Crazy About Copyright: Why the Debate Over the Register of Copyrights Doesn't Make Much Sense (Column)
For the past few weeks, media business lobbyists have been pushing the Senate to pass the Register of Copyrights Selection and Accountability Act of 2017, which passed the House of Representatives in April. The bill would change the process to name the Register of Copyrights, now appointed by the Librarian of Congress, and make the job a presidential appointee. It’s possible -- but, according to knowledgeable sources, unlikely -- that the bill could pass before the end of the term.
Even among lobbyists, this bill lacks the urgency of the Music Modernization Act. The process of naming a new Register of Copyrights has been controversial since Maria Pallante was essentially pushed out of the job by Librarian of Congress Carla Hayden in fall 2016. But the Register doesn’t pass legislation -- just advises Congress, studies existing law and supervises various rulemaking procedures. One imagines the job is a bit like being the Prime Minister of Luxembourg: It’s incredibly important, but only within a fairly small part of the world.
The Copyright Office has always been part of the Library of Congress for historical reasons, but this isn’t entirely logical: The U.S. Patent and Trademark Office, which also oversees some copyright issues, is part of the Department of Commerce. Needless to say, neither media companies nor the technology businesses aligned with Internet activists care much about this -- they just want a Register who will be favorable to them. The issue is so contentious because there’s a perception that Hayden could nominate a Register who’s inclined to roll back copyright, and that Trump would nominate one who could potentially try to expand it. But this is mostly just speculation, and insiders believe that Acting Register of Copyrights Karyn Temple is likely to get the job permanently. Most important, the Register only has so much power anyway.
So it’s hard to understand the hysteria that the bill has generated among some online activists. The Electronic Frontier Foundation asked people to “Tell the Senate Not to Put the Register of Copyrights in the Hands of the President,” but also noted that, “Except in rare, narrow circumstances, the Register of Copyrights does not make copyright policy. Congress does.” Fight for the Future had no such scruples, warning on Medium that “Lobbyists Are Working to Sneak a Dangerous Copyright Bill into Must-Pass Spending Legislation that Could Revive Website Blocking Proposals Like SOPA.” (The sneaking doesn’t seem to be going very well, since the lobbyists are telling journalists about their plans.) Well, at least it makes all of this sound exciting.
Fight for the Future says that the Register appointment process shouldn’t be changed because “experts warn that this level of political influence could radically change how the Internet works.” But the sentence includes a link to the EFF’s blog -- which isn’t exactly neutral and really doesn’t say that, anyway. It also suggests that a Register appointed by the president would “push the media industry’s wish list, including website blocking, copyright term extensions and mandatory upload filters à la the EU’s Article 13.” This is possible -- although the first two things seem like non-starters -- but it’s not clear if that would matter since the Register has no power to do any of those things, anyway, and the bill being considered wouldn’t change that. A new Register appointed under this process would be able to advise Congress, of course, but so can the current one.
To underscore the supposed importance of this issue, Fight for the Future points out that Pallante, the former Register, supported the Stop Online Piracy Act (SOPA). Essentially, Fight for the Future is arguing that in order to prevent a future Register from supporting bad laws, Congress needs to keep the appointment process that allowed a past Register to support bad law. Okay then!
One of the great things about the Internet is the way it allows all kinds of groups to express their views -- and one unfortunate thing is that not all of these views deserve to be taken seriously. Whatever Congress decides about the future of the Copyright Office is unlikely to change this.