Copyright Group, In Arguing Against FCC's Set Top Box Proposal, Appears To Argue That VCRs & DVRs Are Also Illegal
from the that's-not-how-it-works dept
Earlier this month, we wrote about how the Copyright Officer had filed a really bizarre and legally dubious comment with the FCC concerning the FCC's plan to open up competition in TV set top boxes, ending cable company's monopoly on those boxes (for which they bring in $21 billion in revenue per year). The FCC's plan was pretty straightforward -- and the cable companies have attacked it on all sides, with the one argument that seems to be sticking is that this plan is somehow an affront to copyright, and would result in piracy. This is blatantly, factually incorrect. The FCC's plan makes it clear that any system would retain existing technology protection measures against piracy (for better or for worse). If this new system resulted in infringement, it would because there's infringement on the internet already, not because of these new rules.The Copyright Office's comment was ridiculous on multiple levels, but the worst was the basic argument that private agreements between cable providers and content providers could somehow limit or erase the fair use rights of the public. Yet that's exactly what the Copyright Office argued:
"The Office's principal reservation is that, as currently proposed, 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 these works through the private negotiations that are the hallmark of the vibrant and dynamic MPVD marketplace."This simply incorrect interpretation of the law raised some pretty serious questions, with Public Knowledge going so far as to note a somewhat disturbing pattern of the Copyright Office acting like a lobbying arm for Hollywood, rather than an impartial organization bound by what's in the actual law.
Following up on all of this, one of the many legacy entertainment industry lobbying groups, the Copyright Alliance has released its own letter to the FCC basically repeating what the Copyright Office claimed. It also put out a blog post about the letter... but really the blog post seemed to be an attempt to attack Public Knowledge for its comments about the Copyright Office.
The Copyright Alliance's letter is basically exactly what you'd expect, rehashing the already debunked claims about how the FCC's plans will cause copyright problems, but the Copyright Alliance seems to take it one step further, arguing, ridiculously, that anything that copyright holders don't like is obviously against the law. Read the following quite carefully:
As noted by the Copyright Office, copyright law is predicated on the theory that creators are incentivized to create new works by the prospect of reaping the economic fruits of their creative labor, which in turn benefits the public by increasing the number of creative works available for their enjoyment. This economic rationale behind copyright protection has been repeatedly confirmed by the Supreme Court. The Copyright Act creates these incentives by granting copyright owners a bundle of exclusive rights in their works, which they can assign and/or license to third parties in their discretion. The detailed contractual arrangements governing the release of copyrighted works into the commercial marketplace are what enable copyright owners to realize the full value of their works. The FCC’s Proposal undermines this licensing structure by forcing MVPDs to deliver copyrighted content—including all content the MVPDs license from programmers and other content creators—to unlicensed third parties, without the authorization of those copyright holders, while offering no mechanism to ensure that the detailed license arrangements between MVPDs and programmers/copyright owners are respected. Therefore, the Register is correct in her observation that the Proposal threatens to harm copyright owners by encroaching on their exclusive prerogatives to both exercise and license their rights to reproduce, distribute, display, and perform their creative works, as well as by undermining their ability to earn a return on their investment in those works.Except, if what I've bolded above is actually copyright law, then the VCR, the DVR, the MP3 player, photocopiers and much of the very internet itself are inherently against copyright law. But that's not what courts have found. If you look at the classic Betamax lawsuit, it made it abundantly clear that even when there were license agreements between content providers and TV stations that end users could absolutely record and watch content via an "unlicensed" device, known as the VCR. This just takes the Copyright Office's ridiculous assertion that copyright holders and ISPs can somehow write fair use out of their agreements for end users, and takes it even further to effectively write the Betamax ruling out of existence and set up a framework that says there can be no fair use in new consumer electronics.
That's both wrong and crazy. And, yes, I know that the former Copyright Office boss Ralph Oman has argued that all technology should be considered infringing until Congress says it's okay, but that's not the actual law, and it's incredibly dishonest to suggest it's the case.
Here's the important thing that the Copyright Office and the Copyright Alliance don't seem to understand (or are willfully ignoring). This content is already licensed. The only people who will get access to it are those who have a legitimate right to access the content from their cable providers. In other words, everything is licensed. There is no "harm" at all. The only issue is that the content can be accessed (by the paying subscribers!) via alternative hardware (which might add some more features, but which will still have the same copy protection). But nothing in this creates any problems for the content creators, because the overall setup is the same. They have licensed the work. The hardware alternatives that may arise may include some additional features, such as recording and such, but that's well within their legal rights under fair use. The complaint here seems to just be that the Copyright Alliance and the Copyright Office don't like fair use and don't want the Betamax standard to exist any more.
The Copyright Alliance and its funders in the entertainment industry may wish that the VCR were never made legal (even though it was a device that basically saved Hollywood by bringing in massive new markets and revenue streams), but they don't get to rewrite history and pretend it doesn't exist.
It's this kind of crap that is so annoying about these groups like the Copyright Alliance. They are flat out misrepresenting reality.
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Filed Under: copyright, copyright office, fair use, set top boxes, vcrs
Companies: copyright alliance
Reader Comments
The First Word
“OH NO!
I say to you that the OPEN SET TOP BOX is to the American film producer and the American public as the Boston strangler is to the woman home alone./S!
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Politics 101, act as though the world is as you want it to be, and if enough people believes you and act as you tell them, the actual law becomes mute.
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This reminds me of how many fools believed that the millennium began on Jan-01-2000. And the Flat Earth Society probably has millions of members as well.
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or if you meant "moot", as in, up for debate, or mostly irrelevant.
I guess I just like to tute my own horn.
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You're simply wrong, Mike. The license from the copyright owner to the MVPD allows the latter to publicly perform the content. The proposed rules would force the MVPD to transmit the content to a third party who has no such license. That third party would then publicly perform the content by transmitting it to the end-user, and since there's no license, it's copyright infringement. And end-user has no license, and the fact that an end-user paid for the privilege of receiving the content from the licensed MVPD does not mean it has any right to receive the content from an unlicensed third party. Just saying "this content is already licensed" is wrong. The transmission from the third party to the end user is NOT licensed. That's the problem. Can you address it?
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If a third party set top box manufacturer uses the box to collect copyrighted content illegally, then you can sure the individual manufacturer. Otherwise using a third party hardware doesn't constitute infringement.
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The difference is that, with a set-top box, the end-user has already received the content via the public performance. With the FCC's plan, the content goes through the third party before it's transmitted to the end-user. That third party public performs when it transmits to the end-user.
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But it's not the same under Aereo. End-users don't have licenses to receive content, they just have a contractual right to receive it. But that's not the issue. The issue is how that content is transmitted to the user. With the VCR, the content was transmitted over the airwaves. Those transmissions were licensed. With the NPRM, third parties will transmit to end-users. Those transmissions will not be licensed. This is one of the reasons copyright owners don't like the proposal.
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You're going to have to explain that one, because I'm not seeing it. With the VCR the content is transmitted to the tv/cable box, and the VCR is able to record a copy of that transmission.
Third-party alternatives to the cable box simply replace the previous cable box, there's no 'new' transmission in the process, unless you think that from the cable box to the tv is a transmission(in which case does that mean there is actually two transmissions to licence, from the source to the cable box, and from the box to the tv?), in which case the same license would work for both 'standard' and 'new'.
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Third-party alternatives to the cable box simply replace the previous cable box, there's no 'new' transmission in the process, unless you think that from the cable box to the tv is a transmission(in which case does that mean there is actually two transmissions to licence, from the source to the cable box, and from the box to the tv?), in which case the same license would work for both 'standard' and 'new'.
There is a transmission from a VCR to a TV, but that's not "to the public," so it doesn't implicate the public performance right. It's a private performance, and we can ignore it.
The key with set-top boxes, VCRs, DVRs, etc. is that they are located in someone's house, and they only touch the content after the transmission has already supplied the consumer with the content. So when I stream a movie from Netflix to my Tivo, that transmission is a public performance. Now say a third party stands between Netflix and my Tivo. This third party intercepts the transmission from Netflix and then retransmits it to my Tivo. In this scenario, the transmission from the third party to my Tivo is a public performance. And unless that third party has a license, it's infringement. This is what Aereo did with it's antennas.
Applying that here, if the MVPD transmits to the third party, and then that third party transmits to the subscriber, that third party is publicly performing. It doesn't matter whether the subscriber pays for the content. What matters is that the third party doesn't have a license to transmit the content to the subscriber. Hope this helps!
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The ones providing the source material can just as easily strike the same deals with the 'new' hardware providers as they do with the current hardware providers, the only real difference is that now the customer has multiple choices as to who they're getting the hardware from. If the previous route from source, to box, to tv wasn't considered a public performance then I'm just not seeing how that suddenly changes if who sells the box changes.
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Paragraph 26 of the NPRM says that the MVPD must send its "multichannel video programming (including both linear and on-demand programming)" to the third party so that it can make it available to the end-user "through an application or search interface offered by an unaffiliated vendor." That's the content going from the MVPD to the third part to the end-user.
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For people following along at home, you can look here:
https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-18A1.pdf
Paragraph 26 does not say what this commenter claims it says.
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Re: Re: Re: Re:
Can you quote the part you're looking at and explain how I'm wrong? Also, see more textual support for my position here: https://www.techdirt.com/articles/20160823/15441135322/copyright-group-arguing-against-fccs-set-top- box-proposal-appears-to-argue-that-vcrs-dvrs-are-also-illegal.shtml#c319
Simply saying I'm wrong isn't helpful. Let's talk about the exact text in the NPRM--if I'm wrong, I'd love to know how. (And thanks for the link!)
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What third party ? From what I understand of the proposal, the content would go to a piece of hardware owned by the subscriber, who has indeed paid to receive that content (that being assured by the use of DRM).
Surely you don't think that the manufacturer of that piece of hardware receives the content ?
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Don't you get the part about how your argument would also make the VCR illegal...even though it isn't?
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Nonsense. VCRs record content that end-users have already received via licensed transmissions.
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No. It doesn't. It says that third party *DEVICES* need to be able to display the content to MPVD subscribers. That's all licensed content. It's just coming through a new box.
That third party would then publicly perform the content by transmitting it to the end-user, and since there's no license, it's copyright infringement. And end-user has no license, and the fact that an end-user paid for the privilege of receiving the content from the licensed MVPD does not mean it has any right to receive the content from an unlicensed third party.
It's not coming from an unlicensed third party. It's coming from the licensed MVPD *through* a third party device.
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It's licensed to go from the MVPD directly to the end-user, not from the MVPD to a third party to the end-user. The third party is not licensed to transmit content to the end-user. That's an infringing public performance under Aereo.
It's not coming from an unlicensed third party. It's coming from the licensed MVPD *through* a third party device.
But "navigation device" is defined broadly to include "applications." From Paragraph 22:The NPRM is clear that MVPDs must supply the "information flows" to the third parties, which includes "the video programming itself." Paragraph 2.
So the MVPD sends the content to the third party, and the third party makes it available to the end-user via software. How is this not so?
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It's not infringing under Aereo in the slightest. The third party boxes are not setting up alternatives to the cable companies. They're providing a box that will allow SUBSCRIBERS to the cable companies to get that content. There is no infringement here.
But "navigation device" is defined broadly to include "applications." From Paragraph 22:
I believe you're misreading what's being said. What the NPRM is noting with both the mention of applications and the "information flows" (perhaps inartfully, but not really) is that the content must be able to flow from the MVPD, through the 3rd party device, to the end user who has an account with the MVPD. That's it. It's not saying they have to hand over all the content unencumbered. They just have to make the content available such that a *properly authorized individual* can access that content via a third party device that is not the cable box.
You guys are turning up ghosts and goblins where they don't actually exist. There's no infringement here. There's just increased competition to make better systems that will actually help create more value.
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And Aereo allowed end-users to receive content they could already receive for free by setting up their own antennas, yet Aereo, acting as a middleman, was publicly performing without a license. Just because I subscribe to HBO Now, it doesn't mean I can stream a movie available on HBO from a pirate streaming site. The pathway in which the content gets to the subscriber matters very much. But I think we need to figure out the next point, since this hinges on that...
I believe you're misreading what's being said. What the NPRM is noting with both the mention of applications and the "information flows" (perhaps inartfully, but not really) is that the content must be able to flow from the MVPD, through the 3rd party device, to the end user who has an account with the MVPD. That's it. It's not saying they have to hand over all the content unencumbered. They just have to make the content available such that a *properly authorized individual* can access that content via a third party device that is not the cable box.
It's that "flow from the MVPD, through the 3rd party device" that's the problem. That "device" includes "applications." How do you think, for example, that the information flow from the MVPD will get to an application on someone's smartphone? It will go from the MVPD to the third party, and then that third party will transmit it to the smartphone. There's no set-top box in this scenario, and the content does not come directly from the MVPD. The third party, just like Aereo, acts as a middleman and publicly performs the content. The MVPDs are required to turn over their information flows, i.e., the content itself, to allow for exactly this type of scenario.
You guys are turning up ghosts and goblins where they don't actually exist. There's no infringement here. There's just increased competition to make better systems that will actually help create more value.
Then can you explain how, in my hypothetical, the content is transmitted to the smartphone? Thanks!
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Again, this is incorrect. The content flows from the MVPD to the DEVICE or APPLICATION, but not to the 3rd party itself.
Then can you explain how, in my hypothetical, the content is transmitted to the smartphone? Thanks!
Yes. The MVPD has an API. The 3rd party device or app maker makes use of that API to access the content within their own framework. The end user who has an account with the MVPD and the device/app in question logs in and can then pull the "information" directly from the MVPD into the 3rd party device they bought or the app on their phone. That's what the NPRM is saying.
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I just don't see those limitations in the NPRM. For example, Paragraph 11: "The ground rules we propose in this Notice of Proposed Rulemaking are designed to let MVPD subscribers watch what they pay for wherever they want, however they want, and whenever they want[.]"
Say I subscribe to DISH and receive HBO via satellite. Under the rules, I can watch HBO on an application provided by Google "wherever" I want. I want to watch it when I'm not at home on my iPhone. How does the signal get to my iPhone? It doesn't come directly from DISH. My iPhone can't receive satellite television transmissions directly.
It comes over my cellular network, say AT&T. How did AT&T get the content? It goes from DISH to Google to AT&T. I'm not getting it directly from DISH. There is a middleman, and that middleman publicly performs under Aereo. This is why DISH is required to make the information flows, which include the content itself, to Google.
Can you explain how my iPhone pulls the content directly from DISH's satellite without a middleman? I don't see how that's possible. And sorry for the late reply--been super busy!
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Re: Re: Re: Re: Re: Re: Re: (i.e. @ the very confused AC)
Concrete example:
You subscribe to BigCableCo, and want to get your latest HBO fix (whatever it may be, considering GoT is wrapping up) on your phone, so you have Google TV or whatever they call their app on your phone. The Google TV app simply takes your BigCableCo credentials (however this is to work) and connects to https://headend.bigcableco.net, passing the credentials and the ID of said HBO show, and headend.bigcableco.net either sends the video data directly back to your phone as a response, or says "nope" for some reason (such as you not having that HBO channel).
Tell me where Google got into the middle of that video transmission/public performance!
(As an aside -- this, network-wise, is the same as clicking Play on an embedded Youtube video in a Techdirt article -- your browser goes out and asks youtube.com for the video stream, and Youtube sends you the video stream back. Techdirt's servers never touch it!)
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It comes over my cellular network, say AT&T. How did AT&T get the content? It goes from DISH to Google to AT&T. I'm not getting it directly from DISH. There is a middleman, and that middleman publicly performs under Aereo. This is why DISH is required to make the information flows, which include the content itself, to Google.
You are assuming, incorrectly, that the signal must come from a satellite. That's incorrect. The content will come via the internet. The 3rd party will pass on credentials from the end user to the MVPD.
So, no, the 3rd party never gets it. It goes straight from DISH to the end user. AT&T and Google are just making the connection.
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I am having trouble understanding why the end user would need a license.
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If that were true, on-demand videos wouldn't be public performances. Amazon, for example, could rent movies to subscribers without licensing the content. The reason why it's a public performance comes from the Transmit Clause, 17 USC 101, and the Supreme Court's interpretation in Aereo. It doesn't matter that only one person can receive a discrete transmission. What matters is the relationship of the person to the sender of the transmission and to the content itself. If I store my legally-purchased copy in the cloud and stream it back to myself, it's a private performance because it's content I've already legally acquired. If Amazon streams me a video that I just rented, then it's a public performance because it's not content I've already legally acquired.
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What about the other side of the bargain -- 'limited time'?
The cable companies want more than the exclusive right to sell the works. They want full control over the access and use of the works. For all time.
They want a world where there is no equivalent of a public library. No equivalent of reselling a book. No equivalent of saving a book for your children to read when they are older. And notably, minimal possibility that the work will ever be available in the public domain.
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Re: What about the other side of the bargain -- 'limited time'?
Remove fair use (as the copyright groups keep pushing for) and copyright law becomes unconstitutional (free speech violation).
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Re: Re: What about the other side of the bargain -- 'limited time'?
You'd think so anyway, but given they've already successfully(and insanely in my opinion) argued that endless retroactive extensions to the duration of copyright are perfectly in line with the 'limited time' language of the law so long as each individual retroactive extension isn't eternal, I wouldn't hold my breath.
Given copyright law has already been warped beyond all recognition from it's original stated purpose, I could absolutely see them gutting fair use from the law and still insisting that it's perfectly legal and constitutional, and still serves it's purpose of serving the public because look, people can always pay to access to the content in the manner that it's presented(and in no other way)!
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???
Suddenly the arbitrary Youtube ContentID enforcement makes a lot more sense.
"You have the right to remain silent, and should you choose not to exercise that right we will exercise it for you.
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Not illegal, but evil
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OH NO!
/S!
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Re: OH NO!
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The Media Vendor Police Department License
A license to steal.
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Re: The Media Vendor Police Department License
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The 'Betamax case' was decided by the supreme court over a three decades ago. It was well known by everyone in the industry. Yet the industry continues to assert that time and format shifting is illegal.
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Incorrect
The objective is not so that the works are "available for our enjoyment", but rather that such works will eventually be fully ours, aka, Public Domain.
They act like the mid-state is the end game. It is not.
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Re: Incorrect
Why would the objective be that my creation is only my property for a period of time until I then have to let others monetize it? That's ridiculous and stupid.
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Re: Re: Incorrect
'To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.'
Pay particular attention to the bolded parts, the 'to' and 'by', as those make clear what's the goal, versus what's the method to attain that goal.
However, if you don't care for the deal then great, no copyright monopoly for you then.
Copyright doesn't give you squat that you don't already have(the ability to make copies, the ability to sell, the ability to modify), it takes the ability to do those things away from everyone else, so if you don't like the terms of the deal('limited monopoly for now, in exchange for others to build upon your stuff later') then I guess the deal is off. You're welcome to keep anything you create to yourself, but once it's available for others to see and copy, without the law to prevent that copying have fun keeping it to yourself.
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Re: Re: Incorrect
Because eventually you're going to die.
...oh, right, by "my creation" you mean "a thing that was legally created by a corporation and not any actual or identifiable human beings." Carry on, then.
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Re: Re: Incorrect
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Re: Re: Incorrect
Because as soon as you publish it, or even let anyone see/hear/read it, it's NOT yours anymore. That's just the natural state of world as it has always been. Copyright was introduced very recently in human history as a set of temporary (hah!) restrictions on the public's ability to use works created by others, after which things are supposed to revert to that natural state (i.e. the public domain).
If having sole possession of your creation is so important to you, keep it to yourself. But don't you dare use any one else's work as inspiration for your own!
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Re: Re: Incorrect
Yes, it IS the objective. It is, in fact, the specific and ONLY objective of copyright. Offering creators temporary exclusive rights is just a means to the end.
Copyright was not created so that your content could be your private property. Nor so that you could monetize it. You need to read history, the Constitution, the Federalist Papers, the Supreme Court's decisions...or just Techdirt.
Copyright's function is to distort the market with an artificial monopoly, for a period of time, in order to provide enough incentive for creators to share their content. But the objective is that last part, getting creators to share their content so that the public can benefit.
The laws were absolutely written to benefit the public, not the creator.
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"I then have to let others monetize it [or do whatever they please with it]"
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Re: Re: Re: Incorrect
That is the political spin used to get the laws passed, the intent was always to benefit the middlemen publishers. Proof the dominant voices for any extensions of copyright law, whether terms or what is covered, are the publishers, who claim to speak on behalf of the creators. Also note, that corporations do not create, they just employ people who create.
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Re: Re: Re: Re: Incorrect
You're talking about the subsequent creep of it.
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Not How It Works
Ralph Oman should be considered a criminal asshat until the legal system acquits him.
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cable companys need to recognise that tech has advanced
alot in the last 5 years with streaming and video on demand services being expected by consumers .
Most tvs have netflix and youtube apps being built in .
Companys that dont provide the latest tech or apps to consumers will just encourage more customers to cut the cord or even pirate programs .
The cable companys could end up like the record companys who had no easy to use legal option to napster and music piracy
Until apple had to show them how to provide a legal digital
music download store .
AN open cable tv platform would be likely to provide a wider range devices which would attract more customers to
pay for cable tv .
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COPYRIGHT WHAT?
.
Many would have us believe that their junk, and/ or services, have value!... and that we all would live happier lives if said junk, and/ or services, were in our possession!... AND!... for a "FEE"!
.
We don't have to cost/ price anything good in this world to be happy, healthy and wise!... we've simply chosen the way of FILTHY LUCRE/ MONETIZATION in order to share/ exchange our individual and collective "GROSS PERSONAL PRODUCT"! And until we realize that there is a better way of sharing/ exchanging our GPP, then we'll continue to play these stupid games of WHO OWNS WHAT!... and, WHO HAS A RIGHT TO WHAT!
.
To sum up, no self-respecting alien civilization would be playing the games that humanity/ mankind has been-- and is-- playing! And this human "playfulness" probably explains why these more advanced creatures don't "do lunch" with earthlings!... or at least, very often!
.
If it wasn't for the global NGO+NPO community (what Jeremy Rifkin, President of the TIR Consulting Group calls the "Third Sector"!), humanity would be up "sh*t creak" without a paddle! And a community, that has long prided itself on transforming the notion of the "Market Sector"!
.
Please!... no emails!
.
P.S.: The notion of the GROSS NATIONAL PRODUCT fails to even recognize the inherent value of the products and services of the "Third Sector"! And for that reason, it is a GROSS MISCARRIAGE OF ECONOMIC AND SOCIAL JUSTICE!... and deserving of our scorn, and ridicule!
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