It Begins: Congress Proposes First Stages Of Copyright Reform, And It's Not Good
from the of-course-it's-not-good dept
The House Judiciary Committee has been “exploring” various copyright reform proposals for a few years now, asking for feedback, holding a “listening tour” and more. Through it all, it seemed pretty clear that the Judiciary Committee is (reasonably) fearful of getting SOPA’d again, and thus was trying to figure out some less controversial proposals it could push forward first to see how they worked. Two, in particular, have been brought up multiple times: moving the Copyright Office out of the Library of Congress… and creating a “small claims court” for copyright infringement. And it appears that’s what the Judiciary Committee is now moving forward on, even though both are pretty bad ideas.
Of course, showing how fearful they are of a SOPAlanche, Reps. Bob Goodlatte and John Conyers are kicking this off with a bland and detail-free one pager tossing out both suggestions, along with a similarly weird and bland YouTube video explaining the proposal, with unnecessary background music (what is that about?):
Note the very careful “these policy proposals are not meant to be the final word on reform in these areas.” That’s code for “okay, okay, we’re testing the waters here, are people going to freak out about this….”
Anyway, the proposals in question are not horrible, but they’re certainly not good either. Most of the attention will be focused on the Copyright Office stuff, but it’s the small claims court proposal that is potentially much more nefarious and a much bigger deal. There are almost no details here, but this is what the proposal says:
The Copyright Office should host a small claims system consistent with the report on the issue released by the Copyright Office. The small claims system should handle low value infringement cases as well as bad faith Section 512 notices. The Register should be given the authority to promulgate regulations to ensure that the system works efficiently.
As we’ve seen, already copyright is often used as a way to stifle free expression. Mere threats of lawsuits, along with DMCA takedown letters, have become a very effective way to create chilling effects against content someone doesn’t like. Adding in the ability to more easily sue and take people to court — even if the eventual judgment may be for lower dollar amounts — is tremendously problematic. If anything, it will just become an incredible tool for copyright trolls. It will legitimize their business model, which is to get a large volume of settlements that are in the hundreds or low thousands of dollars anyway. Obviously, the fact that this court might also handle “bad faith Section 512 notices” (i.e., DMCA takedowns) is designed to appease people who are concerned about the chilling effects here, but it’s not clear that will help very much.
Also, somewhat bizarre is that earlier in the document (which we’ll get to), they say that the Copyright Office should remain in the legislative branch. Which would then make this small claims court a part of the legislative branch. And that just seems… weird. I guess that’s why they refer to it as a small claims “system” rather than a small claims “court.”
The issue that’s going to get more attention, however, is the attempt to pull the Copyright Office away from the Librarian of Congress’ control. This has been something that the Copyright Office itself (and Hollywood and its friends) have been agitating for for some time. The proposal here looks like (again) the Judiciary Committee wants to thread the needle of not technically moving it out of the Library of Congress (the proposal doesn’t say one way or the other), but basically giving the Copyright Office full autonomy from the Library, and making the head of the Copyright Office subject to Congressional appointment, rather than at the will of the Librarian of Congress:
The Register of Copyrights and Copyright Office Structure
The Copyright Office should remain part of the Legislative Branch where it can provide independent and timely advice to Congress on copyright law and policy. Furthermore, the Copyright Office should have autonomy over its budget and technology needs.
Currently, the Register is not subject to the same nomination and consent process as other senior government officials. To ensure that the American people have an opportunity to provide input into the selection of future Registers of Copyright through their elected officials, the next Register and all that follow should be subject to a nomination and consent process with a 10-year term limit, subject to potential re-nomination. The Copyright Office should also add several positions to advise the Register including a Chief Economist, Chief Technologist, and a Deputy Register.
Copyright Office Advisory Committees
As copyright creation and distribution rapidly changes due to technological advances, the Copyright Office needs to have quicker information regarding marketplace changes as it develops policies and provides guidance to federal agencies. Other federal agencies have standing advisory committees that enable a more efficient knowledge transfer from the private sector to federal agencies. This model should be duplicated at the Copyright Office.
The Copyright Office of the future should have a combination of permanent and ad-hoc advisory committees to advise the Register on critical issues. Members of these committees should reflect a wide range of views and interests. Permanent advisory committees should be created that focus on issues that include but are not limited to the registration and recordation system, public outreach efforts, access for the visually impaired, and issues related to libraries, museums, and archives. To ensure that a diverse set of voices is represented, committee membership should be term limited and the ability of individuals to serve on more than one committee should be limited.
The advisory committee plan again seems like it’s trying to appease all sides, but one wonders how it will work in practice. As we’ve seen with the USTR, the advisory committees have become basically captured by industry lobbyists (despite rules against lobbyists being on those committees), and the end result is that the USTR tends to take instruction from a small group of large, entrenched interests, rather than the public. It seems likely that the same thing would happen here. A Chief Economist is also a loaded position. There are plenty of economists who would look at the actual public benefit to different copyright proposals, but too many economists are likely to just focus on the topline monetary impact on legacy industries, painting a skewed portrait and continuing the false notion that the point of the Copyright Office is to create more and more copyrights, rather than create a plan that actually “promotes the progress of science” as the Constitution requires.
Since the Judiciary Committee insists that this is just them putting out some ideas for comment, it’s going to be important that we let them know the many, many pitfalls of these suggestions — and let them recognize that if these plans are, as seems likely, weighted just to benefit a legacy industry that has a history of fighting innovation — that will not be acceptable to the public.