U.S. Copyright Office settles the set-top box debate

Since the FCC first unveiled its proposed set-top box mandate in February, supporters and opponents of the proposal have vigorously debated whether the rule would even be lawful under U.S. copyright law.

On one side of the debate, critics explained how the FCC’s proposal would force TV providers to hand over licensed programming to third party corporations to be repackaged into competing services without permission or compensation.

· The creative community — from studios and programmers to artist guilds and labor unions — spoke out in unison to explain how this would devalue content, undermine quality programming, and make it harder for creative professionals to earn a living.

· Minority-owned networks and civil rights organizations explained how smaller, independent voices serving diverse audiences would be impacted the hardest.

· Nearly 200 bipartisan members of Congress have also spoken out, raising questions about the proposal including specific concerns about its disregard for the rights of content owners.

But despite this overwhelming outcry, lobbyists supporting the proposed mandate have insisted at every turn that the copyright concerns raised by critics were baseless. “Alleged ‘copyright arguments’ against the proposed rules are factually or conceptually mistaken,” argued the “Consumer Video Choice Coalition.”

In a major new development yesterday, the U.S. Copyright Office sent a letter responding to questions from four Members of Congress about the copyright implications of the set-top box proposal. The Copyright Office — the expert agency tasked with providing impartial advice to Congress and federal agencies on copyright law — offered a detailed, impartial, and reasoned legal analysis of the set-top box proposal’s many conflicts with copyright law, echoing in writing concerns that were initially raised when Chairman Wheeler asked the Copyright Office to brief FCC staff.

Consider some of the letter’s most damning highlights:

· “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…”
· “It appears inevitable that many negotiated conditions upon which copyright owners license their works to MVPDs would not be honored under the Proposed Rule.”
· “The Proposed Rule would thus appear to inappropriately restrict copyright owners’ exclusive right to authorize parties of their choosing to publicly perform, display, reproduce, and distribute their works according to agreed conditions.”
· “The rule thus raises serious concerns as a matter of copyright policy, because allowing third parties to commercially exploit copyrighted works in this manner could diminish the value of those works.”
· “The Copyright Office would caution against government action that would interfere with, rather than respect, the flexible legal framework Congress has set forth.”
· “We also observe that the approach of the Proposed Rule appears to be in tension with Congress’ judgment in enacting the Digital Millennium Copyright Act of 1998.”

These detailed concerns from the U.S. government’s expert copyright agency ought to put the final nail in the coffin of the FCC’s deeply flawed proposal. A majority of Commissioners have already voiced opposition and stressed the need for a different path forward.

Fortunately for consumers, a robust discussion is already underway to reach agreement on an alternative approach that would let customers ditch leased set-top boxes altogether, while still protecting copyright. While more work lies ahead, members of the Future of TV Coalition continue to take the lead in offering detailed technical proposals and pushing the conversation forward constructively.

Yesterday’s analysis from the Copyright Office is a clear reminder that content owners’ rights — as defined by Congress, not the FCC — must be fully and unambiguously protected in any final FCC rules.

The lobbyists on the other side of this debate, whose arguments have now been discredited by yesterday’s developments, aren’t likely to simply give up the fight. The groups still pushing the flawed mandate appear to have settled on a new strategy, graciously conceding that apps-based alternatives are fine as long as the original content-poaching mandate could still be “bolted on” as an addendum.

In the weeks ahead, expect these groups to also argue that minor changes around the proposal’s edges are all that is needed to effectively address the Copyright Office’s concerns. Don’t fall for it. Remember, the self-appointed copyright experts making that case will be the same ones whose last round of self-serving assurances were just refuted by the federal government’s foremost copyright authority.

The Copyright Office’s letter should finally put to rest a poorly conceived proposal that threatened to devastate the creative ecosystem. For everyone who creates, distributes, or loves quality TV, that’s great news.