Congress has a bad habit. They have stopped passing substantive legislation through normal procedure, debate and votes. The legislative process as designed by our Founders is not happening. Instead, Congress is saving most of its actual policy-making legislation for large end-of-the-year bills that can combine hundreds of separate pieces of legislation. And if reports are accurate, we could be shaping up for the granddaddy of them all this December. This process must change, particularly for bills as highly controversial and constitutionally concerning as the misleadingly named Journalism Competition and Preservation Act (JCPA).

The inclusion of controversial and poorly vetted legislation in these mega legislative packages is nothing new. In 2020 as lawmakers rushed off to their winter holidays, Congress included language in must-pass COVID relief that made unauthorized commercial streaming a felony that could lead to ten years in jail. Another controversial and likely unconstitutional small claims copyright tribunal was created at the same time, resulting in a colossal waste of time, money and resources. The CASE Act had only one hearing that had no witnesses from outside industry before inclusion in must-pass lame duck legislation. 

This is a terrible way to make sound public policy. 

This year, the Journalism Competition and Preservation Act (JCPA), is taking the lead as one of the most troubling riders being considered for the end of this Congress. This legislation uses antitrust law to circumvent constitutional guardrails for freedom of speech within copyright law, will boost the hedge funds and big media corporations already hurting local news, and would force Internet platforms to carry and pay for even the most extreme and false content coming out of “news” organizations. 

Despite an outpouring of opposition from twenty diverse organizations – ranging from small publishers, civil society groups, and copyright law experts – and significant concerns raised by bipartisan Senators at the markup, there has not been sufficient public discussion of the harmful, reverberating impacts the JCPA would have on local news and the online information landscape. Flouting legislative debate and regular order is bad enough. It’s even worse when prospective legislation like the JCPA violates the Constitution and is poised to overhaul how consumers access information online.

Since massive media conglomerates like Gannett and Alden Global Capital stand to reap a financial windfall if it passes, it’s no surprise that the JCPA was drafted in conjunction with these conglomerates’ lobbyists behind closed doors. This insular process resulted in the bill’s language only being shared the day before a Senate markup and many Senate Judiciary members also raised serious concerns about the JCPA’s constitutionality and its intentional beneficiaries: massive media conglomerates.
Additionally, the process purposely turned a blind eye and ignored the many more structural problems facing local news. An FTC discussion draft on the issues facing local journalism found that the approach being taken by the JCPA is ill-advised.

So far, the legislative process surrounding the JCPA has been opaque. What is clear, however, is that massive media conglomerates’ fingerprints are all over it. Despite the best efforts of hedge funds and umbrella corporations like Gannett and Alden Global Capital to force this through Congress, there are numerous policymakers willing to acknowledge the JCPA’s expansive unintended impacts. Now, it’s time for Congress as a whole to recognize that legislation as controversial and constitutionally concerning as the JCPA deserves careful consideration on its own. If the JPCA cannot stand on its merits alone, then Congress should not include it as a rider on end-of-year legislation.

Josh Lamel is the Executive Director of the Re:Create Coalition.

Facebook whistleblower Frances Haugen may not have mentioned copyright in her Congressional testimony or television interviews, but her focus on artificial intelligence (“AI”) and content moderation have a lot of implications for online copyright issues. 

For the last decade, Hollywood, the music industry and others have been pushing for more technical solutions for online copyright infringement. One of the biggest asks is for Internet companies to “nerd harder” and figure out algorithms that can identify and remove infringing content. They claim content filters are the solution, and they want the law to force that onto companies.

And they have been successful in parts of the world so far. For example, the recent European Union Copyright Directive placed a filtering mandate on internet platforms. Hollywood and the record labels are pushing the U.S. to follow suit and make platforms liable for copyright infringement by users. They want NIST to develop standards for filtering software, and they are using the power of Congress and the U.S. Copyright Office to push for legislation and/or voluntary agreements to create more filters. 

There is one huge problem with all of this: the technology does not exist to do this accurately. What the Facebook whistleblower made clear is that even the most sophisticated AI-based algorithms cannot accurately moderate content. They make tons of mistakes. Haugen even suggested that a huge part of the challenge is the belief that “nerding harder” will work. She blamed Facebook’s mantra to solve problems through technology as the main reason they are struggling with content moderation. 

Copyright presents a unique context challenge to algorithms. It’s not easy to automatically determine what is copyright infringement and what is not. Even under today’s existing systems, about a third of takedown requests are potentially problematic, requiring further analysis. Most of these erroneous takedowns are done by algorithms. This analysis can be extremely complicated even for the American judicial system – so much so that the Supreme Court recently had to clarify how to apply the four-part fair use test. In court, each fair use case gets a very individual, fact-based analysis. Current AI-based algorithms are not close to being able to do the needed analysis to determine copyright infringement in fair use cases. 

So why is there a big push from Hollywood, the movie industry and others on this? They are smart enough to know that algorithmic solutions are not close and may never be able to handle filtering for infringement accurately. 

The reason is they do not want filtering technologies to be accurate. They want filtering technologies to over-correct and take anything that might be infringing off the internet. Congress cannot directly legislate such an overcorrection, because it is a clear violation of the First Amendment. But they might be able to introduce legislation that creates a de facto mandatory filtering requirement. Mandatory filtering legislation imposed via changing the Digital Millennium Copyright Act Section 512’s platform liability regime would lead companies to “voluntarily” implement over-correcting filtering solutions — or otherwise face a constant barrage of losing lawsuits and legal bills for any and all alleged infringement by users. And this could create an end run around the first amendment if a court decided that the company was “voluntarily” implementing. 

At this point it is important to recognize the types of activity that we are talking about here: transformative works of creativity, pop-art, criticism and parody. This includes teens sharing lip sync TikToks and videos of your little kids dancing to a song. But fair use doesn’t apply to just the creative arts. It also includes collaborative efforts on an internet platform to develop cybersecurity solutions that require reverse engineering and allows teachers to share materials with students on online education platforms. Documentarians depend heavily on fair use, and efforts to distribute documentaries online would face stiff challenges. 

All of these important capabilities would be severely at risk if we forced filtering requirements onto internet platforms via threat of liability. If we let Hollywood and music industry elites and the Members of Congress who do their bidding get their way, the rest of America will lose out.

Josh Lamel is the Executive Director of the Re:Create Coalition. This article was originally posted to the Re:Create Coalition blog.

Mike has written many times on this website about various shenanigans at the Copyright Office. An obscure government agency to many, the Copyright Office actually has a huge influence over copyright policy and law, from Congress to the courts. With word that the appointment of a new Register of Copyrights is imminent, this is an opportunity to fix many of the challenges with the agency.

The Copyright Office was originally established as part of the Library of Congress to register works back when formal registration with the Office was required under Statute to receive copyright protection This registration requirement was created as a way to get a deposit copy for the Library of these works. The goal was to not only have copies for recordation purposes, but to create a vast library.

However, over the last 50 years, the role of the Copyright Office has greatly changed with the law. The formal registration requirement was ended, first requiring only that published works contain a copyright notice and then eventually expanding federal copyright protection to all works, published and unpublished, once they are fixed in a tangible form. Today registration with the Office is not required, but does provide certain statutory defined benefits. The Office was also given more and more copyright policy and law responsibilities. The result is that the Office has become much more of a policy and regulatory quasi-agency instead of its original role as part of a library and place to register works for federal copyright protection.

The Register of Copyrights runs the Copyright Office. This is an outdated title, as while you still can register works at the Office, the role of the Register is much more to provide policy and legal expertise to the rest of government on copyright, overseeing the DMCA 1201 triennial review, and additional to other important roles. This need means that the Office attracts many copyright attorneys and policy experts. Unfortunately, it has been a long time since the Register was not previously an attorney for traditional rights holders, and they often go back to work for traditional rightsholders after they leave government service. The last two heads are now the General Counsel of the Motion Picture Association and the head of the American Association of Publishers. A former Register was reportedly fired for not properly administering the basic functions of the office, gross negligence in the stewardship of taxpayer dollars and lying about this because all she cared about was fighting for traditional rightsholders via the policy side of the office consolidating power by separating the office from the Library. Most of the senior staff also move on to jobs representing traditional rightsholders (with just a few exceptions) after their time at the office.

The Copyright Office is seen by many as the lead on U.S. copyright policy, advising the government on everything from approaches to appellate court cases and trade agreement language to making suggestions on changes to Section 512 of the DMCA in its recent report. Based on another recommendation from the Office, members of Congress are trying to pass the CASE Act to hand over much of the judicial function in enforcing copyright law to the Office to be decided in quasi-judicial proceedings. This is especially bad because the Office’s 512 report was basically an attack on how the courts are getting DMCA wrong almost every time they decide against rightsholders. How can we trust the Office to follow what current law is based on these court decisions, when they have openly rejected these decisions?

The Copyright Office has seen itself as an advocate for traditional rightsholders for most of the last 50 years in its new and expanded policy and regulatory role. Former Register Maria Pallante made this point clear in testimony before the Senate Judiciary Intellectual Property Subcommittee:

I think the problem we have today in terms of imbalance that we might feel in the copyright statute is that we have gotten away from that equation that puts the authors as the primary beneficiaries, followed by the public good.

In other words, Pallante is saying, copyright needs to be unbalanced and focus on rightsholders needs. This is just wrong. The Constitution states clearly in enumerating what Congress can do that if it is to create copyright laws it is for this purpose:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

What Pallante missed is the framers wanted to ensure that the people’s legislature rather than the executive branch shall have the statutory power over copyright, and that this power is to give copyright for limited times to authors not to benefit authors, but rather to promote the progress of science and useful arts. They were rightfully concerned about the behavior of the British Crown and powerful Churches in Europe using copyright to give favor to preferred voices and hamper progress. At the same time, they wanted to encourage creative activities because it is in the public interest to do so. The public good should always be the most important thing – this is so obvious that anyone should realize this. The purpose of copyright should always be focused on promoting progress. When copyright gets in the way of progress, it is not serving the public good nor the grant of power to the legislative branch. Saying the purpose of copyright is to benefit authors above the public good of progress is an unbalanced, ahistorical, and extreme view.

One of the worst examples of how the Copyright Office has represented rightsholders and overreached, was its attack on the current Restatement of Copyright Law. Restatements of law have always been a common practice in helping to frame where the law currently is based on the decisions of the courts. Rightsholders are upset about this because they do not have influence over the restatement like they have influence over the Office and Congress. Amazingly, the problem is that public interest attorneys and copyright law professors are participating alongside rightsholder representatives and the Copyright Office. Only total control by people who have rightsholders worldview would make it a valid process.

In a normal world, the Copyright Office would not attack a Restatement, as it is not legally binding and is a private organization that has brought in top practitioners and scholars to interpret the law, especially for law students. I am still waiting for the Copyright Office to complain about Nimmer on Copyright, a treatise by a single private attorney that happens to not just be a scholar, but also represents rightsholders at a big Hollywood Law firm. It is frequently used to interpret copyright law by the Office, the courts and used in teaching, much like the restatement would be. The Copyright Office even held an event in 2013 celebrating Nimmer’s treatise. The big difference is Nimmer tends to take a rightsholder point of view in his treatise. Instead, the Office attacked the Restatement’s existence, wrongfully stating that only Congress makes copyright law, that Copyright is statutory in the U.S. when it is actually legally common law, denying the very basic Constitutional function of the courts in interpreting the law, and the right for a private organization to try and restate what the law is based on those decisions. The letter read like it was written by a content industry lobbyist, not a government “agency” looking out for what was in the public’s interest.

Despite this letter being sent by Register Karyn Temple, things did improve under her leadership. The Office actually welcomed and listened to stakeholders beyond rightsholders and hired some staff who have a more balanced view of copyright. The people working there are hardworking dedicated public servants trying to do their best. The aforementioned problematic 512 report would have been much worse under previous leadership, which famously endorsed SOPA-PIPA. It would likely have called for rightsholder-centric policies like notice-and-staydown, mandatory filtering and site blocking without due process, which the current Office thankfully rejected. These types of changes would have been declaring World War III on the ability of users to share any content of the Internet, far worse than even SOPA-PIPA.

But that is not enough. It is a sad statement that listening and making a couple of hires is a good first step, even though that has only occasionally led to tangible results. It is a sad statement that rejecting only the most extreme arguments made by traditional rightsholders is seen as an improvement from the days of the Office lobbying for SOPA-PIPA. The new Register needs to do more – they need to affirmatively support the role of fair use, the role of libraries and educational institutions, and understand how copyright law impacts the American public beyond rightsholders. We have watched during COVID as the Office did nothing to advocate for solutions to the problems copyright law was creating in the move to a digital-only world, including getting digital books into the hands of students, moving religious services online and allowing libraries to make their collections available while closed. Instead, they have solely focused on the challenges facing rightsholders.  

The impending announcement of a new Register of Copyrights provides a historic opportunity to rebalance priorities and truly recenter the American public as the Copyright Office’s primary constituency, which is supposed to be the basic role of government. The Librarian of Congress must not fall victim to the financial heft and lobbying pressure by rightsholders and their allies in Congress. It is time for the Copyright Office to fulfill its true purpose, to do what is in the public interest. That is what the Constitution guaranteed. Progress demands nothing less.

Joshua Lamel is the Executive Director of Re:Create. Re:Create is a copyright focused organization that fights for the rights of Internet users, including consumers and the new generation of Internet Creators.