Tag: Dr. Carla Hayden

With Register Pallante Out, What Now?

Photo by apparen.
Photo by apparen.

Creators, copyright advocates, and many policymakers were taken aback by last Friday’s announcement that the new Librarian of Congress Dr. Carla Hayden removed Maria Pallante from the position of Register of Copyrights. The decision was officially described as a reassignment for Pallante to the role of senior advisor for digital strategy, which Pallante has declined.  Associate register Karyn Temple Claggett stepped in as acting Register and the LOC is conducting what it calls a “nationwide search” for a new candidate.

Pallante’s ouster comes just barely six weeks after Hayden’s official start at the LOC, and rights holders and artists are justifiably anxious about the decision itself and the suddenness with which the change took effect.  Meanwhile, anti-copyright voices, who view Dr. Hayden as a fellow ideologue—many librarians are generally critical of copyright—were quick to begin writing the narrative in the twitterverse that their new champion is “cleaning house” by removing a Register who has been the target of organized criticism almost since the day she took office in 2011.

Organizations like the EFF and Public Knowledge, along with several anti-copyright bloggers have at various times accused Pallante of favoring the interests of large, corporate rights holders. This accusation is contrary to Pallante’s actual record and background, but that’s of little consequence in the grand scheme because the ongoing, negative PR campaign was really aimed at copyright law itself. Any Register who believes in the importance of copyright would have been targeted in the same way as Pallante; she just happened to become the face of copyright during a period when the critics amped up their industry-funded rhetoric to a new level.

One of the more concerning aspects of this unprecedented move is that those who are well-versed in Pallante’s background and policy recommendations know that she emphasized the interests of individual authors and the intended social benefits of copyright over the major rights holders whom she is accused of indulging. I cited one example of this in my post about the lawsuit filed by EFF arguing the unconstitutionality of DMCA Section 1201. That the EFF chose to litigate an 18-year-old law at the same time that Pallante herself was advocating policy changes which pragmatically addressed some of EFF’s exact concerns is at odds with the portrait of her as an industry-biased “maximalist.”  That the EFF also happened to file its 1201 suit at about the right moment for it to become one of Dr. Hayden’s first headaches is a curiosity as well.

I think there is little doubt that the organizations and individuals crowing on social media about the defenestration of Pallante see it as a step toward dramatically limiting, or even abolishing, copyright law.  Claims like Public Knowledge’s Friday afternoon tweet that this is, “A great opportunity to bring balance back to the Office’s policy work” are pure spin. Pallante was balanced, often siding with interests other than rights holders; but balance is not the honest goal of organizations like Public Knowledge, which was directly responsible for last month’s hatchet job against the CO when it issued a “report” composed of exaggerations and lies of omission.

Hayden’s Thinking and the Future of the Copyright Office

Whether Pallante’s dismissal represents an ideological split with Hayden on copyright or internal politics or any number of factors that may never be publicly known, the move may indicate that Dr. Hayden envisions taking a more hands-on role in copyright policy than past Librarians have done. If so, this whiplash firing of the Register ought to raise at least a few congressional eyebrows in context to the now three-year-long discussion on the prospect of separating the Copyright Office from the LOC.  Pallante’s unexpected and unprecedented removal could serve to emphasize for lawmakers the rationale for that separation. In essence, although the new Librarian has acted within the scope of her authority, this decision and its timing may reflect a significant lack of deference for the historic basis of that authority.

As explained in a previous post, the Librarian of Congress is not, and has never truly been, the nation’s copyright expert. The formation of the Copyright Office within the Library in 1897 came about as a largely functional relationship between the registration of works and the need to grow the collection.  It wasn’t until the turn of the 20th century, particularly with the passage of the 1909 Act, that copyright law started to become as complexly woven into the American economy as it is today.  As copyright law evolved along with the expansion of technology, the Register increasingly served as a national advisor on policy—well beyond oversight of the original registration function.

While the copyright registration and deposit process remains a major source of material for the Library’s collection; with the advent of digitization, there arises a natural tension between a Librarian’s ambition to make the collection accessible online and the Register’s responsibility to see that rights holders who deposit copies with the LOC remain protected. For instance, if the LOC were to make full-length, high-quality works available online for free, this would clearly harm the licensing opportunities for those works; and this, in turn, would dissuade authors from registration and deposit. In this context, it is noteworthy that Pallante was “offered” the “digital strategy” job.  As one knowledgeable colleague, speaking on background, suggested, “This is a firing in disguise, offering Pallante the one job she would be inclined to tell the Librarian she cannot do.”

So, although there remains a practical relationship between the registration process and the Library collection, there is no hard-and-fast reason, especially from a policy perspective, why the Register must continue to operate under the purview of the Library. In fairness, Dr. Hayden may not be the anti-copyright ideologue that folks at EFF, PK, et al assume her to be, but the timing and tone of Pallante’s removal has unquestionably been viewed as a slap in the face to creators.  If indeed that slap is a signal that Hayden considers herself the new “copyright sheriff in town,” that could easily trigger both rights holders and members of the Judiciary Committee to decide that indeed it is time for these two very different authorities to operate independent of one another.  After all, balance is what we get when opposing but equal forces are required to work together.

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.