Tag: Dr. Carla Hayden

The War on Smart Continues with Firings at the Library of Congress and Copyright Office

copyright

Since the election, I have been so certain these events were coming that I almost pre-drafted this post, but I didn’t want to be a jinx. Then when it did happen, I hardly knew what to say. Every day, we are confronted with evidence that the only agenda of Trump 2.0 is wanton destruction. I am increasingly convinced that Trump himself is a mindless wrecking ball set in motion by cyberlibertarians like Peter Thiel, animated by the “Dark Enlightenment” ravings of Curtis Yarvin, and determined to raze America and on the wasteland, erect their fever-dream of techno-feudalist “corporate zones.” Of course, I only think that because that’s what they explicitly said they want to achieve.

Last Thursday, around 7:00pm Eastern, Trump fired Librarian of Congress, Dr. Carla Hayden, and then, on Saturday afternoon, he dismissed Register of Copyrights and Director of the U.S. Copyright Office, Shira Perlmutter. So, the first conflict in this shit-show (maybe) will be jurisdictional. Although the Librarian is a presidential appointee, the Library and Copyright Office comprise employees of the Legislature. Thus, a president doesn’t necessarily have the authority to fire Copyright Office or other Library staff, and as of yesterday, Trump appointees, Paul Perkins as acting Register and Brian Nieves as acting Deputy Librarian, were both turned away from the Library according to a story in Wired.

Trump also named his former defense counsel and current assistant AG Todd Blanche as acting Librarian, and other reports on social media stated that DOGE employees arrived at the Copyright Office and were also turned away. So, this is now a right and proper clusterfuck wholly consistent with the Trump brand of governance. Whether Congress will assert its authority in this mess is this week’s question along with the other question: Why?  Why aim the Trump wrecking ball at the Library of Congress and the U.S. Copyright Office?

Dr. Hayden was a natural target for the hate-machine wing of the MAGAverse. She’s Black, an Obama appointee, and easy to accuse—and was accused—of fostering a “leftist DEI” agenda.[1] Notably, the White House email she received about her termination accused her of “putting inappropriate books in the library for children,” which is classic Trumpism—not only an invented allegation about Dr. Hayden, but one which highlights that these people have no idea what the Library of Congress is or does.[2]

Trump firing the Librarian of Congress is an attack on the institution consistent with other administrative attacks on cultural and scientific institutions throughout the country. Appointing a DOJ attorney to be acting Librarian signals hostility toward the purpose and meaning of the Library—a hostility in harmony with the rhetoric of Goebbels wannabe Stephen Miller, who talks about incubating a nationalist, “patriotic” culture. As any student of history knows, that’s a recipe for stupid—not just book stupid, but can’t feed oneself stupid. Today’s editorial in Time by Alondra Nelson, explaining her resignation from both the National Science Foundation and the Library of Congress, makes the point. She writes:

In both these roles, over the past few years, I’ve been asked to serve on diverse bodies that offer guidance about how the Executive and Legislative branches can be stewards of knowledge and create structure to enable discovery, innovation, and ingenuity. In the instance of the National Science Board, this ideal has dissolved so gradually, yet so completely, that I barely noticed its absence until confronted with its hollow simulacrum.

The Copyright Office Debacle

The day before Register Perlmutter was fired, the Copyright Office released a “pre-publication draft” of its third report on copyright and AI—this one addressing training AI models with protected works. Because the Office does not release “pre-publication” drafts, it was clear as of late Saturday, that the report had been quickly distributed ahead of the anticipated firing of the Register. In this regard, Shira Perlmutter is owed a debt of gratitude for publishing the Office’s statement at a time when over 40 lawsuits are asking the courts to weigh the issue of AI training with protected works. But why was the report controversial and a likely catalyst in Trump’s desire to fire Perlmutter?

The pending third report made the AI developers anxious because, as with any report of its kind, the Office would aim to provide guidance on the legal considerations and implications without necessarily choosing sides. The AI developers have been lobbying hard in the press, and with appeals to the administration, to argue that training AI models with protected works is per se fair use. Further, they have argued as a matter of national interest that “winning” the AI competition with China is too important to allow copyright rights to interfere. Not that there’s any merit to that claim, but between Trump’s addle-minded concept of nationalism and the fact that he’s elbow-deep in Big Tech’s booty, copyright interests have been anxious since the inauguration that he might stick his mittens into the mix.

Meanwhile, at the end of April, Tom Jones of the right-wing American Accountability Foundation told the Daily Mail that it was time Trump, “…show Carla Hayden and Shira Perlmutter the door and return an America First agenda to the nation’s intellectual property regulation.” So, in addition to being a general dickhead about “leftist agendas,” Jones reiterates the incoherent proposal that America can hope to “lead” in IP while its Executive promotes brain drain across multiple sectors and attacks independent thought and diverse creativity wherever it can. Because attrition like the resignation of Alondra Nelson is exactly how you lose in IP, in case anyone’s keeping score.

So, Dr. Hayden’s ouster, packaged in the rhetoric of “anti-DEI,” is an attack on yet another cultural institution (one that houses the world’s largest collection), while the broadside at the Copyright Office may be solely about the reports on AI. Regardless, Trump gets to feed red meat to the MAGA nationalists and his Big Tech patrons at the same time, and where we are now is a lot of uncertainty pending chaos. Further, if Trump 2.0 is indeed designed to soften the ground for a techno-feudalist makeover, then tanking the creative economy would fit that agenda, as would allowing AI developers to build whatever they want without oversight of any kind.

One can only imagine who an illiterate, demented, and seditious facsimile of a president would tap as the next full-time Librarian of Congress—my money’s been on Kid Rock since November—but it will likely be someone whose idea of a national library roughly matches Pete Hegseth’s comprehension of national defense. Everything about Trump 2.0 mimics weak, authoritarian nations, including the aforementioned effort to foster a nationalist culture. To achieve that aim, authoritarians will always try to exsanguinate the professions supported by copyright law while they destroy evidence of historical fact and scientific discovery—a narrative housed within and symbolized by the Library of Congress.

Not since the British torched the place in 1814 have occupants of Washington shown so much contempt for America’s genuine capacity for greatness. More profound than the hostile takeover of the Kennedy Center, removal of historical material from federal institutions and websites, or cutting the NEA budget, the concurrent dismissals of the Librarian and Register should be understood as an attack on the intent of the IP clause of the Constitution to “promote science and the useful arts.”

[1] As an aside, I criticized Dr. Hayden in 2016 for her improper and sudden ouster of then Register of Copyrights Maria Pallante, and I would likely still quarrel with her on that and other copyright matters today, but all that has nothing to do with these recent events.

[2] The Library houses the world’s largest collection of EVERYTHING. It is not comparable to a library in your local community.

Photo by Extender_01

The Internet Industry Should Not Pick the Next Register of Copyrights

Even under normal circumstances, anyone can be forgiven for missing the memo that by the end of this month, the Librarian of Congress, Dr. Carla Hayden, will make her pick for the new Register of Copyrights. The process has been going for so long that I assume that at this stage Dr. Hayden has her choices down to a handful of candidates or fewer on the shortlist. And while I do not know who the candidates are or, therefore, anything about their views on copyright, I do know that there remains a substantial effort by well-funded parties to alter the foundational principles of American copyright law. And not in the interest of creators or society in general.

Ever since the internet revolution promised to “make the world a better place,” the aggressive headline adopted by copyright’s most prominent critics has been that “copyright is broken” and needs “rebalancing” in the digital age. Unfortunately, this egalitarian sounding notion has proven to be insidiously unbalanced, skewed toward the interests of major internet platforms to the continued detriment of authors of creative works. Especially independent authors.

By any sensible observation, the big internet companies are doing just fine, while creators’ rights are being trampled in cyberspace. So, if there is truly any rebalancing to be done, it cannot justifiably be a recalibration toward a more platform-friendly direction, as evangelized by many prominent academic and institutional copyright skeptics.

Technological Change is Nothing New to the USCO

But even if those market realities were not plainly observable, any suggestion that the next Register must be more adept than their predecessors at “balancing” new technologies with the rights of authors should be dismissed as ahistorical rhetoric. Balancing technological innovations with the rights of authors is not a novel core competency for the U.S. Copyright Office. From the moment the first Register was appointed in 1897, the newly created Office began immediately grappling with the technological inventions that were already transforming the nature of copyright in the late nineteenth century, and which were about to catalyze a wealth of diverse cultural expression in the twentieth century.

Register Thorvald Solberg, who was not even an attorney, was arguably the principal architect of the 1909 Copyright Act, the first truly modern (i.e. technologically savvy) copyright law, not only in the U.S., but possibly in the entire Anglo/American copyright lineage up to that time. As scholar Zvi S. Rosen notes on his Mostly IP History blog, Solberg diligently studied every extant and proposed copyright law in the United States between 1789 and 1904. At the same time, this deep dive into the purpose and nature of copyright was contemporaneous with rapidly changing technologies that were dramatically transforming the creation, distribution, and use of works of authorship.

Advances in printing methods, photography, phonographs, motion pictures, and player pianos all contributed to a technological revolution no less provocative at the threshold of the twentieth century than the arrival of the public internet and related digital technologies have been at the threshold of the twenty-first. But until the 1909 Act, prior revisions to American copyright law were somewhat ad hoc legislative tweaks that had yet to truly reckon with the changing nature of a law that originally protected maps, charts, and books.

For instance, when photography was added in 1865 and then challenged as a protectable medium almost twenty years later, arguably nobody in Congress had really considered the nature of authorship in this first mechanical means of creating images. Today, many of the themes from that seminal confrontation with photography are repeated as we consider the implications of new machine-made works in an age of artificial intelligence. Thus, the contemporary technological landscape may be fresh ground for legal theorists, but it is not wholly uncharted territory. “The Register of Copyrights has long been tasked with dealing with the intersection of copyright law and technology,” Rosen commented to me by email. “In fact the 1909 Act’s adoption of technological neutrality – use of ‘all the writings of an author’ instead of an enumerated list of types of works – represented a recognition that the Register would be tasked with evaluating whether a new type of work was a writing of an author.”

Solberg’s historical analysis of the entire legislative history, including the thinking behind every proposal up to 1904, set the tone for what the role of the Register would become—not just a chief clerk managing registrations and deposit copies, but a thought leader helping to define the contours of copyright law in context to the dynamic ways in which works may be produced, used, and made available. The next Register should be someone who keeps faith with this tradition, and certainly not someone who sees the Copyright Office as a forum for radical revision of legal doctrine, under the misguided belief that the digital age asks unique questions rather than variations on familiar themes.

Changes in Distribution Methods Do Not Upend Copyright’s Principles

Although the most powerful internet and technology companies like to tell us that their platforms and apps “change everything,” we must remain mindful of the fact that many of these shiny new toys have actually been less revolutionary in a copyright context than the technological changes emerging during Solberg’s tenure. After all, most internet platforms are primarily just new methods of distribution (or in copyright terms “making available”) and this hardly recommends a holistic rethinking about copyright’s nature or purpose.

For example, Spotify and other music streaming platforms, while nearly obliterating both broadcast radio and recorded music, have in no way altered the nature of music making or the cultural value of music listening. But these companies have exploited pre-internet copyright regimes in order to direct most of the financial value in sound recordings into their coffers, while leaving most music creators a pauper’s stake in the all-digital market. So, just in regard to this one category of creative works, any suggestion that copyright needs “rebalancing” in favor of the internet giants is as immoral as it is economically untenable.

Claims of Imbalance at the USCO Have Been Greatly Exaggerated

Readers may remember (though it seems a trifling matter today) that when Dr. Hayden was first appointed Librarian in 2016, the anti-copyright crowd became positively giddy at the prospect that she was a crusader determined to fix everything they allege to be “broken” in copyright law. I wrote at that time that the Librarian has never been the de facto copyright expert in the United States—not when Librarian Ainsworth Spofford first consolidated registration under the control of the Library in 1870, and not when the Register position was first created in 1897.

That same misguided anticipation of Dr. Hayden as presumptive copyright “reformer” practically effervesced when then Register Maria Pallante was rather suddenly, and mysteriously, dismissed; and this was because Pallante had become the focal point for copyright critics endeavoring to accuse the Office of being “culturally captured” by major rights holders. But even a peek under the surface of those claims suggests that anyone in the Register’s position who was (heaven forbid) a proponent of copyright, would have been likewise accused.

For example, in contrast to many shrill accusations of cultural capture and bias in the DMCA Section 1201 Triennial Rulemaking, I would challenge anyone to read the reports and show how the USCO has failed to largely favor petitioners seeking reasonable exceptions under those provisions. Or one could look to the USCO brief in the Fourth Estate case (2019), siding with tech industry and library amici on an important procedural question of registration. The list goes on, but the point is that we are justified in asking whether certain parties really want a “more balanced” Register or want a Register who is ideologically hostile toward copyright?

That question may be rhetorical, but it is no exaggeration. It alludes to a longstanding and still simmering debate in copyright history. Those who view copyright as a necessary evil—as a mere privilege granted to authors in order to get what society wants from them—naturally approach the law quite differently from those who view copyright as a matter of justice, a natural right of creators, but one with certain limits. The truth is—and public opinion supports this all the time—copyright is a bit of both. Most people, even if they are not versed in the law, consistently show that they discern both the inherent justice of authorial rights and the utilitarian nature of market incentives to produce and distribute works.

As I say, I do not know who the Register candidates are. But to the extent that Dr. Hayden seeks a fresh perspective in the current market, I hope she understands that where new legal thinking is needed, it should be to ask how we can better protect individual authors against massive, exploitative technology companies. And certainly not the other way around.

Photo of Minerva. Handy, Levin C, photographer. Congressional Library. Minerva. Washington D.C, ca. 1897. Photograph. https://www.loc.gov/item/2013646342/.

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.”