« FBI Director Calls For A National Discussion About Encryption Versus Safety. What Next | Main | Federal Court Upholds State Laws To Restrict And Prevent City-Run Broadband Services »

Monday, August 15, 2016


Feed You can follow this conversation by subscribing to the comment feed for this post.

Chanson de Roland

Let's wait just a minute, because the Copyright Office's objections don't have the merit that they seems to have, and, therefore, the FCC's proposed rule for open set-top boxes (Set-top Rule) would not, with easy reforms, lead to the evils that the Copyright Office (CO) describes.

The CO's primary objection is that the Set-top Rule would result in content being displayed on set-top boxes in violation of the licensing agreements covering that content, because the new set-top boxes would not be covered by and subject to the license. But that is easily enough remedied by three simple requirements: (1) The FCC can require that all licit licenses travel with the content, that is, on whatever set-top box the content exist or is shown, that set-top box, its manufacturers, its owners, must adhere to the license and provide payment to the licensors according to the terms of the license; (2) That all set-top boxes have effective security to prevent infringement that is at least as effective as security provided by MVPBs; and (3) That all persons, natural and juridical, and the bulk of their assets, and the management of the juridical persons, who are permitted to make, distribute, and/or use set-top boxes and who are subject to any license for content, be subject to the jurisdiction of U.S. courts, especially the personal jurisdiction of U.S. courts.

A fourth concern would be fly-by-night persons and firms that organized just to exploit infringing use of content, and then simply tried to flee with whatever illicit profits they were able to steal. The answer to that is also very easy. In addition to restricting the use, manufacture, and distribution of set-top boxes to person subject to the jurisdiction of U.S. courts, as described, supra, the FCC would also requires that firms making the set-top box be substantial enterprises so that any FCC and/or DOJ enforcement actions against them will have the effect of halting their operations, the recovery of all profits or the assets that they have been converted to, and cause the loss of assets that will equal or exceed the value of any illicit profits that could be obtained.

The four requirements, supra, eliminate the CO's objections, while permitting a Set-top Rule, so modified, to bestow the benefits of a fully competitive and open set-top box rule, while fully protecting copyright holders' copyright in their copyrighted works.

The only two objections to the foregoing have no merit, because they would violate U.S. anti-trust law. First, it might be argued that permitting many others to license content on open set-top boxes would lessen the value of the exclusivity of current license agreements. But to make such an argument shows the illegality of those agreements, because that argument authorizes anti-competitive exclusive contract between copyright holders and MVPB that restrict competition and restrain trade of potential competitors in the market for set-top boxes and the market for distributing and displaying content. That is a black-letter law, text-book violation of the Sherman and Clayton Anti-trust Acts. And, such agreements, would, therefore, at least to the extent of their exclusivity, which prevent others from having copyright holders’ content on the same financial terms for royalties as legacy MVPBs, violate U.S. anti-trust law and are, therefore, illegal and void ab initio.

The second objection, that many of the restrictions in licensing agreements, would prevent a competitor's set-top box from displaying content. But those restrictions would also restrain trade and competition and are, therefore, illegal. To the extent that any other restrictions, which do not restrain trade and/or competition in the market for set-top boxes, MVPBs, and other relevant markets, exist, they would be permitted and, as explained, supra, would be imposed on all providers, makers, distributors, and users of set-top boxes, just as they are now.

In other words, copyright holders are not entitled to any benefit from their copyright that suppresses competition in the market for set-top boxes or for being an MVPB, any more than the holder of copyright make impose conditions on which musical instruments are used to play copyrighted music or which television sets can display copyrighted video. The protections and rights of copyright extend no further than the copyrighted work itself and its licensee but does not extend to how any licensee would exercise his license rights to display or perform a copyrighted work. Therefore, Apple, Google, Amazon, et al. have just as much a right to be and compete with legacy MVPBs as Ford has the right to compete with GM, without the distributors and makers of tires refusing to provide tires to Ford so that they can enjoy the benefits of an exclusive arrangement to provide tires only to GM. It has never been the intent or purpose of copyright law to suppress such competition, and it is error for CO to suggest, as it did, as described, supra, that copyright law does authorize such suppression of competition in markets for complimentary goods, which here are the markets for set-top boxes and for being an MVPB.

Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Your comment could not be posted. Error type:
Your comment has been saved. Comments are moderated and will not appear until approved by the author. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.


Post a comment

Comments are moderated, and will not appear until the author has approved them.

Your Information

(Name and email address are required. Email address will not be displayed with the comment.)


  • Updates via E-mail RSS Feed Updates via Twitter Updates via Facebook


  • Bloggers' Rights at EFF
  • George Jenkins, author of the I've Been Mugged Blog


  • © 2007 - 2017. George Jenkins. All Rights Reserved.


  • <$MTStatsScript$>