Why Does The Copyright Office Keep Acting Like A Lobbying Arm For Hollywood?

from the doesn't-seem-appropriate dept

We’ve noted a few times recently that the Copyright Office has inserted itself into policy disputes where it has no business being. It’s important to note that the role of the Copyright Office is supposed to be a rather specific one: to handle the registration of copyrights. It has little official roles in terms of actual policymaking — the role is more about executing on the policy decisions of Congress. And, yet, over the years the Copyright Office has become a revolving door way station for execs from the entertainment industry, where they seek to use the Copyright Office as something of a taxpayer funded pro-legacy industry lobbying arm. Just in the last few months, we’ve reported on how the Copyright Office was flat out lying to the FCC about how copyright works in an effort to support the cable industry’s plan to stop competition in set top boxes. Then there’s its plan to strip websites of their safe harbors by making it a bureaucratic nightmare. Oh, and also its new plan to mess up the part of copyright law that protects libraries and archives. And let’s not forget the absolutely ridiculous hearings the Copyright Office held a few months ago about the DMCA safe harbors, where they seemed 100% focused on pushing the RIAA/MPAA’s plan to blame Google for everything.

What the hell is going on with the Copyright Office? This is not in its mandate and yet it’s run like a government-funded lobbying arm of Hollywood? The folks over at Public Knowledge have now started putting together a long list (much longer than the above examples) of the Copyright Office incorrectly weighing in on policy issues, taking positions that favor the desires of the legacy copyright industries, rather than what the law actually says. It’s a long and very troubling list.

As Public Knowledge notes: “If you?ve ever wondered what a captured agency looks like, look no further.”

Here are just a couple of the examples from the list:

Endorsing SOPA

The Copyright Office famously endorsed the doomed (and downright awful) Stop Online Piracy Act and Protect IP Act, collectively known as SOPA/PIPA. Despite the fact that the bill attacked safe harbor mechanisms, allowed the US government to censor foreign websites, made posting copyrighted work under any circumstances a felony, and swept together all user-driven sites with upload capabilities as ?promoting piracy,? the Copyright Office was unwavering in its support. In testimony before Congress, Register of Copyrights Maria Pallante called the bill ?a sound policy choice,? ?measured,? and thanked its drafters for drafting language that ?would bestow a number of important responsibilities on the Copyright Office.?

[….]

A ?Making Available? Right that Never Existed

In a 2016 report, the Copyright Office declared that U.S. copyright law had an unwritten right that gave copyright holders the power to dictate how, when, and under what circumstances their works were ?made available?–or even offered–to consumers. The Office took a ?squint-and-you?ll-see-it? approach, saying that the right existed by implication through a ?gestalt?-style reading of the distribution, public performance, and public display rights. Register of Copyrights Maria Pallante even commented that ?People question if we have ?making available? in the US, and we do–via treaties–and this report will make it clear that we have making available already. The question is whether Congress needs to do anything to make that clear or not.?

First, that?s not how treaties (or laws, really) work. Signing a treaty doesn?t make specific rights magically appear in U.S. law. Here–and in most cases–Congress has to actually write statutes to implement treaty requirements. If they decline to write the actual statutes, that?s a pretty clear sign that they?re not interested. And aside from the fact that the right doesn?t actually, you know, exist anywhere in the statute, the Copyright Office conveniently omitted the fact that numerous courts (the majority of those considering it, in fact) have rejected the idea.

The creation of an imaginary right wasn?t the only thing wrong in the office?s report; it also claimed that the Copyright Act?s requirement that a copy be a ?tangible medium of expression? didn?t really mean anything and could encompass even offered transmissions of data–accepted or not. Alarmingly, the office decided that merely putting files in an accessible place would make a person just as liable as actually distributing them. As support, they cited a handful of minor district court cases from places such as Massachusetts, ignored higher court rulings to the contrary, deemed it an ?unbroken line of authority,? and called it a day.

Yikes.

It’s no secret that the Copyright Office wants more of a say in policy issues. This is a big part of the reason why it has been not-so-subtly lobbying to have the Office itself removed from the Library of Congress and set up as an independent agency (or, possibly, merged into the Patent and Trademark Office). But when it’s already lobbying in ways that directly counteract the law (which more than one court has noted recently…) and appearing to act like a taxpayer-funded lobbying arm for some private companies, it raises some fairly serious concerns about the priorities and motivations of the Copyright Office and its staff.

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Comments on “Why Does The Copyright Office Keep Acting Like A Lobbying Arm For Hollywood?”

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36 Comments
Anonymous Coward says:

We’ve noted a few times recently that the Copyright Office has inserted itself into policy disputes where it has no business being. It’s important to note that the role of the Copyright Office is supposed to be a rather specific one: to handle the registration of copyrights.

Sigh. The Copyright Office is tasked with much more than registrations.

See, for example, 17 USC 701(b):

§ 701. The Copyright Office: General responsibilities and organization

(b) In addition to the functions and duties set out elsewhere in this chapter, the Register of Copyrights shall perform the following functions:

(1) Advise Congress on national and international issues relating to copyright, other matters arising under this title, and related matters.

(2) Provide information and assistance to Federal departments and agencies and the Judiciary on national and international issues relating to copyright, other matters arising under this title, and related matters.

(3) Participate in meetings of international intergovernmental organizations and meetings with foreign government officials relating to copyright, other matters arising under this title, and related matters, including as a member of United States delegations as authorized by the appropriate Executive branch authority.

(4) Conduct studies and programs regarding copyright, other matters arising under this title, and related matters, the administration of the Copyright Office, or any function vested in the Copyright Office by law, including educational programs conducted cooperatively with foreign intellectual property offices and international intergovernmental organizations.

(5) Perform such other functions as Congress may direct, or as may be appropriate in furtherance of the functions and duties specifically set forth in this title.

You do realize that the Copyright Office is tasked with studying issues and informing Congress, right? Your two examples come a study that the Office was asked to put together and from Pallante’s invited testimony to Congress. To suggest that it was acting outside the scope of its mandate is just wrong. But I doubt you care.

I’d say you’re “lying,” as you claim the Office is with the letter it was invited to write about the FCC proposal, but that would be stooping to your level. So I’ll just say you’re wrong. Very wrong.

Anonymous Coward says:

Re: Re: Re:

All that was missing from the above reply was the signature of someone from the MPAA

Really? I point out, with a citation to actual evidence, how the Copyright Office has more than the one, specific role Mike claims it has, and the best you can do is invoke some MPAA bogeyman? How about a recognition that Mike is 100% wrong? I know Mike can never, ever admit this, but I’m surprised you guys back him up on this easy stuff. No wonder this place has such a bad reputation.

Anonymous Coward says:

Re: Re: Re:

Even so, it seems like they are basically a lobbying arm for the MPAA/RIAA. Funded by the taxpayers. Roles or not. It’s a bad idea that they only seem to push the MPAA/RIAA view point on copyright. Why not other groups?

I’m sure this may be quite shocking to you, but the Copyright Office gives a fair assessment of the state of copyright law. It’s the extremists–like Mike–who pretend otherwise. It’s not all a big conspiracy. It’s really that simple.

Anonymous Coward says:

Re: Re: Re:

Well that’s one way to look at it, with one eye shut. Now maybe shut your other eye and go back to dreaming.

I demonstrated that the Office has the explicit statutory authority to do more than registrations. I pointed out that the studies and testimonies from the Office that Mike is complaining about are completely within the Office’s mandate. If you think I’m wrong, explain why. Happy to discuss.

Anonymous Coward says:

Re: Re:

If you really want to split hairs, advising means making suggestions, offering advice, and providing information based on research…not dictating policy, misinterpreting treaties and case law, or attempting to steer future case law. Had the report simply taken the tone “it is the opinion of the Register of Copyrights, based on the following reasons researched by the Copyright Office, that the courts are getting this one wrong and that a making-available right should be formally brought into existence through legislation” then it would not be so much of a problem. Still wrong, but not as troubling as what was actually said.

The idea of making-available being a right fails completely just in terms of simple logic. If a copyrighted work is accessible online but nobody downloads it, then there has been no copying, no distribution, no performance, no transmission…ergo, no infringement and more importantly no harm, and no need to conjure up an imaginary right that has somehow been infringed by advertising even the suggestion of availability of something with a filename they don’t like.

The intent of the making-available right is not to acknowledge some actual right which has been overlooked for centuries. It is about asserting absolute control over distribution. That’s not what copyright law has ever been about.

Anonymous Coward says:

Re: Re: Re:

If you really want to split hairs, advising means making suggestions, offering advice, and providing information based on research…not dictating policy, misinterpreting treaties and case law, or attempting to steer future case law. Had the report simply taken the tone “it is the opinion of the Register of Copyrights, based on the following reasons researched by the Copyright Office, that the courts are getting this one wrong and that a making-available right should be formally brought into existence through legislation” then it would not be so much of a problem. Still wrong, but not as troubling as what was actually said.

I’m not following you. Everything I’ve read–study, testimony, etc.–shows that the Office does exactly what you say it should be doing: “making suggestions, offering advice, and providing information based on research.” Can you give specific examples of how this is not so?

The idea of making-available being a right fails completely just in terms of simple logic. If a copyrighted work is accessible online but nobody downloads it, then there has been no copying, no distribution, no performance, no transmission…ergo, no infringement and more importantly no harm, and no need to conjure up an imaginary right that has somehow been infringed by advertising even the suggestion of availability of something with a filename they don’t like.

The Office’s study of making available was accurate and fair. Instead of saying it defies “simple logic,” can you point to a specific argument that was inaccurate under current doctrine? Or is your “simple logic” what you think the law should be, and not a description of the actual law–the very thing you accuse the Office of doing?

The intent of the making-available right is not to acknowledge some actual right which has been overlooked for centuries. It is about asserting absolute control over distribution. That’s not what copyright law has ever been about.

Have you even read the Office’s study, the one you think is wrong? I don’t get the sense you have. I’m happy to discuss it in great detail, but it would help if I understood your knowledge base first. Are you a copyright lawyer?

Anonymous Coward says:

Re: Re: Re: Re:

Shift goalposts much? The quote from Public Knowledge points out the flaws in the actual arguments you are now asking me to provide.

“…aside from the fact that the right doesn’t actually, you know, exist anywhere in the statute, the Copyright Office conveniently omitted the fact that numerous courts (the majority of those considering it, in fact) have rejected the idea.”

Tehcan says:

Re: Re:

The copyright office has a problem they have been bribed(lobbied) into ignoring the law and the rules they have to abide by, The reason for this is that now there is so much content that is way better than Hollywood content that they need to prevent those that create from taking eve the smallest mount of profit from holllywod.

Luckily the internet has enabled more and more content to be spread so that right now there is no reason anyone would ever need to consume hollywood content and many millions do not

Whatever says:

I think you are missing the point that IP related industry is a big enough part of the US economy to merit having people stand up for it. It’s the copyright office’s mandate to do so and to keep congress informed.

It’s easy to spin it and say they are a lobby group for industry. Reality is they are a lobby group for the rights of creators and indirectly for the economic activity generated by them. It’s easy to confuse the two, especially if you are trying hard to get one answer and not the other.

Anonymous Coward says:

Re: Re:

I think you are missing the point that IP related industry is a big enough part of the US economy to merit having people stand up for it. It’s the copyright office’s mandate to do so and to keep congress informed.

One slight problem with that argument, the government is meant to represent and benefit the people, and not the robber barons of industry.

Whatever says:

Re: Re: Re:

“One slight problem with that argument, the government is meant to represent and benefit the people, and not the robber barons of industry.”

Not correct – it is to represent ALL of the people, including the “robber barons”. It’s not to tilt things towards benefiting the people at any cost to others. Remember too that jobs in IP benefit the economy and the public in general. All that tax money pays for your benefits… 🙂

Anonymous Coward says:

The REST of the story

If you genuinely care about this, this blog is a MUST READ: https://medium.com/@steve_1343/public-selective-knowledge-6c45bbe0e5fb#.7scaef8ar

Yes, the author is a former Copyright Office lawyer who now lobbies for the MPAA. But he has the facts (and links to prove those facts) that show Public Knowledge is telling half-truths about the Copyright Office and misrepresenting what the Copyright Office said and did.

P.S. If anyone cares, as many Copyright Office lawyers have gone to work for Google and other Internet/tech companies as have gone to MPAA/RIAA.

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