Category: Law & Policy

Public Knowledge Declares Copyright Office is Full of Copyright Professionals

Photo by Pond5
Photo by ra2studio

In a document Public Knowledge has the conceit to call a “report,” the organization now proposes that the US Copyright Office is trapped in a state of “regulatory capture.”  Usually, this is a term reserved for a condition that arises when the people who work at a regulatory agency become either culturally or economically too close to the industry they’re supposed to be minding.  The most obvious and acute example we’ve seen is when employees working at the SEC have been offered lucrative gigs on Wall Street and this kind of big-money careerism drives their regulatory decision-making.   (See The Big Short for a brief dramatization of the phenomenon.  And don’t pirate it!)

The Copyright Office, of course, is not a regulatory body like the SEC, though it does certainly play a leading role in setting copyright policy for the nation through its analysis and recommendations on a variety of topics.  The USCO does not decide legal cases or pass copyright laws. Part of the Office’s mandated role is to consider a broad range of copyright-related issues, while accounting for the views of a diverse group of stakeholders, and to make recommendations that uphold the full scope of copyright’s purpose, including exceptions and limits to legal protections for rights holders.

Given the mission of the Copyright Office, the institution tends to attract employees who (brace yourself) think copyright is a good thing and who are predisposed to emphasize copyright’s benefits to the nation. That’s going to irk anyone who views copyright as a negative–like the folks at PK–but it certainly does not mean the office is “captured” by large, corporate rights holders.  PK’s accusation is one that might play well in a climate of general distrust of all government agencies, but the evidence they present in order to prove that the Copyright Office is amok with industry sycophants is not only thin and circumstantial, but is also remarkably hypocritical if one takes a peek under the rug in the Public Knowledge foyer.

One might notice, for instance, that Public Knowledge co-founder Gigi Sohn is now lead counsel at the FCC, which has been pushing a “set-top-box” proposal that the Copyright Office has critiqued within the ambit of its statutory role. What PK doesn’t like, I suppose, is that the CO disagrees with their assertion that the FCC proposal “has nothing to do with copyright,” so now PK has moved into full-court press to discredit the whole Office as functionally biased.  One might think that with Gigi Sohn as the common denominator in this story—and Google as the clear winner if the FCC proposal were to pass—PK would tread a bit more lightly with accusations of cultural “capture,” but not so much.  When you’re shielded by the appearance of representing “public interest,” you can get away with almost anything.

The Revolving Door Accusation

To support its premise, Public Knowledge, with McCarthy-like righteousness, presents a list—a table of thirteen former or current employees of the Copyright Office who either have worked for private-sector, rights-holding organizations prior to working at the Office or who are now working for these private entities after their terms at the Office.  That thirteen copyright attorneys over a 22-year period might be employed in some capacity for copyright owners is a rather unremarkable observation, but PK seems to think it’s a smoking gun.  Of course, they had to stop the list at thirteen because the fourteenth former CO employee might have been leading copyright attorney William Patry, who now serves as senior counsel to Google (I guess they didn’t want to mention that one).  Or, as one of the named thirteen, Steven Tepp, observes in his response, PK also didn’t bother to list the many other Copyright Office employees who, “went to Internet and tech companies, the Smithsonian, the FCC, and other places that no one would mistake for copyright industries.” One might almost get the idea that experienced copyright attorneys pursue various career paths or something.

To be utterly pedantic about it, is PK actually suggesting with its little chart—that the IP law firm, where Marybeth Peters took an advisory role after leaving the Copyright Office in 2010, only gave her that job after they confirmed that 16 years’ worth of her copyright analysis as Register consistently favored “industry”?  And which industry would that have been exactly?  The D.C. firm named by PK provides counsel on copyright, patents, and trademarks; and you can bet your boots they’ve had a few technology clients, and probably quite a number of other clients outside the unholy trinity of music, motion pictures, and publishing.

PK also notes that Peters now serves (part-time) on the board of Copyright Clearance Center, a private organization that states, “Our vision is to create global licensing and content solutions that make copyright work.”  That almost sounds like 21st-century innovation to streamline digital content licensing, which is exactly what CCC does.  So how is this career move by Peters evidence of “capture” at the Copyright Office? It’s not. PK is assuming nobody will look at the details and will accept their premise at face value.

Now, I could point out that a “revolving door” table comprising a few hundred key federal employees would list in its right-hand column not a variety of private-sector roles, but just one company called Google.  And that in itself is not a smoking gun, per se.  Google produces a lot of highly-skilled technologists, who perhaps should work in the public sector.  But if we’re talking cultural “capture”, let’s be real.

Views on Copyright

As consequential evidence of the CO’s “capture,” Public Knowledge accuses the office of contorting copyright law; serving the interests of rights holders; advocating for expanded copyright; sticking its nose where it doesn’t belong; ignoring stakeholders; and (bizarrely) being generally ignored or rejected by the courts, Congress, and other agencies.  Holy smear campaigns, Batman, that’s quite a laundry list of accusations. But then, it’s SOP for Public Knowledge to present the part of the story that supports their accusations while ignoring the rest of the facts.

For instance, it is true that the courts have at times disagreed with the recommendations or interpretations of the Copyright Office.  But quite often, they haven’t.  Welcome to the law. Debate on principle or interpretation is part of the process and always has been. So, unless Public Knowledge wants to roll up its sleeves and present real data—not cherry-picked anecdotes—that show clear evidence of consistent bias in the USCO and conflict with the courts, then what they really appear to be saying is, “The CO disagrees with us, so it must be corrupt.”

One could cite numerous examples as to why this accusation is unfounded, but a rather compelling one would be the Copyright Office’s latest round of Rule Making on exceptions to Section 1201 of the DMCA.  As I reported in this post, the recommendations from the CO reveals that the Office generally favored the parties petitioning for exceptions rather than the rights holders arguing against those exceptions.  According to Tepp’s rebuttal cited above, the 22 exceptions allowing circumvention of TPM is an unprecedented number.  Meanwhile, Section 1201 of the DMCA is a fairly contentious issue among copyright watchers and direct stakeholders, but it’s a subject that remains arcane for most citizens.  As such, it seems like a perfect opportunity for the Copyright Office to exercise the “maximalism” of which it now stands accused, yet the record reveals exactly the opposite trend.

Why is Being Anti-Copyright the Only Non-Corrupted View?

Public knowledge states the following as a prelude to its accusations that the Copyright Office is on a perpetual copyright contact-high from partying with rights holders:

“Beyond the revolving door, frequent gatherings—both formal and informal—of Office staff and industry representatives provide further evidence of cultural capture. For example, the Copyright Office organizes a series of ‘Copyright Matters’ lectures, both ‘to provide education and training’ to Copyright staff and to serve as a larger ‘community forum.’”

Remember when Obama, as a brand new president, was going to speak to kids at the start of the school year, and the Republicans went all ape-shit and declared, “He’s going to indoctrinate the kids!!” That was a pretty crazy-pants moment for America, right?  Same thing here.  Yes, let’s be clear once again:  the Copyright Office generally believes copyright is good for the country. You will also find employees of the EPA who dig clean air, several members of HUD opposed to homelessness, and at least a few folks at the DOD who err on the side of security and are prone to wearing uniforms.

Maybe Public Knowledge thinks the Copyright Office is culturally corrupted because so many of PK’s own copyright positions are just kinda bananas to people who know the law and who don’t view copyright as a pernicious regime.  Y’know on account of the fact that copyright has been pretty good for us. For the first 50 years, the U.S. hardly had much of a culture industry at all, but by the mid 20th century, it was the world’s leading producer of creative works, and that production created a lot of really good jobs—way more jobs than all of the internet giants combined have produced or are likely to produce.

Even beyond copyright, though, Public Knowledge’s “report” compiled of innuendo and half-truths reflects a core dysfunction, in my view, with all contemporary politics. It almost doesn’t matter what the issue is, the theme across the political spectrum is one of tearing down institutions and systems rather than any engagement in a good-faith debate that might actually improve a system. This is understandable because the game is rigged.  We have allowed corporate values to write public policy in far too many areas, and people are being hurt as a result.  But PK is not critiquing—let alone debating with—the Copyright Office, it’s gunning for its very existence and gunning for copyright law itself.  If anyone believes that agenda is in the public interest, they are sorely mistaken.

 

The Librarian of Congress is not the nation’s copyright authority.

Library of Congress Main Hall Washington DC, USA Photo by Marco Rubino Pond5
Library of Congress Main Hall Washington DC, USA
Photo by Marco Rubino Pond5

Just because the surgeon general serves at the pleasure of the president, that doesn’t mean we think the president is, therefore, the more qualified expert in medicine.  We want a president to have views on domestic healthcare in general but not to have opinions about actual medical practice.  That would be scary.

Yet, solely on the grounds that the U.S. Copyright Office operates within the Library of Congress, many of the usual copyright antagonists—Public Knowledge, EFF, et al—are lately promoting the idea that the Register of Copyrights is meant to follow the Librarian’s lead with regard to copyright policy.  This rhetoric has been buzzing a little louder since the nomination of Dr. Carla Hayden to the position of Librarian, who copyright skeptics view as an ideological ally, and who will be sworn in on September 14th. Although Dr. Hayden is exceptionally qualified for this position and, like all librarians, has her own views about the role of copyright, the office she is about to hold has at no time in history performed the duty of the nation’s authority on copyright law and policy.

For the first 107 years after the 1790 Copyright Act was passed, there was no U.S. Copyright Office at all. Copyright law itself was a patchwork of state and federal statutes; the courts were still parsing the meaning of the IP clause and looking to England for precedent; and authors’ works were registered by depositing copies with the federal courts in each state.  Meanwhile, the Library of Congress was exactly that—a department located in the front of the U.S. Capitol, staffed by fewer than ten people, and containing a book collection of some 80,000 volumes by the early 1860s.

In 1864, President Lincoln appointed Ainsworth Spofford to the position of Librarian of Congress, and it was Spofford who had the first grand ambitions for what the Library could become.  His vision included growing a vast collection of works for the nation and building a monumental facility where the collection would be housed.  In order to expand the collection, Spofford lobbied to have the copyright registration and deposit functions centralized at the Library, a procedural change that became policy with the second general revision of the copyright law in 1870.  Moving deposits to the Library worked to so great effect that by 1874, according to the LOC website, there were more than 70,000 books piled on the floors of the office.

So, the procedural change in deposits grew the collection rather quickly, but Spofford lacked the funding (and the room) to fully handle the workload he’d asked for. An 1893 New York Times story refers to an eight-week delay in issuing copyright certificates as well as a significant backlog of filings and correspondence pertaining to copyright.

New York Times - January 1893
New York Times – January 1893

Most of Spofford’s energy by then was focused on building the new facility itself, but when the doors opened in 1897, figures as notable as Melvil Dewey were already advocating a new role for the Library that went beyond merely amassing the largest repository in the world. Dewey’s view was that the Library of Congress should become “a center to which the libraries of the whole country can turn for inspiration, guidance, and practical help.”

So, in July of 1897, Spofford stepped into an assistant role, and the Library was reorganized as an institution that would fulfill this new mission of which Dr. Hayden will now be the new custodian and leader.  Later that same month, the Copyright Office was established as a separate entity within the Library; and a figure with specific expertise in copyright law, Thorvald Solberg, was appointed as the first Register.  Solberg was directly involved in drafting the 1909 Copyright Act and in directing American policy with regard to international copyright and trade. Every Register since Solberg has fulfilled this advisory role on copyright policy.

New York Times - August 1893
New York Times – August 1893

Spofford’s legacy of deposits to the Library via the copyright registration process has been maintained, and this keeps the public collection growing as intended. At the same time, the Librarian of Congress has often provided comments and views on various issues to the Copyright Office but historically defers to the Register with regard to specific policy recommendations.  Just like every other agency in the country, the USCO has grown along with copyright law’s increased complexity as  protectable works have scaled in volume, variety, and means of distribution.

In 1897, when this division of labor was first established, the medium of motion pictures was in its infancy, and the first Pianola (player piano) had just been invented two years prior. Copyright law was likewise still relatively primitive and about to collide with the mechanical age when the 1909 Act would truly begin to reflect to the modern world we know today.   In contrast to the 1890s, when the first registered “movie” at the LOC was 45 frames long, the 21st century USCO has a separate Visual Arts Division that operates under one of three Associate Registers.

The complexity of contemporary copyright touches multiple sectors of the American economy, representing more than 5.5 million jobs and an estimated 6.5% of GDP. As such, the Copyright Office is called upon to provide counsel and guidance to courts, Congress, other federal agencies, and the general public on a wide range of topics that implicate copyright law. Although the Register of Copyrights is organizationally subordinate to the Librarian, it would be a huge mistake to confuse this with a functional subordination.  The two offices perform very different and very necessary roles. The parties who are recently seeking to dismiss the Copyright Office as having neither authority nor expertise to perform its mandated duties are standing on historical quicksand.  Nobody should throw them a rope.

Activists Promote Revisionist History of DMCA

Rusty boat lying on girders on shore with light cloudy ocean background
Photo by eyevision Pond5

Earlier this month, Rolling Stone published an article by Steve Knopper called Inside YouTube’s War With the Music Industry.  I would characterize the article as more of a glimpse than an inside view; but setting that aside, the article contained a quote about the DMCA that caught my attention.

Knopper focuses on the fact that several major stars like Taylor Swift, Paul McCartney, and Beck recently signed an open letter to Congress demanding revision to Section 512 of the DMCA.  The article is actually too short and broad to really get into the nitty-gritty, but anyone who follows the issue knows that the crux of all artists’ complaints with the DMCA is that it has unintentionally enabled platforms like YouTube to distribute works without a negotiated license and to monetize mass infringement of works without providing rights holders an effective means of control—as the law was meant to do.

Toward the end of the article is a quote from Corynne McSherry, legal director of the Electronic Frontier Foundation.  Keeping in mind that her statement is brief and can be taken out of context, McSherry said, “I don’t think copyright owners appreciate what they got [with the DMCA]. In 1997, if you wanted to get music taken offline, you had to go to court.”

I don’t know if McSherry added any nuance to that statement, but as presented, it connotes a revisionist history that feeds a general misunderstanding of DMCA and how it got here.  Both tech-industry advocates and mainstream reporters are apt to continue the narrative that Section 512 is principally a takedown provision that happens to have a liability shield (safe harbor). In fact, it’s the other way around, and the difference is actually rather important.

Why the DMCA is seen as flawed for rights holders.

Drafting of Title I of the DMCA began in December of 1996 in order to implement the WIPO Copyright Treaty adopted that same month.  The treaty was a special agreement under the Berne Convention to which the US has been a signatory since 1989.  Title I is primarily known for Section 1201, which prohibits circumvention of technical protection measures (TPM) used to protect copyrighted digital goods. In the late 1990s, this would largely have applied to products like DVDs and CDs, but the DMCA was intended to anticipate copyright enforcement on the internet.  (1201 has its own criticisms, as noted in a recent post.)

While Title I was being debated, major ISPs, which at that time were telecoms led by Verizon and AT&T, petitioned Congress for a shield from monetary liability for copyright infringement—the shield we now call the “safe harbor.”  These service providers knew that users would continue to upload infringing content but argued that only the rights holders could know what was infringing and that the rights holders were in the better position to identify infringements than the ISPs were.  These service providers further argued that, if they were constantly vulnerable to litigation for contributory infringement, this would stifle the development of the still-fledgling internet.

It is worth noting that when the ISPs initially argued that the responsibility of “ferreting out” online copyright infringement should fall to the rights holders, Roy Neel of the United States Telephone Association highlighted the availability of “spiders” (now called “bots”) that owners could use to automate search for infringing files.  Today, this same automation, which has grown in scale in an effort to keep up with the scope and frequency of infringement, is regularly characterized by the internet industry and “digital rights” activists as an overreach that cannot help but chill speech online. The history that this automation was a key component of what the ISPs initially lobbied for is rewritten almost daily with statements like the one by McSherry.

In response to the ISPs’ request for the liability shield, major rights holders, including the MPAA and RIAA, negotiated conditions the service providers would have to meet in order maintain the “safe harbor” status—most prominently that the ISPs had to adopt systems for removing infringing material upon request (i.e. takedown). The result of these negotiations are the provisions in Title II of the DMCA, particularly Section 512, which is the part of the law the aforementioned music stars are asking Congress to amend.

So the request for safe harbor came first, and the takedown provisions were one part of the conditional compromise.  Rights holders had not petitioned Congress for a takedown provision in order to avoid the burden of litigation, which is what McSherry’s statement can imply to the casual reader.

Meanwhile, in 1996, we were all still dialing into AOL; Napster was three years away from changing everything; YouTube would not launch until 2005; and users could only rather slowly view a single photograph online, let alone stream HD video. At the time Title II of the DMCA was drafted, neither Congress nor the rights holders—nor perhaps some of the online service providers—quite anticipated the massive growth in online infringement that was to come.  Plus, the parties were—perhaps naively—sanguine about the prospect that new technological protection measures would be adopted through collaboration between the ISPs and the rights holders—which happens to be exactly what Congress had instructed both parties to do. That collaboration never quite happened.

Meanwhile, many rights holders would argue today that subsequent court interpretations of DMCA have undermined the intent of Congress, giving ISPs so much latitude in the manner in which they conformed to its conditions that the law inadvertently creates an incentive to enable user infringement at the volume we see today. As Robert Levine points out in his book Free Ride, the DMCA’s lead architect, former commissioner of the USPTO Bruce Lehman, admitted at a conference in 2007 that the law had been a great disservice to the creative industries.

But are rights holders better off?

Is Corynne McSherry correct to say that copyright owners are fortunate to have the DMCA because its takedown provisions obviate the need for costly litigation?  It’s hard to imagine this is actually the case.  If we’re talking about major rights holders, like big studios or labels, consider the options …

Option 1 – Without DMCA

Several years of expensive litigation against a single provider for multiple infringements in which the rights holder would stand a decent chance of winning the case, where the rights holder may be afforded some injunctive relief, and whereby the case may act as a deterrent to other providers regarding infringement on their platforms.

Option 2 – With DMCA

A round-the-clock, expensive process of requesting individual files be removed one at a time from multiple platforms only to have the same files reappear while some service providers monetize these uses, become too big to sue, and remain free from liability forever.

I’m not in a position to speak for the major rights holders here, but I don’t know if McSherry really wants to ask them if they wouldn’t choose Option 1.  When Viacom sued YouTube in 2007 for a billion dollars’ worth of infringements and the case was finally decided in YouTube’s favor in 2013, it is not unreasonable to imagine a different outcome absent the DMCA safe harbor provision.  (Keep in mind that this particular post isn’t about anyone’s opinion of how things should be, only a consideration of McSherry’s assertion that rights holders are better off under Section 512 of the DMCA.)

For smaller, independent rights holders, they’re kind of hosed either way but maybe a bit better off with Option 1.  Absent the DMCA, they could not afford to sue the likes of Google anyway; but with the DMCA, the takedown provisions are useless as a means of enforcement because of the Whack-a-Mole problem. If, on the other hand, the majors had successfully sued a big provider like YouTube (i.e. had Viacom gone the other way) independents may have benefitted by proxy.

For one thing, if Viacom had won its case, it’s a pretty good bet YouTube would suddenly discover a remarkable capacity for mitigating infringement on its platform.  Secondarily, had Viacom set the opposite precedent, this would have empowered independent rights holders to either litigate or threaten to litigate as a means of enforcing their rights across the web.  So, McSherry’s note that if you wanted to get music offline in 1997, you had to go to court is only partly true and not necessarily the lesser alternative for rights holders, as she implies.

Yes, YouTube itself would have evolved differently—and a few billionaires might only be multi-millionaires today—but do the social benefits of web platforms have to come at the expense of permission and compensation-free exploitation of other people’s work?

Over the weekend, I watched a 1912 film on YouTube called Falling Leaves by Alice Guy Blaché—a file that silent film accompanist and historian Ben Model uploaded along with his own piano composition.  To me, this is a great example of the information-age ideal.  I can research an important work in film history, which has long been in the public domain, and discover a contemporary artist/historian at the same time. Great. Love it.

But was the progress of YouTube—whose growth was substantially subsidized by copyright infringement—the only history that could possibly have resulted in my seeing Guy-Blaché’s film and finding Model’s work in 2016? Not necessarily. So, I don’t know if McSherry really meant to play the alternate histories game here, because it is certainly possible to imagine the benefits of the internet evolving since 1997 without the hundreds of millions of infringements that occur every month. And that was certainly what Congress expected when Title II of the DMCA was being negotiated. So, now that it’s clear the intended consequences did not come to pass, maybe amending the law isn’t such a crazy idea.

To support revision to the DMCA, click the link in the sidebar to sign the Take Down/Stay Down petition.