purpose — and you’d think the Copyright Office would know that. The Copyright Office is twisting the fact that two private parties can negotiate away fair use and other rights for themselves, but the absolutely cannot negotiate away those rights for the public. Yet that’s exactly what the Copyright Office is claiming.

In short this isn’t a debate about copyright, it’s a debate about control. The idea that these new cable boxes and associated services might interfere with contractual agreements around windowing and tiering is simply not a copyright concern and yet here is the Copyright Office incorrectly claiming that it is. The Copyright Office also ignores that these changes don’t eliminate or weaken DRM, and that customers using these new, more open cable boxes would still be cable customers, paying the same high prices they always have. Also ignored by the Copyright Office is the fact that these changes would be a net benefit to consumers and countless companies alike.

Needless to say, consumer advocacy groups like Public Knowledge were equally unimpressed with the Copyright Office’s selective reasoning:

“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.”

In short, the Copyright Office is being used as a puppet to defend one of the least liked industries in America, distorting the very definition of copyright to help protect said industry’s monopoly control over the cable box.

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Comments on “Why Is The Copyright Office Lying To Protect The Cable Industry's Monopoly Stranglehold Over The Cable Box?”

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Anonymous Coward says:

so, who is the ‘leading light’ at the Copyright Office and what has he or she got to gain or has already gained from spouting a 99% BS article/letter in order to allow the cable companies to continue ripping off the public not just with costs but with what they can and how they can watch different companies content? find the person behind the article and then proceed to rip it apart in the press and on the media, then see what sort of comeback they might have!

ECA (profile) says:

For truth Justice and the AMERICAN way

Love the old TV shows and some of the Things from the past..
They past a law that stated the Only reason for a Corp, was to make money for itself. It has no responsibility for Anything/anyone else, except itself.

Then we watch movies that ALMOST always have a nice ending, and cartoons that have little REALITY, as GI Joe and Cobra NEVER DIED…

The Good GUY always wins…the Good guy always gets the GIRL…

And the Scariest thing out there, in Sci-fi…Would be if we could READ each other minds.
Truth and Justice…And knowing EVERYTHING a person has Done/DID and if they are TRYING to confuse/bother/Lie/steal…

then what is the AMERICAN way, vs the CORP way..

nony says:

quote from Cory Doctorow @ Boing Boing

In this article:

For example, I was once in a digital TV DRM standards meeting where the MPA’s rep argued vehemently for a flag that would cause a set-top box to switch off any outputs that led to a remote screen (for example, a wireless retransmitter that let you watch TV that was being decoded in your living room on a set that was in your bedroom). He argued that “being able to watch a TV show in one room that’s being received in another room has value, and if it has value, we should be able to charge for it.” He made similar arguments about limiting the length of time that a viewer could pause a show, arguing that while a 15-minute pause to go to the bathroom could be had for free, longer pauses (say, to settle a crying baby, cook dinner, or helping your kids with their homework) should be monetizable.

PaulT (profile) says:

Re: quote from Cory Doctorow @ Boing Boing

In other words, it’s not about paying for services rendered, and not about providing customers a good service. It’s about how much money they can force you to pay. Of course, the industry is opposed to anything that allows more consumer control.

“longer pauses (say, to settle a crying baby… should be monetizable”

Oh yes, new parents, always a source of endless disposable revenue! These people don’t actually inhabit the real world, do they?

Anonymous Coward says:

Dem cushy jobs… Pull in a few favors for the right execs and you’re guaranteed one after your term ends.
“[…] has value, and if it has value, we should be able to charge for it.”
Yeah, and that’s because copyright has shifted from “right to copy” to “rights over the copy”. DMCA, DRM and SaaS are being used as a workaround to the first-sale doctrine.

Anonymous Coward says:

Oops, forgot something

Why is Karl Bode writing another blog on this without mentioning that Larry Downs says the criticism of the FCC is absolutely right, and that Annmarie Bridy is wrong?


Anonymous Coward says:

Re: Re: Oops, forgot something

Accuracy, completeness, honesty.

Larry Downs’ article makes good points on the substance of these issues, and undercuts the implication that only those with a financial stake in the current system or a captured agency could disagree with this blog. So, if this blog is truly meant to inform, it left a gaping hole. If its just meant to incite without giving fair treatment to other views, then you’re right.

PaulT (profile) says:

Re: Re: Re: Oops, forgot something

Let me be a little more clear:

Why does this blog have to defer to that particular opinion piece in order for it to be honest, valid, etc? Perhaps he hasn’t referred to it because he’s never read it, or this is the first he’s been informed of it. Why does not deferring to that particular single source make him wrong? In fact, is that Forbes author reflecting the general consensus, or is that just the article you happen to have stumbled across that agrees with your preconceptions while other agree with the perception stated by Karl in his opinion piece?

It’s usually telling that instead of entering into the discussion, people like you always anonymously accuse this site of dishonesty or inaccuracy but never deign to tell us why. What if the link you provided is dishonest or inaccurate, what then?

I tell you what, instead of whining that Karl didn’t link to one article you found, why not explain where he’s wrong or what you think he omitted? Since I can’t tell which other post you wrote here (I assume one of the other AC posts is yours since you “forgot something”, but can’t tell which), I only have your random link without commentary to go on, and no, I’m not going to read random articles just to try and work out what you’re blathering about.

Anonymous Coward says:

Re: Re: Re:2 Oops, forgot something

Karl wrote a blog on this topic a fews days ago, and I put the link to the Downs piece in the comments. So, if Karl is writing on a topic and doesn’t know what prominent people have written on it, and doesn’t even read the comments to his own piece, then his writing is not well-informed.

Read the Downs piece or don’t. I don’t particularly care what you think. I was just offering another view for those open-minded enough to be interested, and because Karl didn’t.

PaulT (profile) says:

Re: Re: Re:3 Oops, forgot something

“I was just offering another view “

Not really. You said “why isn’t Karl commenting on this other person’s opinion?”. No context, no comment as to why it should matter, no reference to your previous comment or the previous article. Only “why is he writing about this without talking what I want him to talk about?”.

If your comment was as equally cryptic and useless on the previous article, I can understand why Karl didn’t go and read that link. Maybe there’s so many anonymous trolls around here that he’s not going to waste time reading random links unless they’re accompanied with some context or attempt at discussing why they’re relevant. Or, maybe he did, but didn’t feel that it was worth mentioning here. Or, maybe he’s planning a full follow-up article addressing the points raised there and why he think they’re wrong.

In the mean time, you could always discuss the salient points here, although that would involve discussing what you think is relevant/correct there and how that compares to Karl’s opinion above. Which takes more than randomly copying a link then whining when someone doesn’t write about it.

Anonymous Coward says:

It is a false assumption

that all traffic to a cable box is distributed within the scope of a restrictive license. For example a video could be GPL or public domain, in which case the transmission does not require ANY means of authorization for transmission at all.

Therefore restriction on the transmission medium which is global and not discrete to the individual work being transmitted is constraint of trade, extended by one party over property owned by another without consent. It is racketeering and subject accordingly to all legal means for the recovery of damages thereby incurred.

Now therefore in consideration, a device manufacturer may choose to transmit ONLY public domain works, in which case any DRM software becomes technically unnecessary. Further, the manufacturer may also choose to implement a proprietary DRM scheme which may advance the state of the art in DRM technology and provide themselves and select copyright holders competitive advantage in the marketplace.

Not only does restricting CPE constrain the free trade of public domain works, but it also causes harm to the evolution of technology that supports copyrighted works AS WELL.

IOW: Dear Copyright office, please stop being a cats paw for people who have their heads up their asses. Their market has been in decline because it should never have been as prevalent as it was to begin with. Diversity is a good thing.

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