Law Professor Mark Lemley: Hollywood Is Simply Wrong About FCC's Set Top Box Plan

from the not-a-copyright-issue dept

Thu, Sep 22nd 2016 9:38am — Mike Masnick

We've been discussing for a while now about how the MPAA, with the help of the Copyright Office, has been propping up the complete myth that the FCC's plan to create more competition in the cable set top box space involves violating the copyrights of studios. It's a complete myth. The cable industry has been leading the charge here, mainly because it makes billions of dollars by charging people to "rent" its crappy boxes. But it found a strong ally in copyright maximalists who have repeatedly misrepresented the proposal. As we noted, the Copyright Office put out a report that flat out lied about what the FCC's proposal entailed and about how copyright itself works (arguing that contracts between two third parties could somehow eliminate the fair use rights of private citizens). And, incredibly, the basic argument being put forth by copyright maximalists, if taken to its logical conclusion, would mean that VCRs and DVRs are illegal too.

That's not how copyright law actually works -- but the message has caught on, and the FCC has already been forced to weaken its proposal -- and the industry is still bitching about it.

Thankfully, we're finally starting to see some copyright experts speak up about just how wrong Hollywood and the Copyright Office are on this. Mark Lemley, by far the most cited intellectual property professor (who is also a practicing lawyer), has written up a piece for the Hill that rips to shreds the idea that the FCC's plan somehow would implicate Hollywood's copyrights. As he notes, they're totally overstating what copyright allows:

The MPAA’s argument that studios have the right to control the device on which you view your content reflects a fundamental misunderstanding of copyright law. Copyright gives its owner the right to control the making of copies and public performances of a work. But it does not give them control over any use of a work. That’s no accident. Once the copyright owner has been paid once for a particular copy, its control over that copy ends. That’s why I can lend a book to friends, or sell my used record collection outright.

True, there are some things I can ‘t do even with a copy of a movie or song I own. I can’t upload it on a file-sharing site, for instance, and I can’t play it on the radio. But that’s because doing those things either makes a new copy or makes a new, public performance of the work.

The studios have already been paid for the movies shown on a cable or satellite service. Indeed, they’ve been paid specifically for the right to publicly perform the work by transmitting it to my (and everyone else’s) home.

And here, copyright law says something very important to copyright owners: that’s all you get. Once the cable companies have paid the MPAA for the right to deliver their movie into my home, the MPAA loses control over how I choose to watch their movie in the privacy of my own home. I can record it on a DVR and watch it whenever I want. I can watch it on a big-screen TV or a small one, with the sound on or off, in one sitting or many, while fast-forwarding through parts I don’t like or rewinding to rewatch parts I do. I can watch it again and again. Most important, I can watch it on any device I want, including my computer, my iPad, or my phone.

And, while the MPAA and its supporters keep calling the FCC proposal a "compulsory license," Lemley points out that it's not a compulsory license that lets you record a TV program to your VCR or DVR, and neither is this:

That isn’t a “compulsory license” of copyrights; it’s a limit on the scope of those rights. That limit exists even if copyright owners try to declare that it doesn’t. This is the law. It has always been the law. Every effort by copyright owners to control how I watch a show in my own home has ended in failure.

Unfortunately, this blatantly false attack by Hollywood and the Copyright Office on the FCC's plan has been effective. It seems unlikely that the plan will go through, and what's troubling about it is that it's all based on flat-out falsehoods by Hollywood, the Copyright Office and its supporters.

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Filed Under: competition, copyright, copyright office, fcc, mark lemley, set top box, set top boxes
Companies: mpaa

9 Comments

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Mason Wheeler (profile), 22 Sep 2016 @ 10:30am

We've been discussing for a while now about how the MPAA, with the help of the Copyright Office, has been propping up the complete myth that the FCC's plan to create more competition in the cable set top box space involves violating the copyrights of studios. It's a complete myth.

Meh. Only if you think, like some sort of ridiculously antiquated reasonable person that copyright is a right to control copying. Wherever would you get such a silly, outmoded idea? Ever since the DMCA passed and gave us legal protection for DRM, we have been able to achieve it's true goal: a right to control usage! And as such, this plan clearly violates our copyright!
- the MAFIAA
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WDS (profile), 22 Sep 2016 @ 11:27am

What???
What, Hollywood would lie?????

I'm Shocked!!!!!
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Anonymous Coward, 22 Sep 2016 @ 12:00pm

Re: What???
Hollywood is in the business of lying.
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Anonymous Coward, 22 Sep 2016 @ 12:34pm

perhaps someone would like to list here what Hollywood and the other members of the Entertainment industry do say that is correct? i cant think of a single, sensible thing. even 'Internet Piracy' is a load of complete bullshit, but it has been allowed to be called that because the industry and it's bought and paid for members in Congress want this and other terms, to sound as if 'Piracy' is as bad as possibly anything can get for them and lead to the total control of the Internet, what they have been striving for, bit by bit, for the last 2+ decades, regardless of the consequences for everyone else! if those members of Congress would only pull their heads out of their bank accounts long enough to listen to the truth, rather than the BS Hollywood and others spin, perhaps they would be able to fix the abysmal state of things in the USA, for a start, may be
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That Anonymous Coward (profile), 22 Sep 2016 @ 1:40pm

The cartels got a taste of control, and are sure that if they are granted total control over how you can use it it would rush in a golden age for them.

Of course demanding the right to control how paying customers use the content how they want to (within the law) screws people who pay them punishing them while driving more people to look for uncontrolled access.

Perhaps if they stopped looking for ways to claim this will ruin them, and instead sought ways to deliver the content to consumers without 1000 strings attached they would be far better off.

The law should deal with facts, not imagined horrors that despite dire predictions end up benefiting them once they are dragged kicking and screaming into the future.
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DannyB (profile), 22 Sep 2016 @ 1:52pm

Re: Re: What???
Hollywood is in the business of fiction and fantasy. Perhaps it is delusional rather than lying?
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That One Guy (profile), 22 Sep 2016 @ 4:06pm

Re:
The law should deal with facts, not imagined horrors that despite dire predictions end up benefiting them once they are dragged kicking and screaming into the future.

You kidding, if copyright law had to be based on actual facts and figures, demonstrable evidence rather than empty emotional pleas the entire thing would have to be scrapped and re-built from the ground up!

Wait, you may be on to something here...
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CharlieBrown, 22 Sep 2016 @ 10:22pm

Disclaimer
All MPAA op-ed's are fictitious and any resemblance to anything reasonable, theoretical or practical, is purely coincidental and unintended.
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Anonymous Coward, 23 Sep 2016 @ 5:42am

How about transparency?
Hey, Mike. Doesn't it bother you that the FCC is going to vote on this without releasing the current version to the public? You and Lemley are defending something you haven't even read. The MPAA is opposed to it based on the talking points the FCC published because no one outside the FCC has actually seen it. Transparency has been important to you in other contexts, was that just pretext?
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