Public Knowledge’s Campaign of Misinformation on the FCC’s Set-Top Box Proceeding

Today, the Copyright Alliance submitted a filing to the FCC that both explained how the Register of Copyrights, in her August 3rd letter to the FCC, has correctly analyzed the many copyright issues implicated in the FCC’s proposed set-top box mandate, and rebutted the campaign of misinformation by Public Knowledge in response to that letter. Mere hours after the Register’s Letter was publicly released, Public Knowledge published a hurried and inaccurate attack on the Office and on the letter’s copyright analysis. Public Knowledge’s criticisms of the Copyright Office’s objectivity, statutory mission, and legal analysis are wholly without merit.

First, Public Knowledge attempts to discredit the Register’s analysis by accusing the Copyright Office of being biased: “dedicated to the interests of some copyright holders—as opposed to providing an accurate interpretation of copyright law.” There is no factual evidence to support these wild accusations, and ample evidence to the contrary. The Copyright Office has a long and prolific history of addressing matters of copyright policy in a fair and neutral manner. As the Copyright Alliance letter details, all three branches of the federal government, and numerous other groups representing all types of interests, have consistently reaffirmed “the Copyright Office’s well-established, independent, expert judgment and guidance on copyright law and policy issues.” The mere fact that the Copyright Office’s analysis conflicts with the policy positions of Public Knowledge and its supporters does not mean that that the Copyright Office is biased; and Public Knowledge’s unsupported claims only underscore their inability to address the substance of the analysis.

In addition to accusing the Copyright Office of bias, Public Knowledge denigrates its status and expertise. According to Public Knowledge, the Copyright Office is “merely an office within the Library of Congress,” to whose opinion courts give “no particular weight.” This claim is flat-out wrong. The Copyright Office’s has a statutory mandate from Congress to function as an expert on copyright law and policy and to “. . . [p]rovide information and assistance to Federal departments and agencies and the Judiciary on national and international issues relating to copyright.”

As explained in the Copyright Alliance letter, in fulfilling its statutorily mandated responsibilities, the Copyright Office has long been relied on for its copyright expertise by all three branches of government. Most notably, the Office regularly assists Congress by providing expert advice on copyright policy and the interpretation of copyright law, providing drafting support for copyright legislation and legislative reports, and offering guidance regarding compliance with treaties and trade agreements. Further, as evidence of the expertise and value provided by the Office, Congress has asked the Copyright Office to prepare formal studies and analyses on a wide variety of copyright issues.

Likewise, the courts look to the Copyright Office for expert guidance on issues of copyright law that come before them. The Copyright Office also assists various executive branch offices, such as the Department of Justice, the White House, the Department of Commerce, the U.S. Patent and Trademark Office, and the Department of State. The fact that so many important federal policymakers seek and rely on the Copyright Office’s analysis of substantive copyright issues belies Public Knowledge’s erroneous claims about its status and its mission.

Public Knowledge also accuses the Copyright Office of treating the interests of consumers as “irrelevant” and fair use as “an obstacle to be overcome.” These accusations ring hollow. In assessing the FCC’s proposal, the Register’s Letter expressly acknowledges that a “number of the third-party products facilitated by the FCC’s rule would enable fair and other noninfringing consumer uses of MVPD programming” and that “certain consumer uses of copyrighted video content may qualify as fair uses under copyright law.” The Register’s letter also explicitly recognizes that “[f]air use has played an important role in the marketplace for television programming, both in fostering innovation and setting consumer marketplace expectations.”

Public Knowledge’s attack on the Office’s integrity, status, and expertise was accompanied by a feeble attempt to rebut the Copyright Office’s analysis. In particular, they argue incorrectly that “[n]othing in the FCC’s Proposal would allow for the repackaging and public performance of content.” In fact, however, the terms of the Proposal would require MVPDs to re-engineer their service to allow third-party device manufacturers and apps developers to repackage an MVPD’s content into a service vastly different from that originally offered by the MVPD. The Proposal also invents a new concept, so-called “Navigable Services,” which consists of the components of MVPD service that must be made available – for free – on an unbundled basis to such third parties for use in creating their derivative services. The Proposal further envisions that these third parties could alter aspects of MVPD service in providing their derivative services to MVPD customers. Furthermore, many of the proponents of the Proposal have stated their intent to use the access they receive as set-top box manufacturers to store and repackage content.

The FCC’s proposed set-top box mandate would harm creative professionals who create content that such third parties seek to exploit. If the FCC Proposal were to proceed without addressing the copyright concerns the Register’s letter explains, these professionals would be denied contractually and collectively bargained for compensation when that programming is exploited by third parties for free. The FCC proposal is also bad for the public as it will lead to fewer programming options from which to choose due to the reduction of incentives to create original works. Decision-makers should not allow Public Knowledge’s campaign of misinformation to lead them astray – the copyright concerns in the FCC’s proposal are real and glaring, and must be addressed.

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