The Growing List of How the Copyright Office Has Failed UsAugust 8, 2016
As we’ve been talking about recently, the Copyright Office has a long history of being bad at its job, and misrepresenting the law it’s charged with understanding. Anyone familiar with tech policy already knows about the debacle that is the exemption process under Section 1201, but it doesn’t end there. Aside from its seemingly never-ending quest to accumulate more power by pulling non-copyright issues under its umbrella, the Office pushes wildly expansive interpretations of copyright law–asserting rights that don’t exist, interpreting consumer safeguards so narrowly as to render them useless, preventing consumers from using assistive technologies, creating “solutions” that nobody asked for, and otherwise making bizarre proclamations that completely ignore relevant facts and law. Over and over again, the Copyright Office bends over backwards to align its positions with the lobbying agendas of the big entertainment conglomerates.
If you’ve ever wondered what a captured agency looks like, look no further.
The Copyright Office famously endorsed the doomed (and downright awful) Stop Online Piracy Act and Protect IP Act, collectively known as SOPA/PIPA. Despite the fact that the bill attacked safe harbor mechanisms, allowed the US government to censor foreign websites, made posting copyrighted work under any circumstances a felony, and swept together all user-driven sites with upload capabilities as “promoting piracy,” the Copyright Office was unwavering in its support. In testimony before Congress, Register of Copyrights Maria Pallante called the bill “a sound policy choice,” “measured,” and thanked its drafters for drafting language that “would bestow a number of important responsibilities on the Copyright Office.”
Ultimately, the 2012 Internet Blackout led to the demise of the bills–no thanks to Register Pallante.
Determining That Safe Harbors Don’t Apply for Sites Hosting Pre-1972 Sound Recordings
The Office’s 2011 Pre-1972 Sound Recordings Report report claimed that sites hosting audio files of pre-72 sound recordings were not entitled to the same safe harbor provisions as other websites under the Digital Millennium Copyright Act. Despite paying lip service to the idea that section 512 applied equally in the cases of pre- and post-1972 recordings, the Office creatively backflipped, claiming that because the statute did not explicitly enumerate pre-72 recordings, it was “ambiguous.” They then incorrectly claimed that “basic canons of statutory interpretation” meant that “any doubts must be resolved against the party asserting the exception.”
The Second Circuit Court of Appeals, in its decision in Capitol Records v. Vimeo, didn’t buy it. In addressing the Copyright Office’s report, the court said unequivocally that the Copyright Office’s conclusions were “based in major part on a misreading of the statute.” Moreover, their interpretation was incompatible with “a literal and natural reading of the text,” and was “[a]t the very least, a strained interpretation–one that could be justified only by concluding that Congress must have meant something different from what it said.” The court then went out of its way to highlight the Office’s gross misreading of existing jurisprudence to favor rightsholders, calling it “arbitrary and without logical foundation.”
A “Making Available” Right that Never Existed
In a 2016 report, the Copyright Office declared that U.S. copyright law had an unwritten right that gave copyright holders the power to dictate how, when, and under what circumstances their works were “made available”–or even offered–to consumers. The Office took a “squint-and-you’ll-see-it” approach, saying that the right existed by implication through a “gestalt”-style reading of the distribution, public performance, and public display rights. Register of Copyrights Maria Pallante even commented that “People question if we have ‘making available’ in the US, and we do–via treaties–and this report will make it clear that we have making available already. The question is whether Congress needs to do anything to make that clear or not.”
First, that’s not how treaties (or laws, really) work. Signing a treaty doesn’t make specific rights magically appear in U.S. law. Here–and in most cases–Congress has to actually write statutes to implement treaty requirements. If they decline to write the actual statutes, that’s a pretty clear sign that they’re not interested. And aside from the fact that the right doesn’t actually, you know, exist anywhere in the statute, the Copyright Office conveniently omitted the fact that numerous courts (the majority of those considering it, in fact) have rejected the idea.
The creation of an imaginary right wasn’t the only thing wrong in the office’s report; it also claimed that the Copyright Act’s requirement that a copy be a “tangible medium of expression” didn’t really mean anything and could encompass even offered transmissions of data–accepted or not. Alarmingly, the office decided that merely putting files in an accessible place would make a person just as liable as actually distributing them. As support, they cited a handful of minor district court cases from places such as Massachusetts, ignored higher court rulings to the contrary, deemed it an “unbroken line of authority,” and called it a day.
Embracing Renewal Requirements That Were Universally Opposed
Back in May, the Office proposed reducing the fees paid by websites to register under Section 512, which gives websites some protection from secondary liability if their users upload infringing content. But buried in the proposal was a 5-year-old, previously rejected proposal to make websites register not once (as is currently the standard), but once every three years. The registration process as it stands is already a bureaucratic burden on websites, and to force them to re-apply every three years or else lose their legal protection would push many smaller, independent websites into a legal danger zone, in which the actions of one user could put them out of compliance–or out of business.
To put a cherry on top of the proposal, the Office didn’t allow for any comments on the every-three-years proposal, but only on reducing the fees. In short, if you don’t have anything nice to say about this, the Copyright Office won’t let you say it at all.
Extended Collective Licensing: Creating a Market That Nobody’s Buying
In keeping with their tradition of giving people what they never asked for, the Office also pushed ahead earlier this year with its idea for extended collective licensing (ECL) for mass digitization projects such as Google Books or the Internet Archive’s archiving activities. The Office’s insistence on ECL seems odd, given that nearly every proponent in the roundtables leading up to the report opposed ECLs outright. The only two groups supporting it were the Association of Medical Illustrators, and, unsurprisingly, the Authors Guild.
Extended Collective Licensing is essentially a mechanism by which an entity (presumably designated by the Copyright Office) acts on behalf of all possible unidentified authors. The entity then takes payments for the use of orphan works and (presumably) pays out royalties as the authors are located. The problem with this idea is two-fold. First, the Office insisted that it would be a “voluntary” system–that only authors who wanted to be represented by such an entity, would be. But if you think about it, that means that the only authors who could participate were, by definition, known authors, and none of their works are orphans. Second, even if the Office did implement ECL, there’s no market for what they’re selling. The only entities who could actually use the system as licensees–libraries and research institutions–were completely uninterested in the idea. The Copyright Office, eternally undeterred by a total lack of support for their pet projects, has charged ahead regardless.
Trying to Redefine “Libraries”–Against the Will of Libraries
In 2008, the Office proposed to redefine how libraries and archives can copy and store works. The proposal included a provision that said any work that was either behind clickwrap or hosted on a site that contained a robot.txt file preventing it from being indexed was no longer “publicly available.” Even by 2008 standards, the proposal was grossly out of touch with technical reality, and would have fatally hamstrung any attempt to archive the internet for future generations. Libraries and archives–you know, the people who were supposed to be protected by this section–uniformly opposed the idea. The American Library Association, Association of Research Libraries, the Internet Archive, the Society of American Archivists, and the Digital Public Library of America all vehemently opposed the proposal.
Never one to give up on a bad idea, the Copyright Office resurrected the proposal earlier this year. This time, though, they accepted no comments, only including a sentence in their announcement that anyone who wanted to speak on the issue could contact them directly for a meeting. No public comments were solicited (or even allowed), and stakeholder meetings were conducted behind closed doors. The Office has indicated that, rather than abandoning the approach in the face of overwhelming opposition from the institutions it was supposed to help, it would instead charge ahead and recommend that Congress rewrite the law to include the new language.
Set Top Boxes and Beyond
And these are just some of the most high-profile and recent examples of Copyright Office misbehavior. On Wednesday the Office came out against the FCC’s set-top box proposal, parroting the content industry’s talking points (and mischaracterizing copyright law in the process). The problems with their set-top box letter were so numerous that they require an entire blog post on their own, but suffice it to say that the Office weaseled out of any objective legal analysis, instead reprising its stance in the letter it wrote to the DOJ earlier this year and analyzing the business concerns of the players involved–not the legal ones.
There’s no doubt at all that the Copyright Office has been on a quest to insert itself into more and more policy debates, to the point where it regularly acts as a government-sponsored lobbyist for the content industry. If this trend continues, consumers can expect to see more bad decisions further undermine the rationale for wasting taxpayers' hard earned dollars on an office that simply lobbies for special interests.