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.”

Librarian Critics Prove Need for Independent Copyright Office

Library of Congress Interior (1900)
Library of Congress Interior (1900)

On December 8th, the House Judiciary Committee announced its first policy proposal since beginning its review of the copyright law in the Summer of 2013. Among these early recommendations is that the Copyright Office should operate independent of the Library of Congress while remaining part of the Legislative Branch.

Not surprisingly, copyright critics have already complained about this proposal, including a number of university librarians who took umbrage at a November 28 letter to the Committee written by former Registers of Copyright Ralph Oman and Marybeth Peters.  The former Registers voiced their immediate displeasure at the tone and timing of the dismissal of Register Pallante on October 21 by the new Librarian of Congress Dr. Hayden; but they further expressed the view that this sudden and unprecedented firing signaled that it is finally time for the Copyright Office to operate independent of the Library.

Brandon Butler, J.D., Director of Information Policy at University of Virginia Library is the author of a letter signed by 41 other college and university librarians, which rebuts Oman and Peters and the proposal to move the Copyright Office out from under the auspices of the LOC. The letter itself stresses what may be described as a semantic and cultural kinship between copyright and librarians. For instance, in citing the goal “to promote progress” from the IP clause, Butler writes, “Libraries share this core purpose and promote cultural progress in numerous ways, from massive financial investments in the acquisition and licensing of copyrighted works to the curation and preservation of our cultural heritage.”

This is certainly true, and nobody should doubt the vital role of libraries in general or the treasure that is the Library of Congress in particular.  But many institutions, both public and private, promote cultural progress without anything to recommend them as the nation’s copyright authority.  Although Butler correctly notes that he and many other librarians have considerable expertise and, thus, provide many authors and users of works with guidance in copyright, this is hardly germane to the larger point.  Simply because universities have fine medical schools and hospitals, that doesn’t mean the Surgeon General’s office should operate within the Department of Education.

Yes, librarians perform a wide range of incredibly valuable tasks, including assisting their users with copyright law, as Butler describes. But the mere fact that he and others fail to acknowledge a distinction between these functions and those of the Copyright Office is proof in itself of the need for separation. Moreover, the Butler letter—albeit in lighter tones than other critics—does not scruple to jump on the bandwagon in accusing the Copyright Office of serving a narrow group of beneficiaries (i.e. corporate rights holders) of the copyright law.  This is an accusation without merit, and librarians should be more rigorous than to cite the undisciplined PR of activist groups.

That PublicKnowledge has made this assertion, based on its own cobbled-together “report” composed of innuendo and opinion, is no surprise; but the librarians of these institutions should be more forthright in their presentation of both the historic and contemporary functions of the Copyright Office.  Again, this lack of rigor is evidence that librarians can be as culturally biased as any other group and, therefore, ought to be represented at the table rather than preside over it.  Additionally, Butler’s letter does not acknowledge that indeed his colleagues have advocated that the Librarian of Congress take a more active policy-shaping role, which would effectively overturn the historic role of the Register under the current organizational structure.

As described in a previous post, the Librarian of Congress has never truly shaped copyright policy in the United States.  Oman and Peters call the organizational relationship between the LOC and the USCO an “accident of history,” and although Mr. Butler rejects this statement, he is simply incorrect.   The initial relationship was very much circumstantial, with precedents set during the Lincoln administration—a time when American courts were just figuring out what our copyright law actually means, while the Librarian was trying to find a place for all the manuscripts literally piling up on the Library floors.  This was a period marked more by extemporaneous troubleshooting rather than any kind of fleshed-out policy role for either the Library or the soon-to-be-established Copyright Office.

When the Copyright Office was created in 1897, it was predicated on a clerical relationship between registration and the growing collection; and copyright law itself had barely begun to deal, for instance, with the influence of machines on creative works.  As the law evolved in complexity through the 20th century, the Copyright Office likewise evolved as a multi-faceted agency that advises the courts, Congress, and the public on a dynamic range of issues specific to copyright law. Although the USCO has operated within the Library, the Librarian has historically deferred to the Register as the nation’s copyright authority. Hence the current proposal to make the Office independent is consistent with the role played by the Copyright Office for more than a century.

It is only fairly recently—with the introduction of digital technology—that more pronounced policy differences have become manifest between the Librarian and the Register—culminating with the surprise firing of Maria Pallante without so much as a heads-up to Congress.  Digital technology poses new challenges and opportunities for authors, rights holders, and libraries. Butler’s overemphasis of his and his colleagues’ expertise in copyright implies that the Librarian’s views on future copyright policy should become dominant for the first time in history, purely by virtue of a  traditional hierarchy that has no foundation in serving the Legislature, the courts, or the public.

In Butler’s letter, he writes, “Cultural institutions and the Copyright Office are natural allies.” He is absolutely right.  Allies meet on equal terms to discuss matters of cooperation and conflict. The librarians’ suggestion that there are no conflicts, or that such conflicts are best solved by one ally remaining subservient to other, is once again proof that the Judiciary Committee’s proposal for separation is as timely as it is soundly reasoned.

A Free Press Needs to Be Expensive

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Photo by stocksnapper

As a follow-up to my last post, I see that the Electronic Frontier Foundation has (not surprisingly) also accused the News Media Alliance (NMA) of petitioning the incoming administration to “weaken fair use doctrine” and, by extension, threaten press freedom itself.  Granted, in contrast to Mike Masnick’s ad hominem style on Techdirt, when EFF obfuscates, they usually write a more sober, mature-sounding article, but readers should not be mesmerized by the parlor trick.  Because they’re still not telling the whole truth.

At a time when Americans are suddenly realizing that professional journalism may be more important—and more under siege—than ever, both citizens and advocacy groups like EFF should remember that good journalism is expensive.  If we don’t want news to devolve entirely to the glib gotchas of Twitter, then somebody has to invest in the reporters, researchers, editors, etc. who develop the skills and experience to cover stories with integrity.  In order to make those investments possible, to say nothing of profitable, publishers have to retain the right to protect and exploit the products of this labor through distribution models of their choosing.  So, while fair use doctrine is unequivocally necessary for journalism, this reality is not in conflict with the need for news publishers to protect their copyright interests at the same time.

Frankly, in light of the fact that the anti-copyright policies advocated by EFF and similar organizations have played a substantial role in creating information havoc, like the fake news problem, I think when it comes to the press, these groups ought to be rubbing gravel in their hair—or at least sent to their rooms to think about what they’ve done. Years of blind—and greedy—advocacy of anything goes under the ambit of the First Amendment is a major reason why real journalists have to compete with bogus ones,  and why news organizations continue to have their investments threatened by various platforms and tech interests that appropriate their work.

In the EFF’s version of accusing the NMA of trying to weaken the fair use doctrine, they  set up a straw man and then point to a bunch of unrelated “evidence” to support the accusation.  As stated in my last post, the NMA’s white paper does not seek any revision to the fair use principle, but it does call into question the relatively recent, broadening interpretation of the “transformative” standard within fair use analyses.  The EFF article might give readers the impression that this standard is a well-grounded and longstanding legal principle, but that simply isn’t the case.

If we bracket the “transformative” standard between the first major application in Campbell (1994) and the most high-profile, current case, Google Books (2016), we see that we’re dealing with two very different meanings of the word “transformative.” ”Transformativeness” in Campbell entails a use to create a new expression while “transformativeness” in Google Books entails a use to create a new service that is not an expression. While both uses can be valuable, and even described colloquially as “transformative,” it is misleading to suggest that the case law in which this standard has been applied is consistent, given the divergent meanings of the term.

It is the application of the latter standard that is of concern to many rights holders, including news publishers. This is because the latter interpretation substantially alters the original intent of fair use, which is to favor the First Amendment, to a more generalized standard of “creating some new thing,” which may not be a form of expression at all. It is also worth noting that most uses by journalists have always been protected by fair use principles that existed prior to the introduction of the “transformative” standard by Pierre Leval in his 1990 Harvard Law Review paper.

The truly insidious part of this story is that the EFF has been directly responsible for morphing fair use doctrine in both the courts and the court of public opinion.  With its decade-long boondoggle in Lenz v UMG, and its chronic implication that fair use is the antithesis of copyright (rather than an important component of copyright), the EFF fails to recognize that its advocacy in this regard can be more harmful to free expression and a free press than the concerns it claims to address.  While the organization defends the role of aggregators and other platforms that make uses of works they did not author, the EFF ignores some of the very negative results of this policy, which have become starkly manifest in recent weeks.

For instance, the violent assaults on a Washington, DC pizzeria as the consequence of fake news is not exclusively a story about criminal instigators and idiot readers. It is symptomatic of a disease caused when serious journalism is given equal footing with the ravings of every crackpot or miscreant with a keyboard.  This trend has been toxic for the press, and it is naive to think that defending every use and every expression on First Amendment grounds has not been an aggravating factor in this case.

In some instances, news aggregators do not merely provide access to news, but they often strip news of context or substance by repackaging segments in a manner that may be good for driving traffic but do disservice to the goals of journalism.   Press freedom is utterly meaningless unless we support a professional press, and the News Media Alliance is correct to observe that relatively recent distortions of the fair use principle have played a role in threatening that professionalism.