Excitement over Librarian nominee is not an excuse to mislead.

The February nomination of Dr. Carla Hayden by President Obama to the position of Librarian of Congress was apparently cause for excitement among many of the usual suspects who write in opposition to copyright.  Because the Copyright Office operates within the purview of the Library of Congress, and the Librarian has final say in key proceedings, some pundits are anticipating that Dr. Hayden’s views on issues like open access and privacy suggest that they can count her as an ally in their ideological camp on copyright issues.

Historically, the Librarian will defer to the Register of Copyrights on most copyright proceedings for the simple reason that the Register is a copyright expert and the Librarian is not.  While both figures play important policy roles, the significant differences in their areas of expertise has led various interested parties to call for a separation between the Library of Congress and the Copyright Office.  That discussion aside, though, the ebullience of certain voices over the prospect of Dr. Hayden as Librarian seems typically glib and even potentially self-defeating.

For instance, longtime copyright critic Cory Doctorow set off this flash-bang of a comment in Boing Boing immediately following the nomination. Yet, despite his proclaimed passion for these issues,Doctorow could not be bothered to contribute more than 160 of his own words on the subject, 65 of which state the following:

“Next up: watch for a move to rip the US Copyright Office (which now gets to make rules on things like whether the DMCA prohibits you from using generic insulin in your insulin pump) out of the Library of Congress, relocating it in Congress where it can be directly overseen by the Congressjerks who have been on the entertainment industry’s take since their first campaign.”

Forget which side of an issue you’re on for a moment, how is that kind of statement not just divisive and meaningless?  As a thinker and author, Doctorow apparently has no qualms about conflating diabetes, the DMCA, Congress, and the entertainment industry in a single head-spinning sentence designed to trigger a purely emotional reaction while conveying neither information nor an idea of any kind. But then, this is the world we live in today—one in which people make snap, political judgments based on narratives that read like this:  Hollywood is paying Congress, so the Copyright Office will use DMCA to prevent diabetics from gaining access to generic insulin.  See how if we organize Doctorow’s implications into a clear declarative like that, it sounds totally crazypants?  Yet, the number of questions begged by his inflammatory statement will not stop plenty of people from sharing his “article” on social media. And we wonder why our political process today is so ugly.

Access to generic insulin is—as I understand it—a serious issue, but not one that is directly related to the DMCA.  In this regard, Doctorow is casually referring to Section 1201 of the law, which is currently under review by the Copyright Office. This section of DMCA prohibits the circumvention of Technological Protection Measures (TPM) used to control access to copyrighted works (including operating software) and prohibits trafficking in tools used for circumvention.  Advocates of open access and the “right” to jail-break cellphones, etc. view TPM as exclusively restrictive to both innovation and civil liberties, though this view, as it is presented in the public debate, can often be narrow in its perspective and overstated in its significance.  For instance, arguing for the “right” to jailbreak cellphones makes good bloggery, but the extent to which it is a real practical concern among the billions of cellphone users in the world is another question.

Bringing this back to Doctorow’s comments, though, the closest thing I can find to a an actual story related to DMCA and insulin is a 2014 class of petitioners who sought exemptions to the anti-circumvention prohibitions in 1201, largely for the purpose of conducting research into consumer products whose software might be susceptible to dangerous hacking.  Included among the classes considered was the software security research of Jerome Radcliffe, who discovered vulnerabilities in the operating software in certain insulin pumps. This type of exemption is exactly the kind of ruling over which the Librarian has final say but will typically defer to the judgement of the Register.

The class of petitions in this case were granted the exemptions being sought, and it is worth noting that the Register provided 400 pages worth of analysis, including an acknowledgement that some of the considerations presented by the class of petitions are not properly the purview of the Copyright Office.  From the recommendations …

“The rules that should govern such research hardly seem the province of copyright, since the considerations of how safely to encourage such investigation are fairly far afield from copyright’s core purpose of promoting the creation and dissemination of creative works. Rather, the rules that should govern are best considered by those responsible for our national security and for regulating the consumer products and services at issue. That said, it is inescapable that the anticircumvention prohibition in section 1201(a)(1) plays a role in the debate.”

This doesn’t mean that all of these considerations are best determined by the Librarian of Congress either—only that the Register acknowledges that several of the classes considered in this particular review—which included voting machines, nuclear power plants, and air-traffic control systems–seems more reasonably to belong in the hands of Congress and other federal agencies. Indeed, as our world becomes increasingly driven by software, we should expect federal agencies to review how these works of code affect consumer safety, security, privacy, etc., and it is probably correct that many of these concerns are well outside the scope of either the Library of Congress or the Copyright Office.  But what any of this has to do with patient access to a generic drug is a mystery; and it is irresponsible for pundits like Doctorow to carelessly invoke an emotionally-charged reference—let alone point a finger at the entertainment industry in this context.

Furthermore, the detailed analysis made by the Register of the petitioners’ and their opponents’ arguments indicate precisely why these considerations are best weighed by experts in copyright law. And no reading of the Register’s recommendations could rationally be labeled “maximalist” or failing to consider the public benefits implicated by the petitioners’ goals. In fact, the degree of attention the Register gives to the petitioners in this case suggests that it could be potentially detrimental to the very purpose of these exemptions to have them considered by a party other than the nation’s copyright authority.  In other words, the Register came to the conclusions that observers like Doctorow would want to see, but the rationale applied in considering the role of copyright actually does matter.  Or to paraphrase a colleague of mine, “You don’t put the EPA in charge of the military just because the military has an environmental impact.”

Meanwhile, the exemption process in this case functioned as it is meant to, though some critics have cited the triennial review of petitions for exemptions as unduly burdensome on researchers like Radcliffe.  And, in fact, the Copyright Office review of  Section 1201 has asked for comments with a view toward making both the review and renewal process for exemptions more efficient.  Suffice to say, though, review of Section 1201 is not a discussion that can or should be boiled down to a tweet, and neither is a discussion about the proper relationship between the Librarian and the Register.

The 15-page comment by Copyright Alliance submitted last week to the Copyright Office regarding Section 1201 review further points out—at least insofar as creative works are concerned—that the section provides a legal framework for the development of diverse distribution channels for all the creative media we like to consume.  Netflix, iTunes, eReaders, streaming live TV on multiple devices, etc. all rely on both the circumvention and trafficking prohibitions in Section 1201 to build business models that allow for the continued production and distribution of the creative works.  “These provisions have served authors and audiences of creative works well by ushering in a vast variety of both new work and innumerable new technology platforms for distributing creative works in innovative ways,” writes Terry Hart, Director of Legal Policy for the organization.

While review of these, or any provisions, is an essential part of sound policymaking, we should recognize that turning all this digital innovation into new forms of commerce typically relies on some form of Technical Protection Measures and that there are many interrelated aspects to reviewing both the form and function of Section 1201. In the meantime, comments like Cory Doctorow’s are needlessly divisive and do nothing to further the public’s understanding of the issues.  In fact, it seems to me that those who champion the values of free and open access to information, should always make an effort to say something informative.

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