Tag: Library of Congress

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.

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.