The Federal Communications Commission has a plan to bring much-needed competition and consumer choice to the market for set-top boxes and television-viewing apps. Under the FCC’s proposed rule change, pay-TV customers would be able to choose devices and apps from anywhere rather than being forced to use the box and associated software provided by the cable company, ending cable companies’ and major TV studios’ monopoly in the field.
But major entertainment companies are trying to derail this effort and keep control over TV technology. Central to their argument is a set of misleading claims about copyright law. Hollywood thinks that copyright holders should be able to use licensing agreements to place whatever restrictions they like on how people can access their content.
Unfortunately, the Copyright Office has sent a letter to Congress supporting those claims. The letter is wrong as a matter of law, and it’s also bad policy. Rather than promote innovation, the Copyright Office offers ideas that would be hostile to choice and innovation in all kinds of information technology, not just pay TV.
Congress and the courts have repeatedly rejected that vision, and so should the FCC.
The FCC’s plan would let cable and satellite subscribers choose the devices and apps they can use to access pay TV content instead of being limited to the leased set-top boxes and walled-garden apps provided by the cable and satellite companies. That’s not just a great goal; it’s also the law—Congress ordered the FCC to pursue this goal all the way back in 1996, but cable companies and TV producers have fought against it for over 20 years. Choice and competition threaten cable and content companies’ power to control what programming gets seen or ignored, how we can search for it, and who can build the hardware and software.
Currently, that power over the design of personal TV technology derives from a confluence of unfair private agreements and monopoly power, not from copyright law. Copyright gives rightsholders power to control copying, but not technology design; in fact, that sort of control is antithetical to copyright’s purpose. Over thirty years ago, in Sony v. Universal, the Supreme Court refused to allow movie studios to “extend [their] monopoly” into “control over an article of commerce”—the videocassette recorder—“that is not the subject of copyright protection.” You can search all 280 pages of the Copyright Act, and you won’t find anything that says a copyright holder has the power to control search functionality, or channel placement, or to decide who can build a DVR or video app.
Unlocking competition in pay TV hardware and software isn’t a copyright issue - it’s a competition issue. But the Copyright Office mistakenly suggests that a copyright holder “generally has full control as to whether and how to exploit his or her work.” 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.
If the law were actually as the Copyright Office says it is, the Internet as we know it would be impossible. Instead, it would look more like today’s cable TV. Imagine that a popular news website made an agreement with your Internet service provider saying that no one should be able to save a local copy of a news article, or to email a link to a friend. Under the Copyright Office’s theory, it might be illegal for you, the subscriber, to do those things. And websites could create other rules dictating subscribers’ activity just by putting them in a secret contract. When you apply the Copyright Office’s reasoning to media in which healthy competition exists, it’s easy to see the logic break down.
Re-branding cable and content companies’ private deals as “copyright” issues risks stalling all sorts of efforts to promote competition and innovation that can lead to new markets for creative work. And it’s simply incorrect.
Copyright law gives owners specific rights—namely, to control copying and redistribution of their works. Copyright holders cannot control the technologies that customers use to lawfully access their works, nor can they invent new restrictions and rights out of thin air. The Copyright Office should have seen through Hollywood’s attempt to shut out competition through a misinterpretation of copyright law. We hope the FCC does.