Lemley uses old-fashioned scare tactics in support of FCC’s set-top box proposal

In a recent op-ed in The Hill, Stanford Law Professor Mark Lemley attempts to explain away the copyright implications of the FCC’s latest set-top proposal and asks readers to accept on little more than faith that the proposed rules “would surely make the world a better place.” But a close read quickly reveals major shortcomings in his arguments.

Lemley first confuses readers by making it seem like the concerns about the copyright implications of the FCC’s set-top box proposal are all coming from one group — the Motion Picture Association of America (MPAA). In fact, the broader creative community has been raising these concerns since the original proposal was first made public, as has the U.S. Copyright Office — the foremost authority on all things copyright. Most recently, on Sept. 14, over a dozen companies, advocacy groups, labor unions, associations, and programmers published a letter reiterating their concerns about the impact the FCC’s revised proposal would have on the creative community. Several days later, the AFL-CIO — representing 56 unions covering 12.5 million people — urged the FCC to rethink the proposal for similar reasons, saying it “seriously undermines important copyright protections that help ensure that the people who work in the film and TV industry receive fair compensation for the work that they create.”

And they are far from alone. Amazon — one of the leading technology companies in the United States — recently joined the growing chorus of those who have voiced significant concerns with the FCC’s latest proposal to create and administer a centralized licensing body.

Lemley further puts his gloss on the copyright issues by claiming the creative community wants to control what TV viewers like you and me do with our televisions and personal devices. Nothing can be further from the truth. In reality, what the FCC proposal does is force producers and programmers to provide their content to for-profit manufacturers and service providers on terms the FCC sets and oversees rather than ones reached purely through marketplace negotiations. Copyright law grants creators exclusive rights, and they exercise those rights in the television world most often through licensing. Licensing is not binary in the sense that you either have one or you don’t. Parties negotiate not just price but a variety of terms. These terms include how content is delivered to your home, not what you can do with the content once you get it. Because this fact would get in the way of Lemley’s narrative, he resorts to old-fashioned scare tactics to make it seem like critics of the proposal are trying to change how you can watch a movie. That simply isn’t true.

Finally, Lemley flips reality on its head and says it is the MPAA that is seeking a change in the law, even emphasizing “and make no mistake, it is a change…” It should be obvious given that we are talking about a proposed rulemaking that it is the FCC, not copyright proponents like the MPAA, that is seeking to change the law. Copyright proponents like my organization, the Copyright Alliance, would be content if Chairman Wheeler never introduced his proposal. We think the law is just fine the way it is. But that does not mean that we oppose app-based TV. Just the opposite: the creative community supports consumer choices and empowerment, and our industry continues to evolve to satisfy those needs.

The world has changed. We are in a golden age of television. Viewers can watch programming on a variety of devices and a variety of models like linear, on-demand subscription, and on-demand transactional. And newer entrants like Netflix and Amazon are not just delivering existing content, but investing in the production of new and award-winning TV shows and films. Creative professionals have embraced the technological future and the promise of the internet. The internet has opened the door for creative professionals to benefit from many new opportunities to license TV programming and new business models that will increase revenue.

The FCC’s proposed set-top box mandate wouldn’t open that door for the “FCC to bring the cable and satellite industries along” as Lemley says. That door has already been opened and professional creators are walking right through it and into a bright future. Rather, placing the FCC in a position to dictate licensing terms would threaten that very promising future by creating a de facto compulsory licensing regime that requires creators to allow their work to be shared across multiple platforms without compensation and without regard to the creators’ rights to determine the methods of distribution. The original goal of the FCC’s mandate is being met today. Lemley would like us to take a leap of faith that the FCC will be able to do a better job here than the market. That type of blind-faith policymaking is not a leap any of us should be willing to make, especially since it is Congress, not the FCC, that the Constitution authorizes to establish copyright policy.

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