Writing to House members, U.S. Copyright Registrar Maria Pallante warned that the FCC’s plan to spur competition in the cable set-top box market by providing third-party device makers with access to content that is locked into set-top boxes by multichannel video program distributors (MVPDs) “could interfere with copyright owners’ rights to license their works as provided by copyright law, and restrict their ability to impose reasonable conditions on the use of those works through private negotiations.”

Pallante’s letter responds to a July 15 request from House Energy and Commerce Committee Vice Chairwoman Marsha Blackburn (R-TN) in which Blackburn asked Pallante to provide “a written analysis of the potential copyright implications” of the FCC’s pending “unlock the box” rulemaking proposal (NPRM). Other signatories to the July 15 request include House Energy and Commerce Committee member G.K. Butterfield (D-NC) as well as Doug Collins (R-GA) and Ted Deutsch (D-FL), both members of the House Judiciary Committee. Although FCC Chairman Tom Wheeler has emphasized that the FCC will protect the legal rights of copyright holders in developing any rules that result from the NPRM, Pallante maintained that the NPRM “would seem to take a valuable good—bundled video programming created through private effort and agreement under the protections of the Copyright Act—and deliver it to third parties who are not in privity with the copyright owners.” The potential result, cautioned Pallante, is that third-party device makers could “exploit the content for profit . . . without compensation to the creators or licensees of the copyrighted programming.” Striking down arguments presented by certain supporters of the NPRM who claim that set-top boxes—like TV sets—act as passive devices for displaying MVPD programming, Pallante said that kind of analogy is “undermined by the [NPRM], which would apply not just to passive hardware elements but also to software that could potentially be used to manipulate, repackage, and monetize the content in ways that would be contrary to contractual conditions imposed by the content owners.” Voicing appreciation for Pallante’s input, a spokesman for Wheeler promised that that “the Commission will ensure programmers’ contracts and copyrights are protected as we move ahead.”