Public Knowledge Rips Copyright Office for Set-Top Call

Fair use fans Public Knowledge says the Copyright Office relied on a "deeply flawed" analysis to conclude there were copyright issues with the FCC's "unlock the box" set-top plan and accused it of working in the interests of "some" copyright holders rather than consumers.

That came in response to a letter the office sent to Congress in response to questions about the impact on copyright and programming contracts of that plan, in which FCC chairman Tom Wheeler proposed to make MVPDs' programming and data available to third party navigation devices.

Wheeler is trying to promote competition to cable and satellite leased set-top boxes, which now make up 99% of the market. But MVPDs and content owners fear those third parties will re-aggregate and monetize that content without compensating them and in potential violation of the agreements MVPDs and programmers have struck on where and how that content can be presented.

The Copyright Office shares those concerns. It also went to some lengths in the letter to suggest fair use was not a defense for opening up the content to third parties, drawing a distinction between "unlocking the box" and consumers' home recording (time shifting performance) rights secured in the Sony Betamax case.

Of the "fair use" limitation on copyright protections, the office said that the Sony case focused on "distribution of an article of commerce where the seller had an ongoing relationship with the purchaser after the sale, and no connection to the content being exploited. Nor did the Court address fair use where the device distributor was itself engaged in copying activities, as opposed to private home users," both of which are "conceivably" the case with the set-top proposal.

In addition, it pointed out that some contracts essentially bargain away some fair use rights. "It is important to understand that 'parties are free to bargain away their rights to make fair use of copyrighted material' as a matter of contract. Accordingly, content owners and users can—and frequently do—choose to eliminate uncertainty over fair use questions by negotiating clear usage rights and limitations in advance. Thus, in this marketplace, as a condition of granting access to their works, copyright owners may choose to exclude certain uses of content by an MVPD by contract, regardless of whether such activities could potentially qualify as fair uses under copyright."

It says that the ability to control use stems from the more general right to withhold access if a contract cannot be struck.

That did not sit well with Public Knowledge.

"Under the Copyright Office's analysis, the interests of consumers are irrelevant, and fair use is an obstacle to be overcome," said senior staff attorney John Bergmayer.

Among the things Public Knowledge says the Copyright Office got wrong are that the NPRM would require copyright owners to give their content away for free exploitation by third parties, that third-party repackaging and retransmission would be allowed, and that the set-top plan creates a new statutory license for third parties to use MVPD content.

"[T]he logical consequence of the Copyright Office’s analysis is that rightsholders and distributors should have veto power over fair use and control over all consumer devices," said Bergmayer, “The FCC must reject the Copyright Office's attempt to broadly expand the scope of copyright law at the expense of competition, consumer welfare, and other policy goals—while running roughshod over fair use."

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.