Tag: Register of Copyrights

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/.

Announced Departure of Register Temple Provokes Tired Anti-Copyright Rhetoric

I know it seems like we have ample government shenanigans to watch on TV right now, but in case you missed the real barn-burner yesterday, it was announced that Register of Copyrights Karyn Temple has been named as the next Senior Executive Vice President and Global General Counsel at the Motion Picture Association (MPA).  Why?  What were you paying attention to?

You see in the trenches of the so-called “copyright war,” the Antis delighted in this news about Temple’s career move because it appears to fulfill their conspiracy-theory narrative that a “revolving door” exists between the Copyright Office and major, corporate creators, mainly “Hollywood.”  This was a big theme being promoted by Public Knowledge et al at about the same time (Fall 2016) that Dr. Carla Hayden was first appointed Librarian of Congress and, within weeks, dismissed then Register Maria Pallante, leaving Temple to serve as Acting Register and then appointed Register in March of this year.  

I responded to this “revolving door” allegation in a post, which cites former Copyright Office Senior Counsel Steven Tepp’s rebuttal noting, among other pesky facts, the wide variety of private sector jobs that USCO employees have taken outside proverbial Hollywood.  This includes the widely respected William Patry, who became Senior Copyright Counsel at Google.  Such realities did not stop the righteously uninformed to take to Twitter and declare “Told ya so!” about Temple’s move to MPA, and some folks even rather inscrutably dragged the Restatement of Copyright Project into the same complaint.  Who better than Mike Masnick to represent the kind of logic being applied as follows …

Anyone who would conflate these subjects really needs to breathe into a bag for a while.  Because it is strenuous work to imply so many inaccuracies in a single tweet; but, for one thing, the MPA was neither the first nor the most vocal critic of the Restatement Project.  Next, Congress is not “silencing” anything by expressing its concern about the fact that the American Law Institute has NEVER EVER published a Restatement on any matter of federal law in its nearly 100-year history. In fact, there is nothing Congress can do to stop the publication of the Restatement. So, the snarky allegation that a) the USCO’s criticism of the Restatement is MPA-driven, or b) that concern over the project is just a “silly spat” is typical of the unprincipled theatrics infecting so much debate in all directions.

Whether it’s the foreign service, the intelligence community, or the modest little Copyright Office, deference for institutions, how they got that way, and what they actually do is lately under assault by rampant conspiracy theory (thank you internet) and a blinkered zeal by one faction or another to rewrite the rules according to their own dogmatic agendas.  Although the consequences and characters are substantially different, there is little intellectual distinction to be found between the radicalized partisan who says, “the FBI is broken” and the one who insists, “the Copyright Office is broken.”  Both are guilty of the same ahistorical, self-defeating brand of fallacy, epitomized in Masnick’s accusatory tweet that almost no senior Copyright Office employee ever goes to “work for the public’s interest.”  

The USCO is the public interest! What Masnick really means is that he and his friends have their own definition of “public interest,” (which does seem to coincide quite often with the interests of major internet companies), and they have decided in their cloistered wisdom that the public can only be well-served if the Copyright Office is led by people who are as skeptical about copyright as, say, Andrew Wheeler is about climate change.

We saw this attitude peak in October of 2016 when Dr. Hayden surprised a lot of people, including Members of Congress, by effectively dismissing Register Pallante, who was being contemporaneously smeared by the aforementioned anti-copyright groups for being (well) pro-copyright.  As I said at the time, you’ll get that with people who work for certain public offices:  they tend to believe in the purpose of the office.  And I would argue that we have lately witnessed the dire consequences of maligning this kind of professional commitment in order to achieve political/ideological ends. 

So, now that Dr. Hayden will be tasked with appointing the next Register, I hope she does not exhibit the habit of every other egotist in America who suddenly feels it is his/her mission to radically transform (i.e. weaken) yet another federal organization.  As described in this post, the Copyright Office, from its inception, has always been functionally distinct from the Library, even when it was formed as an extension of the Library’s own foundation as a public institution in 1897.  Consequently, I think the Librarian would best serve the public by showing deference to that history—and to Congress for that matter—in exercising her prerogative to appoint the next Register.  This may be a small victory to hope for in a storm of mass organizational disruption, but, as it was in the founding period of the nation, protecting the value of authorship is never a bad place to start.    

Photo by fizkes

Copyright in Motion As Midterms Approach

While most attention will be understandably focused this week on the Senate Judiciary and the confirmation (or not) of Brett Kavanaugh, there is actually quite a bit of copyright law activity of note as the midterms approach.

Register of Copyrights Selection and Accountability Act Hearings Scheduled

Originally introduced in the House in March 2017 as H.R. 1695, this bill proposes a reorganization, favored by many copyright experts, to make the Copyright Office independent of the Library of Congress and to make the Register of Copyrights an executive appointee rather than a hired member of the Librarian’s staff. The bill passed the House in May of 2017 with a vote of 378-48 but then stalled in the Senate Rules Committee (as S. 1010). On Wednesday of this week, that committee will hold hearings on this legislation.

As described in a few posts, the formation of the USCO within the LOC dates back to 1897, when Congress could hardly have envisioned the copyright industries as we know them today; and both scholars and legal professionals have long viewed the current organizational structure as antiquated. Despite complaints by the usual assortment of critics—and they are likely to resurface after this week’s hearing—the Librarian and Register have always performed different functions predicated on very different areas of expertise; and the intervening 120 years has only increased the divergent roles of the two departments. This is a change long in development and long overdue.

CASE Act Hearings Scheduled

Following that hearing, on Thursday, the House Judiciary Committee will hold hearings on the proposed CASE Act, which would create a small claim copyright tribunal within the Copyright Office. The purpose of CASE is to provide a remedy for copyright disputes that do not easily justify the cost of federal litigation. For instance, the proposal is backed very strongly by professional photographers, whose works are infringed with a high rate of frequency online, even by business entities exploiting images for commercial purposes.

True to form, the copyright critics have predicted a litany of negative consequences that are simply not possible within the scope of the proposed statute. For instance, as a purely voluntary option, the new tribunal cannot become the “clearing house for copyright trolls” critics like EFF have alleged. Moreover, the USCO board will be experts in copyright law only, which is not true of federal judges, and there is no reason to believe this remedy would not prove to be as beneficial to defendants as to claimants. Still, the committee will be reviewing the latest version of the bill, which represents ongoing discussion among proponents and good-faith critics of the legislation.

The VidAngel Bill?

In August of 2017, the Ninth Circuit Court of Appeals shot down all the legal defenses, previously shot down by a California District Court, as presented by the movie filtering service called VidAngel. For a detailed background, see posts here and here; but briefly, VidAngel was sued by major motion picture studios for copyright infringement based on the manner in which the company was providing streamed access to movies while filtering out segments containing language, sexual content, or other material that VidAngel’s subscribers find objectionable, primarily on religious grounds.

Among its failed defenses, VidAngel asserted an unsound interpretation of the Family Movie Act (2005), which permits private use of consumer devices to make brief segments of motion pictures imperceptible during home viewing. Having lost its court fight with that statute (along with key statutes in the copyright law), VidAngel has apparently been lobbying Members of Congress, mainly its CEO’s hometown Utah Representatives, to propose an amendment (H.R. 6816) to the Family Movie Act that would theoretically enable VidAngel to perform, as a VOD service, the same task consumers are allowed to perform by means of devices at home.

Setting aside my own opinion of any consumer’s desire to edit out segments of movies on moral grounds, the legislators in this case may believe they’re simply updating the FMA for the digital-streaming market, but if so, they have failed to consider the staggeringly disruptive implications their bill would have on copyright law, contracts, and licensing agreements.  As a simple example, amending the FMA in this manner does not obligate the studios to license their films to VidAngel, which had been making public performances of these works without licenses.  And it gets more complicated from there — all for the sake of one company to profit from an activity that other companies have enabled consumers to conduct legally for 13 years.  I think this bill is likely a dead-issue, and with it VidAngel; but it will be something to watch if that’s not the case.

Doctorow & EFF Declare Perpetual War On DRM

On a slightly related note (because VidAngel violated Section 1201 of the DMCA), Cory Doctorow, in his role as EFFer, urged the organization’s followers to keep Sisyphean-like faith in “Our Apollo 1201 Project [which] aims to kill all the DRM in the world inside of a decade ….” Digital Rights Management tools, designed to protect copyrighted software from unlicensed access, copying, or tampering, has been portrayed by critics like Doctorow as a means to entrench corporate control of various markets more than as a means to protect authors of creative works.

It’s not that DRM is without such challenges or does not require constant reassessment, but Doctorow and company generally lack all deference to nuance, or integrity, when discussing the issues. For instance, they make no mention of the fact that, without DRM, many of the convenient ways in which we access works in the digital age (e.g. eReaders) would not exist. Moreover, as elaborated upon in this post, the EFF’s assault on the constitutionality of Section 1201 of the DMCA—the section prohibiting circumvention of DRM—conveys more ideological hatred than an honest portrayal of, for instance, the USCO’s position on exceptions to 1201’s prohibitions.

As noted in that post, rather than engage in the USCO’s call for reasonable changes to permanent exceptions etc., the EFF is instead hell-bent on the (dare I say perpetual-funding opportunity?) more dubious mission to eradicate the law. In this regard, it is notable that Doctorow employs the metaphor of ants steadily, if blindly, making slow progress up a hill. The presumptive “ants” (see Donors) Doctorow is addressing might want to look up the word Myrmidon.