Shake Up At The Copyright Office A Possible Preview To Fight Over Copyright Reform

from the well,-this-should-be-interesting dept

As you may have heard, last Friday, the brand new Librarian of Congress, Carla Hayden, removed the head of the Copyright Office, Maria Pallante, from her job. The press release from the Library of Congress tries to spin this as a "new appointment" for Pallante, to advise Hayden on digitization projects at the Library, but pretty much everyone sees this as Pallante being fired rather abruptly (Update: And Eriq Gardner at the Hollywood Reporter has Pallante's resignation letter, saying she will not accept the new job). From the Billboard article linked above:
U.S. Register of Copyrights Maria Pallante was removed from her job Friday morning (Oct. 21) by the Librarian of Congress, Carla Hayden, who has authority over the Copyright Office. Officially, Pallante has been appointed as a senior adviser for digital strategy for the Library of Congress, although it’s clear she was asked to step down. Karyn Temple Claggett, currently associate register of copyrights, has been appointed the acting register.

Pallante was locked out of the Library of Congress computer system this morning, according to two sources who spoke with Library employees. Earlier, Hayden had called several members of Congress to tell them about her decision. Later, she called the heads of several media business trade organizations to give them the news, according to one who received such a call.
There are all sorts of rumors flying about this. Pallante has, apparently, been advocating strongly for moving the Copyright Office out of the Library of Congress, and either making it an independent agency or linking it up with the Patent & Trademark Office under the Commerce Department. That would be a big mistake, frankly, because copyright is not supposed to be about "commerce" and "industry" but about benefiting the public. That's why it makes sense to leave it as part of the Library of Congress.

Still, when Hayden was first announced, basically all of the copyright maximalist front groups put out statements vaguely suggesting that they'd support Hayden if she promises to leave the Copyright Office alone. It would appear that Hayden has decided not to take that advice. Of course, there are some concerns about what Pallante will do in advising on digitization at the Library of Congress (see update above, noting she is not accepting the position), but it does seem odd that at basically the same time this news leaked, I received notice that the the Library of Congress was going to start archiving Techdirt (yes, this is 100% a coincidence, but a funny one):
That said, the Copyright Office really could use new leadership. As we've been discussing, the Copyright Office has a pretty long history basically acting as a lobbying arm for Hollywood, which seems highly questionable. Pallante's legacy is definitely marred by the fact that she came out as a strong supporter of SOPA early on. And this year, the Copyright Office seems focused on pushing a bunch of bad ideas on copyright reform, including a nefarious plan to strip many websites of their DMCA safe harbors. We're also still completely perplexed as to why the Copyright Office flat out misrepresented copyright law to the FCC concerning its set-top box plan. The Copyright Office simply lied about how fair use works. That's scary.

That said, I should admit that I don't think Pallante herself was as bad as some critics made her out to be (though she did surround herself with a lot of people with really bad ideas). She at least seemed marginally better than some of the previous heads of the Copyright Office, and was actually at least slightly open to some good ideas on copyright reform (and plenty of bad ones). But it does seem like today's Copyright Office needs someone who isn't just representing Hollywood's viewpoint and recognizes that copyright itself is supposed to benefit the public first and foremost -- something Pallante denies.

Pallante's temporary replacement, Karyn Temple Claggett, is unlikely to change very much. Beyond it just being an interim position, Claggett came to the Copyright Office after working for many years at the RIAA, where she helped in the litigation against Grokster, Limewire, XM and Usenet.com. This is not exactly someone who recognizes the changing nature of the internet and says "let's embrace it."

So now the big question is really what happens next. Lots of people are gearing up for a fight over who will take over the Copyright Office on a permanent basis. Is it going to be someone who comes from that world where copyright is supposed to only benefit the big copyright gatekeepers? Or will it be someone with a more nuanced view on how copyright works, how it's supposed to benefit the public by providing tools for creators. Either way, it seems like the fight over this is going to get messy. You already have lobbyists whispering to the press about how awful all of this is:
That executive, and others who represent creators and media businesses in Washington, D.C., expressed surprise and dismay that Pallante, who had the job since 2011, had been removed. “The people in the creative community are furious about the fact that this was done,” says a lawyer who works for organizations that support strong copyright laws, “but especially about the way it was done.”
Wait just a second here. How the hell can the RIAA/MPAA's of the world claim that they represent "the creative community"? That's bullshit. They represent a few large gatekeepers, who have a long history of screwing over the actual creative community any chance they get. More and more of the actual creative community these days have found that the internet is a wonderful tool for creating, promoting, distributing and monetizing their works -- and they recognize that the legacy industries and overly oppressive copyright laws get in the way of that, rather than helping. But, no matter what, you can bet that when a new Copyright Register is announced, we'll see more of this kind of misleading language and attacks -- and it will be something of a preview for the eventual fight over actual copyright reform bills that are expected to show up in the relatively near future.

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  • identicon
    Anonymous Coward, 25 Oct 2016 @ 8:33am

    Government jobs...

    1) Get a "guvmint" job.
    2) Screw up.
    3) Get "fired".
    4) Keep your job with a different job description.

    Carla Hayden needs to understand that she is spending MY money!

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

  • identicon
    Anonymous Coward, 25 Oct 2016 @ 8:44am

    Just waiting for those agencies to try to push through a new copyright reform that says there should be a high level version of copyright for popular works (like a certain mouse) that needs to cover all possible similar works in perpetuity. So anything even mouse shaped should immediately convert over to the original copy holder and not the new artist.

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

  • identicon
    Adam V, 25 Oct 2016 @ 8:47am

    Throwing your hat in the ring?

    Mike, since Carla Hayden obviously appreciates your contributions to copyright discussions vis-à-vis your postings here at TechDirt, you should see if you can parlay that into a nomination for the open position.

    I'd like to see the RIAA/MPAA blow their collective tops when your name ends up on the short list.

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

  • identicon
    Kalean, 25 Oct 2016 @ 8:52am

    To be fair...

    “The people in the creative community are furious about the fact that this was done,” says a lawyer who works for organizations that support strong copyright laws, “but especially about the way it was done.”

    They're right. We're furious that she was demoted instead of fired. We're especially furious that it wasn't accompanied by a press release explaining the purpose of copyright.

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

    • identicon
      Anonymous Coward, 25 Oct 2016 @ 2:35pm

      Re: To be fair...

      nononono

      You are not part of the community. You see, there is a community based on copyright with the definition of copyright as: "Feed as many mouths as possible". Thus, they are explaining their communitys purpose of copyright.

      You apparently are not part of these closed communities.

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

  • icon
    Tim R (profile), 25 Oct 2016 @ 9:01am

    Vexation without representation

    "'The people in the creative community are furious about the fact that this was done,' says a lawyer who works for organizations that support strong copyright laws..."

    I am a content creator, a musician, a digital artist and a writer. I am also more reasonably versed in copyright than the average bear. I am internet savvy as well, and have a host of tools at my disposal to flex my reasonably ordinary artistic muscles. I don't possess massive distribution channels, cross-licensing capabilities, or hordes of capital to keep me "lawyered up".

    But I am also not in the minority, and this anonymous legal honk does not speak for me.

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

  • icon
    Ninja (profile), 25 Oct 2016 @ 9:07am

    This news got me wondering if Hayden isn't gearing up something really nice for the next copyright wars or at least for the Copyright Office (CO). My concern is how Ms Claggett got to be interim. Was she already in the CO? If that's the case then my idea might have some grounds and we may expect a brighter future at the CO.

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

    • icon
      Mike Masnick (profile), 25 Oct 2016 @ 9:20am

      Re:

      My concern is how Ms Claggett got to be interim. Was she already in the CO? If that's the case then my idea might have some grounds and we may expect a brighter future at the CO.

      Yeah, she was already basically 2nd in command. She just got bumped up to the top position.

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

  • identicon
    SpaceLifeForm, 25 Oct 2016 @ 10:07am

    coincidence?

    I would not assume that at all.

    I would suspect that Pallante was
    against archiving this site.

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

  • icon
    Mike Masnick (profile), 25 Oct 2016 @ 11:58am

    Update

    I've updated the post with a link to Pallante's resignation letter, saying she will not accept the new "assignment."

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

  • identicon
    Julian Lives, 25 Oct 2016 @ 12:24pm

    So much bullshit on this, so little time

    This is my opinion, and this plus a buck fifty gets you a cup of coffee, is that Hayden pushed Pallante out because 1) Pallante is on record saying that the Copyright Office should be out of the jurisdiction of the Librarian of Congress, and 2)now that we have Hayden, a new Librarian of Congress, who seems like a reformer and wants to set policy, and that just isn't possible if you have a former Author's Guild lawyer who supported SOPA with some of the most fantastic gobbledygook ever uttered about tech.

    In other words, what happened here is probably exactly what it looks like: a new policy is coming in from the new LoC, and Pallante, who was always talking to the House Judiciary about copyright reform...but usually in favor of lobbyist interests in an institution that Public Knowledge says is one of the crassest examples of regulatory capture imaginable...is just a casualty of out with the old, in with the new.

    I am really enjoying the salty tears of the some of the industry scumbags, like Creative Future. They remind me of Dudley from Harry Potter: they've had their way on nearly every single piece of copyright legislation in the past 30 years (which is nearly always, until recently, ratcheted in a single direction, toward more protection and expansion for lobbyist industries). Now they've lost this one thing, this one little thing, so they're losing their minds. And best of all, this is a harbinger for some bigger policy changes at the LoC. The fact the MPAA's loyal pet in congress, Bob Goodlatte, sent congratulations to her is the surest sign she was kind of terrible...although like Mike said, she is nowhere near the worst person working at the CO.

    There has been so much BS written, though, from panicky maximalists about this. My favorite is by my old buddy maximalist Robert Levine for Billboard (shit, does Billboard still exist?) who had this one smarmy little dig in his analysis (paraphrasing): "the Copyright Office is under the Librarian of Congress for historical reasons." Ooooh, sick burn. Actually, the reason the CO is under the Librarian of Congress is because copyright policy *should* be set by a librarian, and toward public interest.

    The dumbest thing of all has been from the bedwetters at the Trichordist, who see Google under their beds at night. David Lowery blames Google if he stubs his toe in the dark. Trichordist said that this firing is some kind of power move by Google in the Obama administration, because Hillary isn't quite as maximalist-IP friendly as Obama. This is dumb for one big reason: the LoC is one of the few agencies under the administrative control of Congress, not the presidency, so a presidential election, and a Hillary presidency, shouldn't change anything, since she's not their boss.

    Oh, and the cherry on the sundae here is that a panicky video was passed around by lobbyist old phogeys entitled "Who Fired Maria Pallante?" (Answer: the Librarian of Congress. Duh.) The video is hilarious, it said that it's illegal to fire Pallante because she "just got there." Pallante's been working at the CO for six years! She was there for SOPA, guys.

    Mmmm, cry harder, babies. Cry harder!

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

    • identicon
      Anonymous Coward, 25 Oct 2016 @ 4:55pm

      Re: So much bullshit on this, so little time

      It's funny that every time these chucklefucks kick up a big, emotional-appealy fuss about things, they work under the assumption that nobody's going to fact-check.

      In truth everyone fact-checks them because we know that they're not going to.

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

  • identicon
    Anonymous Coward, 25 Oct 2016 @ 1:03pm

    >Wait just a second here. How the hell can the RIAA/MPAA's of the world claim that they represent "the creative community"?

    They do so on the same principle that allowed kings and emperors to claim that they built cities etc.; they think nothing happens until they will it.

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

  • identicon
    Anonymous Coward, 25 Oct 2016 @ 4:57pm

    http://www.abajournal.com/mobile/article/aba_official_criticized_but_didnt_ban_report_calling_trump_ a_libel_bully_sp

    ABA posted a response:
    ABA official expressed concern but didn’t ban report calling Trump ‘a libel bully,’ spokeswoman says
    By Debra Cassens Weiss
    Oct 25, 2016, 01:48 pm CDT
    ABA
    But the report was never published by the forum, the New York Times reports. The Times article by Adam Liptak says the ABA refused to publish the report because of a fear of being sued, but that’s “absolutely incorrect,” according to Carol Stevens, the ABA’s associate executive director for communications and media relations. The ABA released a statement to this effect Tuesday afternoon.

    Association policy prevents ABA officials from banning an association entity from publishing an article, Stevens tells the ABA Journal. ABA deputy executive director James Dimos did express concerns in an email about the use of partisan language in the report, especially during election season, Stevens said. And he did suggest (but did not require) minor changes, she said. (The ABA Journal is itself editorially independent, though Dimos has an oversight role.)

    “I would ask that you please give consideration to our suggested changes,” Dimos wrote. “I think that they do no harm to the article while addressing the legitimately held views of ABA staff who are charged with managing the reputational and financial risk to the association.”

    The author of the report, First Amendment lawyer Susan Seager, withdrew the article hours after Dimos sent the email, Stevens says.

    Seager tells the ABA Journal she did withdraw the article. “My feeling was that this wasn’t a suggested edit at all, but this is what they wanted me to do,” she said. Seager says she wasn’t involved in the discussions with association officials, but said there had been “heated” discussions over the article for days, and she interpreted the email as a message that the battle over the edits had been lost.

    George Freeman, the executive director of the Media Law Resource Center, is a former chair of the forum and a member of its advisory board. He says he was involved in a conference call in which the ABA administration expressed concerns several days before the Dimos email. He says the ABA edits were “significant” and had removed “anything of humor or a caustic nature.”

    In light of Dimos’ email, it was “a fair assumption” that the article would not be published without most or all of the edits, Freeman says. Asked if the forum could have published the article without the changes, Freeman said ABA staffers publish the newsletter, so Seager’s story wouldn’t have been published. “Since the ABA has their hands on the typewriter, so to speak,” he said, “they get the ultimate call.”

    Dimos’ suggestions included cutting the first paragraph of Seager’s report. “Donald J. Trump is a libel bully,” the report begins. “Like most bullies, he’s also a loser, to borrow from Trump’s vocabulary.” The report has been published by the Media Law Resource Center under Seager’s name.

    Out of seven cases filed by Trump, the report said, four were dismissed on the merits, two were voluntarily withdrawn, and one was a default win in an arbitration in which a former Miss Pennsylvania failed to appear.

    In the email provided to the ABA Journal, Dimos raises concerns about the article’s “tone.”

    “Name-calling and questioning Mr. Trump’s mental capacity is neither civil nor the type of rhetorical device that meets the forum’s professed standards of publishing scholarly articles,” he writes.

    “Such language transforms a legitimate scholarly article into a partisan attack. The American Bar Association is a nonpartisan voluntary membership association. Our members’ beliefs and affiliations reflect that whole political spectrum. The publishing of a partisan attack piece in the midst of a highly charged election season will certainly create the perception that the ABA is aligning with one political party against the other and will hurt our credibility with members.”

    The email also raises the possibility of a Trump lawsuit. ABA officials don’t believe a Trump lawsuit would have merit, the email says, but it would be reasonable to reduce the likelihood of a suit “by removing inflammatory language that is unnecessary to further the article’s thesis.” The full email is at the end of this story.

    The suggested edits include a change to the original title of the report, which was “Donald J. Trump Is a Libel Bully but Also a Libel Loser.” The ABA suggested changing it to read “Presidential Election Demonstrates Need for Anti-Slapp Laws.” The reference was to Strategic Lawsuits Against Public Participation laws that allow early dismissal of libel suits and recovery of the defendant’s legal fees.

    The Times spoke with Freeman and two other former chairs of the ABA Forum on Communications Law who criticized the ABA for its actions. “As the guardian of the values of our legal system,” Freeman told the Times, “the ABA should not stop the publication of an article that criticizes people for bringing lawsuits not to win them but to economically squeeze their opponents.”

    Former chair David Bodney said the country’s best media lawyers were willing to defend the association for free if Trump had filed suit.

    Seager, the report author, says the ABA reaction proves her point in the report. “My takeaway is that his threats and frivolous lawsuits worked in this case, at least for a couple hours, in that an article was going to be watered down for fear of being sued by Donald Trump,” she tells the ABA Journal.

    Here is the full email from Dimos, sent to an editorial board member with the forum:

    “Questions regarding the article ‘Donald J. Trump is a Libel Bully but also a Libel Loser’ have been raised by members of the association staff. It is my understanding that a call was held last Friday with staff and members of the forum to discuss these questions. I am writing to follow up on that call.

    “In my role as Deputy Executive Director, I am responsible for the sections, divisions, and forums as well as the association as a whole. Prior to joining ABA staff last year, I was in private practice for almost 30 years where my practice included representing the media. I am quite familiar with the forum’s work and the substantive law addressed in the article. I was a member of the forum and served as its liaison to the ABA Board of Governors when I was on the ABA’s Board. In my role as the forum’s board liaison, I assisted the forum in having the ABA House of Delegates adopt policy urging more states to enact anti-SLAPP statutes. On the substantive law, I am one of the few lawyers who have successfully used Indiana’s anti-SLAPP statute to prevail in a defamation and tortious interference lawsuit.

    “I have reviewed the article and I believe it raises many good points regarding the need for more anti-SLAPP legislation. Further, I think it is certainly appropriate to use Mr. Trump’s litigation history as the example for why anti-SLAPP legislation is necessary. However, I have concerns about the tone used in in some portions of the article as well as speculation regarding Mr. Trump’s state of mind. These concerns are shared by our General Counsel Office, Government Affairs Office, Communications and Media Relations Office, and Professional Services staff. In order to facilitate sharing those concerns, I have attached a ‘redline’ version showing my suggestions for modest changes to address them along with a clean version incorporating them. We also picked up some typos as well.

    “In essence, the concerns center on the ad hominem arguments made in the article. In reading it, I was reminded of what the Forum’s Immediate Past Chair David Bodney said in his ‘From the Chair’ article in the Winter 2016 edition of Communications Lawyer: “Whatever our politics, however we vote, media lawyers have a special duty to speak out, civilly, against steps to punish the media on trumped up charges, here and abroad.” (emphasis added). Name calling and questioning Mr. Trump’s mental capacity is neither civil nor the type of rhetorical device that meets the forum’s professed standards of publishing scholarly articles.

    “In addition, such language transforms a legitimate scholarly article into a partisan attack. The American Bar Association is a nonpartisan voluntary membership association. Our members’ beliefs and affiliations reflect that whole political spectrum. The publishing of a partisan attack piece in the midst of a highly charged election season will certainly create the perception that the ABA is aligning with one political party against the other and will hurt our credibility with members. The inclusion of the disclaimer required by policy will not serve to diminish that perception or impact. The ABA’s nonpartisan stance serves the organizational mission well in many respects, and is particularly effective in enabling us to maintain good governmental relations efforts going forward and to gain access to members of Congress—including lobbying on issues such as the adoption of a federal anti-SLAPP statute.

    “Finally, the gratuitous use of the ad hominem attacks will increase the risk of the ABA being sued by Mr. Trump. The article itself proves this point. While we do not believe that such a lawsuit has merit, it is certainly reasonable to attempt to reduce such a likelihood by removing inflammatory language that is unnecessary to further the article’s thesis. Honestly, it is the same advice members of the forum would provide to their own clients.

    “I would ask that you please give consideration to our suggested changes. I think that they do no harm to the article while addressing the legitimately held views of ABA staff who are charged with managing the reputational and financial risk to the Association. I would be happy to discuss this with you further.

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

  • identicon
    Thad, 25 Oct 2016 @ 5:19pm

    Ah yes, those paragons of the creative community, the MPAA and RIAA.

    Harry Shearer's so happy with how they treat creators that he's suing Universal for $125M for nonpayment of royalties.

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

  • identicon
    Anonymous Coward, 25 Oct 2016 @ 10:44pm

    Her resignation letter was extra salty. Hopefully this is a sign of positive change.

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

  • icon
    Gene Cavanaugh (profile), 26 Oct 2016 @ 10:05am

    Copyright Register?

    I think you mean "Registrar".

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

  • icon
    Gene Cavanaugh (profile), 26 Oct 2016 @ 10:05am

    Copyright Register?

    I think you mean "Registrar".

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


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