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
"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.