Why Is The Copyright Office Lying To Protect The Cable Industry's Monopoly Stranglehold Over The Cable Box?

The FCC's attempt to bring some much needed competition to the cable box has birthed an absolute torrent of lobbying shenanigans by the cable and entertainment industries. They've pushed a flood of misleading editorials in major papers and websites claiming the plan is somehow racist and will unveil a piracy apocalypse. They've nudged Congressional campaign contribution recipients to bash the plan as an extreme case of government over-reach. They've also managed to convince the press and some FCC staffers the idea is an attack on copyright, when copyright has absolutely nothing to do with it. Quick background: under the FCC's original proposal (pdf), the FCC wants cable companies to provide programming access to third-party hardware vendors without the need for a CableCARD, the goal being to generate competition in the space resulting in better, cheaper and more open cable boxes. Under the proposal cable operators would be able to use any copyright protection or DRM standard they choose to deliver this content to companies like Google, Amazon or TiVO -- and the FCC has repeatedly stated any final rules would respect existing copyright and financial arrangements between cable and the customer. But because the plan would cost cable providers $21 billion annually in rental fee revenue and result in more open cable boxes (more likely to direct viewers to third party streaming competitors), they've been trying to use a false definition of "copyright" to protect its monopoly stranglehold over cable hardware. And now, the cable industry has another ally in their attempt to mislead the press and public on this subject: The United States Copyright Office. For months the Copyright Office has been quietly going around "educating" DC regulators and politicians on the FCC's cable box reform plan, falsely claiming that the plan is an attack on copyright. These efforts have been effective in getting some of the FCC Commissioners that originally voted to approve the plan to waffle on their decision. The behavior resulted in a number IP lawyers (including Annmarie Bridy) recently warning the Office that it's giving horrible advice and ignoring legal precedent as to the scope of copyright. Undaunted, the Copyright Office this week doubled down on its misleading arguments, sending a letter to Congress (pdf) that's absolutely jam-packed with claims ranging from the incredibly misleading to downright bullshit. At its core, the Office's letter continues to pretend that the FCC’s NPRM would require copyright owners to give their content away for free exploitation by third party devices. That the FCC's plan lets "big tech" hijack cable's innovation and re-purpose it for all manner of nefarious use has been a cable lobbyist argument for the last year, and it pops up repeatedly in the structural underpinnings of the Office's own argument:

"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."

Use of phrasing like "vibrant and dynamic" to describe the most-hated industry in the United States gives you a pretty solid sense of the objectivity of the Office's argument. But again, this idea that third parties can simply take cable company programming, throw their own ads on it, and present it as their own isn't what the FCC's proposing. At all. All the same licensing arrangemen