The FCC's Plan To Unlock Your Set-Top Box Is About Competition, Not Copyright
The Federal Communications Commission is trying to open up the closed world of TV set-top boxes, with the goal of finally killing that dust-gathering, power-sucking box altogether. They’ve proposed a new rule known as “Unlock the Box” that allows devices and apps from any manufacturer to connect with your home cable or satellite TV feeds. We think the FCC’s effort has the potential to unlock new competition, delivering cost savings and innovation.
Imagine being able to search for shows and movies available on your cable or satellite TV service, online services like Netflix and Amazon, and even over-the-air broadcasts, all with the same search-box. Imagine being able to change and customize your cable's janky interface as much as you do with PCs, smartphones, and browsers, and to add new features from any source. Oh, and imagine not having to pay $231 a year to rent a set-top box that's really just a three-generations-stale PC in an ugly case. The FCC’s “Unlock the Box” proposal might achieve all this, if we nudge the agency to do it right.
Naturally, pay-TV companies and their allies in the entertainment industry are fighting hard to stop the new monopoly-breaking rules. They’re raising many of the same arguments they tried to raise against net neutrality. One of their claims is that the new rules would somehow violate copyright law, or lead to violations.
This is the same thing these companies say about all new technology that they didn't invent, but the reality is that while the FCC's proposal could (and should) let you take back some of your rights under copyright, that doesn't mean you'll be violating copyright when you get those freedoms back.
The Unlock the Box proposal spells out what pay-TV customers can do with content they’ve already paid for. Anyone who copies or distributes TV content in a way that violates copyright law—whether individuals or technology companies—risks draconian penalties that often lead to bankruptcy. Copyright rules are set by Congress, and nothing the FCC does can give any technology providers a license to violate them.
So why are pay-TV's titans crying piracy? What does copyright have to do with breaking the set-top box monopoly? When these companies talk about copyright, what they mean is control over your experience and the design of your technology. That’s why recent letters to the FCC from major TV producers (Disney, Time Warner, Fox, Comcast-NBC, etc.) and from the cable lobby group NCTA (Time Warner Cable, Cablevision, Comcast-NBC again, etc.) don’t mention copyright infringement. Instead, they demand control over “the meticulous details of how a viewer sees programming content” and the ability to “rearrange” channels in the user interface. The thought that you might choose to “drop apps and interactive elements” from your screen sends them to their fainting couches. They describe giving pay-TV customers more choices in search, discovery, and user interface as “misappropriating content” and “commercial monetization.” They insist that “creators need to maintain control over product placement and commercial content” in the user interface of every device and app that accesses pay-TV programming.
Look, it's true that giant media companies might make more money when they get to "meticulously" specify every single detail of how you get to watch their stuff. When we were fighting these companies over the rules for European digital TV, one rep from the US entertainment industry demanded the right to control how long you could pause your TV to go to the bathroom, and said that rightsholders might want to "monetize" (ugh) your biological needs.
Putting a price tag on your bodily functions might be a way to make a lot of money, but it has nothing to do with copyright. Copyright is only an exclusive right to copy creative work (and to distribute, publicly perform, and adapt it). Copyright has important limitations, including fair use. Copyright doesn’t give rightsholders the ability to stop others from “monetizing” (double ugh) or even “exploiting” creative work unless one of the specific rights laid out in the law is violated. TV and home stereo manufacturers, used DVD sellers, and popcorn growers all “monetize” and profit from the creative works of others without asking permission or paying royalties. Last year, a federal court ruled that copyright doesn’t stop Dish Networks from offering a DVR that can skip commercials automatically. And no one has to pay extra for a mute button that works during commercial breaks (yet).
This isn't a bug in copyright, it's a feature. After all, it was independent innovators, working outside of copyright’s reach and without asking permission, who gave us the videocassette recorder, the mp3 player, the digital video recorder, and the cloud-based DVR, to name just a few. It was independent companies who gave us cable television, capturing broadcast signals and retransmitting to their customers without permission!
The set-top box is a frozen artifact of a bygone age whose features have been caught in a time-warp of innovation-through-permission. For the past 20 years, everyone who's had a cool idea for making the pay-TV experience better was sent packing. If the FCC's order comes through, they'll deliver.
This isn’t about control over copying, but control over the entire experience of TV watching, from the studio to your eyeballs, and over search and discovery as well as viewing. Open competition could bring many more options, like new TV interfaces that present recommendations from various critics and tastemakers, or from your friends. New video devices could take you straight to those shows and movies in one step, no matter which of your pay-TV or Internet video services they appear on. This could be a boon for niche and non-mainstream programs of all kinds.
So, when you hear from opponents that Unlock the Box rules will violate copyright, ask them: do you mean copyright, or the made-up right to tell people how they're allowed to watch?
And consider sending a comment to the FCC asking them to pass the Unlock the Box rules, before April 22. (Enter "16-42" in the box labeled "Proceeding Number").
Edited on 4/13/2016 to correct the FCC Proceeding Number for submitting comments.