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On March 23, Reps. Bob Goodlatte and John Conyers introduced a controversial bipartisan bill with over 100 years of history behind it, though you wouldn’t know it from its boring name and seemingly boring topic. It’s the Register of Copyrights Selection and Accountability Act of 2017; the key part makes the Register of Copyrights a position appointed by the President, and approved by the Senate. That’s in contrast to the current state of affairs, which has been in existence since the creation of the Copyright Office in 1897.
Right now, the Copyright Office is a part of the Library of Congress, and the head of the office — known as the Register of Copyrights — is appointed by the Librarian of Congress, who, in turn is appointed by the President, and approved by the Senate.
Who cares? Well, you should. This seemingly small change could have a big impact on a variety of different issues concerning how the internet functions. The simple version is that the music and movie industries have always had an uneasy relationship with the internet, and they worry that the Library of Congress might appoint a Register of Copyrights who thinks expanding copyright protections might not be the best thing for the public or individual creators. And one of the best ways to prevent that from happening is to have much more control over who will be in charge of the Copyright Office. The new bill gives the copyright industry the means to do that by lobbying the President and Congress directly.
The long version is fascinating glimpse at the collision of politics, the internet, and history.
Supporters of this bill (and there are many) argue that the location of the Copyright Office within the Library of Congress is merely an “accident of history,” brought about by the sixth Librarian of Congress, Ainsworth Rand Spofford, who wished to turn the dilapidated and often ignored Library of Congress into a world-class institution with a comprehensive collection of all American created works. Spofford realized that by housing the copyright registration function within the Library, it would mean that everyone wishing to obtain a copyright would have to send a deposit copy, and the Library’s collection would magically grow. The Copyright Act of 1870 made this arrangement the law.
But the synergies between the Library and the Copyright Office go way beyond being merely a way to trick people into building the Library. Managing copyrights — effectively a giant database of creative works — is very much a librarian-centric job. Librarians are custodians of information, helping to catalog and organize it while also helping people research and find what they’re looking for. The Copyright Office today, like many old libraries, is filled with card catalogs.
Indeed, the Copyright Office is woefully behind the times technologically. On this, pretty much everyone agrees. The previous Librarian of Congress, James H. Billington, a Reagan appointee, was known as a tremendous fundraiser for the Library for decades. What he was not, however, was technologically savvy. A surprisingly scathing report from the Government Accountability Office in 2015 directly called out the severe lack of technological knowhow within the Library, and blamed the current leadership.
A few months later — sooner than had previously been announced — Billington suddenly retired. When his retirement was announced people within the Library were openly gleeful to the press, despite Billington serving in the job for almost three decades. Rather than the usual platitudes and niceties, staffers were quoted saying things like “there is a general sense of relief, hope and renewal, all rolled into one feeling… Like a great weight has been lifted from our shoulders.” That’s not what you usually expect with a retirement announcement.
Copyright itself has become a much bigger, and more important issue in the past few decades — in large part thanks to the rise of the internet, and the conflicts that arose because of it. In 1978 the copyright law in the US changed to a mandatory system, whereby any new and creative work was given automatic copyright — whether you wanted it or not — for your life plus another 70 years. Prior to that, the system had been opt-in only, where you had to register and follow certain formalities to obtain a copyright, that could, at a maximum last 56 years.
This massive expansion of what creative works were covered by copyright only slightly predated the rise of the greatest tool for the creation of new content ever known: the internet. And the internet exists because of computers, which are basically giant copying machines. Every time a song or photo or video is sent across the internet, a copy is made. A copyright system built for a different time, but massively expanded, ran headlong into a world of connected, copying computers, and a lot of lawyers have made a lot of money trying to adapt our copyright law to a culture-defining copying system.
These clashes have resulted in various attempts to change or adjust the laws — most famously including the Digital Millennium Copyright Act (DMCA) in 1998 or the attempt at the Stop Online Piracy Act (SOPA) in 2011, but there have been many other adjustments along the way. There’s obviously an uneasy fit between copyright and the internet.
Take, for example, the now ubiquitous concept of the search engine. The internet would be a vastly different place without search engines. But, there was a time when it was not entirely clear if search engines were actually legal, or if they were just massive copyright infringers. After all, in the process of building a search engine, you’re not only scanning every page you can find, but copying it and storing it to build your index. It really wasn’t until nearly a decade ago after a few court cases that people began to feel comfortable (in the US, at least) that a search engine wasn’t directly infringing on copyrights.
Law professor John Tehranian wrote an entire book, Infringement Nation, highlighting how nearly everything we do on the internet could be considered copyright infringement. Every email you read involves copying something onto your computer. Every website you open is copying a file from a server. In many cases you may have explicit permission to do so, and in other cases it’s likely fair use, but just the fact that it’s not always the case, creates trouble.
And over the years, trouble has come in the form of many, many lawsuits, each and every time a new technology comes along, with legacy players insisting that these new technologies must be illegal. This happened pre-internet, certainly, as there were lawsuits over player pianos, radio, cable TV, the VCR and more. But as we reached the internet age, things accelerated. People remember lawsuits against Napster and Grokster about sharing music, but the past decade is littered with corpses of services sued out of existence: ReplayTV, Aimster, ivi, Aereo, Veoh, Mp3.com, reDigi, Mercora. Others survived, but still had to go through grueling, expensive years-long legal battles — YouTube is probably the best example.
The copyright questions raised by the internet are existential. When you “buy” music from iTunes, is that a sale, or a license? It should be a simple question, but it’s not —even the record labels themselves contradict themselves. If you tried to resell a song file you bought from iTunes — the now-dead reDigi platform was designed for this exact purpose — the labels would forbid it, because they say you merely licensed the music. But when Eminem went to Universal Music and pointed out that his contract said he gets 50 percent of all licensing, the label disagreed, saying that iTunes purchases were “sales,” for which he only received a 15 percent royalty.
The internet is an astoundingly great tool for distributing content. But it does that by copying content, and often stripping out the need for gatekeeper middlemen. And that certainly upset a number of industries whose entire business model was about playing the role of the gatekeeper, and extracting massive sums of money while determine who was allowed through. The internet made at least some of that obsolete, but in a way that just didn’t easily match up with copyright.
And the Copyright Office, historically, has not welcomed of the rise of the internet. Much of the leadership of the Copyright Office over the past few decades has come out of legacy industries — publishing, recorded music, movies — that had viewed copyright as a tool to serve a few big industries. The office has been accused of systemic bias from the revolving door of industry executives and lawyers going into the Office, or leaving the Office to go back to those same industries.
And, over the past few decades, the Copyright Office has continued to expand its own role, beyond just registering and managing copyrights, to getting deeply involved in various policy debates around copyright. For example, the last Register, Maria Pallante, testified to Congress in support of SOPA while another, previous Register, Ralph Oman, literally argued to an appeals court that no new content delivery technologies should be allowed without first being approved by Congress if they might, in any way, upset the copyright industries.
The industry has been allowed, almost entirely unopposed, to expand copyright law again, and again, and again. The first copyright law in the US offered copyright terms of 14 years after an application, with a 14 year renewal period. That expanded to 28 years, plus a 28 year renewal, until the Copyright Act of 1976, where we both switched to automatic copyright registration on every new creative work, but also made the term life plus 50 years. And when that term of copyright threatened to expire and move Mickey Mouse into the public domain, Congress rushed to Disney’s rescue in 1998, and added another 20 years to make the term life plus 70 years. And it may do so again soon.
This effort by the Copyright Office to both insert itself more directly into copyright policy, while religiously supporting a particular viewpoint, certainly rankled some within the Library of Congress, who saw their own mission — and the mission of copyright law — to be more about creating greater access to knowledge and education. The preamble to the copyright clause of the Constitution says that the intent of copyright law is to “Promote the progress of science and useful arts.” Letting content fall into the public domain so that it may be used, reused, and remixed freely is part of progress, they argue.
This internal conflict was mostly kept at bay when Billington was acting as something of an absentee landlord for the Copyright Office, but the Office started agitating for more independence during this time, with the strong support of the legacy movie, recording, and publishing industries.
Last year, President Obama appointed a new Librarian of Congress, Carla Hayden, who, unlike Billington, had an impeccable track record as an actual librarian — she was previously CEO of the massive Enoch Pratt Free Library in Baltimore and led an impressive modernization effort. This appointment led to fears from legacy industry players, who literally argued that the Library of Congress did not need another librarian.
Soon after her approval by the Senate, Hayden surprised many by effectively firing the Register of Copyrights, Maria Pallante. While it has never been officially stated, the consensus view was that Hayden and Pallante likely clashed over Pallante’s very public advocacy to Congress to remove the Copyright Office from the Library of Congress and set it up as an independent agency. From Hayden’s standpoint, this would be a direct report going over her head to say she didn’t want Hayden to be her boss any more. It’s not difficult to see how that might lead to being fired.
Still, historically, the Librarian of Congress had let Copyright Registers stay as long as they wished, and this sudden removal resulted in an opening for the motion picture and recording industries to lobby Congress to do what Pallante had pushed for anyway: to separate the Copyright Office from the Library.
And that brings us to Goodlatte’s bill. It would effectively remove the Copyright Office from the Library and remove the public interest mission of the Library as a counterbalancing force on the Copyright Office and its recent one-sided focus on the law. The copyright-centric industries —who have always had an uneasy relationship with the internet — recognize one of the best ways to protect their interests is to have much more control over who will be in charge of the Copyright Office. The new bill gives the copyright industry the means to do that. However, it also puts the appointment in the hands of Donald Trump, who so far, has failed to appoint people to hundreds of open positions — meaning that the Copyright Office may remain vacant for quite some time.
The MPAA and RIAA have tried to argue that by making the new Register of Copyright an office approved by the Senate, that will make it more democratic, where anyone can weigh in on the appointment and influence the Senate’s confirmation process. That would be great for the MPAA and RIAA and their historic lobbying power over Congress, which is massive.
Keeping the Copyright Office within the Library of Congress not only keeps the Copyright Office from having political appointee as its leader, but enables the true role of the Library of Congress as an institution aggregating and disseminating knowledge and information. Hayden — in her short time in office — already has put in place plans to modernize much of the Copyright Office, and passing this bill would actually mess up that schedule and throw the plans into chaos. The Copyright Office would be back to zero in terms of modernization, with no timetable for a new Register to be appointed. And making the Copyright Office political would simply accelerate its unfortunate drift towards impulsively representing the interests of certain industries, instead of recognizing the complicated and nuanced impact of copyright in the internet age.
Mike Masnick is the founder and editor of Techdirt.com, a blog on technology, innovation, economics and policy, and also the CEO of the Copia Institute, a new think tank focused on innovation in the age of the internet.
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