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A Major Loss for Creators in the Copyright War

Pallante
USA, Washington, DC. The Jefferson Building of the Library of Congress as seen from the top of the U.S. Capitol Building. Photo by Chris Reed

Unbeknownst to many, there has been something of a war going on to determine the future of copyright law in the U.S.  On one side, there are corporate, largely Silicon Valley-based interests, most notably Google, who wish to loosen copyright laws so that they can have access to content that is either unavailable or requires costly fees.  On the other side are the creators, the companies that support them – the content industry – and their advocates who want to maintain, or even strengthen copyright laws giving creators control over their works and payment for their use. Last week, in what has been characterized as a blow to creator advocates, the new Librarian of Congress, Dr. Carla Hayden, announced that Register of Copyrights and Director of the United States Copyright Office, Maria Pallante, had been removed from her position.  Pallante has been a fierce supporter of creator’s rights.  While many believe her removal was orchestrated by Google, others see Pallante’s removal as nothing more than a turf war between a new boss and her subordinate, each with different ideas about the future for the Copyright Office.

The idea that powerful companies, such as Google, could have such influence over the future of copyright is disturbing, however, much of the evidence is circumstantial.  Let’s take a look at the situation from both sides so that you can judge for yourselves.

What is the Register of Copyrights?

Before we look at the events and policy decisions surrounding Pallante’s removal, we first need to understand the Register of Copyrights place in government and the power the position has in formulating or implementing copyright laws.  The United States Copyright Office is part of the Library of Congress, but unlike the other major government agency responsible for intellectual property, the United States Patent and Trademark Office, the Copyright Office is not a federal agency, but merely a department within the Library. The department head is the Register (formerly Pallante, now Karyn Temple Claggett, on an interim basis) who directs the Copyright Office under the general oversight of the Librarian (Hayden).

The Copyright Office is responsible for administering a complex and dynamic set of laws, which include maintaining copyright registrations, recording ownership and licenses along with many other services delineated in the Copyright Act and the Digital Millennium Copyright Act (DMCA). The Register of Copyrights “is the principal advisor to Congress on national and international copyright matters, testifying upon request and providing ongoing leadership and impartial expertise on copyright law and policy.” (see http://www.copyright.gov/about/) The Register does not make laws or regulations (as many federal agencies do).  However, as the leading expert on copyright law, the Register of Copyrights has influence with Congress as they make copyright law as well as with the Courts who interpret those laws.

Maria Pallante’s Policy Positions as Register of Copyrights

Unlike her predecessors, Pallante had been actively advocating for a much stronger Copyright Office.  In a 2014 lecture, The Next Generation Copyright Office: What It Means and Why It Matters, Pallante outlined changes she wished to see for the future Copyright Office.  First, she felt that the Office was understaffed and needed an internal reorganization to address under-resourced areas.  She also proposed changing the ways in which the Copyright Office examines creative works, secures deposit materials, and registers claims to copyright. Most importantly, she wanted to improve the Office’s technology platform to make copyright registration easier and more efficient.  After all, it doesn’t make sense that eCO, the online registration and search system, does not include images of registered visual art, for example.

Pallante
USA, Washington, D.C. The main reading room of the Library of Congress.

On the surface that seems like it would be great for Hayden, having a stronger department within the Library.  However, Pallante also advocated for increasing the Copyright Office’s independence. The Copyright Office and the Library are, in some ways, at odds in the fundamental core of their mission: the Library wants works to be as accessible as possible to everyone while the Copyright Office typically advocates for strong copyright laws that permit copyright owners to decide how and where their works are distributed.

Pallante made it clear that as the Copyright Office evolves and matures, the degree to which its systems should continue to be intertwined with and managed through the Library’s technology enterprises should be questioned.  She also advocated for more flexibility in the agency’s spending authority.  The icing on the cake, however, was her suggestion that the agency be made into an independent agency, like the FCC, outside of the Library of Congress.  She even went as far as writing a letter to John Conyers, the Ranking Member of the House Judiciary Committee, regarding Copyright Office becoming and independent agency.  From a turf war perspective on Pallante’s firing, it is highly unlikely that Hayden would favor an important department like the Copyright Office being taken from her.  Indeed, in her memo “reassigning” Pallante, Dr. Hayden explains that she “does not anticipate that [the new assignment] will require any communications with Members of Congress or congressional staff” – an awkwardly placed admonition suggesting that Dr. Hayden’s move was little more than a petulant power play.

That being said, the circumstances under which she was removed as well as Pallante’s opposition to some important Google initiatives have caused many to blame Google for her departure.

Was Google Instrumental in Firing Pallante?

This year, Pallante weighed in against two Google-backed initiatives that also had heavy support among other technology companies: The first initiative was an FCC plan to open the cable set-top box market. The FCC wanted to spur competition among cable companies by requiring them to share all their video and programming data with third party set-top-box manufacturers.  The proposed rules would require pay-TV providers to build apps for alternative platforms like Roku, Apple iOS, Windows, and Android.  You can see why this would be so appealing to companies like Google, however, copyright owners asserted that the proposal would also infringe their copyrights, by essentially circumventing the license agreements that programmers enter into with the cable companies and other distributors.

The second initiative has become known as “100% licensing,” which would require the two dominant performance rights societies in the music industry – ASCAP and BMI –  to license works even if they only controlled a fractional share of the work. Unlike in visual arts where copyrights are usually owned by a single party, in the music industry there are very often multiple owners of a musical work. Essentially, one writing partner would have 100% control over the licensing of a song, without requiring the other copyright holder’s permission, although there would be an obligation to properly share the licensing revenues.  The Copyright Office took the position that this interpretation also contradicts the Copyright Act, while many tech-sector companies welcomed the approach, since it would permit them to secure a license from only one performance rights society.

Pallante expressed her staunch opposition to these plans, noting, with respect to the FCC proposal, that “[i]t is important to remember that only Congress, through the exercise of its power under Copyright Clause, and not the FCC or any other agency, has the constitutional authority to create exceptions and limitations in copyright law.” So, it’s not far-fetched to see Google, and others in the tech sector, wanting to remove Pallante and then using its influence in Washington to see it happen, especially given the circumstances of her departure.

Pallante’s Removal

According to various reports, Pallante arrived at her office believing that she was still the Register of Copyrights only to find that she was locked out of her computer. Only then was she told that she was being “reassigned,” to Senior Adviser for Digital Strategy, which would appear to be a demotion. Pallante was totally blindsided. She refused the job and “resigned,” although resigning is merely semantics. A forced resignation is, for all intents and purposes, a firing.  Her sudden removal shocked many, especially given that Hayden had only been the Librarian for two months.

Pallante
USA, Washington , DC. The Library of Congress and the Canon House Office Building on Capitol Hill as seen from the top of the U.S. Capitol.

Chris Castle of Artsrightswatch.com believes wholeheartedly that Google was the culprit writing: ”Make no mistake, this is Google flexing its considerable pay-to-play muscle. The timing is predictable – Google fires Pallante days before a general election, in the waning days of the Obama Administration.”

In fact, Hayden is not just an appointee of Obama but a long-time friend having met years ago while at the University of Chicago. And it’s no secret that Google has strong ties to the Obama administration with lobbyists regularly visiting the White House. Google spends more on lobbying than any other company. During the first quarter of 2015, Google spent $5.4 million lobbying the federal government, according to the data by the government transparency group MapLight, and many of its lobbyists end up at the White House.  According to The Intercept, between January 2009 and October 2015, Google staffers lobbied at the White House on 427 separate occasions. It’s no wonder that a record number of Google lobbyists, 150 since 2013, have transitioned between government positions and Google employment.

For an administration with ties to a company that fiercely advocates looser copyright laws, appointing Hayden was an obvious choice. She previously served as president of the American Library Association, a professional organization that advocates on behalf of the library community, typically arguing for greater public access to creative works, sometimes as the expense of creators.

However, nobody expected Hayden to fire a longstanding and well-respected Register so suddenly.  Why such a sudden firing?  Let’s assume that Google was the instigator and had the influence and power to remove Pallante. After the FCC 100% licensing mandate was rejected, with respect to BMI, in federal court this past September, and after Congress asked the Copyright Office to get involved in the set-top-box matter, one of Google’s principal surrogates, Public Knowledge, had been clamoring for Pallante’s head, blaming her for siding with the content industry over tech.  Timing is everything, though.  Removing Register Pallante could only be done with cover from the White House, and that would become an increasingly difficult position for the Obama administration after the election when Obama becomes a “lame duck.”  The result was Pallante’s head on a platter before the opportunity was lost.

________

Whether you believe that her firing was Google inspired or you believe it is merely the result of a turf war, the outcome is the same. According to David Lowery of the Trichordist blog, “Pallante was the only one standing between Google and what is left of the copyright system.” Marybeth Peters, Pallante’s predecessor as Register agrees, saying that “[p]eople I know who care about copyright are very disturbed. . . Nothing like this has ever happened there before.”

It remains to be seen who will replace Pallante. If many believe that Google exerted its influence to make it happen, there may be a backlash. Some members of Congress have already suggested that they are unhappy with Pallante’s dismissal. Congressman Bob Goodlatte (R-Va.) and John Conyers, Jr. (D-Mich.), Chairman and Ranking Member, respectively, of the House Judiciary Committee, the group responsible for copyright issues, stated that Pallante’s departure is “a tremendous loss for the Copyright Office and for America’s creators, innovators, and users of copyrighted works.”  Additionally, in a carefully worded statement, Copyright Alliance CEO Keith Kupferschmid, offered his group’s assistance, noting, “we are committed to assisting the new Librarian and the Chairman and Ranking Members of the House and Senate Judiciary Committees with this important process, and view it as an excellent opportunity to continue the dialogue on the future of the U.S. Copyright Office.”  That kind of pressure may change the selection process to a more pro-creator Register of Copyrights.  So to all the creators worried about the future of copyright, it’s not over yet but it’s up to you to make your voice heard.  On the other hand, for those who side with technology and loosening copyright restrictions, this is clearly a win but don’t count your chickens just yet.  This particular battle may be over, but it appears that the war is only just beginning.

What do you think, Google or turf war?  Let us know in the comment section below.  

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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