EFFecting Digital Freedom

by Elliot Harmon

Copyright Is Not a Trump Card

The FCC is about to make a decision about whether third-party companies can market their own alternatives to the set-top boxes provided by cable companies.  Under the proposed rules, instead of using the box from Comcast, you could buy your own from a variety of different manufacturers.  It could even have features that Comcast wouldn't dream of, like letting you sync your favorite shows onto your mobile phone or search across multiple free-TV, pay-TV, and amateur video sites.

When people have talked about the "Unlock the Box" proposal, it's mainly been about how the rule would stimulate competition.  It's a basic principle of economics that when companies have to compete for your money, the product improves.  That's why we have antitrust laws preventing companies from attaining unfair monopolies.  If your cable company has to compete with other set-top box manufacturers, then they'll have to create a better product.

This isn't just about healthy competition, though.  It's about much more.  It's about how much control we let big content owners have over our day-to-day lives.  It's about where we draw the line between freedom of expression and copyright infringement.

Let's take a step back.  In 1984, the Supreme Court ruled that making a complete copy of a television show for the purposes of watching it later doesn't constitute copyright infringement.  Consumers were buying VCRs for the first time and big content companies were terrified.  But the court said customers had the right to copy television shows for their personal use.

Fourteen years later, (((Hollywood))) had a new tool in its belt: the Digital Millennium Copyright Act.  The DMCA made it illegal to bypass Digital Rights Management (DRM) technologies, even when you're bypassing them for a completely legal reason.  Courts interpreted the DMCA to mean that consumers can't make copies of DVDs for their own purposes.  That's why your old VCR can make copies and your new DVD player can't.  Consumers should be able to do more with newer technologies.  When we moved from VHS to DVD, users' rights took a big step back.

Now we're in a new era, and the FCC has the opportunity to get it right again.  Not surprisingly, Hollywood has come out in full force.  The cable industry and big content owners have put a lot of pressure on the FCC to turn its back on the new rule.  Their arguments essentially amount to: You can't do what you want with TV that you paid for because copyright.

To entertainment industry lobbyists, copyright is sort of like the Black Lotus card - it's stronger than everything else in the deck.  Copyright owners get to choose how, where, and when you consume their programming, and what hardware you use to do it.  Like the Black Lotus card, that kind of reasoning ruins the game.

It's easy to see the absurdity of cable companies' arguments.  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.

Whenever you see companies and lobbyists trying to expand copyright into every policy decision, remember: every time copyright expands, it means that an activity that was lawful before becomes unlawful.  When we broaden copyright, we're paying for it with our own freedom of speech.