A bill that would give Donald Trump the power to appoint the next Register of Copyrights passed swiftly out of committee last week, but a recently released report from the Library of Congress Inspector General's Office (IG) could knock it off the fast track.
The internal report (dated February, 2017) detailed mismanagement at the Copyright Office and suggested that former Copyright Office executives may have even misled Congress. The report, which was not intended for public release, was first shared on the web site Techdirt on Monday.
Specifically, the IG report examined three projects, including an electronic licensing project at the Copyright Office dubbed “eLi.” Launched in 2010 with a $1.1 million budget, costs ballooned to $11.6 million before eLi was scrapped in October of 2016. The Inspector General's office concluded that Copyright Office executives mismanaged the project, and that their failure to accurately disclose the project’s lack of progress and cost overruns denied Congress and Library executives the chance "to timely act on and address” problems with the program.
From 2011 to 2016, the Copyright Office was led by Maria Pallante, who in January was named President and CEO of the Association of American Publishers (AAP).
A spokesperson for the AAP told PW that Pallante was not interviewed for the IG report, and only became aware of its conclusions "when everyone else did," after it was released this week.
Meanwhile, a subsequent report from Techdirt on Wednesday called out Pallante for allegedly submitting a "fake $25 million budget line item" in her initial FY18 appropriations request, as a placeholder—an allegation made by Rep. Zoe Lofgren (D-CA) during the bill's March 29 markup.
The AAP spokesperson said Pallante "knows of no basis for the false allegation pertaining to budget numbers put forth from the Copyright Office."
The report's public release puts Pallante's name back in the news, some six months after Librarian of Congress Carla Hayden made headlines by abruptly removing her as Register of Copyrights. And the release complicates the rushed legislative attempt now underway to block Hayden from appointing a permanent successor to Pallante at the Copyright Office. Karyn Temple Claggett is currently leading the Copyright Office on an interim basis.
On March 29, the Register of Copyrights Selection and Accountability Act (H.R. 1695) quickly passed out of the House Judiciary Committee by a 27-1, bipartisan vote, less than a week after it was introduced. And while the IG report wasn’t publicly available until Techdirt released it on Monday, it did come up during the bill's March 29 Judiciary Committee markup, and was entered into the public record after Lofgren referenced it.
At the markup, Lofgren, who opposes the bill, urged committee members to review the report, which she called “not a pretty picture.”
Although it is not known how many committee members had seen or even knew about the report before voting to move the bill—which deals specifically with the Copyright Office's top management—a source on the Hill confirmed for PW that the committee chairman, and original sponsor of the bill, Bob Goodlatte (R-VA), knew of it prior to the bill's introduction on March 23.
The bill’s supporters insist the measure—which would empower the President (instead of the Librarian of Congress) to appoint the Register of Copyrights—is needed to help "modernize" the Copyright Office. However, multiple sources tell PW the bill is aimed at stopping Hayden from replacing Pallante, after Pallante’s removal by Hayden last fall was met with suspicion and dismay by many in the content industries, and in Congress, where Pallante was highly regarded.
Because the eLi project was scrapped around the time of Pallante's ouster last fall, some outlets have suggested that the IG report may have been a factor in Hayden's decision to remove Pallante. The Library of Congress on Tuesday declined to comment on the report, or on Pallante's exit from the Copyright Office. A spokesperson told PW only that the Library “valued” the Inspector General’s role “in reviewing processes at the Library so management can benefit from an independent review and take action when warranted."
At the bill's markup, however, Lofgren, the lone "no" vote on the committee, offered her assessment. “The former register was seen as an advocate," she said. "But while she was being an advocate, she neglected the actual duties in her office.”
Lofgren argued that Hayden was already making a difference at the Library of Congress after 29 years under James Billington, and questioned why Congress would deny her a chance to remake the Copyright Office.
“Instead of saying, yes, let’s modernize this. Let’s have some accountability, we are trying to take the decision [away from] a new Librarian, who is a breath of fresh air, who actually has managerial experience," Lofgren said, "and give it to the President, to pile up with the rest of the appointments he has yet to make, and to delay the modernization effort.”
Goodlatte responded to Lofgren with a somewhat revealing statement. “This problem could have been avoided in the first place if the prior register had not been forced out,” he said. “She spent years working with us to identify copyright policy issues that needed this committee’s attention, and I would say that, notwithstanding [Lofgren's] contention that this will set back modernization, every single major copyright organization in America supports this bill.”
Many of the major content industry associations (including the AAP) support the bill. However, it is opposed by groups including the library community, parts of the tech industry, and public advocacy groups.
While the bill still enjoys strong, bipartisan support, the question now is whether the IG report might amplify calls for more scrutiny of the bill, knocking it off its fast track.
On Thursday, the tech-focused PoliticoPro reported that a dozen Democrats have signed a "Dear Colleague" letter opposing the bill. "The policy excuses for this are unpersuasive," reads the letter, which urges fellow members of Congress to resist "further expansion of the powers of the president."
The bill was initially set to be voted on this week, but was pulled from the floor on Monday for what appears to be administrative reasons. With no votes scheduled for today, and the House set to recess until April 25, the swift passage hoped for by the bill's sponsors now seems unlikely.
The current bill comes after the House Judiciary Committee last December released a policy proposal backing the creation of an autonomous Copyright Office (which Pallante herself strongly advocated for during her time as Register). That proposal was the first to come from a lengthy, recently-concluded review of the nation’s copyright laws, overseen by Goodlatte and Conyers.
But while there is broad consensus that the Copyright Office is in dire need of modernization, there is sharp disagreement over how that should happen.