Copyright Group, In Arguing Against FCC's Set Top Box Proposal, Appears To Argue That VCRs & DVRs Are Also Illegal
from the that's-not-how-it-works dept
Earlier this month, we wrote about how the Copyright Officer had filed a really bizarre and legally dubious comment with the FCC concerning the FCC’s plan to open up competition in TV set top boxes, ending cable company’s monopoly on those boxes (for which they bring in $21 billion in revenue per year). The FCC’s plan was pretty straightforward — and the cable companies have attacked it on all sides, with the one argument that seems to be sticking is that this plan is somehow an affront to copyright, and would result in piracy. This is blatantly, factually incorrect. The FCC’s plan makes it clear that any system would retain existing technology protection measures against piracy (for better or for worse). If this new system resulted in infringement, it would because there’s infringement on the internet already, not because of these new rules.
The Copyright Office’s comment was ridiculous on multiple levels, but the worst was the basic argument that private agreements between cable providers and content providers could somehow limit or erase the fair use rights of the public. Yet that’s exactly what the Copyright Office argued:
“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.”
This simply incorrect interpretation of the law raised some pretty serious questions, with Public Knowledge going so far as to note a somewhat disturbing pattern of the Copyright Office acting like a lobbying arm for Hollywood, rather than an impartial organization bound by what’s in the actual law.
Following up on all of this, one of the many legacy entertainment industry lobbying groups, the Copyright Alliance has released its own letter to the FCC basically repeating what the Copyright Office claimed. It also put out a blog post about the letter… but really the blog post seemed to be an attempt to attack Public Knowledge for its comments about the Copyright Office.
The Copyright Alliance’s letter is basically exactly what you’d expect, rehashing the already debunked claims about how the FCC’s plans will cause copyright problems, but the Copyright Alliance seems to take it one step further, arguing, ridiculously, that anything that copyright holders don’t like is obviously against the law. Read the following quite carefully:
As noted by the Copyright Office, copyright law is predicated on the theory that creators are incentivized to create new works by the prospect of reaping the economic fruits of their creative labor, which in turn benefits the public by increasing the number of creative works available for their enjoyment. This economic rationale behind copyright protection has been repeatedly confirmed by the Supreme Court. The Copyright Act creates these incentives by granting copyright owners a bundle of exclusive rights in their works, which they can assign and/or license to third parties in their discretion. The detailed contractual arrangements governing the release of copyrighted works into the commercial marketplace are what enable copyright owners to realize the full value of their works. The FCC?s Proposal undermines this licensing structure by forcing MVPDs to deliver copyrighted content?including all content the MVPDs license from programmers and other content creators?to unlicensed third parties, without the authorization of those copyright holders, while offering no mechanism to ensure that the detailed license arrangements between MVPDs and programmers/copyright owners are respected. Therefore, the Register is correct in her observation that the Proposal threatens to harm copyright owners by encroaching on their exclusive prerogatives to both exercise and license their rights to reproduce, distribute, display, and perform their creative works, as well as by undermining their ability to earn a return on their investment in those works.
Except, if what I’ve bolded above is actually copyright law, then the VCR, the DVR, the MP3 player, photocopiers and much of the very internet itself are inherently against copyright law. But that’s not what courts have found. If you look at the classic Betamax lawsuit, it made it abundantly clear that even when there were license agreements between content providers and TV stations that end users could absolutely record and watch content via an “unlicensed” device, known as the VCR. This just takes the Copyright Office’s ridiculous assertion that copyright holders and ISPs can somehow write fair use out of their agreements for end users, and takes it even further to effectively write the Betamax ruling out of existence and set up a framework that says there can be no fair use in new consumer electronics.
That’s both wrong and crazy. And, yes, I know that the former Copyright Office boss Ralph Oman has argued that all technology should be considered infringing until Congress says it’s okay, but that’s not the actual law, and it’s incredibly dishonest to suggest it’s the case.
Here’s the important thing that the Copyright Office and the Copyright Alliance don’t seem to understand (or are willfully ignoring). This content is already licensed. The only people who will get access to it are those who have a legitimate right to access the content from their cable providers. In other words, everything is licensed. There is no “harm” at all. The only issue is that the content can be accessed (by the paying subscribers!) via alternative hardware (which might add some more features, but which will still have the same copy protection). But nothing in this creates any problems for the content creators, because the overall setup is the same. They have licensed the work. The hardware alternatives that may arise may include some additional features, such as recording and such, but that’s well within their legal rights under fair use. The complaint here seems to just be that the Copyright Alliance and the Copyright Office don’t like fair use and don’t want the Betamax standard to exist any more.
The Copyright Alliance and its funders in the entertainment industry may wish that the VCR were never made legal (even though it was a device that basically saved Hollywood by bringing in massive new markets and revenue streams), but they don’t get to rewrite history and pretend it doesn’t exist.
It’s this kind of crap that is so annoying about these groups like the Copyright Alliance. They are flat out misrepresenting reality.