Senate Should Either Fix Or Get Off The Pot On Copyright Office Bill

from the copyright-office-modernization? dept

The U.S. Senate is about to consider mostly pointless legislation that would make the nation’s register of copyrights—the individual who heads the U.S. Copyright Office, officially a part of the Library of Congress—a presidential appointment that would be subject to Senate confirmation.

While the measure has earned praise from some in the content industry, including the Motion Picture Association of America, unless senators can find better ways to modernize our copyright system, they really should just go back to the drawing board.

The Register of Copyrights Selection and Accountability Act of 2017 already cleared the U.S. House in April by a 378-48 margin. Under the bill and its identical Senate companion, the power to select the register would be taken away from Librarian of Congress Dr. Carla Hayden. Instead, the president would select an appointment from among three names put forward by a panel that includes the librarian, the speaker of the House and the majority and minority leaders of both the House and Senate. And the register would now be subject to a 10-year term with the option of multiple reappointments, like the Librarian of Congress.

The legislation is ostensibly the product of the House Judiciary Committee’s multiyear series of roundtables and comments on modernizing the U.S. Copyright Office. In addition to changes to the process of selecting the register, the committee had recommended creating a stakeholder advisory board, a chief economist, a chief technology officer, making information technology upgrades at the office, creating a searchable digital database of ownership information to lower transaction costs in licensing and royalty payments, and creating a small claims court for relatively minor copyright disputes.

Alas, while it’s billed as a “first step,” the current legislation gives up most of those more substantive reforms and instead amounts largely to a partisan battle over who will have the power to select the next register: Hayden, who was appointed by Barack Obama, or President Donald Trump.

Opponents argue the bill will make the register and the Copyright Office more politicized and vulnerable to capture by special interests, while ceding more power to the executive. They argue that vetting the register through the nomination process could delay modernization efforts. Hayden needs the position to be filled expeditiously to implement her modernization program, and Trump already faces a sizable confirmation backlog.

Meanwhile, proponents argue a more independent register, less tethered to the will of the Library of Congress, will make USCO more accountable. They say it will make the office run more efficiently and allow it to modernize. They also believe it will address important constitutional questions, such as the separation of powers and oversight by the president.

At the heart of these constitutional questions is the fact the Library of Congress has both significant legislative and executive functions. Housed within the legislative branch, it also sets royalty rates and rules on exemptions from the Digital Millennium Copyright Act. Critics have derided the Copyright Office for being slippery about whether it is serving a legislative or executive role, depending on who’s asking. The contention is that this unusual arrangement renders USCO a “constitutional chameleon.”

Of course, it is not uncommon for entities in one branch to perform the functions of another. The president has a role in the legislative process through his veto power. The International Trade Commission performs judicial functions, but is an independent agency housed within the executive branch. The federal government’s separation of powers is not absolute. But there does come a point where those lines become so blurred as to call the original classification into question. In that respect, Congress should consider taking certain functions—such as the Copyright Royalty Board or the Triennial Section 1201 Proceeding—out of the Copyright Office.

Some would propose moving the entire Copyright Office out of the Library of Congress and rendering it a standalone agency, which would elevate the register’s position to one of an officer of the United States. Under that highly controversial scenario, the Constitution’s Appointments Clause definitely would require the job be filled by the president. But for now, since the librarian still has ultimate authority over the substantive regulatory powers surrounding copyright, changing who appoints the register won’t change anything outside of a short-term political calculation of who the next register is.

The bottom line is that the current bill simply doesn’t do that much, good or bad. Making the position a presidential appointment is unlikely to speed up IT modernization efforts, at a time when the office has faced numerous setbacks and problems getting that IT infrastructure in place. The original policy proposal drafted by the House Judiciary Committee was a more comprehensive and substantial approach to modernization and many of its provisions were supported broadly. First step or not, this is a feeble try.

As the Senate considers the bill in the coming weeks, they should either amend the legislation so that it will do something to modernize copyright, or just jettison it entirely. As currently written, the bill serves no purpose, and Congress shouldn’t waste its time on it.

Sasha Moss is Technology Policy Manager for the R Street Institute

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Comments on “Senate Should Either Fix Or Get Off The Pot On Copyright Office Bill”

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21 Comments
Anonymous Coward says:

Too many links off of the story. Why not quote the relevant parts in the story?

Also as a first step its mot the worst. It elevates the copyright office and brings it more directly into focus for the Senate. At least every few years the new appointee will have to talk aboit copyright, which would ve more discussion than is currently going on.

No it is not the fix YOU want. But its not a horrible move either.

Anonymous Coward says:

From a purely lean/practical standpoint, adding to the number of presidential appointments is a bad idea. There are on the order of 4,000 currently and it’s simply impractical and inefficient to make so much flow through one person/office that doesn’t need to.

Many of them are not high on the president’s priority list yet the lack of clear leadership in many of those roles can be paralyzing and demoralizing to those who work under them.

Anonymous Anonymous Coward (profile) says:

Re: Re:

Having 4500 positions appointable by the president, and as of now I hear that many of them have not been appointed, makes one wonder if they are what might be termed ‘necessary’? Then, if those positions are not necessary then are any positions under those positions necessary? At some point, when un-necessary positions are eliminated and the functions they were supposed to perform are still functioning, both correctly and efficiently, then we have probable cause to eliminate all of those positions.

I once had a roommate who worked for the Federal Government who spent about 90% of his day reading the newspaper. While I liked my roommate, I dearly wanted him to lose his job due to the government becoming…more efficient.

Lawrence D’Oliveiro says:

Re: Re: I once had a roommate who worked for the Federal Government who spent about 90% of his day reading the newspaper.

A friend of mine worked for many years for a company whose main business was reading newspapers. It would find articles relevant to its customers, and forward them on.

They were quite willing to pay for such a service.

Anonymous Coward says:

"the bill serves no purpose, and Congress shouldn't waste its time on it" -- Pffft! Best we can hope for is waste their time!

“While the measure has earned praise from some in the content industry, including the Motion Picture Association of America,” — Fine. Only producers of copyrighted content matter. Weenies and pirates or even content-indexing like Google do not matter; Congress should take NO note of them — because their sole purpose is to get free content, or worse, to monetize what producers have made.

“unless senators can find better ways to modernize our copyright system,” — State 3 ways you’d “modernize” that don’t reduce the right of creators recognized in the Constitution and body of law. … I’m waiting. … Been waiting here for YEARS. … Actually, as noted above, you’re just looking to reduce the right of creators. News for you: NOT EVEN CONGRESS is going to do that.

I can state one way to “modernize”, and that’s to replace the current DMCA notice system with central registration that requires all web sites to take down any content so named — or close. At present, sites are free to list the real name of content! Ridiculous. That needs STOPPED. Put pirates to the trouble of aliases, not force producers to do the impossible. And specifically, I don’t care if it’s impossible for pirates or puts them at risk. Criminals get NO consideration.

Techdirt complains about millions of speculative DMCA notices to Google (as if having Google’s computers compare a bit of text is a burden), well, put that burden on any site that wants DMCA safe harbor provisions. — The Ninth Circuit may be in process of doing that. It’s high time to. Pirates have had their fun and proved beyond all doubt that they’ll exploit any and every loophole, blithely lie that they have no idea what’s on site though millions of people go there precisely for infringed content. So let sites hosting content be the one hoping they don’t leave a loophole. If their “business model” relies on infringed content, too bad.

The most evil those in MPAA do is make lousy movies and hope I’ll pay to see. But that in NO way affects me. Indeed, THEY are going to be disappointed. I am in NO way forced to support those producers, and won’t even watch for free because don’t care for the messages in their products. I’m not at all inconvenienced by copyright, nor know of any way it hampers me. I see the current system as entirely to the good of me and everyone who wants entertainment. It’s only you who are addicted to mindless content, can’t amuse yourselves, or want to monetize their content, who see any problem with copyright as it is now. — And, no, doesn’t count that you have difficulty getting that content for whatever reason. The key problem is YOUR insatiable demand for CRAP is so severe that leads you to criminal activity.

Stephen T. Stone (profile) says:

Re: "the bill serves no purpose, and Congress shouldn't waste its time on it" -- Pffft! Best we can hope for is waste their time!

State 3 ways you’d "modernize" that don’t reduce the right of creators recognized in the Constitution and body of law.

  1. Digitize and freely make available to the public all of the Copyright Office’s copyright records.
  2. Shorten the length of a copyright term to something far more reasonable than “life plus another seventy years” so we can re-grow the public domain and stop copyright-holding leeches (e.g., the estates of long-dead artists) from exploiting the copyright system for monetary gain.
  3. Re-write the DMCA, starting with the “notice and takedown” provision, to strike a far better balance between the rights of the public to use copyrighted content in non-infringing ways and the rights of creators to take down legitimate infringements of their copyrights.
Stephen T. Stone (profile) says:

Re: Oh, and one more thing

replace the current DMCA notice system with central registration that requires all web sites to take down any content so named

I can assume that your plan would require pre-emptive action for any uploads or whatever. That leaves more than a few questions worth answering:

  • How would a website admin determine whether a partial posting of a copyrighted work is an illegal infringement of someone’s copyright?
  • What would be the procedures for contesting a takedown in the event that the uploader believes their usage of copyrighted content is protected by the principles of Fair Use?
  • What remedies would be made available to creators who fall victim to takedown abuse by overzealous copyright holders (or trolls who do not even hold the copyright)?
  • What provisions would be written into the new system to prevent takedown abuse in the first place?

Somehow, I don’t think you thought your cunning plan all the way through.

Anonymous Coward says:

Re: Re: Oh, and one more thing

That leaves more than a few questions worth answering

Of course, out_of_the_blue’s not going to bother answering those questions. The contingency plan is to blame it on the bot that did the action if they get caught overstepping, then pass it on to the geeks they demanded the bot from. The rest of the questions are moot because out_of_the_blue doesn’t believe in fair use, copyright trolls (they are officers of copyright law, he’d say) or takedown abuse.

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Rekrul says:

As the Senate considers the bill in the coming weeks, they should either amend the legislation so that it will do something to modernize copyright, or just jettison it entirely.

By "modernize" do you mean increasing copyright term length, making copyright infringement a criminal offense, adding website blocking, and giving even more power to the copyright industry? Because I’m reasonably confident that any effort by the government to "modernize" copyright would include such things at the behest of the copyright industry.

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