Saturday, September 24, 2016

Thinking Things Through V - The FCC, Copyrights, and Compulsion

Some things are harder to think through than others. But this one is rather easy.

As reported in the September 23 edition of Communications Daily [subscription required], on September 21, Public Knowledge President Gene Kimmelman sent a letter to congressional leaders in which he said this: “Contrary to claims of Hollywood and cable monopolies, the FCC’s apps proposal will promote consumer choice while protecting copyright.”

As I have explained at length elsewhere, despite all the protestations to the contrary, the FCC’s proposal, including the latest iteration as best conjectured through selective blog and “fact sheet” snippets thus far publicly disclosed, almost certainly will threaten the integrity of copyrights and the traditional right of copyright holders to determine with whom to deal and on what terms. Again, despite protestations to the contrary, the FCC is proposing a compulsory license. Regardless of whatever label the FCC eventually chooses to place on its proposed mandate, as Mr. Kimmelman acknowledges, the agency’s diktat “would simply ensure nondiscriminatory treatment of programmers and device and platform vendors.”

You can play words games as long as you like, but the FCC’s mandate to “simply ensure” nondiscrimination will be compulsory and it will be a license. Hence, a compulsory license.

I want to add that I have known Gene Kimmelman for many, many years, and I respect him and consider him a friend. I hope he feels likewise. For me, what’s important are not the personalities, and I try hard never to question a person’s motives for advocating a position. That’s certainly true here.

What’s important to me is getting policy right and acting in accordance with the rule of law. There’s a reason that the Founders included the Intellectual Property Clause in the Constitution and, uniquely, charged the federal government with securing this particular form of property. The reason has much to do with allowing creators of all sorts, whether they reside in Hollywood or Podunk, to realize the fruits of their labors, and through the medium of contracts freely negotiated, to realize the returns on their innovations and investments.

Absent a very compelling reason – which doesn’t exist in this case – a federal agency, here the FCC, should not act in a way that has the effect of derogating copyrights.