Earlier this week we wrote about the revelation, via a FOIA request by the EFF, that the Copyright Office consulted heavily
with Hollywood (the MPAA directly, and a variety of movie studios) before weighing in on the FCC's set top box competition proposal. As we noted, the Copyright Office's discussion on the issue involved completely misrepresenting copyright law
to pretend that an agreement between to industries (content studios & TV companies) could contractually wipe out fair use for end users. That's... just wrong. The FCC's proposal had absolutely nothing to do with copyright. It was just about letting authorized (paying) customers access content that was already authorized through other devices. What the FOIA request revealed was that the Copyright Office not only had many, many, many meetings with Hollywood, but that it actually prioritized those meetings over ones with the FCC -- and lied to the FCC to say that key Copyright Office personnel were not available the very same week they were meeting with the MPAA, in order to push back the meeting with the FCC.
It was a pretty big deal, given the Copyright Office's reputation for acting as a taxpayer-funded lobbying arm for Hollywood
. Of course, the MPAA is now mocking the EFF over this story, with a blog post by Neil Fried, one of the top lobbyist's for the MPAA, and someone who features prominently in the conversations with the Copyright Office revealed by the FOIA request. The crux of Fried's post is that there's no news in the revelations
, and that the Copyright Office met with the MPAA because the MPAA asked to meet with it.
The bottom line is that the Copyright Office did not approach stakeholders, selectively or otherwise. It spoke with any and all comers who asked for the opportunity. It then examined the issues and met its statutory obligation to advise federal agencies and Congress on the law. Any EFF suggestion to the contrary is entirely false.
Of 310 pages EFF has “uncovered” in a Copyright Office FOIA request, 232 are transmittals of FCC filings, congressional letters, and other documents from all sides that were already public. The remaining 78 are almost all snowballing email chains to schedule meetings and calls—also from parties on all sides, including the FCC itself and device maker TiVo.
That's... fairly misleading. It's true that there are those pages of email chains trying to schedule meetings, but the vast majority of those are from the MPAA or other Hollywood representatives. And those meetings are clearly eagerly being scheduled by the Copyright Office prior to meeting with the FCC to help shape the Copyright Office's response. The MPAA conveniently leaves out the Copyright Office's meeting with the FCC being pushed off so that the Office can meet with the MPAA first (and even telling the FCC that a key member of the Copyright Office is not available the same week she's meeting with the MPAA). Also, the "TiVo" meeting wasn't even on "the other side" of the debate, really, as the letter there notes that TiVo "will be advocating a simpler solution" compared to what the FCC proposed. It's also noteworthy that this meeting occurred on August 2nd of this year. That was the first time TiVo met with the Copyright Office, but by then the Copyright Office's position was set, as its response was delivered the very next day. The MPAA, on the other hand, first met with the Copyright Office back in early April and met a few times after that as well. So to say that the meetings were on the same level is clearly not true.
The documents reflect what we know to be true. The Copyright Office did not “jump into this fight,” as EFF asserts. Rather, it studiously avoided being brought into the debate until: 1) Chairman Wheeler asked for its analysis, and 2) Members of Congress requested it share that analysis so everyone, not just the FCC, could benefit from its expertise.
Right. About that. That's not true either. As the FOIA documents reveal, then head of the Copyright Office Maria Pallante apparently went directly to Congress and requested
that it make a formal request to the Copyright Office to send an opinion on the FCC's proposal. It appears that Fried either missed or ignored this bit of the FOIA request in which a staffer for Rep. Ted Deutch contacts the Copyright Office asking for input on what Deutch should put into the letter requesting the Copyright Office weigh in, and explicitly noting that the reason it was doing so was because they had been told that Pallante wanted them to make that request
That, uh, certainly doesn't look like "avoiding being brought into the debate" until after Congress requested it. It looks like the head of the Copyright Office going directly to Congress and concocting an excuse to publicly weigh in on the debate against the FCC. As a side note, there is plenty of talk that a big part of the reason why Librarian of Congress Carla Hayden was annoyed with Maria Pallante was her penchant for going directly to members of Congress with her own views concerning the Copyright Office, and this seems like just another example of that).
Finally, Fried basically mocks the EFF, suggesting that it's just upset that it didn't think to lobby the Copyright Office as aggressively as Hollywood did:
Like anyone else, the EFF could have just as easily made its own inquiries, rather than issue a hyperbolic blog complaining about the entirely legitimate practice of a government agency communicating with a range of parties.
Yes, well, the EFF is a small non-profit. The MPAA is a giant machine of Hollywood with offices blocks away from the White House. Guess who has better access and resources to bug the hell out of the Copyright Office and get it to side (once again) with misleading claims about copyright law?
Besides, when your argument boils down to "sure, the Copyright Office is a captured agency, and if you don't like it, go capture your own agency..." it's not exactly a ringing endorsement for functional policymaking.