Does the FCC’s plan to “Unlock the Box” inadvertently unlock piracy?

Today, 99% of cable and satellite customers pay an annual average of $231 per household to rent a set-top box from their service provider in order to view the programming they already pay for.[1] This rental fee results in an annual profit of almost $20 billion for the cable and satellite companies (aka “MVPDs” or multichannel video programming distributors), on top of the profits they already make from subscription fees.[2] As Federal Communications Commission (“FCC”) Chairman Wheeler explained, this “lack of competition has meant few choices and high prices for consumers.”[3]

Congress recognized this problem 20 years ago – passing the Telecommunications Act of 1996 and adding Section 629 to the Communications Act in order to increase the commercial availability of third-party set-top boxes.[4] Back then, Congress compared the idea to the telephone industry: if you can use a landline purchased at Walmart to call someone through your AT&T service, why should you be forced to rent a set-top box from your MVPD to watch their cable or satellite service? And Congress continues to make that analogy updating it with more modern technology like cellphones and wifi routers.[5] Unfortunately, Congress’s legislation did little to fix the problem.[6]

In order to meet Congress’s goal, the FCC established the Downloadable Security Technical Advisory Committee (“DSTAC”) in accordance with the STELA Reauthorization Act of 2014.[7] The Committee – consisting of MVPDs, device manufacturers, production companies, and public interest groups – compiled a report which outlined recommendations for creating a security system that would allow consumers to view their MVPD’s programming through a third-party set-top box while protecting that content from infringement.

MVPDs and the entertainment industry suggested a Proprietary Applications approach that allows MVPDs to retain control over the consumer experience.[8] MVPDs would create apps that could be downloaded onto third-party set-top boxes and devices like phones, smart TVs, and tablets. These apps would allow MVPDs to uniformly control how the programming is presented and what additional features are offered.[9] Additionally, MVPDs would utilize a security system of their choice supported by “royalty free and open source” HTML5. MVPDs explained that this option complied with copyright law and existing licensing agreements. (However, critics of this approach have noted that the market fails to be truly competitive if MVPD’s retain control over the consumer experience, since third-party manufacturers are not allowed to invent new features that entice consumers to purchase third-party set-top boxes instead.)

Consumer electronics advocates and the tech industry supported the Competitive Navigation approach which would use a virtual head end system and link protection (like DTCP-IP) in the cloud. Under this approach, MVPDs would transfer three Information Flows to third-party devices: service discovery data (information that provides viewers with details about the programming like channels, program titles, ratings, airtimes, etc.), entitlement data (information that protects copyright by ensuring viewers only access and copy programming which they are authorized to access or copy), and content delivery (the actual programming.) Additionally, third-party devices would be able to customize the viewing experience by adding additional features, by reordering how the programming appears, by adding additional content like YouTube videos, and more. Finally, in order to further prevent the theft and misuse of copyrighted programming, MVPDs would choose “at least one content protection system that is openly licensed on reasonable and non-discriminatory terms.” Third-party manufacturers would then develop boxes using at least one of those security systems and market those boxes to that MVPD’s consumers. This security regime was modeled after the smart TV industry and protects programming from piracy much as it is protected under the current CableCARD regime.

After reviewing these recommendations, the FCC choose the Competitive Navigation approach and issued the First Notice of Proposed Rulemaking which would allow MVPD subscribers to “watch what they pay for wherever they want, however they want, and whenever they want, and pay less money to do so, making it as easy to buy an innovative means of accessing multichannel video programming (such as an app, smart TV, or set-top box) as it is to buy a cell phone or TV.”

Senator Markey was a key player in the development of the above Acts and was thrilled to see the FCC finally formulating rules that could fix the problem:

“The FCC is using authority clearly provided by Congress to better allow consumers to choose which device to watch programming for which they have already paid. I applaud the FCC for its efforts and encourage the Commission to finalize these rules. It’s time we add set-top boxes to the list of all of the other consumer technologies that have benefited from strong rules that fostered choice, innovation, and competition.”[10]

While Senator Markey was joined by consumer advocates, tech companies, and other interest groups in supporting the proposal, the US Copyright Office, MVPDs, and the entertainment industry strongly opposed the rules for their implication on copyright law and licensing agreements.

At the request of Congress, the Copyright Office addressed the potential copyright implications of the proposal, supporting the goals but laying out five areas where copyright law was implicated. These five areas included the exclusive right to license; the exclusive right to perform, display, reproduce or distribute; the copyright interests of MVPDs; the security issues; and the enforcement issues. Only the second, fourth, and fifth have the most obvious criminal implications so they will be the focus of this blog post.

The Copyright Office claims the proposal could result in copyright infringement, because the Entitlement Data does not do enough to prevent infringement of copyright owners’ exclusive right to perform, display, reproduce, or distribute their work.[11] Taking it one step further, some in the entertainment industry voiced their concern that the proposal invites piracy of their copyrighted works.

Specifically, the entertainment industry believes the proposal creates an opening and an incentive for third-party manufacturers to create set-top boxes that are designed with piracy in mind.[12] They believe applications could be added to third-party set-top boxes in order to present pirated content alongside legally licensed programming. In reality, these “pirate boxes” already exist in the American marketplace. You can watch pirated content free of charge and free of commercials by buying a pirate box online or at your local shopping mall for about $350. (It is important to note, however, that these pirate boxes are very rarely used in America. In fact, the overwhelming majority of copyright piracy in America occurs via online file sharing.)

The Electronic Frontier Foundation (“EFF”), however, highlights that “nothing in the proposed rules permits any party to obtain unauthorized access to programming.”[13] Piracy and pirate boxes are illegal and will continue to be illegal if the proposal is enacted.

In regards to security issues, the proposal makes clear that each MVPD must choose at least one licensable security system, and each third-party box must license and utilize one of those security systems. These security systems are technological measures that control access to the MVPD’s programming.

The Digital Millennium Copyright Act forbids “circumvent[ing] a technological measure that effectively controls access” to copyrighted works online.[14] The DMCA protects copyright online, and those protections apply to third-party set-top boxes since they utilize internet protocol to deliver programming to the viewer’s television set. Thus, third-party manufacturers that make pirate boxes to circumvent or ignore Entitlement Data are breaking the law and are subject to criminal punishment. So to are consumers that use those boxes. Manufacturers and consumers can, should, and will be criminally punished if they seek to circumvent the security systems these set-top boxes use to protect copyrighted programming.

Finally, the Copyright Office suggests the FCC needs to more thoroughly analyze compliance enforcement mechanisms, because the proposal “underestimate[s] the barriers to invoking copyright remedies to redress potential violations by third-party actors purporting to operate under this rule.” For example, it is hard to enforce the DMCA against foreign pirate box manufacturer, and it is hard for a content creator to seek damages against a foreign pirate box manufacturer.

There are a number of reasons enforcement of copyright is difficult. First, MVPDs and content creators have no adequate way to monitor infringement. Second, copyright litigation is inherently expensive, time consuming, and uncertain. Third, foreign perpetrators are even harder to punish and successfully enforce a judgment against.

But that is not because of this proposal. Copyright is hard to enforce with or without these new regulations. The FCC points out that that the proposal does not change a copyright holder’s rights or remedies. Likewise, EFF echoes that “the Unlock the Box rules do not affect the status or enforcement of copyrights.” In essence, the rules do no legalize piracy or pirate boxes. The rules do not change the fact that it would be hard to punish or seek damages against a pirate box manufacturer. That is not the purpose of the proposal, and that is not the FCC’s job.

The FCC’s proposal does not alter the criminal protections or punishments for piracy. Piracy exists, but the FCC is not responsible for protecting copyright – the US Copyright Office is (or, where new legislation is necessary, Congress is.) The FCC cannot regulate copyright, so it should not attempt to do so in these rules. The FCC was asked to regulate the set-top box industry to ensure openness and competitiveness, and that is what these rules do. Thus, the first set of proposed rules should be enacted.

Unfortunately, the incessant lobbying of MVPDs and the entertainment industry has lead the FCC to abandon its first proposal in favor of a second which largely resembles the Proprietary Applications approach.[15] Not-so-coincidentally, the second proposal (which mind you was their idea in the first place) is now strongly opposed by MVPDs and content creators (which mind you are often in the same corporate family tree like NBCUniversal and Comcast) – essentially forcing the FCC back to the drawing board.

It looks like we may go another twenty years without enacting regulations that finally address Congress’s goal of opening up a competitive market for set-top boxes as laid into law in 1996.

I leave you with a few questions:

  • Do either, neither, or both approaches sufficiently protect copyrighted programming from piracy?
  • Should more be done to stop the proliferation of piracy and the potential proliferation of pirate boxes in America or is the current state of copyright law sufficient? If so, what should be done?
  • What can be done to ensure that the enforcement process is effective in punishing pirates and in providing copyright holders with an effective means for seeking damages against pirates?
  • Considering the fact that MVPDs now oppose both proposals including their own Proprietary Applications approach, are they really upset about the copyright implications or are they actually afraid of missing out on $20 billion worth of rental fees?

[1] http://www.markey.senate.gov/news/press-releases/markey-blumenthal-decrylack-of-choice-competition-in-pay-tv-video-box-marketplace

[2] https://www.wired.com/2016/02/fcc-set-top-box-rules/

[3] https://apps.fcc.gov/edocs_public/attachmatch/DOC-337449A1.pdf

[4] See Telecommunications Act of 1996, Pub. L. No. 104-104, § 304, 110 Stat. 56, 125-126 (1996)

[5] http://www.latimes.com/business/technology/la-fi-set-top-box-future-20151109-story.html

[6] THE FCC AND ANCILLARY POWER: WHAT CAN IT TRULY REGULATE?  36 Hastings Comm. & Ent L.J. 311 (Summer 2014)

[7] https://transition.fcc.gov/dstac/dstac-charter.pdf

[8] https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-18A1.pdf

[9] https://apps.fcc.gov/edocs_public/attachmatch/DA-15-982A2.pdf

[10] http://www.markey.senate.gov/news/press-releases/markey-and-blumenthal-commend-fcc-order-to-promote-competition-in-the-set-top-box-marketplace

[11] https://www.eff.org/document/letter-maria-pallante-fcc-re-set-top-boxes

[12] https://ecfsapi.fcc.gov/file/60001690774.pdf

[13] https://ecfsapi.fcc.gov/file/60001690699.pdf

[14] 17 U.S.C. § 1201

[15] https://www.techdirt.com/articles/20160908/14071835467/comcast-already-whining-about-new-fcc-cable-box-plan-despite-it-being-cable-industrys-idea.shtml

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~ by Bobby Desmond on October 15, 2016.

10 Responses to “Does the FCC’s plan to “Unlock the Box” inadvertently unlock piracy?”

  1. I do not think either approach sufficiently protects copyrighted programming from piracy but as the blog post mentions in general, copyright enforcement is difficult. The “Proprietary Applications Approach” may allow cable companies to retain more control over the distribution of content but then the issue with the lack of competitiveness within the cable market is left unresolved. In addition, with the production of third party TV boxes mostly overseas, it does not seem that leaving the cable companies with monopolistic control over programming boxes does much to prevent piracy. Further the cable companies and copyright office arguments that the “Competitive Navigation” approach induces more piracy seems more of a lobby from the cable companies in an attempt to hold on to the $20 billion revenue stream. It seems reasonable to require third parties are required to use a security system of the MVPD’s choice but the biggest issue would still be enforcement.

    I think piracy is going to be an issue that is impossible to eliminate completely. We have several anti-piracy and copyright laws but the laws cannot keep up with developments in technology and it’s impossible to shut down every source for illegal content on the internet without losing privacy rights and giving more and more control to the government. The Copia Institute did point out that maybe the solution to reduce piracy is not necessarily on what laws are implemented, rather the solution should also focus on innovative ways to increase access to content for consumers. [1]. The study showed that in Sweden when Spotify was released piracy for music content reduced while TV and movie content remained the same. However, once Netflix was released in Sweden, piracy for TV/Movies dropped as well. Id. The study focuses on the notion that most people are willing to pay for content if its affordable and easily accessible. In result, the need for piracy would be reduced if consumers were given more control on how they access content of their choice.

    In regards to the last question, I think MVPDs only care about the copyright implications due to the negative impacts it would have on their revenue stream. If the copyright issues would not affect their pockets, I do not think the issue would have been brought up. It will be interesting to see how this issue with the TV boxes continues to develop and how it will play out. People are streaming content more and more via the internet and mobile apps oppose to watching TV from their cable boxes. I think the TV companies will adjust similar to how the cell phone market adapted. When smartphones became more and more prevalent, the cell phone companies gave unlimited minutes for calling but stopped selling unlimited data so they could charge the users based on their internet usage. I think the cable companies will respond in a similar way and focus more on charging for internet service and TV service will be more of an add on.

    [1] https://www.techdirt.com/articles/20151007/14402732471/right-way-to-stop-piracy.shtml

  2. I think whether the approaches “sufficiently” protect copyrighted works from piracy depends on our standard. If they are being compared to the protection we would like to see, which results in piracy being an infrequent and rare occurrence, than not they are not sufficient. If the current approach is considered “sufficient” than I believe they would reach that standard because piracy is extremely pervasive and hardly protected by the current set-top box setup. The way I see it under the current set up you have two systems for content delivery to TVs that are running concurrent, set-top boxes and then stuff like smart TVs, Chromecast, Xbox, Roku, etc which basically already provide an experience similar to what the FCC is trying to move towards. The second system there is already very popular and is used to play pirated content all the time by tens of millions of American’s daily and the current approach does nothing to deter that. The biggest source of piracy is online in a way that either approach would do nothing to change. Of the two approaches I think both provide a similar level of protection from piracy, i.e. little to none.

    Yes absolutely more should be done and I think copyright laws should be changed to facilitate greater understanding of what actually constitutes piracy and how the various levels of infringement violation should be treated, with more meaningful differences being drawn between downloaders, uploaders, pirated material producers, and platform hosters. I think that would make it easier to enforcement agencies to allocate resources and go after truly culpable and punishment worthy pirates. How to assess damages is as you point out a pretty difficult question, I would side on trying to get a broader enforcement of copyright laws that end up in lower per user fines and sanctions. For example litigation for downloading copyrighted works is very rare and so payouts usually come from copyright troll firms who demand settlement offers in the $500-$2,000 range, if the government could figure out a way to make that more legitimate, broad sweeping in catching violators, and cheaper (maybe more in line with traffic violations) I think that would help.

    I agree with you that MVPDs are fairly clearly just working the refs here, they do not want to lose out on $20 billion in rental fees and if that means opposing plans they offered as a reasonable alternative than they don’t mind looking like hypocrites. Not all too dissimilar to republicans (specifically the Heritage Foundation and Mitt Romney) who proposed and supported individual mandates as an alternative to more comprehensive healthcare reform plans (like Hillarycare or single payer) suddenly turning their backs on individual mandates when Obama incorporated them into the ACA.

  3. In my opinion i do not think that either approach sufficiently protect copyrighted programming from piracy. As for the proprietary applications approach it seems that third party boxes can take these downloadable apps and allow them to be pirated. As for the competitive navigation approach the programming is still just as easily pirated just from a different source.

    I do think more should be done to stop the proliferation of piracy and the proliferation of pirate boxes in America. Piracy is a very difficult issue to regulate and i can not personally think of a way to stop piracy other than issuing punishments based on frequency and quantity of the pirated materials. If companies that sold these pirated boxes were forced to pay large amounts in damages it may deter them from piracy in the future. If users were punished by slowing down their internet speed or denying them internet access at all that may also serve as a deterrent from future piracy.

    There should be more oversight of the enforcement of punishment against persons or entities for piracy. There should be an agency that ensures that the proper punishments such as slowing down a pirates internet or banning a pirate from the internet all together are enforced. If there are no consequences there will be now way to stop piracy in the future. As for a way for victims of copyright to receive damages i believe they should be entitled to all losses as a result of the copyright infringement but i doubt many pirates will be able to cover those damages.

    I do think that the MVPD’s are concerned with copyright protection due to the large amount of copyrighted material they produce. Since they have an interest in preventing piracy i believe that the are truly concerned although that concern is probably greatly heightened by the prospect of $20 billion dollars in extra revenue.

  4. I think both approaches would protect MVPDs copyrights. The Proprietary Application approach would protect copyrighted programming from piracy because in that approach, the MVPDS still maintain all control and do not have to give up any content to third parties. The third parties would merely manufacture the box itself. However, I don’t think this would fall into FCC intent when it pushed for third party set up boxes to give the consumer more rights to choose. Also, with the Competitive Navigation Approach the MVPDs merely transfer their content digitally to the device. This approach would be follow the intent of the FCC a lot more. It would undermine the monopoly that MVPDs have over cable boxes. I think in the end it boils down to how the parties contract their terms and what measures they implement to hinder the copyright infringements.

    The current state of copyrights law is not sufficient to effectively stop the unauthorized use of content. Policy makers cannot even agree on how to define piracy/infringement/theft of digital contents, or what term to use [1]. The enforcement of such law is focused mostly on large level violations. In order to minimize piracy, the enforcement of such laws should also focus on violation on a smaller spectrum. If people would feel less safe and comfortable downloading illegal content, they would not do it. One way to broaden the laws is to look at the intent of illegally downloading and similar to drug offenses, differentiate between downloading/pirating for private use or with the intent of distribution.

    In general, uses with the FCC controlling the MVPDs usage of content does violate their right of freedom of contract. It hinders them (to an extent) to individualize their own product and distribute it in a manner that they seem fit. [2]. However, I do believe that they are more concerned with losing the $20 billion worth of rental fees rather than being upset about the copyright implications. In the end, the MVPDs are giant corporations and have a lot of influence. They could easily negotiate with third party cable box providers in a manner that still protects their copyrights.
    Additionally, it would be beneficial for society if third parties would be able to provide cable boxes. After third parties were allowed to distribute telephones, the telephone transformed and lead to cordless phone and fax machines. [3].

    [1] http://arstechnica.com/tech-policy/2012/04/raskally-fellows-are-copyright-infringers-pirates-and-thieves/2/
    [2] http://arstechnica.com/business/2016/01/cable-lobby-is-really-mad-about-fccs-set-top-box-competition-plan/
    [3] https://www.eff.org/deeplinks/2016/02/lets-unlock-set-top-box-real

  5. Neither approach fully protects copyrighted programming from piracy. I believe such a thing is impossible to do. Technology is always improving and hackers are always one step ahead of the game because they do not feel compelled to follow the rules. From the two approaches, the proprietary applications approach and the competitive applications approach, the proprietary applications approach would be best suited to satisfy the needs of the MVPDs and the competitive applications approach would be best suited to satisfy the needs of the consumers.

    There may not be much more that can be done to stop the proliferation of piracy. Piracy is a strict liability offense. [1]. Thus, even if someone did not intend to infringe upon a copyright, he or she will be held liable. This would make one assume (even though we know what happens when someone assumes something) that people would try not to infringe upon a copyright. If cable boxes were made as an option for consumers to use instead of forced upon them, there would be less of a need to pirate these boxes. In fact, there will be a lot of new innovations that may change the daily lives of many Americans. [2]. Those consumers still wishing to use the boxes over a different option would still be allowed to do so. [2].

    Money makes the world go round. MVPDs can claim that they are really upset about the copyright implications that either approach presents; however, such a big fuss is made due to the $20 billion worth of rental fees that may be lost.

    [1] http://arstechnica.com/tech-policy/2012/04/raskally-fellows-are-copyright-infringers-pirates-and-thieves/2/

    [2] https://www.eff.org/deeplinks/2016/02/lets-unlock-set-top-box-real

  6. It is difficult to feel sympathetic for the cable industry. I for one do not have cable because it is prohibitively expensive. For the past two years, I have only maintained an internet service with my local service provider/extortionist while taking full advantage of the array of on demand programming and live TV apps that my extended family has made available through their cable subscriptions. These “freebies” are now part and parcel of even smaller cable companies, and they have convinced me, and many others, to cut the cord and share logins.

    That is why this legislation, at first glance, seemed very positive. After all, it was not that long ago that I could watch the major network channels with only a coax cable. Then the cable company claimed to “go all digital” (years after that phrase meant anything) and started requiring $10/month to rent their cable box. However, this latest FCC plan appears to merely replace the existing cable cartel with Samsung and Google.

    The author was correct to point out the there is a strong belief that freeing up hardware production would undoubtedly lead to greater innovation. But there are still some who are afraid of what might be lost in the process. Setting aside copyright issues, it is notable that 30 of the 45 members of the Congressional Black Caucus have come out against a plan that had large Democratic support. [1]. They are concerned that minority and educational programming will be largely ignored when third parties control the position of the channel in a channel guide. It may seem subtle, but when, for instance, Latino programming is pushed to bottom of a HUD or GUI (or even deactivated by default) and there are thousands of channels and online content, it reduces both the chance that the public will be exposed to such programming and the chance that small budget programs will ever be found.

    There is also great concern as to increased consumer costs. The plan will require at least the upfront purchase of new hardware [2] as well as the cost of change that cable companies will shift to their customers. These concerns of course disproportionately impact poorer households and will likely increase the digital divide as they are squeezed out of the cable market. While Big Bird was never killed, he did move from Sesame Street to a new address at HBO, and this will renew fears that only privileged children will get new episodes of educational programming (an effective equalizing tool) long before they are released to the masses.

    There is also the issue of piracy. While the new plan does require MVPD’s to require at least one licensed security system, these systems are likely to range significantly in protection. In contrast, the current system, with cable cards, is based on a security protocol that is managed by CableLabs for almost all cable companies, and provides assurance to content produces that cable boxes will not be easily modified to pirate content. [3]. Thus, while the current system is still susceptible to piracy, the risk is much better contained now than it would be if manufactures begin producing systems for their customers that are conveniently unsecured.

    Even so, with just a general understanding of cable box piracy, it does not appear to be a large problem in the U.S. It is not clear how bad the problem would become with third party cable boxes, but it appears manageable for now. Of much more concern to me are the costs to customers and the chance that consumers will lose access to their favorite programming. The FCC plan fails on both fronts and that alone should end the debate. While 20 billion a year is a hefty cost on American families, and one that should be redressed, the solution is not to invade homes with unnecessary hardware that can collect marketable consumer data. [4]. This is especially true now that cable companies have shown recent innovation in the wake of competitive pressure from Netflix and other streaming services. For now, the devil we know is better than the one who costs more and protects less.

    [1] http://futureoftv.com/news-item/letter-from-congressional-black-caucus-to-fcc-chairman-tom-wheeler/

    [2] See NCTA claim: http://arstechnica.com/business/2016/01/cable-lobby-is-really-mad-about-fccs-set-top-box-competition-plan/

    [3] http://arstechnica.com/information-technology/2016/08/us-copyright-office-sides-with-cable-companies-against-fccs-set-top-rules/

    [4] http://futureoftv.com/

  7. I really don’t think either approach sufficiently protects copyrighted programming from piracy. Both the Proprietary Applications approach and the Competitive Navigation approach give room for loopholes for pirates. The Competitive Navigation approach is probably the lesser of two evils though. It distinctly provides security systems for the third-party providers to use. This is a way for the MVPDs to vet the security systems and know which ones are effective while still giving the third-party providers some options to choose from. The Proprietary Applications approach gives MVPDs too much authority and control; it is basically useless to have third-party providers when the MVPDs are controlling all aspects of the interactions.

    The MVPDs are definitely just protecting their own profit by opposing these new regulations. Companies ae always concerned with competition and being as successful as possible and that usually boils down to money, not the company’s ability to protect intangible rights. When companies consider proposals, I am sure they do a cost-benefit analysis and when the proposal will not monetarily benefit the company, they oppose the idea. The US is rooted in capitalism, which is driven by money, not by fair treatment of rights. I am sure that the other reason the cable companies hate the ideas of these proposals is because it symbolizes the government getting involved in their private business. Business owners take pride in having very little government oversight. Companies are not welcoming when the government imposes on their autonomy (especially when it impacts their profits). I completely understand and appreciate the copyright concerns and those are valid arguments. But, I do not think that is where the companies’ interests lie.

    I am interested in the discussion about infringement versus piracy. I wrote my appellate advocacy paper on copyright infringement and so I understand how malleable the concept is. I do not think that there is another way to reign in the vagueness of copyright law. There are so many different areas of intellectual property that copyright law protects, the law requires ambiguity to apply to everything. Piracy being related to theft makes more sense than infringement to me. Infringement, in my mind, is like imposing on someone’s original ideas and using part of it to create something else. Piracy is directly taking an entire idea as your own. I doubt I am explaining this correctly, but to me it makes sense. I think that Congress will not be able to narrow copyright law much more. Maybe Congress and the FCC need to attack the issue from a different perspective such as consumer protection to avoid MVPDs from becoming a monopoly of sorts. Can anyone else think of an area that Congress should consider regulating in addition to copyright protection?

  8. 1. I honestly would not measure the proposals by this standard simply because I believe it inevitable that any new proposals put in place will be overcome by pirates at some point in the future. Neither seem to me to be very strong in this area but given that I do not think it will be very easy to slow pirates down regardless, I would rather focus on the remainder of the potential issues presented by the proposal/s.
    2. I do believe more should be done but I am so foreign to this area of the law as well as public policy that I am entirely unsure of what should be done to combat it.
    3. I tend to believe that the best way to ensure the enforcement process is effective is to make sure that constant surveillance of pirates is put in place. To be clear, I do not mean that the actions of individuals should be tracked for the prime purpose of prosecuting those individuals. Rather, I believe that the best way to ensure effective enforcement is to watch how pirates are engaging in piracy. This is a rapidly and constantly evolving field and without proper surveillance it will be difficult to know what pirates are doing and how they are doing it.
    4. It is honestly difficult to tell from the blog post because I feel that the information given is so clearly and heavily biased. I believe the rather simple answer is: probably both. Any company or even person is going to be concerned about losing a large share of revenue. In the same token, any business that, as its business model, provides content produced by one group of people to a second group of people in order to bring in revenues, is most certainly going to be concerned about any change that could threaten the copyrights of their content providers. Even a perceived threat can give the content providers reason to worry and if they worry – they are going to make MVPDs worry too so as to protect their own interests. I think the answer to this question is probably far greater than a simple yes or no. Beyond the clear financial concerns, if an MVPD cannot prove it can protect the property of a content provider then what incentive does that content provider have to stick with the MVPD? What about other providers once they hear their property is not safe with a specific MVPD?

  9. I believe that, based upon my understanding of the reading, the Proprietary Application approach would do more to protect copyrighted programs from piracy over the Consumer Navigation approach. As the latter essentially gives more freedom and independence to third party providers, there is the inadvertent risk that this approach will do less to adequately protect for copyrighted materials. Regardless of what safeguards are put in place for the Consumer Navigation approach (and, it seems upon first glance that this approach actually proposes more methods of protecting copyrighted materials than the Proprietary Application approach) the fact that third party providers are able to upload their own content (such as Youtube videos and other content) means that there is a greater risk that some copyrighted content would also be distributed.

    I am conflicted as to how I feel regarding the proliferation of piracy. Although I understand and agree that piracy is an issue and that it ultimately affects people’s livelihoods, I also understand and acknowledge that a system that does too much to suppress the free flow of artistic expression will ultimately hinder it. Current copyright law actually makes it pretty difficult to find someone guilty of infringement, and for good reason. If everyone was afraid that any artistic action they took to create or re-make something would land them in a court of law for an infringement action, artistic development as we know it would soon cease to exist. So I believe that there are legitimate interests on both sides. At the end of the day, if someone wants to pirate something, they will find some way to do it, regardless of what actions are taken to prevent further pirating.

    This is an excellent question, and if I had the answer I probably wouldn’t be in law school. This question has continued to come up in instances of copyright, and it seems as though there is no clear answer. Again, there are legitimate interests on both sides, and there has to be some sort of balancing test to determine which interests deserve more protection.

    Hm. Something tells me that MVPDs are not sitting around being concerned about copyright implications….

  10. I don’t think either approach can sufficiently protect copyrighted programming from piracy. Piracy can be difficult to detect and monitor so it’s complicated to put a system in place that will adequately protect copyright holders. However, I do think that the Proprietary Applications approach is better than the Competitive Navigation approach. The copyright infringement concerns you discussed related to the Competitive Navigation approach like the exclusive right to perform, display, reproduce or distribute show why that system is insufficient. Even though the Proprietary Applications approach severely limits competition, because the MVPDs retain a lot more control over the consumer experience, piracy seems to be less of a threat.

    Honestly, I think piracy will always be around. There’s always going to be a black market producer that is able to cater to consumers in increasingly inventive and creative ways for a lower price. As mentioned in class before, the law tends to be behind current events. I think the current state of copyright law is insufficient to have a substantial effect on the proliferation of piracy. The law needs to be proactive rather than reactive. I’m not sure exactly how copyright laws should be changed, but possibly expanding the category of infringers may assist in reducing piracy. For instance, not only will the person who facilitates the piracy be held criminally liable but the person who knowingly uses the illegal service may be fined.

    As you explained in your blog, the enforcement process is difficult because MVPDs have no adequate way to monitor infringement, copyright litigation expensive, time consuming, and uncertain and foreign perpetrators are harder to punish. I think the enforcement process is difficult because copyright law itself is vague and applies to so many different things. Copyright litigation expenses can be reduced through parties being cooperative. Mediation is often times required in family law disputes and could be quite beneficial in the copyright infringement context.

    I believe that the MVPDs are really afraid of losing $20 billion worth of rental fees. At the end of the day, this is a business and it’s all about profit. Losing $20 billion is significant and the MVPDs most likely don’t have any other product, plan or idea to replace the money they’re making from rental fees.

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