The Copyright Office Acts As Hollywood's Lobbying Arm... Because That's Basically How It's Been Designed

from the regulatory-capture dept

Last month, we wrote about a blog post by Public Knowledge questioning why the Copyright Office kept acting like a lobbying firm for Hollywood, often stepping into issues where it has no business and almost always pushing the Hollywood viewpoint. It turns out that was just a sneak peak of a much larger report that PK has now released on The Consequences of Regulatory Capture at the Copyright Office. The full 50-page report is worth a thorough read.

It details the obvious bits concerning the revolving door between copyright maximalists and the Copyright Office, with much of top management coming from jobs in the entertainment industries, and then many former top Copyright Office folks going right back into that industry upon leaving. But the more interesting part of the report is looking at how frequently the Copyright Office appears to blatantly misinterpret copyright law in an attempt to expand what the law actually covers.
From safe harbor provisions to statutory licenses, the Copyright Office has, for decades, misapplied, ignored, or “creatively interpreted” statutory and common law. It assumed a strained and flatly unfeasible reading of safe harbor provisions in order to strip websites of statutory legal protections when they are sued by certain sound recording rightsholders; concluded against the force of common and statutory law that a broad “making available” right existed where it does not; and mischaracterized key aspects of copyright law with regard to proceedings at the Federal Communications Commission, all in support of the position of rightsholders against other industries and the public
That seems like it should be a pretty big concern, no?

There are some eye-opening examples of problems as well. For example, the time when the Copyright Office provided a memo in a lawsuit the record labels had filed against Launch Media. It originally included a footnote saying that Launch Media was likely a "non-interactive service" (which has many, many fewer restrictions than an interactive one). Magically, the footnote was then updated to say it wasn't a non-interactive service, but an interactive one. What changed?
In a memorandum from Kenneth L. Steinthal, attorney for Launch, admitted into evidence at trial, Steinthal stated that he spoke with the individual in the Copyright Office who drafted the footnote. Steinthal stated that according to that individual, someone from the RIAA had called the Copyright Office and as a result, the substance of the footnote was changed.
Yup. Apparently the RIAA can just make a phone call, and the Copyright Office is willing to switch positions overnight.

The report also notes how the Copyright Office keeps expanding its own mandate, and keeps getting smacked around for it. The examples of courts looking skeptically at the Copyright Office is fairly telling:
Courts have repeatedly taken a dim view of the Copyright Office’s analysis of larger questions—and, on occasion, even of their judgment in their core function of issuing registrations. The Second Circuit in Vimeo took the Office to task, slamming its analysis of safe harbors in the Pre-1972 Sound Recordings report as “arbitrary and without legal foundation,” “incompatible with a literal and natural reading of the text,” and “based in major part on a misreading of the statute.” The Court also commented that the Office’s position was “[a]t the very least, a strained interpretation—one that could be justified only by concluding that Congress must have meant something different from what it said.”
The conclusion is that we need to rethink the Copyright Office and how it's set up:
The Copyright Office, isolated from effective mechanisms of governmental accountability, has become deeply and troublingly captured by major entertainment industries and other rightsholder interests. As a result, it has regularly disregarded the concerns of other stakeholders, such as libraries, archives, and the public at large. It has frequently aligned itself with the agendas of industry trade groups, pushed for expansion of copyright at the expense of consumers’ established rights, and published reports that embrace extreme interpretations that rise above and beyond the scope of settled law.
Of course, it's not too difficult to see how this came about. If you're not deep in the weeds of copyright issues, it's actually fairly natural to assume that the people who best understand copyright law are those in companies who use copyright law to their own advantage. Of course, that ignores that the very purpose of copyright law is not to benefit copyright holders, but the public (this is also something that the Copyright Office has, consistently, gotten wrong). But, that's like saying that the best banking regulators should be former bankers (oh wait...) and the best FCC commissioners should be ex-telco lawyers (oops). In the end, what we're seeing is pure regulatory capture, but it's especially troubling in the copyright context, given that copyright is explicitly designed with the benefits of the public in mind, and it's only over time (thanks to this kind of regulatory capture) that the mission has been warped and twisted to the false belief that maximizing copyright is important, rather than maximizing the public's benefit.

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  • icon
    Mason Wheeler (profile), 9 Sep 2016 @ 12:07pm

    Again, copyright was created with the explicit purpose of suppressing abusive publishers. When it starts to be used to enable abusive publishers, the framework has become corrupt and needs to be reworked.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Sep 2016 @ 1:50pm

    I'm not even sure I would blame the copyright office for this. It was created for the purpose of keeping records of copyright registrations. Since copyrights no longer need to be registered, it quite literally no longer serves any purpose at all. Congress should have gotten rid of it at the same time as the registration requirement, but that didn't happen because Congress never gets rid of anything. Ever. So the copyright office was left to flounder without a purpose. And one important aspect of human psychology is that we will follow people who give us purpose where we had none before.

    reply to this | link to this | view in chronology ]

    • icon
      crade (profile), 9 Sep 2016 @ 2:50pm

      Re:

      Their purpose hasn't really changed.. line their pockets with kickbacks. They probably never even noticed copyrights don't need to be registered anymore.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Sep 2016 @ 2:42pm

    If copyright maximalists had their way,

    computers would have been snuffed out in their cribs.

    After the first instruction set had been copyrighted, we'd now still be waiting for the ability to run code written in the 1940's.

    The computer patents have long expired, but the copyrights live on.

    After musing on this problem for a half-century, I now think that Jefferson's initial instinct was correct: *every* monopoly is bad; there are no exceptions.

    The proof: even with the "limited time" language of the Constitution, the copyright lobby has proven that there are no limits.

    A thought: one of these days we're going to decode that "junk DNA" and find that it translates "Creative Commons".

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Sep 2016 @ 7:55pm

      Re: If copyright maximalists had their way,

      If they had had their way the VCR would never have been a thing.

      Even today you still spot maximalists trolling the comment sections here, claiming that the Betamax decision was a mistake.

      reply to this | link to this | view in chronology ]

      • icon
        jupiterkansas (profile), 10 Sep 2016 @ 9:32am

        Re: Re: If copyright maximalists had their way,

        Well... I still say the 1976 Copyright Act was a mistake, so I guess they can have their opinions too.

        reply to this | link to this | view in chronology ]

  • icon
    TruthHurts (profile), 9 Sep 2016 @ 2:53pm

    Convert mandate to simpler terms not open to debate.

    Here's my proposed take on an updated mandate.

    The copyright office's sole duty is to move content into public domain as soon as humanly possible.
    Failing in this task begets life in prison for everyone working for the office, and those working for corporations trying to stretch copyright terms beyond 5 years.

    There, that should be simple enough for the two-toned zebra-headed, slime-coated, pimple-farmin' paramecium brains, munchin' on their own mucosa, suffering from content creator envy, that currently work for the copyright office and their counterparts in the media industries.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 9 Sep 2016 @ 3:00pm

    Lets play this out in terms even our favorite shills will have a hard time twisting...

    This is the equivalent of allowing prisoners serving life sentences to run the prison.
    While they might have a couple good ideas, I'm pretty sure that giving everyone on death row 'Freedom Fridays' because they will be happy to return on Saturday might not actually be right.

    Yes the cartels should have some representatives, but there should be just as many concerned with the largest stakeholder... the public.

    Its an archaic corrupt system, held accountable to industry and not the law. They have made nigh impossible for an independent creator to be able to see if their idea runs afoul of something created in the last 200 years. Given that cartels can make a phone call and change facts to suit them, there is little hope for creators.

    Sometimes we need to stop expecting that somehow Congress will pass a new bill and fix the last 17 screwups that patched & created.
    It needs to be ripped down & rebuilt.
    If they can't get all of the value out in 50 years, to fucking bad.
    If the shitty mouse cartoon falls into public domain the house of mouse will NOT wink out of existence.
    Because a song used the same 4 chords doesn't mean that a major label artist heard some indie group who released a cassette one time 20 years ago and stole their sound.
    Homage is not theft, copyright covers actual expression not well it feels the same so give us 42 million you thieves.
    Sampling doesn't make the original vanish & doesn't entitle the owner of the copyright 75% of the profits of the new work.

    The cartels declared war on us & they got control of the hill... its time we lead a charge and capture that flag.

    reply to this | link to this | view in chronology ]

  • identicon
    J.R., 9 Sep 2016 @ 5:18pm

    The purpose of the copyright office is to keep its employees employed; their methodology seem to be make copyright eternal, and steal back everything in the public domain including Shakespeare and the Bible and give it to the copyright cartels.

    On day we will wake up to learn that every possible grocery list and phrase is copyrighted and we have to pay to use it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Sep 2016 @ 10:46pm

    The Chinese will crush you, and you will deserve it.

    reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 10 Sep 2016 @ 4:56am

    There is no such thing as ex- or former in these situations. There is just the time they do their rotation in the box, community service to their industries.

    reply to this | link to this | view in chronology ]

  • identicon
    hamza sekkat, 3 May 2017 @ 5:46pm

    The copyright has no right

    I beleive that they are making it more difficult to come because they want to keep all the good stuff for themselves.

    reply to this | link to this | view in chronology ]


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