Tag: U.S. Copyright Office

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.

Decision in Unicolors v. H&M an Important Win for Creators

Justice Breyer, in the waning days of his tenure, wrote an opinion last week that will be of significant help to copyright owners. Historically a critic of copyright, it was Breyer who wrote the convoluted majority opinion in Google v. Oracle, which elided a core copyrightability question presented (the protection of APIs) by shoehorning the question into the second prong of a fair use analysis. But in Unicolors v. H&M, Breyer wrote the 6-3 opinion upholding a basic principle of justice and common sense—namely, that innocent, administrative mistakes should not void the ability to enforce one’s copyright rights.

For background, designer Unicolors sued retailer H&M for infringement of several of its protected textile designs. Unicolors prevailed in district court, but the Ninth Circuit Court of Appeals reversed, siding with H&M’s argument that Unicolors’s copyright registration was invalid because it contained inaccurate information—specifically a mix of “published” and “unpublished” works as a group of “unpublished” works.

Under §411 of the copyright law, an applicant who knowingly provides inaccurate information on an application may risk having that registration invalidated in the course of a lawsuit. But the statute also contains a safe harbor, expressing Congress’s understanding that non-expert applicants would make innocent errors and should not have their registrations invalidated as a result. To complicate matters, the Ninth Circuit “determined that it did not matter whether Unicolors was aware that it had failed to satisfy the single unit publication requirement, because the safe harbor excuses only good-faith mistakes of fact, not law,” states the SCOTUS opinion.

The reasons the Ninth Circuit’s finding was vexing is twofold. First, the meaning of “published” under the copyright law remains one of the more confusing definitions for many attorneys, let alone laymen authors of works. Second, even if the layman applicant is confident he understands the definition of “published,” is a statement about the publication status one of fact or law, as a layman would understand it? And all this for a purely administrative function at the Copyright Office. Fortunately, the SCOTUS opinion last week held that “411(b) does not distinguish between a mistake of law and a mistake of fact; lack of either factual or legal knowledge can excuse an inaccuracy in a copyright registration under §411(b)(1)(A)’s safe harbor.”

As stated at oral arguments by counsel for Unicolors, it was unreasonable to allege that the company had “knowingly” provided inaccurate information to the Copyright Office just to save $65 for an additional registration fee. But for the independent creator, like the photographer who makes an average $30,000/year for her photo work, those fees add up, and the ability to register a group of images on a single application makes a difference. And this same class of creators is even more likely than a big business to commit errors of law or fact. Consequently, the SCOTUS ruling in Unicolors provides significant relief to the same creators who are already at a disadvantage when enforcing their copyright rights.

One could delve a little deeper into this opinion (and the dissent) to unpack the distinctions among “actual knowledge,” “constructive knowledge,” and “intent to defraud,” but that’s an unnecessary slog. More importantly, these nuanced terms of art among legal professionals, in this case, amount to variations on the common understanding of lie versus mistake for us mortals. And the very mortal author, artist, or creator seeking to protect her work is lucky just to understand the basics of registration with the U.S. Copyright Office. (Is a play a “literary work” or a “work of the performing arts” and is it “published” if it has been performed on stage?). So, yes, the most liberal interpretation of the statutory safe harbor in the registration process is the only one which achieves both reason and justice.