Days after U.S. Register of Copyrights Maria Pallante was moved out of her job, music business lawyers and lobbyists are still trying to figure out what happened, as well as what it means for the future. While Pallante had no lawmaking power, she was the country’s top copyright official, and her sudden removal could suggest a more skeptical view of the value of intellectual property in Washington DC.
“People I know who care about copyright are very disturbed,” says Marybeth Peters, Pallante’s predecessor as Register, who held the job from 1994 to 2010. “Nothing like this has ever happened there before.”
The Copyright Office, which is part of the Library of Congress, sets some policies, oversees registrations of works, and advises Congress on legislation. As media and technology companies face off against one another in Washington on piracy and licensing issues, however, the Office’s work has become more important -- and sometimes more controversial. In the past few years, Pallante proposed the current copyright reform process, issued important recommendations for the future of music licensing, and began a study on the “safe harbor” provisions of the 1998 Digital Millennium Copyright Act -- which record labels and other rightsholders say allow YouTube to use music for less than its market value.
On Friday, October 21, Librarian of Congress Carla Hayden, who took office in mid-September, said that Pallante had been appointed as a senior advisor for digital strategy, and that Karyn Temple Claggett, currently an associate register of copyrights, would become acting register. But Pallante wasn’t told about the appointment before it was announced, according to several sources, and she never accepted it. She was locked out of the Library of Congress computer system, a step that several former Copyright Office staffers say is extremely unusual. (The Library of Congress did not comment and attempts to reach Pallante were unsuccessful.) Pallante submitted her resignation On Monday, October 24.
It’s not clear why Hayden removed Pallante, but media business lobbyists reacted with dismay and some politicians expressed concern. After Pallante resigned, Congressman Bob Goodlatte (R-Va.) and John Conyers, Jr. (D-Mich.), respectively the Chairman and Ranking Member of the House Judiciary Committee, which has responsibility for copyright issues, issued a statement that Pallante’s departure would be “a tremendous loss for the Copyright Office and for America’s creators, innovators, and users of copyrighted works.” They don’t mention Hayden, who informed members of Congress of her decision the day before the announcement, but their displeasure with her decision is implied.
Although Hayden spoke about the importance of copyright during her confirmation hearings, she is perceived to favor looser copyright laws, since she previously served as president of the American Library Association, an organization that lobbies for greater public access to creative works, sometimes as the expense of creators. The Obama Administration also has close ties to technology companies, which would like to see a Copyright Office that values fair use and other exceptions to copyright over the rights of creators and copyright owners.
Hillary Clinton is thought to be view copyright more favorably, but she hasn’t said much about the topic, and she initially addressed it in her “Initiative on Technology & Innovation” -- not an encouraging sign for creators. Donald Trump doesn’t appear to have said much about the topic.
As the Librarian of Congress, Hayden has the authority to appoint a new register without any Congressional review, although she has already approached the heads of several copyright trade groups about serving on a search committee. The appointment process will almost certainly set creators and copyright holders against technology companies, at a time when the latter seem to have more influence than ever. Soon after Pallante’s removal, Public Knowledge, a nonprofit organization that receives some of its funding from technology companies, tweeted that this represents “a great opportunity to bring balance to the Office's policy work.”
Pallante was seen as generally, but not unreasonably, sympathetic to the rights of creators, which made her some enemies in Silicon Valley. This year, the Copyright Office weighed in against two ideas that had heavy support among technology companies: An FCC plan to “open” the cable set-top box market and “100 percent licensing” the idea that ASCAP and BMI should have to license all of any song they represent some of the rights to. The latter opinion was supported by a September rate-court decision against the practice.
Some Washington insiders cautioned that Pallante’s removal may have less to do with an ideological battle than a turf war. Pallante has advocated moving the Copyright Office out of the Library of Congress and making the Register a presidential appointee -- which would have taken away one of Hayden’s most important oversight responsibilities. And in Pallante’s reassignment memo, a copy of which was obtained by Billboard from a Washington insider, Hayden gives Pallate jobs that have little to do with her copyright expertise -- including identifying “retail and licensing opportunities for the Library;” Hayden also writes that “I do not anticipate that this assignment will require any communications with Members of Congress or congressional staff,” an unusual point to make.
Pallante’s removal will only intensify calls to make the Copyright Office independent, however. “This is just an example of why the Copyright Office needs to be its own agency,” says Dina LaPolt, an independent lawyer who represents performers and songwriters. “You have a fundamental disconnect between the Librarian of Congress and the Register of Copyrights: The Librarian wants works to be as accessible as possible and the Register needs to make sure they’re not always accessible unless the copyright holder approves.”
At least some legislators agree. In a statement released on October 25, Senator Orrin Hatch (R-Utah) said: “The resignation of Maria Pallante as U.S. Register of Copyrights underscores the longstanding challenges associated with housing the Copyright Office in the Library of Congress.”