On August 3, 2016, the Register of Copyrights sent a letter to four members of Congress, detailing potential copyright violations that could occur if the Federal Communications Commission’s (FCC) proposed rulemaking on set-top boxes is implemented, requiring multi-channel video programming distributors (MVPDs) to provide access to content, video programming guides, and subscriber data to third parties.  The Copyright Office is concerned whether the FCC can meet its objective of promoting set-top box competition and choice “without impairing the rights of creators and copyright owners under the Copyright Act.” 

In its analysis of the FCC’s proposed rule, the Copyright Office determined that the proposed rule would “provide third-party manufacturers and developers that do not have a contractual relationship with the MVPD (or a license from content owners) access to an MVPD’s video stream, program listings, and subscriber data for use in and through a wide range of products, including physical set-top devices and internet-based software applications.”  The Copyright Office further found that “copyrighted works that make up an MVPD’s multichannel video programming are produced and made available to the public only as a result of complex, private negotiations between content owners and MVPDs, and on the understanding that the MVPDs will make works available to the public in accordance with the terms of the resulting licenses.  Typically, a violation of the license terms by the MVPD will constitute either copyright infringement or a breach of contract.”

These were among the same concerns expressed by CAGW President Tom Schatz in his comments on the proposed rulemaking to the FCC on April 20, 2016, when he noted that the FCC’s proposal would require “MVPDs to turn over specific contractually protected information such as software programming, video guides, and licensed video content to third party device manufacturers with little regard to the end result for customer experience or consequences to content creators.”  Additionally, Schatz raised the concern that violations of content providers’ intellectual property rights “could be exacerbated by mixing illegal online content with legitimate pay-TV services,” as nothing in the proposed rule bans that practice.

Rep. Marsha Blackburn (R-Tenn.) noted that “The Copyright Office’s written analysis makes clear that the FCC’s set-top proposal conflicts with established copyright law and policy, and would negatively impact content owners and consumers.”  She further noted that “It should now be clear that any steps to promote set-top competition, whether by regulators or the private sector, and whether relying on alternative devices or applications, must not compel transmission of copyright protected content without programmers’ consent.”

It is critical for the FCC to take consider consequences to intellectual property rights before adopting the final report and order for set-top boxes.  Intellectual property has been protected since the founding of this nation, and non-elected federal agencies should refrain from rescinding those rights.