Tag: Library of Congress

Questions But Not Chaos at the Copyright Office

copyright office

I have not commented on developments since May 13 because in this instance, caution is more important than keeping up with every rumor, of which there are plenty. I stand by my general views articulated in that last post but am not quite ready to agree with Digital Music News reporting on May 23 that the Copyright Office has “plunged into total chaos.” In fact, it is both premature and self-defeating for creators to go there.

What is certain is that the administration’s unprecedented attempts to appoint the acting heads of both the Library of Congress and the Copyright Office invite statutory and constitutional conflict. These were presented in the lawsuit filed by Shira Perlmutter over what she argues was her unlawful and ineffective dismissal by the White House on May 10 from her position as Register of Copyrights and Director of the U.S. Copyright Office. As the complaint describes, the President’s concurrent and unilateral naming of DOJ attorney Todd Blanche as acting Librarian triggers a cascade of questions that are both legally uncertain and politically fraught.

That the President may dismiss the Librarian of Congress is well founded, but the process of installing a lawful acting Librarian pending a new nominee is another matter. In essence, Perlmutter’s argument rests on the foundation that the Library of Congress is not an executive agency as a matter of statutory or constitutional law. Under Title 2, the Librarian is nominated by the President and confirmed by the Senate, but “The Library of Congress is, in name and function, Congress’s Library,” Perlmutter’s complaint states.

Perlmutter enumerates both statutory and case law examples to support her claim that because the Library is not an executive agency, the President had no authority to name Blanche as acting Librarian under any provision that might be construed to give him that power. On that basis, because the Register of Copyrights is undeniably an appointee of the Librarian under Title 17, Perlmutter argues that the absence of a lawfully appointed acting Librarian nullifies both her dismissal and the attempted appointment of DOJ Associate Deputy AG Paul Perkins as acting Register. Further, as a constitutional matter, Perlmutter alleges that the President has attempted to arrogate to himself powers that rest solely with Congress.

While Perlmutter’s allegations read to this layman as compelling, I do not have sufficient knowledge about administrative law, let alone the relevant case law, to anticipate the counterarguments to her claims. On May 28, the DC district court denied Perlmutter’s request for a temporary restraining order (TRO) that would have reinstated her as Register pending the court addressing the merits of her claim. Notably, in denying the TRO, colleagues who attended the hearing say the court focused on the fact that the Office, not Perlmutter, would suffer the harm. The court also opined that it was compelling Congress did not intervene and noted that the Library of Congress is a “unicorn” that serves both legislative and executive functions.

And therein lies the rub—a kerfuffle that is legally uncertain but also ripe for substantial political haggling because not even Republicans on the Hill want the White House mucking about in the Library of Congress. Specifically, the Congressional Research Service (CRS) is a non-partisan agency that provides confidential reports to Members, and nobody in Congress wants that agency to be directed by whichever party is in the White House.

Meanwhile, all speculation as to the role of Big Tech and the timing of the Office’s third report on copyright and artificial intelligence is just that. The fact that an early draft of the report was made public one day before Perlmutter’s “dismissal” supports the theory that tech interests sought to quash or amend the conclusions of the report through its influence with Trump. Other reports implied that “tech” was synonymous with Elon Musk as the driving force and that his “abolish all IP” view ran afoul of right-wing media’s interest in its copyright-protected material. And, of course, that was before this past week’s fireworks between Musk and Trump.

Pick your favorite narrative, and it’s probably mostly wrong. But as a practical matter, I do think it is premature and unhelpful to say that the Copyright Office is in a state of utter chaos while both the legal and political difficulties triggered by the White House are addressed. Registration applications are still being processed, though it is safe to assume that the Office has paused at least some of its work as a consulting agency, including the anticipated fourth report on AI.

With the Library, it certainly appears that Trump may have stepped in a pile of WTF on the Hill because of the CRS. With the Copyright Office, creators should want a restoration of the normal, non-partisan function of the agency, maintaining the registration process and advising Congress, the courts, and the public on copyright law and policy. For now, I wouldn’t panic just yet.

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

What Does the Valancourt Decision Mean for Most Creators?

As discussed in an earlier post, Valancourt Books, a small, on-demand publisher, filed suit against the Copyright Office and the Department of Justice and argued that the Office’s demand for physical copies of published books is unconstitutional. Valancourt alleged that the authority granted by §407 of the Copyright Act to demand the copies (or be fined) is a violation of both the First Amendment speech right and the Fifth Amendment prohibition against a government taking of private property without “just compensation.” This week, the DC Circuit Court of Appeals agreed with Valancourt’s Fifth Amendment takings claim and declined to weigh the First Amendment claim.[1]

We agree with Valancourt that Section 407’s demand for physical copies of works, as applied by the Copyright Office here, represents an uncompensated taking of private property under the Takings Clause. We need not reach Valancourt’s First Amendment claim, as it seeks the same relief through that challenge.

Background (Summarized from Post of August 2021)

Valancourt produces books on-demand from old, rare, and hard-to-find manuscripts, including some dating back to the 18th century. Although many of the underlying works Valancourt republishes are long in the public domain, the companion material in their editions (e.g., scholarly introductions and footnotes) are subjects of copyright; and some of the manuscripts they print are still under copyright protection and used by permission of living authors or their estates. So, although the publisher does not register its books with the Copyright Office, it does place copyright notices in the front matter to alert readers that either the underlying manuscript and/or supporting materials are protected.

In 2018, Valancourt began receiving letters from the Copyright Acquisitions Division (CAD) of the Copyright Office demanding physical copies under the statutory deposit copy provisions of §407. The initial demand was for two copies of each of Valancourt’s 341 published titles. The publisher stated that this represented a significant financial and logistical burden and, finding no satisfactory relief in the Office’s compromise offers, they filed suit on the constitutional allegations. The district court ruled in favor of the government, and the DC Circuit has now reversed.

The Heart of the Decision

The most substantive aspect of the Valancourt decision is the court’s holding that the demand for physical copies is a taking because the publisher does not receive any benefit for supplying the copies. “A voluntary exchange for a benefit…does not exist if the purported ‘benefit’ is illusory,” the opinion states. Because copyright attaches automatically to any work fixed in a medium of expression, a party like Valancourt truly gets nothing in exchange for providing physical copies.

What the Valancourt decision means for most individual creators is not much, but it may be easy to confuse the issues here with the registration process (§408) in which deposit copies are a requirement of the registration application. Many creators are aware that in order to apply for copyright registration, they have to send in a copy of their work. That is governed by §408. In contrast, §407 allows the Library of Congress – through the Copyright Office – to demand a copy of any work published in the United States. Sending a copy for registration under §408 can satisfy the requirement under §407, but because Valancourt does not register the books it publishes, that was not relevant here. Consequently, the Office’s demand for physical copies (based solely on the act of publication) is acutely unjust in this instance because Valancourt gets absolutely nothing for providing free copies for the Library’s collection at its expense. This is distinctive from the deposit copies required for registration.

The deposit copy submitted for a registration application, whether electronic or physical, is less likely to be viewed as a taking because the applicant voluntarily obtains key enforcement advantages by complying with the registration requirements. Registration is not mandatory for copyright rights to subsist but is (among other things) a prerequisite to filing an infringement claim in federal court. Physical copies are required with a registration application if the work is published at the time of the application and if the work is first published in physical form, but again, because this is a condition of registration, and registration provides tangible benefits, this deposit condition is less likely to be found a taking.

That said, where the Office may exercise its right to demand copies based on publication (§407), the Valancourt decision may have some interesting implications. For example, if an author registers a final-edit manuscript in electronic form and later publishes that material, she (or the publisher) may receive a demand to provide physical copies or face a fine for failing to comply. But after Valancourt, the demand for physical copies solely at the threshold of publication, would seem to be a taking because, again, the author/publisher gets no additional value in exchange for providing the copies. The underlying registration (e.g., in the previously unpublished manuscript) is not invalidated by a failure to provide post-publication physical copies.

This is More About the Library of Congress than Copyright Law

In Valancourt, we see one example of the tension that can arise between the interests of the Library of Congress and the efficient administration of copyright protection for creators. As discussed in other posts, the often-confusing formalities in U.S. copyright law are largely due to the historic, but not always compatible, relationship between the two institutions. The Copyright Act of 1870 consolidated registration and deposit at the Library for the purpose of growing the collection, and in 1897, the Copyright Office was established within the Library as both the administrative and expert agency.

But as the outcome in Valancourt highlights, the author/publisher’s copyright interests and the Library’s authority to demand copies are in conflict. With 1870 barely visible in the rearview mirror, the Library still wants free materials, but Valancourt shows that this mission is not wholly predicated on the author/publisher’s interest in obtaining the full advantages of copyright protection. And perhaps this is especially true in a modern, digital-age market.

Notwithstanding the unpublished manuscript scenario above, most publishers send physical deposit copies with registration applications for published—or about to be published—books.[2] But if the Valancourt decision stands, it is conceivable that many publishers, especially smaller presses, will argue that they are allowed to submit electronic copies or must be compensated for the cost of sending physical copies. We shall see whether the government appeals this decision to the Supreme Court, but in the meantime, most creators can file this case under the heading Conversation for Copyright Nerds and continue registering their works with electronic deposits. In any event, please remember to register immediately—before your work is published and before it can be infringed – to get the full protection of the Copyright Act.

[1] FWIW, I wonder whether Valancourt’s speech claim would have merit because it seems that Plaintiff would have to show that the demand for physical copies, though enforced inconsistently, is content based. City of Austin v. Reagan National Advertising of Austin, LLC, 142 S. Ct. 1464 (2022).

[2] There are good reasons to do this, not the least being that the physical book is the final draft of all the material being registered.