In February, the Federal Communications Commission (FCC) issued a series of proposals designed to “unlock” the so-called “set top” boxes that television watchers currently use in order to access cable services. See, e.g., The Editorial Board, “The F.C.C. Gets Ready to Unlock the Cable Box,” The New York Times, Feb. 8, 2016. Since then, the U.S. Copyright Office has entered the discussion and has argued that allowing third parties to duplicate cable boxes could cause copyright violations and piracy of materials owned by cable providers, particularly with respect to software and programming materials that accompany the actual boxes. See, e.g. Rudy Takala, “Copyright office criticizes cable box plan from FCC Dems,”Washington Examiner, Aug. 4, 2016. As the legal controversies involved are myriad, copyright expert witnesses will likely play an integral role in resolving them.
The initial FCC proposal was based upon “a provision of a 1996 telecommunications law that requires cable companies to accommodate competing devices.” The Editorial Board, supra. If implemented, the FCC’s suggestions would call for cable companies to work with other television providers, such as Amazon and Google, and “jointly develop technical standards for cable devices,” which would ultimately permit consumers to “watch cable television on any device that meets those standards.” Id.
The concerns that cable providers and the Copyright Office have raised are largely concerned with the potential for piracy. According to the Copyright Office Registrar Maria Pallante, “the rule could interfere with copyright owners’ rights to license their works as provided by copyright law, and restrict their ability to impose reasonable conditions on the use of those works.” Paul Weiss, “Copyright Office Outlines Concerns With Set-Top Box NPRM in Letter to Congress,” Lexology.com, Aug. 5, 2016. In addition, the Copyright Office has suggested that if cable boxes were developed by third-parties, new cable box developers could alter the type of advertising that is included in the software of a particular box, which would arguably “exploit” cable programming for a profit. See, e.g., Takala, supra.
Many analysts in the field have expressed frustration with the Copyright Office, arguing that it has sided with the cable companies that have, in turn, made misleading claims about alleged copyright violations that the FCC has already accounted for and expressly protected against. See e.g., The Editorial Board. As a group of leading intellectual property experts and scholars recently expressed, the risk of violations of cable providers’ copyrights is minimal under the FCC guidelines. See Annemarie Bridy, et al, July 22, 2016 Letter to Library of Congress, available at https://www.publicknowledge.org/documents/ip-law-professor-letter-to-library-of-congress-on-unlocking-the-box (last visited on Aug. 14, 2016). As the group explained to the Library of Congress, “We understand that the Copyright Office has expressed concern that the FCC’s proposal, if implemented, would lead to the infringement of copyright. We do not share that concern, particularly in light of the legal and technical measures contemplated…for protecting copyrighted content from illegal copying. We are concerned, however, that the Copyright Office’s developing stance in this case is inconsistent with the Supreme Court’s clear guidance concerning the limits of the copyright monopoly in relation to the production and sale of equipment that is properly viewed as lying outside the copyright holder’s zone of control.” Id.
The FCC’s guidelines are in accord with the wishes of other television providers who would like to be able to manufacture cable boxes, as well as some consumers who wish to see competition in this field. If they are followed, lawmakers, attorneys, and intellectual property and copyright expert witnesses will be called upon to determine how to best protect cable companies’ legitimate copyrights while also providing for more consumer choices and greater competition among providers. The Copyright Office’s admonitions are favored by the cable companies and by some businesses and analysts in the field, who express concerns about the potential for unregulated third-party advertising that might occur if cable boxes are unlocked and can be manufactured on a less exclusive basis. In either event, lawmakers have a number of factors to consider, and copyright expert witness in the field can offer invaluable advice.
The facts are hotly debated in the context of what effect the unlocking set-top cable boxes would have. Both sides have discussed two goals: protecting copyrighted materials from undue violations while also ensuring fair competition and encouraging innovation. The way to accomplish all of these goals is in dispute, and the FCC and Copyright Office have apparently taken divergent stances to date. Ultimately, the best way to accomplish these objectives will, in all probability, depend upon the opinions of the experts: from copyright witnesses to engineering analysts, copyright expert witnesses will play an indispensable role in whatever legislation ultimately emerges with respect to cable box regulation.
By: Kat S. Hatziavramidis, Attorney-at-Law