20 years ago, Congress ordered the FCC to begin the process of allowing Americans to buy their pay TV boxes on the open market (rather than every American household spending hundreds of dollars a year renting a trailing-edge, ugly, energy-inefficient, badly designed box that is increasingly the locus of networked attacks that expose both the home LAN and the cameras and mics that are more and more likely to be integrated into TVs and decoder boxes) — now, at last, the FCC is doing something about it.
Right from the get-go, the entertainment industry has hated this: the pay TV companies want to keep that sweet $200+/year/customer paycheck rolling in, and the studios want to keep DRM intact, allowing them to continue to restrict the features in your home theater, far beyond anything that copyright allows (and since removing DRM, even for legal reasons, is legally fraught, these restrictions gain the force of law, even though Congress has never passed a copyright law giving rightsholders the power to control those uses).
Now, the Copyright Office (one of the most thoroughly captured agencies in the federal government) has jumped into the fray, taking the legally nonsensical — and drastically anti-public-interest — position that copyright gives the rightsholder the power to minutely control the public’s conduct while they are in the presence of a copyrighted work.
For example, I was once in a digital TV DRM standards meeting where the MPA’s rep argued vehemently for a flag that would cause a set-top box to switch off any outputs that led to a remote screen (for example, a wireless retransmitter that let you watch TV that was being decoded in your living room on a set that was in your bedroom). He argued that “being able to watch a TV show in one room that’s being received in another room has value, and if it has value, we should be able to charge for it.” He made similar arguments about limiting the length of time that a viewer could pause a show, arguing that while a 15-minute pause to go to the bathroom could be had for free, longer pauses (say, to settle a crying baby, cook dinner, or helping your kids with their homework) should be monetizable.
This is the view that the Copyright Office has endorsed. It’s wrong as a matter of law — copyright does not give rightsholders the privilege of “minutely specifying” (Hollywood’s term!) the experience of viewing, listening, reading or playing. It’s also a disaster as a matter of public policy. The Copyright Office should know better.
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—or it would look a lot 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.
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