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What Happened to Unlocking the Box? 2016 in Review

December 26, 2016

EFF spends a lot of time investigating the latest trends and developments in technology, trying to stay one step ahead of the most recent threats to your digital rights. This isn’t one of those stories. This is a story about a technology that’s even older than our organization, that’s barely changed since we’ve been around.

Don’t mistake lethargy for perfection. Television set-top boxes are far from a perfected product. They’re large. They’re slow. They haven’t changed much in decades. And they’re so expensive—according to Consumer Video Choice, Americans pay an average of $231 a year renting them from cable and satellite companies. Since 1994, the price has gone up 185%; during the same time period, nearly every other consumer electronics product has gotten more affordable. The reason why set-top boxes are stuck isn’t technology; it’s politics. Over the past year, we’ve seen corporate interests grind to a halt an effort to open the market to competition.

We were delighted when the Federal Communications Commission announced its plans to institute rules allowing third-party manufacturers to create their own boxes. Competition can drive prices down, but just as importantly, it can give rise to innovative new features. Why can’t you easily sync your favorite shows onto your mobile phone or search across multiple free and paid video services? It’s not because the technology isn’t there.

Needless to say, pay TV companies and large entertainment conglomerates reacted poorly to the proposal. That’s to be expected. A few companies have dominated the market for a long time; we wouldn’t expect them to lose that advantage graciously. But their arguments all hinged on a troubling misinterpretation of copyright law. They complained that customers shouldn’t be allowed to use third-party devices “without authorization from the copyright owner,” in Comcast-NBCUniversal’s words.

That’s not how copyright works. Copyright is a limited monopoly on the redistribution of creative work. It doesn’t let owners impose any conditions it likes on consumers’ behavior. Imagine if your cable company said that you could only watch its programs if you had a certain brand of television, or if a book publisher said that you could only read its books by the light of a specific brand of lamp.

Keep in mind that Congress ordered the FCC to ensure competition in set-top boxes 20 years ago, as part of the Telecommunications Act of 1996. The copyright argument was nothing but a distraction.

Together with a group of some of the top copyright experts in the country, EFF explained that no, products that touch copyrighted content aren’t automatically a violation of copyright. A few weeks later, we were stunned to see the Copyright Office wade into the debate by echoing Hollywood’s talking points. Little did we know at the time that the Copyright Office’s memo had come after an aggressive, behind-the-scenes lobbying campaign by the Motion Picture Association of America.

In September, FCC Chairman Tom Wheeler announced an alternative proposal. Under the new proposal, pay TV operators would have been required to provide apps to third-party box manufacturers that mimic the functionality of their proprietary boxes. It’s hard to comment on the specifics since text was never made public, but it’s clear that from the consumer’s prospective, the new proposed rule was a mixed bag: it might have helped drive down the price of boxes, but it wouldn’t have opened many doors for disruptive innovation in the box functionality itself.

We believed that we had one final shot to make a difference in the FCC’s decision. A hearing was coming up where the Senate Commerce Committee would ask the Commissioners about Unlock the Box among other issues. Thousands of you took to Twitter with a simple message: put people first, not Hollywood.

And they heard you. The Senators grilled the FCC, asking them why they hadn’t yet unlocked the box. One Senator even quipped that he knows when a topic is important to Americans because his Twitter mentions go through the roof. That was you.

Unfortunately, we all know how this story ended. The Commissioners never reached a decision, and with Wheeler stepping down, the proposal is probably dead for now. And there may be bigger fights on the horizon: like many net neutrality advocates, we’re concerned that the FCC may lose its focus on protecting consumers under the new administration.

The story of Unlock the Box is really about where policymakers get their information. When Hollywood aggressively pushed the Copyright Office into backing its agenda, it showed. When we spoke out en masse to the Commerce Committee, they asked the Commissioners the right questions.

We might have lost this battle, but in the coming years, it will be more important than ever for us to speak up to defend innovation and users’ rights, both in the Executive Branch and in Congress. We can work together to show policymakers that competition is good for consumers and good for innovation, and that copyright law should not be used as an excuse to keep incumbent interests in power. When we speak up, they listen.

This article is part of our Year In Review series. Read other articles about the fight for digital rights in 2016.

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