Every time I tell people about the Federal Communications Commission’s #UnlockTheBox proceeding, the reaction is always the same: It’s a no-brainer. They burst into rants about how much they hate the boxes, that they hate paying so much, and that they can't understand why someone hasn't done something about this cable box rip-off that results in such a lackluster product and poor service. Even as they thank heaven, the FCC, and consumer advocates for their efforts to actually fix this, they ask why it hasn’t been done sooner. It’s getting ridiculous.
As we’ve been talking about recently, the Copyright Office has a long history of being bad at its job, and misrepresenting the law it’s charged with understanding. Anyone familiar with tech policy already knows about the debacle that is the exemption process under Section 1201, but it doesn’t end there. Aside from its seemingly never-ending quest to accumulate more power by pulling non-copyright issues under its umbrella, the Office pushes wildly expansive interpretations of copyright law--asserting rights that don’t exist, interpreting consumer safeguards so narrowly as to render them useless, preventing consumers from using assistive technologies, creating “solutions” that nobody asked for, and otherwise making bizarre proclamations that completely ignore relevant facts and law. Over and over again, the Copyright Office bends over backwards to align its positions with the lobbying agendas of the big entertainment conglomerates.
Two of the copyright issues Public Knowledge has been working on seem disconnected from each other, but there's a common theme. In both the performance rights organization (PRO) and set-top box issues, policymakers should be clear in their understanding that private contracts can't be used to override other provisions of law. Just as the interests of some industry participants don't override legally-binding consent decrees, neither do they provide a reason for the Federal Communications Commission to ignore its statutory mandate to promote set-top box competition.
Last Friday, five intellectual property law professors sent a letter to the acting Librarian of Congress, David S. Mao, to share their view that the Copyright Office’s developing stance on the Federal Communications Commission’s set-top box proposal runs counter Supreme Court rulings on copyright monopoly limits, specifically Sony v. Universal. Public Knowledge agrees that any arguments against “unlocking the box” based on copyright holder prerogatives are simply misinterpretations.
Some critics of the Federal Communications Commission's "Unlock the Box" proposal have suggested that the FCC ought to pursue a "no box" approach--that is, some kind of policy (or hands-off approach) that would let customers do away with the set-top box entirely, relying on apps instead, rather than introducing new competition in the set-top box market. The proposal put forward by the National Cable & Telecommunications Association, AT&T, and others even calls itself "Ditch the Box."