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When Academics Try to Silence Debate

The policy problems with FCC Chairman Tom Wheeler’s set-top box proposal are many—the majority of which have nothing to do with set-top box competition issues—from consumer privacy to cybersecurity to energy consumption. But the concern that seems to have resonated the most is the proposal’s brazen disregard for copyright—constitutionally enshrined intellectual property rights that help provide the foundation for American creativity and the cultural and economic benefits they bring our nation.

Wheeler's proposed rule would force pay-TV providers to transmit copyrighted content to third parties without obtaining the consent of the copyright holders, allowing the third parties to appropriate that content for their own commercial benefit and undermining the ability of programmers to create television and film content in the first place. 

Almost from the moment Chairman Wheeler announced his set-top proposal, it has been teetering over an abyss in the face of near unanimous opposition, including from small and large programmers, civil rights groups, television and film unions, individual creators, more than 180 Democrats and Republicans in the House and Senate, policy think tanks like IPI, and a bipartisan triumvirate of Chairman Wheeler’s own fellow commissioners.

In the face of the copyright issues, Chairman Wheeler asked the Copyright Office to brief FCC staff. Commissioner Jessica Rosenworcel and Rep. Marsha Blackburn have also received briefings. After hearing the Copyright Office’s concerns, Rep. Blackburn sent a letter—along with Reps. G.K. Butterfield, Doug Collins, and Ted Deutch—asking the Office to send Congress its analysis in writing.

Not waiting for the Copyright Office to issue its analysis, five academics have written what they claim is the only possible answer. Both in comments to the FCC and in a letter, they seek to frame the issue as only whether, at the very end of the process Chairman Wheeler envisions, consumers’ use of set-top boxes infringe on copyright holders’ copyrights. They simply ignore that the FCC proposal itself would already have abrogated copyright holders’ exclusive rights by compelling pay-TV providers to transmit copyrighted content to third parties in ways not authorized by the copyright holder, and potentially even in ways specifically prohibited by the copyright holders’ license agreement with the pay-TV provider. Many parties have made this very point in the FCC proceeding, including 10 copyright scholars in comments and a letter.

As you might have guessed, the five academics behind this campaign have track records on copyright that makes it fairly easy to classify them as IP skeptics. We've tangled with Prof. Tushnet at least once before.

Rather than addressing only one of many issues raised by Chairman Wheeler’s proposal, and stunningly trying to tell a federal agency what it may or may not report to Congress, the five academics might do well to wait for the Copyright Office to issue its written analysis before they criticize it. It's disappointing to see scholars, who normally welcome thoughtful discourse and debate, try to preemptively silence a respected government institution to further their own agenda. 

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