Librarian Wants to Crowdsource Search for Register?

Photo by Arsgera.

Photo by Arsgera.

I know I just wrote about the Copyright Office. But right after publishing Friday’s post, I saw that Librarian Hayden did a rather inscrutable thing. She had the LOC publish a three-question survey, using Survey Monkey, seeking public comment on the ideal qualities for the next Register of Copyrights.  Writing as a member of the public, and one who knows way more about copyright than most laymen and way less than all copyright experts, I’ll be the first to admit that I am not qualified to offer an opinion about who the next Register should be.  And neither are most of you.

David Lowery at The Trichordist summed up this point beautifully when, upon learning Hayden’s intentions, he declared that “the internet” would be appointing Boaty McBoatface as the next Register (and you really need to respond to his poll). For those who missed the reference, Lowery is citing an ill-advised decision last Spring, by someone in the British government, to crowdsource the name of a $238 million polar research vessel. Now appropriately named in honor of the documentarian and historian Sir David Attenborough, “the internet” had managed to produce the top choice Boaty McBoatface, which officials unsurprisingly declined to use.  This may seem like a laughable side-show story—and it is—until crowdsourcing goes beyond the prospect of naming a research vessel the RRS Boaty McBoatface all the way to nominating Dopey O’Looney to lead the scientific expeditions.

As a political decision, I can’t imagine this was the smartest move on Hayden’s part.  When she dismissed Register Pallante in October—suddenly and without consulting the Judiciary Committee—this could not have gone over terribly well with those Members of Congress.  And as mentioned in my last post, the House Judiciary Committee has now proposed that the Copyright Office function independent of the Library and that, henceforward, Registers should be appointed by Congress for a term of 10 years with an option to renew. So, I have to assume that Dr. Hayden’s use of Survey Monkey to crowdsource comments as part of her search for a new Register is only going to further rustle the jimmies of the Committee.

Beltway Baseball aside, though, these types of surveys have a way of creating an illusion of democratic engagement while yielding either uninformed input or just plain automated mischief. Readers might remember Fight for the Future’s brag in April about their alleged “crashing” of the Copyright Office server with over 100,000 comments on Section 512 of the DMCA.  This kind of self-congratulatory powning of issues only serves to overshadow the importance of legitimate, informed debate. Not only would one be hard-pressed to find 100,000 Americans who could adequately explain the DMCA; but in that particular case, it looks as though FFTF was not diligent in confirming that respondents to its survey were even American citizens.

Substantively, it’s worth noting that we have about 100 years worth of history on Registers of Copyrights—history that a librarian of Dr. Hayden’s caliber ought to be able to access.  Add to this the current perspectives of recent Registers as well as a manageable number of legal experts, including people like Google’s Fred von Lohman or William Patry, who once worked for the USCO.  Then, of course, there’s the Judiciary Committee itself, which comprises some Members who have been working on copyright  for 20 years or more.

Among these well-informed professionals, it’s hard to imagine how a general poll of the average citizen is going to provide much valuable insight on the best qualities the next Register should possess.  More likely, this is just another feint at democratization—one that provides opportunity for organizations like FFTF, EFF, or PublicKnowledge to once again Spam the Monkey and declare victory based on the number of people they could get to click a button. As I say, I know more about copyright than most laymen and don’t deserve a seat at this table. I did answer the poll on The Trichordist, though, and selected as the most important quality in the next Register that he/she “Has a crane capable of launching deep-sea submersibles.”

© 2016, David Newhoff. All rights reserved.

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  • David, great respect for you, your motives and your intellect. I write knowing we both want the same thing: More, more, more for creators. What they create makes life worth living, improves the human condition, puts a smile on our face, moves our hearts, our minds, our rear-ends.

    At the same time, we might come to that place from different directions, much as might others with new ideas. Which is the point of supporting creativity: We believe incentivizing people to express themselves is a good idea and essential public policy.

    So it is that I support casting as wide a net as possible in search for the next Register of Copyrights. And I am alarmed that, when discussing the attributes a Register should possess, few if any make reference to the job title: Register.

    As in: Get works and those with claims to them registered.

    Rights unenumerated, rights disrespected. When we make it easier to pay and license, more will pay and license.

    The prime attribute of the next Register of Copyrights ought be outstanding performance and experience with regards to registering works and the various claims related to them.

    Should Congress execute on the House Judiciary Committee’s wide recommendations, the USCO will add an economist and a technologist, so let us agree in advance that the economist should be a fine economist, the technologist equally an experienced expert in technology. Just as the Register should have great expertise in registering works and the associated claims.

    Or re-title the job. But for now, so long as we seek a Register of Copyrights, let’s find one experienced and expert in recordation and public enumeration of works and claims.

    • Hi, Jim. Great to hear from you, and thanks for the comment. I assure you the respect is mutual. While your point is well-taken, I personally don’t like to get too hung up on semantics. After all, if we were designing copyright law today, the word copy wouldn’t necessarily come up. By the same token, the original position of Register was so-named because he had a largely clerical function as you describe–at a time when the Librarian wanted to grow the collection and thus bring the registration into the ambit of the LOC. But even with the first Register, Solberg, the role began to take on the shape of copyright expert, with Solberg consulting on the 1909 Act. I certainly think the new Register should have the kind of expertise and leadership to see a modernized process for registration and database management, but that should not overshadow the consultative role in my view.

  • David, I really need to show you something. The EFF has finally crossed the kind of line that would make any organization look blatantly evil.

    Look at this:

    I always despised the EFF when it was constantly whining about the so-called “end of creativity as we know it” purely because of copyright, but now they’re fine perfectly fine with physical harm (and potentially outright DEATH) as long as copyright isn’t involved.

    • Thank you. Glad Andrew took this up, and I’ll share it. Indeed EFF has a real bug up about Section 1201 of the DMCA and have even filed suit to have the whole thing declared unconstitutional. And, no, they do not recognize the potential hazards or the fact that “tinkering” in this paradigm is not the same as “tinkering” in a purely-mechanical age; and they also pretend that ownership is where the market will be in just a few years. I believe automation implies less ownership and more leasing of capital and consumer products. In fact, I would imagine most giant farm equipment like this is leased and, therefore, not the farmer’s property anyway. I don’t believe for a second the EFF gives a damn about the rights they claim to be defending here; I think they’re gunning for 1201.

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