Having reported on legislative and legal battles for the better part of two decades, something a source once said to me years ago came to mind this week: it’s usually bad bills that get rushed through Congress, because they have to be. The more scrutiny they get, the worse they look. So it kind of makes sense that Reps. Bob Goodlatte (R-Virginia) and John Conyers (D-Michigan) called for “quick action” on the first bill to come out of their now four year-old review of our nation’s copyright laws—it’s not a good bill.
Introduced on March 23, the Register of Copyrights Selection and Accountability Act (H.R. 1695) proposes to do one thing: to take the Register of Copyrights position out of the purview of the Librarian of Congress, and make it a senate confirmable, presidential appointee. But despite lining up 33 bipartisan co-sponsors (as well as support in the Senate) and rushing the bill through markup and out of committee in just six days, the bill is now stalled. And while the measure passed the judiciary committee by a 27-1 vote, opposition in the House at large appears to be growing.
An administrative question kept the bill from a vote before Congress left for break, but with the House now in recess and with a little more time to reflect, it’s unclear how quickly the measure will be picked up again (or if it will be at all) once lawmakers return on April 25. But whatever happens, the bill’s introduction tells us this much: serious copyright reform is probably not happening. Ever.
No question, the politics of copyright have always been contentious, and especially so in the digital age. But that the first bill to come from a much-anticipated bipartisan review of our nation’s copyright laws seeks to politicize the U.S. Copyright Office represents yet another nadir in our political devolution, and raises serious doubt that we will see thoughtful, meaningful, balanced revisions to the U.S. Copyright Act any time soon. Only more political fights.
A Problem Like Maria
The bill comes roughly six months after Librarian of Congress Carla Hayden, in her first big move, ousted Maria Pallante from her post as Register of Copyrights last October, a move that outraged many in the entertainment industry, who had counted Pallante as a close ally. I recall Don Henley was especially upset.
“[Pallante] was a champion of copyright, and stood up for the creative community, which is one of the things that got her fired,” the 69 year-old soft rock legend and cofounder of the Eagles told the Washington Post. He went on to call Hayden “an activist librarian” who is “anti-copyright” and had “worked at places funded by Google.”
That Henley even knew who Maria Pallante was surprised me. That he spoke of Pallante as if she had been martyred for her defense of creators while smearing Hayden, speaks to just how vital an ally Pallante had become in the entertainment industry.
Indeed, Pallante, who in January was named president and CEO of the Association of American Publishers, still looms large over the copyright conversation in Washington, and her ouster is almost certainly a driving factor behind the current bill.
After all, at the time Pallante was removed, she was working closely with the House Judiciary Committee—including the original sponsors of the current bill, Goodlatte and Conyers—on this sweeping review of our nation’s copyright laws. On April 24, 2013, World Intellectual Property Day, Goodlatte, the chair of the House Judiciary Committee, announced he would lead the massive review to “determine whether the copright laws are working in the digital age.” And in that speech, he cited the inspiration for that effort: Maria Pallante, and her policy tract “The Next Great Copyright Act.”
But next week will mark four years since that announcement, and it’s been slow going for the committee. After more than 20 hearings (including a “listening tour” in various cities and testimony from over 100 witnesses), the committee has little to show for its work. And when Hayden abruptly removed Maria Pallante from the U.S. Copyright Office last fall, she also dealt a setback to the committee’s efforts, whether she knew it at the time, or not.
Of course, nothing is stopping the committee from its goal of releasing “policy positions” on key copyright issues. But to be clear, the committee’s copyright review was motivated by Maria Pallante’s vision, and guided by her counsel. It follows that the policy positions to come will almost certainly be, well, Pallante’s. Case in point: the first and only policy proposal to come from the committee thus far, released last December, proposed the establishment an autonomous Copyright Office, outside the purview of Library of Congress—a position Pallante herself had prioritized and strongly advocated for as Register of Copyrights.
Supporters of H.R. 1695 insist that the bill is necessary to “modernize” the Copyright Office, and that it has nothing to do with boxing out Carla Hayden. But, as a number of critics have observed, the measure does nothing to modernize the Copyright Office. It provides no resources or direction. It simply tweaks the agency's org chart and leaves the heavy lifting for a later day.
And the bill pretty clearly has a lot to do with Hayden. Look at it this way: With Pallante no longer serving as an advisor to Congress, each forthcoming proposal from the House Judiciary Committee would now potentially be evaluated for Congress by a Register of Copyrights appointed by Carla Hayden. That has to be a potential nightmare scenario for Goodlatte and his committee. While Don Henley’s assessment of Carla Hayden is not a fair portrayal, it is fair to say that Carla Hayden’s views of copyright are different from Pallante’s. You can imagine how a Hayden-appointed register might advise Congress on some of the Judiciary Comittee’s Pallante-era proposals.
In a revealing exchange at the bill’s markup hearing on March 29, Rep. Zoe Lofgren, the lone “no” vote on the Judiciary Committee, questioned why Congress was so urgently seeking to deny the new Librarian of Congress at least a chance to fix the Copyright Office, and she suggested the bill could actually delay efforts to modernize the agency.
“This problem could have been avoided in the first place if the prior register had not been forced out,” Goodlatte replied, candidly. “She spent years working with us to identify copyright policy issues that needed this committee’s attention.”
Whatever happens with the bill, chances were pretty good that meaningful copyright reform was never going to come from the House Judiciary Committee’s work anyway. No, Goodlatte wouldn’t be the first to die on that hill. One needs to look no further than the Stop Online Piracy Act (SOPA) fiasco in 2012 to see how bitterly divided Congress is on digital copyright issues. And in the years since, an increasingly fractured Congress has shown little interest in taking up that fight again.
Supporters of the bill will of course point to its broad bipartisan support. But copyright is that rare issue where party really doesn’t matter, unlike, say healthcare or gun control. The fault line with copyright policy isn’t Republican or Democrat, it’s generally the entertainment industry on one side, and Tech on the other, with libraries and public advocates. If you need proof of that, just do a Google search and read the editorials for and against this bill.
But here's what’s most troublesome to me: this bill can so easily be seen as an attempt to keep Maria Pallante's views on copyright intact at the Copyright Office, that it could very well taint anything that might eventually come from the House Judiciary Committee review. Or worse, it could taint the next register. This may not be the Senate denying Merrick Garland a hearing for the Supreme Court. But suffice it to say, as long as the Copyright Office is part of the Library of Congress, a lot of stakeholders believe Carla Hayden should appoint the next register. Or, if Congress truly believes that the Copyright Office should be independent, then isn't that the bill they should be taking up?
It's worth noting, too, that things didn’t need to go this way—there is actually broad consensus that the Copyright Office is in need of modernization. Rounding up support for more resources and more attention for that mission shouldn’t be hard. Yet, here we are, in a contentious debate that threatens to further polarize stakeholders in our creative economy. Shocker, right?
[Update: this story was updated to include a link to HR 890, a bill that would establish an independent Copyright Office.]