Industry Arguments Shouldn’t Deter the FCC from Unlocking Cable Boxes

True competition could finally come to the market for TV set-top boxes thanks to a new set of proposed rules from the Federal Communications Commission (FCC). Under the FCC’s “Unlock the Box” rule, you’ll be able to use a device from any manufacturer to connect to your cable or satellite TV service.

Disappointingly—but not surprisingly—the cable industry has not responded well. Cable and satellite providers’ comments on the proposed rule have followed a predictable pattern: cable operators and their TV studio subsidiaries think that copyright law affords them complete control over the devices that we use to consume their content.

It’s easy to see how flimsy cable’s arguments are—imagine if a cable network tried to require that viewers watch its programs on a 42-inch television, or if a book publisher made you sign an agreement that you can only use a certain brand of light bulb to see its books. By design, copyright grants rights holders a specific and limited set of rights to their works—it does not give them the right to attach unlimited strings to others’ use of those works.

Together with a group of copyright law experts, the EFF has filed a reply to the cable industry’s complaints. We told the FCC not to be deterred by extreme and misleading copyright arguments in its effort to bring competition and innovation to the set-top box market.

Copyright does not confer a general right of commercial exploitation or “use” of a work. Thus, products and services that touch copyrighted works do not infringe copyright, and do not require a license, except to the extent that they implicate one or more of the exclusive rights. A television set is worthless without video programming to view, and a home audio system has little purpose without music. One could argue that the commercial value of these devices derives from the copyrighted works they touch. Following that reasoning, the sale of TVs and home audio equipment could be deemed a commercial exploitation of copyrighted works. But because these devices don’t ordinarily reproduce, distribute, or publicly perform works (let alone meet the rigorous standards for establishing secondary liability under copyright law), the law does not give copyright holders any right to prohibit their use and sale, dictate their design, or demand royalties. This is no mere oversight on the part of Congress, because “the policies served by the Copyright Act are more complex, more measured, than simply maximizing the number of meritorious suits for copyright infringement.” The structure of copyright law as a limited set of exclusive rights defined in statute allows for innovation and competition, and provides a check against the vertical integration of content producers and technology vendors to the exclusion of competitors.

Read our full comments.