On October 25, four days after the unprecedented removal of the Register of Copyrights from her office, the Electronic Frontier Foundation released a post on its Deeplinks Blog asserting rather stridently that the Copyright Office never would have reviewed the FCC “set-top-box” proposal if not for the urging of the MPAA. I think we can now say that there is officially no line EFF will not cross, no lie it will not tell, in the service of Google’s interests over the public interest, which the organization claims to serve. The thesis of the blog post boils down to the following syllogism:
1. We have argued that the FCC “set-top-box” proposal does not implicate copyright law.
2. Because we are obviously correct in this view, the Copyright Office should have agreed with us.
3. Therefore, the only explanation for the Copyright Office disagreeing with us is that they must have been pressured by the MPAA.
And so, the EFF went looking for proof of the motion picture industry’s clandestine influence on the Copyright Office via a FOIA request, and they released supporting documents with their blog post that they know most people won’t bother to read. If anyone does read the super secret emails betwixt FCC, MPAA, the Copyright Office, and the USPTO, they will discover (hold your breath) requests for meetings to discuss issues of concern with regard to the FCC proposal! Ah ha! Meetings!
I know this may be a shocker, but there is nothing illegal or improper about any stakeholder, operating above board, requesting meetings to discuss concerns they may have with a proposal by any federal agency. And emails to arrange meetings—I mean literally communications as banal as, “Hey, does next Tuesday work for you?”—are not subject to any rules regarding disclosure because they’re not substantive. Nowhere in the “exposed” communications presented by the EFF is there any evidence of motion picture representatives drawing conclusions for Register Pallante that she would not have come to on her own with regard to the FCC “set-top-box” proposal. The FCC proposal, like any other federal agency proposal, allows for comments from multiple stakeholders that become part of the public record and which members of any other agency may read and consider. It is also neither illegal nor improper for a stakeholder to send an email to a member of an agency to say, “This is our statement for your consideration.”
The broader point is that one does not need to be an expert at the level of Maria Pallante or MPAA’s attorneys to consider that any proposal which fundamentally alters a licensing paradigm between producers and distributors—as the FCC proposal clearly does—is going to have at least some copyright implications. Had the EFF made a more nuanced argument, that would be one thing, but to assert that the Copyright Office simply never would have entertained a copyright angle without pressure from the MPAA is just an outright lie. What the EFF doesn’t like is that their position on the FCC proposal is wrong, and so they’ve tried to manufacture a scandal on the heels of Pallante’s unprecedented and bizarrely orchestrated removal from office. Why? Presumably, because they know that at least a segment of the public will find the Hollywood-intrigue narrative easier to follow and far more dramatic than the more complex, but less interesting, truth.
On the other hand …
If a hint of scandal is what the reader wants, consider the October 25th notice from the Campaign for Accountability, which asked FCC Counsel to investigate emails between the FCC Chairman Tom Wheeler and Google VP Vint Cerf. What’s the problem? Unlike innocuous emails requesting meetings, the FCC’s rules require disclosure of ex parte communications that amount to substantive comments on policy. In its letter to counsel, the CFA cites an April 8th email from Mr. Cerf to Chairman Wheeler expressing his substantive views with regard to the commission’s April 1 notice on protecting consumer privacy within the ambit of the “set-top-box” proposal. In case you’re not following the bouncing ball, Google likes to harvest user data and doesn’t have great track record on the privacy thing.
See what happened there is that a Google executive expressed a relevant, policy-focused comment via email pertaining to the FCC proposal, and the FCC was supposed to disclose the comment and didn’t. At least that’s CFA’s view. Whether or not there are more communications of this nature remains to be seen, but against the backdrop of Google’s now well-documented influence throughout the current administration, it’s hard to imagine that anyone is still believing the narrative that “Hollywood” is pulling the strings with regard to the FCC proposal.
Perhaps more significantly is that while the EFF pitches a non-scandal in an effort to erase the copyright implications of the FCC proposal, they seem remarkably unconcerned about those privacy implications, which one would think should to take precedence for an organization claiming to defend consumers in the digital market. Why? Assume for the moment that the producers are wrong about the proposal undermining the investment model that creates television shows. That would still leave the privacy concerns with regard to what kind of data Google would be allowed to harvest from the magic TV box it wants to put in your home. The EFF’s overplayed hand on the copyright issues combined with their silence on the privacy issues related to the FCC proposal suggest that this organization largely cares about one thing: whatever Google wants.