Critics Build House of Canards to Trash USCO Bill

Photo by jeancol1503

Well, here we go.  The network of copyright critics seems to be working out their main talking points for hating on H.R. 1695, which proposes to make the Register of Copyrights a presidential appointee (with Senate approval) rather than an employee of the Librarian of Congress.  Mike Masnick, founder/editor of Techdirt, has written a piece for The Verge that comprises (I think) all of the Greatest Hits from the anti-copyright songbook, including the popular jingle referred to in my last post about Mickey Mouse being the major force behind the 1998 Copyright Term Extension Act.

While it’s tempting to respond to each of the window-dressing fallacies deployed in Masnick’s article, it would also be tedious. (I just can’t come up with any more ways to mock the invocation of SOPA by that crowd.) As usual, Masnick wants to sell us an epic tale of Copyright vs. The Internet with statements like, “The copyright questions raised by the internet are existential.” He says this as though copyright law has never contended with technology before, or as if to imply that the internet is just a litigation or two away from being shut down.  And, of course, this “existential” threat will be masterminded by Hollywood and the RIAA through the new Register of Copyrights if the position were to become an appointee of the Executive.

This defies both historical evidence and common sense, concluding with the fact that the major rights holders are, at this point, all-in on this whole internet thingy. Like those companies that said “no thanks” to Trump’s EPA rollbacks because they’ve already invested substantially in going green, the proverbial, sinister Hollywood really has no interest in “breaking the internet.” Again, in reference to my last post, how much has Marvel invested in growing its franchise just on the Netflix platform alone?  Right. So, let’s put the doomsday hyperbole back in the crazy drawer where it belongs and talk about reality.

Politicizing to Criticize Politics

Masnick asserts two big bullet points in this article, one which coincides with one of EFF’s first responses, and one which coincides with Representative Zoe Lofgren’s testimony on Capitol Hill.  (Rep. Lofgren (D-CA) represents Silicon Valley’s district and is highly critical of copyright.)

The first major point Masnick (and the EFF) asserts is that if the Register position were to become a presidential appointee, this would “politicize” the role more than it already is and make the Register more vulnerable to industry influence.  With regard to bi-partisanship, the bill was introduced by Representatives Goodlatte (R-VA) and Conyers (D-MI) and passed out of committee with a vote of 27-1.  But beyond Congressional consensus, this “influence” allegation is an interesting one coming from a crowd that has already accused the last Register (by way of a smear campaign) of being about as subservient to major rights holders as one might imagine.

Nevertheless, Masnick et al seem to feel the next Register could “go to eleven” and be even more extra totally double-secret “captured” by Hollywood. And the way this will happen is by reorganizing the USCO relative to the LOC.  It’s an argument based on innuendo, laced with emotional triggers for readers (see references to SOPA & Disney); but there is no substantive case being made as to why this reorganization will increase the potential for inappropriate deference to major rights holders.

Let’s clear something up right now.  If you have a fairly high-profile job in the federal government, your role is at least a little bit political.  The Librarian can be politicized as can the Register of Copyrights no matter where he/she sits on the org chart. So, can we cut to the chase and just say that Masnick and other copyright critics are especially opposed to this change at this time because they see Dr. Hayden as a fellow copyright skeptic, and they would really like her to perhaps appoint another skeptic as Register?  In other words, they’re more than happy to have the role politicized as long as it furthers their view of the right agenda.

Meanwhile, there is no reason to assume that a supposedly “more political” pendulum will inevitably swing toward major rights holders like Hollywood studios. After all, the current President has a guy named Peter Thiel among his top advisors who absolutely espouses a world view consistent with the views of the internet industry.  I don’t see anyone from the recording or motion picture industries with such close ties to the White House at the moment; but this bill doesn’t actually give that much power to this or any other President. H.R. 1695 gives more power to Congress (ergo more public oversight than the status quo), and an amendment added by Rep. Jackson-Lee (D-TX) requires that the President choose a Register from a list of candidates approved by both the Congressional leadership and the Librarian of Congress.

As for who might end up on that list, it’s worth noting that in the quiet reality behind all this drama, there are probably a handful of candidates in the country who most copyright experts would agree are even qualified for the job.  Some of these favor stronger copyright protections, others favor copyright’s limitations.  Some are more ideological, others more centrist than the public might expect. And here’s a little secret:  they generally know one another, are in contact with one another, and respect one another’s differing views.

Misrepresenting the Role of the USCO

The second point Masnick stresses in his article is less speculative but not actually relevant to the purpose of H.R. 1695; and it is predicated on a misunderstanding about the role of the Copyright Office. He writes:

“Managing copyrights — effectively a giant database of creative works — is very much a librarian-centric job. Librarians are custodians of information, helping to catalog and organize it while also helping people research and find what theyre looking for. The Copyright Office today, like many old libraries, is filled with card catalogs.”

For a guy worrying about politicizing this issue, this is pure spin. In fact, Masnick is actually mirroring a tactic employed by Rep. Lofgren, who has tried to make this organizational change a referendum on Librarian Hayden herself. First, Masnick wants readers to think of the USCO as performing a library-like function; then he wants to point to past failures to properly modernize that function; and finally he wants to say that Dr. Hayden—and nobody questions that she is highly-qualified in her field—has a plan for modernization that will be disrupted by this organizational change.

But the Copyright Office is not a “giant database of creative works.” The complex, consultative function on copyright policy provided by the CO is an essential role performed by dozens of professionals with vastly different expertise than librarians. And both copyright experts and policymakers have known this for a long time.  To the extent that former Register Pallante, former Librarian Billington, or any past office-holders, are responsible for failures to implement IT initiatives, that’s on them and their tenures; but this has no bearing on the rationale for making the organizational change proposed in H.R. 1695. Moreover, former Representative Howard Berman (D-CA) writes the following in an editorial for The Hill:

“Claiming, for example, that former Register Pallante had done nothing on IT modernization rings hollow when it was Pallante who initiated and implemented a public consultation process, which led to publication of the most forward-looking IT modernization plan in the history of the Copyright Office.

The Library has thus far blocked implementation of that plan. While GAO reports have catalogued IT shortcomings at both the Library and the Copyright Office, these reports acknowledge that the problems at the Copyright Office are relatively few. Indeed the GAO has concluded these problems stem from the much larger, fundamental problems with the Library IT department, to which the Copyright Office is beholden.”

This suggests the very plausible conclusion that any past IT implementation failings were at least shared between the Copyright Office and the Library, and this provides no more grounds to abort the organizational change than it would be reasonable to hold Dr. Hayden responsible for past project-management problems.  Still, the over-simple argument Masnick wants to make is that a librarian will be better at the physical, data-management aspect of Copyright Office modernization.  Of course, that’s not why he and his colleagues are criticizing this bill. They’re hoping instead that Dr. Hayden will take a more hands-on approach to copyright policy, which has never really been a role the Librarian has played before or since the USCO was first established.

Masnick and other critics want to argue that the functional relationship between the Register and the Librarian is something more intrinsic than a circumstance of history that occurred 120 years ago.  But this simply isn’t the case.  As I’ve noted in other posts, the first Register was appointed in 1897 after influencers like Melville Dewey envisioned a new, national leadership role for the Library of Congress.  (And Dr. Hayden seems exceptionally well-suited to continue that vision.)

This change in direction for the Library led to the creation of a separate office for handling copyright registrations and, in a fledgling way, advising Congress on copyright policy. No Librarian ever truly performed the function of national expert on copyright as this would be inconsistent with both the function of the Library and the evolution of copyright law in the mid-late 19th century.

Right from the start, the Librarian and the Register were divided according to both function and expertise; and those roles have continued along separate, though related, paths as each department has grown. Attempts to frame this long-overdue, organizational change as a power-grab by Hollywood are unsupported by both history and by the process Congress is implementing to effect this change.

© 2017, David Newhoff. All rights reserved.

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