The Reason The Copyright Office Misrepresented Copyright Law To The FCC: Hollywood Told It To

from the so-now-we-know dept

Wed, Oct 26th 2016 9:39am — Mike Masnick

There was some oddity over the summer, when the Copyright Office flat out misrepresented copyright law to Congress and the FCC with regard to the impact on copyright of the FCC's (now dead) proposal to create competition among set top box providers. As we've explained over and over again, there were no copyright implications with the FCC's proposal. All it said was that if an authorized user wanted to access authorized content via a third party device, that authorized user should be able to do so. And yet, the Copyright Office, incorrectly, seemed to make up an entirely new exclusivity in copyright law (one that would outlaw DVRs) that basically said not only could a content provider license content to a cable TV provider, but it could also limit the devices on which end users could view that content.

Simply put: that's wrong. That's not how copyright law works, and we've known that since the Supreme Court's ruling in the Betamax case decades ago.

But why would the Copyright Office so misrepresent copyright law? That was the perplexing part. Even with a bunch of copyright professors explaining how wrong the Copyright Office was, the Office still went ahead with its letter. Of course, as with so many policy issues, it really seemed like the Copyright Office was just acting like a lobbying arm of Hollywood.

And that's because it was.

The EFF filed a FOIA request on the Copyright Office's emails and meetings concerning the set top box issue, and -- surprise surprise -- they basically coordinated directly with the MPAA and related lobbyists. The most stunning part? When both the MPAA and the FCC asked to meet with the Copyright Office about this, the Copyright Office quickly scheduled a meeting with... the MPAA. And pushed off the FCC meeting. And they lied to the FCC in the process. Then Copyright Office General Counsel Jacqueline Charlesworth's assistant told the FCC that she was not available to meet... on the very same week that she met with the MPAA over this issue. As EFF notes:

After the FCC announced its intention to break up the set-top box monopoly in February of this year, MPAA quickly called on the Copyright Office to meet on the matter. The documents indicate that the first meeting the Copyright Office held on the set-top box issue was not with the FCC but rather the MPAA. Although both the FCC and MPAA reached out to the Copyright Office in late March, Copyright Office officials met with MPAA on April 11 while postponing and meeting with the FCC a week later. Throughout the spring and summer of this year, the Copyright Office alternated between meetings with the FCC, MPAA, and other major content companies such as Comcast and Viacom. On May 31, just hours after holding a conference call with MPAA, the general counsel of Copyright Office emailed her counterpart at the FCC saying “the proposed rule may in fact implicate some rather serious copyright concerns.”

There was also a bizarre situation, in which a copyright maximalist Congressional Rep reached out to the Copyright Office, claiming that he'd heard from (recently fired) Copyright Office boss, Maria Pallante, basically asking him to officially request the Copyright Office's opinion on the FCC's plans. Others at the Copyright Office -- including Charlesworth -- note that they had been working under the impressiong that the Copyright Office was not seeking an official request from Congress to weigh in. The whole thing is quite bizarre.

But the really telling thing is that the Copyright Office basically spent all its time hearing from one side -- the MPAA and assorted studios, who disliked this idea not for any copyright reasons, but because they just wanted more control -- and totally ignored any other viewpoint (and certainly did not seek it out).

It seems that despite holding itself out as a neutral expert agency on copyright matters, the Copyright Office regularly engaged in discussions with only one set of parties as it formed its opinion. Not once did the agency reach out to the copyright scholars who explained to the FCC that no copyright interests were harmed by the set-top box proposal. Nor did the agency rethink its position when these same parties made clear that what they want is for the FCC to create new legal rights for them that have nothing to do with copyright law. The Copyright Office did eventually meet with a group of companies who are seeking to build competitive set-top boxes that consumers can buy, but that meeting happened on August 2, just one day before the Office issued its public statement. And that statement gives short shrift to the technology companies’ concerns.
When the U.S. Copyright Office waded into the debate, it could have brought an end to the misleading hand-wringing over copyright. Instead, it did the opposite by echoing the MPAA and cable companies, claiming that if cable operators were required to allow customers to use the devices of their choice to view the programs they pay for, the studios’ copyrights would somehow be violated. They even went so far as to say the current copyright law landscape is insufficient and therefore the FCC must do more to protect rightsholders.

An agency that listens only to the views of some industry groups without seeking out additional opinions cannot be a reliably neutral expert for Congress or the FCC. We hope that the FCC will weigh the Copyright Office’s comments appropriately, and resist efforts to derail the agency's work to end the set-top box monopoly.

If you read through the document the differences here are quite stark. There are many, many meetings with Hollywood, and many of the emails are jokey and informal (my favorite is when long term NBC Universal lobbyist Alec French tries to joke around with Jacqueline Charlesworth by calling her Jacqui, and then realizes he may have insulted her). The emails for the small group of set top box companies are much more detailed and formal. This is yet another example of how the Copyright Office is captured by Hollywood.

Foia Dkt No 22 2016 Response and Records 20161024 (PDF)Foia Dkt No 22 2016 Response and Records 20161024 (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: competition, copyright, copyright office, fcc, hollywood, jacqueline charlesworth, lobbying, maria pallante, set top boxes
Companies: mpaa

42 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 26 Oct 2016 @ 9:55am

Is this the reason for a recent move that led to a departure?
[ link to this | view in thread ]
Ninja (profile), 26 Oct 2016 @ 10:14am

Hmm, so it's crystal clear that the Copyright Office, a government entity, was/is working with private parties at the citizenry expense. The question: And?

I mean not as "so what" but rather as in "what can be done about it?" knowing the probable answer is nothing.

So, what can be done about it other than being outraged? Within the law mind you. The MAFIAA is already playing outside it.
[ link to this | view in thread ]
Ryunosuke (profile), 26 Oct 2016 @ 10:20am

Re:
that would seem to be the case, if a dept went over my head, and went directly to a 3rd party without my knowledge, let alone authorization, and then went to congress. I'd be pissed too.
[ link to this | view in thread ]
Anonymous Coward, 26 Oct 2016 @ 10:21am

As we've explained over and over again, there were no copyright implications with the FCC's proposal. All it said was that if an authorized user wanted to access authorized content via a third party device, that authorized user should be able to do so.

It's not quite that simple. Members of the public were authorized to access broadcasts, but Aereo nevertheless directly infringed the public performance right. You seem to think that the content could be made available anywhere, anytime without the third-party intermediaries needing a license. Doesn't work that way. And then there's the issue of forcing pay-TV providers to transmit content in ways violative of their license agreements. Rather than just claiming over and over that "there were no copyright implications with the FCC's proposal," how about actually addressing the arguments that there were directly and on the merits?
[ link to this | view in thread ]
Padpaw (profile), 26 Oct 2016 @ 10:30am

Re:
make a list of people that have betrayed their oaths and make good on it when the time comes?
[ link to this | view in thread ]
Anonymous Coward, 26 Oct 2016 @ 10:31am

Re:
And Techdirt covered the Aereo case heavily and came to the conclusion that the Aereo case was a terrible ruling under copyright law.

Aereo apparently lost their case because the cord was too long and they looked like a duck.
[ link to this | view in thread ]
Ninja (profile), 26 Oct 2016 @ 10:34am

Re:
The arguments were addressed and they have been proven to be bullshit. And Aero is a very bad example, there's no company providing rental or 'signal redirection', it's the users own equipment. And the user will be accessing an authorized, paid for protected stream. Your arguments were all bullshit.

Of course, things like Aero and this licensing mess where you morons can insert yourselves in the middle of every single thing even if it's already authorized are evidence copyright law is toxic at best.
[ link to this | view in thread ]
Ninja (profile), 26 Oct 2016 @ 10:34am

Re: Re:
Don't forget Zediva on the cord issue.
[ link to this | view in thread ]
Ninja (profile), 26 Oct 2016 @ 10:36am

Re: Re:
And? Considering it's a bipartisan system where 99,9% of one party is insane and fascist and the other is 99,8% insane while everybody bickers over things that should be the common goal towards a better country it doesn't really matter. The problem is a tad more systemic.
[ link to this | view in thread ]
Anonymous Coward, 26 Oct 2016 @ 10:39am

Re:
Not only was Aereo a bad ruling, but also a different scenario. This scenario is more like downloading an Apple music track to my Android phone. The device isn't a service provider and there are no copyright implications because I'm paying for it already. Apple and the music labels don't have a right to tell customers what kind of device they can listen to music on. Just substitute cable providers and the movie/tv studios and video content and set top boxes and it's the exact same scenario.

Third party devices aren't third party intermediaries. These are devices, not service providers, machines, not people.

This wouldn't violate a license agreement because if the use is legal, the license agreement can't override the law. The clauses in a contract that violate the law would be null and void.
[ link to this | view in thread ]
Mike Masnick (profile), 26 Oct 2016 @ 10:45am

Re:
It's not quite that simple. Members of the public were authorized to access broadcasts, but Aereo nevertheless directly infringed the public performance right.

Aereo was decided incorrectly, but either way, the Aereo ruling doesn't apply here. That issue was specific to laws concerning cable TV.

And then there's the issue of forcing pay-TV providers to transmit content in ways violative of their license agreements.

Again, NOTHING IN THE NPRM DID THIS. You keep insisting that it did, based on your own technical misunderstanding of the NPRM, believing that it required the actual content to flow to the device provider. It did not. It only required a form of credential passing, to make sure that the user was properly authorized to access this content.

I did address this before and you (at least I assume it was you) continued to misread the NPRM, not understanding that it does NOT require the content providers to hand their actual content over to third parties -- just to grant access to 3rd party devices owned by authorized users to access the content.

That's not a copyright issue at all.

In the meantime, out of curiosity, is the organization that pays you mentioned in the FOIA release above? Seems like that would be a bit of useful transparency here, no?

Also, I note that you are trying to ignore the real issue here, which is that the Copyright Office coordinated closely with Hollywood, even before talking to the FCC, and made no effort whatsoever to speak to others who might have a different take on the issue.
[ link to this | view in thread ]
Thad, 26 Oct 2016 @ 11:07am

Re: Re:
Huh? Who are you saying went over whose head?

This happened in April and May; Hayden wasn't approved by the Senate until July.
[ link to this | view in thread ]
Thad, 26 Oct 2016 @ 11:08am

Re:
Well, firing Pallante's not a bad start.
[ link to this | view in thread ]
Wyrm (profile), 26 Oct 2016 @ 11:44am

Re:
Wrong comparison.

Aereo was a completely different issue. Aereo was a remote service, not a provider of home device, so there were valid arguments about the rights involved. I still think that the end decision was wrong but that's not the question here.

The FCC set-top box reform was about letting end users use the device of their choice at home. Much like you're allowed to use the TV of your choice, and even add a recording device between your box and your TV, and so on... (This was made clear by the Betamax decision years ago, as written in the article.) This was only making it clear that the box itself should be something the user can change.

What you do with the signal you're allowed to receive and decode in your home is not anyone's business but your own. Not the broadcaster, not the ISP. You, the end user. It only becomes a copyright issue when you make your own public broadcast or representation. (And again, even then it isn't always infringement.)
[ link to this | view in thread ]
Annonymouse, 26 Oct 2016 @ 11:45am

Re: Re:
Firings- maybe from the Nimitz?
[ link to this | view in thread ]
RD, 26 Oct 2016 @ 12:01pm

So let me see if I have this right
The copyright office met with everyone on this matter *except* the public, whom they manage copyright *for* in accordacne with the copyright act.
[ link to this | view in thread ]
Ed (profile), 26 Oct 2016 @ 12:04pm

"Anonymous MPAA shill"
Aereo has absolutely nothing to do with THIS issue. You're attempting an irrelevant deflection because you have absolutely NO grounds to your argument. Nice try, shill. But, as always, you're full of BS.
[ link to this | view in thread ]
Anonymous Coward, 26 Oct 2016 @ 12:21pm

Re: So let me see if I have this right
The problem with the public is that they speak with many voices, and hold differing opinions. Meanwhile the content industry speaks with one voice, supporting just one idea. Therefore listening to the public involves work in working out the best options, while listening to the industry gives per-packaged solutions.
[ link to this | view in thread ]
Anonymous Coward, 26 Oct 2016 @ 12:41pm

and as this info has now come to light, what is the FCC going to do about/with it? is it going to go to Congress or, as so many of the members Entertainment Industry collaborators, think it's going to be a waste of time? even if that is the case, armed with this shit storm info, can the FCC try again to sort out the set top box issue?
[ link to this | view in thread ]
Groaker (profile), 26 Oct 2016 @ 12:57pm

Re: Re: So let me see if I have this right
I can not think that any reasonable person, who does not get their bread buttered by the industry, would refuse to have a choice in the selection of cable boxes. Any member of the "public" who does not choose choice is likely a shill for the industry.
[ link to this | view in thread ]
jupiterkansas (profile), 26 Oct 2016 @ 1:41pm

Re: Re: So let me see if I have this right
No, the problem with the public is that they have no voice. What's the phone number for the public? What's their email? How do you arrange a meeting?

It's much easier to deal with businesses that have hired people specifically to talk to you, and for most of what government does, if it makes businesses happy then nobody ever complains.
[ link to this | view in thread ]
Anonymous Coward, 26 Oct 2016 @ 1:56pm

"Not for copyright reasons"

the MPAA and assorted studios, who disliked this idea not for any copyright reasons, but because they just wanted more control

But to the MPAA, that is a copyright reason. It's one of the primary rights they feel copyright grants them—because it does, because they paid legistators to give them those rights.
[ link to this | view in thread ]
Anonymous Coward, 26 Oct 2016 @ 2:32pm

From the EFF link above:

"Not once did the agency reach out to the copyright scholars who explained to the FCC that no copyright interests were harmed by the set-top box proposal."

To the best of my knowledge the agency did not reach out to copyright scholars who expressed strong disagreement with the content of the EFF's copyright scholars' letter to the FCC.
[ link to this | view in thread ]
Anonymous Coward, 26 Oct 2016 @ 2:47pm

Abolish Copyright
and this kind of crap goes away. Crap begets more crap.
[ link to this | view in thread ]
Anonymous Coward, 26 Oct 2016 @ 4:39pm

Hollywood loves piracy

The Hollywood film industry was built by fleeing pirates. Creators and directors migrated from the East Coast to California in the early 20th century in part to escape controls that film patents granted the inventor Thomas Edison. These controls were exercised through the Motion Pictures Patents Company, a monopoly “trust” based on Edison’s creative property and formed to vigorously protect his patent rights.

California was remote enough from Edison’s reach that filmmakers like Fox and Paramount could move there and, without fear of the law, pirate his inventions. Hollywood grew quickly, and enforcement of federal law eventually spread west. But because patents granted their holders a truly “limited” monopoly of just 17 years (at that time), the patents had expired by the time enough federal marshals appeared. A new industry had been founded, in part from the piracy of Edison’s creative property.

[ link to this | view in thread ]
Anonymous Coward, 26 Oct 2016 @ 5:21pm

Re:
How's that Jim Hood plan coming along, Slonecker?
[ link to this | view in thread ]
Anonymous Coward, 26 Oct 2016 @ 10:29pm

Like the IRS the copyright office need to go the way of the dinosaur. Cut funding and stop cutting their employees checks.
[ link to this | view in thread ]
Anonymous Coward, 27 Oct 2016 @ 4:11am

Re: Re:
You are quite obviously a member of the TD staff, which goes to prove that all its talk about its strong support for anonymity on the net to encourage participation is insincere blather.

As for the comment, it is correct. There were many within academia, professional law organizations, and practitioners who strongly disagreed with what both the EFF and PK have been saying about this issue and their slanted presentation of facts.
[ link to this | view in thread ]
Anonymous Coward, 27 Oct 2016 @ 5:19am

Re: Re: Re:
What is it with you copyright fanboys and squealing about secrecy, while making no honest effort to protect it on your part? You, antidirt, Whatever, the list goes on.

I'm not a member of Techdirt's staff. I'm not even on the same hemisphere as Techdirt. You simply have such a signature sycophantic methodology of copyright defense that can be detected from half a planet away.
[ link to this | view in thread ]
Aaron Walkhouse (profile), 27 Oct 2016 @ 5:20am

Doesn't matter.
Show open contempt for any office and whoever sits behind
that desk can fire the offender once they are caught.
[ link to this | view in thread ]
Anonymous Coward, 27 Oct 2016 @ 6:08am

Re:
If it looks like a corporate shill........
[ link to this | view in thread ]
Anonymous Coward, 27 Oct 2016 @ 7:38am

This is how it works!
This is how it works boys and girls.

Agency created to regulate a market means having a single point of failure, having a one stop shopping mall for big business.

The only thing you get when you make a government bigger is a bigger meaner monster you have to slay later. Big Government and Big Business are perfect bed buddies, while citizens become trafficked sex slaves for their enjoyment!
[ link to this | view in thread ]
Padpaw (profile), 27 Oct 2016 @ 8:08am

Re: Re: Re: Re:
I suspect they are paid for shills hired by various groups to spout nonsense defending various things. Otherwise they represent a real group of people that think this way, and that is a terrifying thought.
[ link to this | view in thread ]
Thad, 27 Oct 2016 @ 10:45am

Re: Doesn't matter.
I never said otherwise. I just said that I don't understand the accusation that she went over anyone's head.
[ link to this | view in thread ]
Anonymous Coward, 27 Oct 2016 @ 2:50pm

How long before recently fired Pallante lands cushy new job...
...in the copyright industry? Anyone taking bets?
[ link to this | view in thread ]
Anonymous Coward, 27 Oct 2016 @ 4:42pm

Re: Re: Re: Re:
The likelihood that anything you say is true borders about -10 sigma. As for the article penned by one of your compatriots (if not you personally), it manifests a weak understanding of US copyright law and relies almost exclusively on legal viewpoints that in far too many cases represent the distinct minority of academics and practitioners.

There was a vigorous discussion of all sides of this issue on legal blogs and the like in which a wide variety of thoughtful views were expressed with collegiality. Persons frequenting this site would benefit from reviewing such alternate sources. You do not have to agree with what some there may say, but at least you will have a broader understanding of issues that in large measure are quite complex factually and legally.
[ link to this | view in thread ]
That One Guy (profile), 27 Oct 2016 @ 5:10pm

Re: How long before recently fired Pallante lands cushy new job...
Much like 'Will the sun rise tomorrow?' and 'Is fire hot?', I think I'd add that to the 'Bets that should not be taken, as it's so sure as to be a certainty'.
[ link to this | view in thread ]
Anonymous Coward, 27 Oct 2016 @ 5:38pm

Re: Re: Re: Re: Re:
Like the Trichordist, and adult news sites that support John Steele?

What is with your obsession that anyone who disagrees with you is Techdirt staff or the member of some Pirate Party? The world has decided that they will no longer tolerate douchebags like who advocate dragging misnamed defendants to court and threatening them into paying up. You chose to botch your own reputation. Get over yourself.
[ link to this | view in thread ]
Anonymous Coward, 28 Oct 2016 @ 12:45am

Re: Re: Re: Re: Re:
"Waaaah! I tried to be mean to mean ol' Mike Masnick but he was mean to me! Waaaah!"
[ link to this | view in thread ]
Aaron Walkhouse (profile), 28 Oct 2016 @ 3:28am

She was supposed to let her boss know what she was doing
before she went to outside agencies and Congress or engaged
outside NGOs like the various MAFIAA lobbying groups.

Unfortunately for her she forgot who she was working for,
the Library of Congress, and started obeying MAFIAA orders,
representing them directly in public and regulatory arenas.
Bypassing her boss to speak directly to higher levels of
government or other agencies was an offensive breach of trust.

She was disciplined for that and then proved her disloyalty
to the government by resigning instead of taking her punishment.

The interim replacement is apparently of the same rebellious
clique, so she will also be replaced shortly before she can
repeat the same mistakes.
[ link to this | view in thread ]
Anonymous Coward, 28 Oct 2016 @ 6:48am

Re:
> Unfortunately for her she forgot who she was working for...

I don't think she forgot. I think she just revealed who she was really working for.
[ link to this | view in thread ]
nasch (profile), 28 Oct 2016 @ 3:58pm

Re: This is how it works!

Agency created to regulate a market means having a single point of failure, having a one stop shopping mall for big business.

What's your solution, not regulating business at all?
[ link to this | view in thread ]