Don’t let copyright box us in

LexisNexis Acquires Lex Machina 1

The Federal Communications Commission is currently considering rules that would free cable and satellite television subscribers from the tyranny of the set-top box.  Doing so would surely make the world a better place.

The cable set-top box is an anachronism. No one carries a physically separate phone, modem, calculator, address book, street directory, and camera today when they can have one flexible device loaded with apps. Abolishing the monopoly of the set top box by allowing apps on existing devices to run programming will introduce this same flexibility to the devices we use to watch cable and satellite TV.

The world has changed.  Young people are “cutting the cord.” People everywhere consume their media on a wide variety of devices.  The FCC is right to bring the cable and satellite industries along with that change.  Indeed, in the long-term cable and satellite companies too will benefit from ending their exclusive reliance on the set-top box.  The last two decades have proven beyond much doubt that while people are willing to pay for content, they are not willing to put up with artificial constraints on when and where they watch it.  And if they can’t get their content easily and lawfully, too many turn to getting it easily but unlawfully.

App based TV will make it easier for all of us to pay for our media delivered when we want it, how we want it.

But an allegation by the Motion Picture Association of America threatens to derail that progress.  The movie studios the MPAA represents don’t deliver content to consumers over set-top boxes, but they own the copyrights in some of the content that cable and satellite companies provide to consumers.  The MPAA has told the FCC that it can’t allow copyrighted movies to be displayed without a set-top box, because doing so would amount to a compulsory copyright license.

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.

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.

And it’s a good thing, too.  Imagine a world in which copyright owners get to decide on which devices I can see copyrighted content even after I’ve paid for it.  There are lots of copyright owners.  Some movies would be exclusively licensed for iPhones, others exclusively for Samsung phones, and still others for TV only.  Some would be licensed for single viewing, others for viewing only by up to three people, or only at a certain time.  One thing is certain: the change the MPAA wants in the law – and make no mistake, it is a change – would make it harder, not easier, for law-abiding citizens to watch the show they want to watch.

The MPAA is, reasonably, worried about piracy.  But allowing personal viewing of a show on an iPhone doesn’t promote piracy any more than allowing a DVR does. Giving in to the MPAA’s claim would be a big step backwards for customers who want convenient access to the content they’ve paid for.  And that, not the elimination of set-top boxes, is what is really likely to lead to piracy.

This op-ed was originally published by The Hill on September 26, 2016.