There was some oddity over the summer, when the Copyright Office flat out misrepresented copyright law
to Congress and the FCC with regard to the impact on copyright of the FCC's (now dead) proposal to create competition among set top box providers. As we've explained over and over again, there were no
copyright implications with the FCC's proposal. All it said was that if
user wanted to access authorized content
via a third party device, that authorized
user should be able to do so. And yet, the Copyright Office, incorrectly, seemed to make up an entirely new exclusivity in copyright law (one that would outlaw DVRs
) that basically said not only could a content provider license content to a cable TV provider, but it could also
limit the devices on which end users
could view that content.
Simply put: that's wrong. That's not how copyright law works, and we've known that since the Supreme Court's ruling in the Betamax case decades ago.
But why would the Copyright Office so misrepresent copyright law? That was the perplexing part. Even with a bunch of copyright professors
explaining how wrong the Copyright Office was, the Office still went ahead with its letter. Of course, as with so many policy issues, it really seemed like the Copyright Office was just acting like a lobbying arm of Hollywood
And that's because it was.
The EFF filed a FOIA request on the Copyright Office's emails and meetings concerning the set top box issue, and -- surprise surprise -- they basically coordinated directly with the MPAA and related lobbyists
. The most stunning part? When both the MPAA and the FCC asked to meet with the Copyright Office about this, the Copyright Office quickly scheduled a meeting with... the MPAA. And pushed off the FCC meeting. And they lied to the FCC in the process. Then Copyright Office General Counsel Jacqueline Charlesworth's assistant told the FCC that she was not available to meet... on the very same week that she met with the MPAA over this issue. As EFF notes:
After the FCC announced its intention to break up the set-top box monopoly in February of this year, MPAA quickly called on the Copyright Office to meet on the matter. The documents indicate that the first meeting the Copyright Office held on the set-top box issue was not with the FCC but rather the MPAA. Although both the FCC and MPAA reached out to the Copyright Office in late March, Copyright Office officials met with MPAA on April 11 while postponing and meeting with the FCC a week later. Throughout the spring and summer of this year, the Copyright Office alternated between meetings with the FCC, MPAA, and other major content companies such as Comcast and Viacom. On May 31, just hours after holding a conference call with MPAA, the general counsel of Copyright Office emailed her counterpart at the FCC saying “the proposed rule may in fact implicate some rather serious copyright concerns.”
There was also a bizarre situation, in which a copyright maximalist Congressional Rep reached out to the Copyright Office, claiming that he'd heard from (recently fired) Copyright Office boss, Maria Pallante, basically asking him to officially request the Copyright Office's opinion on the FCC's plans. Others at the Copyright Office -- including Charlesworth -- note that they had been working under the impressiong that the Copyright Office was not
seeking an official request from Congress to weigh in. The whole thing is quite bizarre.
But the really telling thing is that the Copyright Office basically spent all its time hearing from one side -- the MPAA and assorted studios, who disliked this idea not for any copyright
reasons, but because they just wanted more control -- and totally ignored any other viewpoint (and certainly did not seek it out).
It seems that despite holding itself out as a neutral expert agency on copyright matters, the Copyright Office regularly engaged in discussions with only one set of parties as it formed its opinion. Not once did the agency reach out to the copyright scholars who explained to the FCC that no copyright interests were harmed by the set-top box proposal. Nor did the agency rethink its position when these same parties made clear that what they want is for the FCC to create new legal rights for them that have nothing to do with copyright law. The Copyright Office did eventually meet with a group of companies who are seeking to build competitive set-top boxes that consumers can buy, but that meeting happened on August 2, just one day before the Office issued its public statement. And that statement gives short shrift to the technology companies’ concerns.
When the U.S. Copyright Office waded into the debate, it could have brought an end to the misleading hand-wringing over copyright. Instead, it did the opposite by echoing the MPAA and cable companies, claiming that if cable operators were required to allow customers to use the devices of their choice to view the programs they pay for, the studios’ copyrights would somehow be violated. They even went so far as to say the current copyright law landscape is insufficient and therefore the FCC must do more to protect rightsholders.
An agency that listens only to the views of some industry groups without seeking out additional opinions cannot be a reliably neutral expert for Congress or the FCC. We hope that the FCC will weigh the Copyright Office’s comments appropriately, and resist efforts to derail the agency's work to end the set-top box monopoly.
If you read through the document the differences here are quite stark. There are many, many meetings with Hollywood, and many of the emails are jokey and informal (my favorite is when long term NBC Universal lobbyist Alec French tries to joke around with Jacqueline Charlesworth by calling her Jacqui, and then realizes he may have insulted her). The emails for the small group of set top box companies are much more detailed and formal. This is yet another example of how the Copyright Office is captured by Hollywood.