The EFF is Full of It on Indie Register of Copyrights

Photo by GlobalIP

Okay.  I’m not remotely surprised that the EFF & Co. don’t like the bill H.R. 1695 to make the Register of Copyrights a presidential appointee rather than an employee of the Librarian of Congress.  And I’m way not surprised that they’ve written a post which only thinly veils this bill as a power grab by the Trump administration. This despite the fact that the proposal dates back, on paper, to at least 2014 and well before that in general discussion among copyright experts.

I won’t repeat the historic context I’ve already written to explain why this legislative move makes sense, but instead I have selected some choice pull-quotes from the EFF’s post because, well…I just can’t help myself.

EFF:  The Copyright Office is supposed to focus on a pretty mundane but important job: registering copyrightable works….In the past decade, however, the Copyright Office has played an increasingly central role in policymaking…

Bullshit.  Sorry there’s just no other way to respond to this.  Although the Copyright Office was created within the Library of Congress in 1897 in order to serve a largely clerical function, even the first Register, Thorvald Solberg, was a respected expert on copyright law and played a role in helping to craft the 1909 Act.  Every Register since has performed an advisory function to Congress, the courts, and the public; and the USCO has grown in size, scope, and dimension commensurate with the growth in complexity of copyright law and the wide range of media production and distribution capabilities.

The EFF acknowledges that the USCO does not make copyright policy, but instead suggests that making the Register an Executive appointee will only make the Office more vulnerable to special interests.  This, despite the fact that, the EFF has been party to smearing the USCO as already beholden to “special interests” under the current organizational regime.  As they repeat in this post …

EFF: – and it has not been a neutral advocate.

Here, the EFF is citing a “report” published by PublicKnowledge that provides no statistical data to support the conclusion that the USCO has fallen prey to “regulatory capture” by major rights holders.  Instead, the report cites anecdotal “evidence” composed more of opinions than substantive debate.  For instance, they repeat…

EFF:  For example, one former Register famously stated, “[c]opyright is for the author first and the nation second.” 

She did say that. And she was absolutely right. And only detractors like the EFF made the statement “famous.”  As explained in this post, the Register was on solid ground, both with regard to functional common sense (i.e. the public doesn’t get what the author doesn’t first create) and with regard to philosophical precedent for the IP clause in the Constitution.  This is just the anti-copyright crowd leveraging a general lack of historical knowledge to manufacture a conflict that doesn’t exist.

EFF:  In sum, we’ll have a Register, and a Copyright Office, that is accountable only to the President and the special interests that helped get them approved in the first place.

This may be my favorite because, as mentioned, it’s seeking to trade on current contempt for the Trump administration in order to rally protest against this bill.  What’s particularly amusing about this one is that the most common “villain” in the copyright battle is Hollywood; and in case anyone hasn’t noticed, Hollywood isn’t exactly BFFs with the new president.  At best, one might call the relationships between this White House and many industries, including Silicon Valley, “complicated.” So, let’s try to assess policy on the merits where we can, shall we? The rationale for making the Register of Copyrights an Executive appointee is solid, it’s the result of years of consideration, and it will remain sound policy no matter who occupies the White House.

© 2017, David Newhoff. All rights reserved.

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5 comments

  • Obama’s parting gift to copyright reform, Carla Hayden.

    • While I understand that sentiment, I think to be fair, I’ve approached this from a perspective that wants to avoid politicizing the matter of an independent USCO. It should not really about the ideology of Dr. Hayden or anyone else; and this bill should not be seen as a response to her appointment, despite the fact that some will portray it that way. The deeply-considered rationale for this change is apolitical in principle, and that’s why I reject the EFF’s characterization in their post.

  • As I have watched the developing history of the struggle between the EFF and creators with copyrights, I’ve learned that whatever the EFF thinks is a good idea is going to reduce whatever little rights and income is still attached to my creations. (My favorite is the fellow with the “share with all” notice whose book was then sold by another “author” at Amazon.) If I ever hear another “long tail” plan… Thanks for the fine article.

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