Editor’s Note: Cross-posted from OIRA Watch. In two recent articles, Randolph J. May and Seth L. Cooper argue that the FCC is undermining the rule of law in different ways. In “The FCC Threatens the Rule of Law: A Focus on Agency Enforcement and Merger Review Abuses” here, the authors discuss the enforcement and merger review activities of the Federal Communications Commission and argue “that they undermine important rule of law principles.” In a new article, the authors discuss a letter from of the United States Register of Copyrights to the Congress on the Commission’s video navigation/set-top box rulemaking; the US Copyright Office informed Congress that the proposed rule could “interfere with copyright owners’ rights to license their works as provided in copyright law, and restrict their ability to impose reasonable conditions on the use of those works through the private negotiations that are the hallmark of the vibrant and dynamic MVPD [multichannel video programming distributors] marketplace.”
We applaud the authors for the highlighting the policy implications of the set-top box rule; we note, however, that the proposed rule’s hazards extend far beyond copyright law to our very national security which makes the rule of law possible. See, CRE’s set-top box comments to the FCC, https://ecfsapi.fcc.gov/file/60001623638.pdf.
Terminate the FCC’s “Enable Copyright Violations” Proposal
According to the U.S. Copyright Office’s August 3, 2016, letter to members of Congress, the Federal Communications Commission’s mislabeled “Unlock the Box” proposed regulation of video devices and apps conflicts with copyright law protections. It’s now clear the FCC’s proposal might more aptly be named the “Enable Copyright Violations” proposal.
Concerns that the FCC’s proposal would undermine the exclusive rights of video programmers to license and control the use of their copyrighted content have been widely known. Now, the Copyright Office has declared that the FCC’s proposed rules “appear to inappropriately restrict copyright owners’ exclusive right to authorize parties of their choosing to publicly perform, display, reproduce and distribute their works according to agreed conditions, and to seek remuneration for additional uses of their works.” The Copyright Office, with acknowledged copyright law expertise and charged by law with advising Congress concerning interpretation of the nation’s copyright laws, urged that “any revised approach to be taken by the FCC should be crafted to preserve copyright owners’ exclusive right under copyright law to authorize… the ways in which their works are made available in the marketplace.”