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Who would have thought that closed captioning could become the next big copyright fight? Yesterday Public Knowledge filed reply comments in an FCC proceeding implementing new video closed captioning rules under the 21st Century Communications and Video Accessibility Act (“CVAA”). Other commenters in the proceeding argued that copyright protections prevent video programming distributors from adding or improving captions to videos that don’t meet the CVAA’s requirements. PK stepped in to point out that even if captioning infringes copyright (which is unlikely), copyright, like any other private right, is subject to constitutional laws and regulations. Copyright does not trump a captioning law any more than real property rights trump the Americans with Disabilities Act. But besides being a stunning example of companies using copyright to prevent services for the disabled, this debate sheds light on yet another area where copyright overreach could stop legitimate uses of works under the proposed Stop Online Piracy Act (“SOPA”).
Copyright and Closed Captioning
In our reply comments, PK explained why captioning a video is a “fair use” that does not qualify as copyright infringement under section 107 of the Copyright Act. Section 107 lists four factors that go into a fair use analysis, three of which favor captioning as a fair use. The nature of the copyrighted work (here, video programming) is probably highly creative, and so it enjoys a fair amount of copyright protection. However, captioning is a non-commercial use that is simply intended to make the programming accessible to individuals with disabilities, and to legally comply with the CVAA. Captioning uses as little of the copyrighted work as possible because it only conveys exactly what a person with a hearing disability would need to understand the video: the words being spoken. Finally, captioning actually has a positive effect upon the market value of the work for the copyright owner. When more people can access the programming, the audience for the video programming will grow. This is a perfect example of how the fair use doctrine serves the overall goal of copyright law: promoting the progress of art and knowledge.
Even if captioning infringed copyright, the CVAA explicitly orders the FCC to “revise its regulations to require the provision of closed captioning on video programming delivered using Internet protocol....” If captioning does indeed violate copyright, then the FCC has statutory authority to create a limited exception to copyright protection for the purposes of implementing the CVAA. Copyright law is not a shield against all other legal obligations. The FCC has even reached this conclusion before, when it required cable companies to make copyright-protected programming available to competitors under the program access rules.
Closed Captioning and SOPA
Under the proposed SOPA, a video program creator could cut off a website’s payments and ad services simply by alleging that its captions or captioning tools infringe copyright, even if the infringement is legally impossible because the captioning is a fair use. If Congress passes SOPA, a copyright owner could cut off a website’s payment processor or ad service by simply accusing the website of engaging in, enabling, or facilitating a copyright violation. The website could then be punished without even receiving the accuser’s notification, much less obtaining court review to see if the accuser’s claims are valid. Without any guarantee of getting its day in court before being punished for the alleged infringement, a website would probably be inclined to simply avoid activity that has even a marginal chance of being called infringement.
In the FCC’s CVAA proceeding, some companies were very eager to claim that captioning a video infringes its copyright. For example, Starz Entertainment argued [pdf] that editing captions would violate the copyright owner’s right “to control derivative works.” AT&T claimed [pdf] “captions are a copyright-protected part of the programming content” and video programming distributors usually lack authority to improve captions, although AT&T’s filing neglects to include any actual legal analysis showing how it reached that conclusion. The thing is, unsupported legal conclusions are perfectly sufficient for a copyright owner to invoke SOPA and punish websites that the copyright owner thinks enable infringement. So even if a copyright owner’s infringement allegations have no legal merit, they would be enough to discourage websites from providing captioning tools.
Even though captioning is very likely a non-infringing fair use, under section 103 of SOPA just the mere assertion that captions infringe is enough for a copyright owner to demand that payment processors and advertising services cut ties with the website. With this threat hanging over its head, any risk-averse website would likely refuse to provide captioning (or video description for the blind) for its content. Tools that allow users to add or improve captions or alter their placement, size, color, font, or timing would just be a pipe dream. Instead of encouraging the progress of art and science, SOPA would encourage websites to deny individuals with disabilities the accommodations they need to experience videos that any other person could freely access. We can now add “individuals with disabilities” to the growing list of communities who would be harmed if Congress allows SOPA to become law.