Remember October, when Librarian of Congress Carla Hayden pulled Maria Pallante from her post as head of the LOC’s Copyright Office, and Pallante resigned a couple of days later? Artist Rights Watch made a big to-do about Google using its influence to “fire” Pallante, but the actual reason probably had more to do with the way Pallante had been loudly advocating for the Copyright Office to be made independent from the Library of Congress. Most bosses aren’t best pleased when a lower-level manager tries to go over their head to get their office shuffled out from under them.
The House Judiciary Committee has released the first policy proposal (PDF) to come from a recent in-depth review of US copyright policy, and that proposal is in line with what Pallante had wanted: make the Copyright Office independent from the Library of Congress, with the Register of Copyrights subject to nomination and Senate approval for a 10-year term rather than appointed by the Librarian of Congress.
The Committee also recommended adding a new advisory committee to the Copyright Office “to advise the Register on critical issues,” and creating a searchable digital database of copyright information. Finally, it suggests creating a “small claims system” to handle low value copyright infringement cases and deal with bad faith DMCA takedown notices.
While this early-stage proposal is clearly an attempt to test the waters and start some discussion on the plan’s merits, it does have some troubling implications. For starters, keeping the Copyright Office under the aegis of the Library of Congress provides some additional insulation between copyright policy and private industry. A librarian’s first concern is, after all, making sure that information is preserved for the benefit of future generations—not making it easier for people who published it to make an easy buck from it.
If the Copyright Office is moved out into a separate entity, it becomes all the more vulnerable to regulatory capture. What’s to keep the major media conglomerates from stuffing that “advisory committee” with their own lobbyists? In its reluctance to rock the boat by making it permissible to crack DRM, the Library of Congress has already favored those business concerns by default. (It was an understandable decision, as it’s not really in the Librarian of Congress’s purview to make sweeping unilateral changes in the law, but even so.) I’d hate to see a Copyright Office even more slanted in their favor.
The “small claims system” is a little troubling as well. Notice how they don’t call it a “small claims court”? That’s because it will still be part of the Copyright Office, which would be part of the Legislative Branch—not the Judiciary, where the courts are. Regardless of what branch it’s in, though, it seems clear that this “system” would be prone to abuse. Just look at how the media industry has abused the legal system we already have, such as by sending takedown notices for videos that make fair use of their content. If the media companies had their way, they’d be able to force such content offline permanently, under the aegis of getting rid of people who upload straight copies of the media companies’ content.
Do we really want to give them yet another way to sue people for copyright violation? Even if the claims are “small,” an award of a few hundred or thousand dollars could be just as staggering to some poor college student as a few tens or hundreds of thousand dollars. And remember, copyright trolls already work on the principle of getting hundreds or thousands of people to pay them small-dollar amounts. A small claims system would naturally be subject to just that sort of abuse.
Even the attempt to curry favor with copyright reform advocates by letting the system adjudicate bad faith DMCA takedown notices rings hollow. We already have a system that’s supposed to adjudicate bad faith DMCA takedown notices, but so far not one issuer of such a notice has been slapped down under it. Why should a Copyright Office “small claims system” be any different?
That being said, at least the Judiciary Committee is thinking about reforming copyright. I wonder what they’ll come up with in regard to updating the processes for DRM-cracking exemptions and notice-and-takedown.
But this also brings up another potentially troubling question. What kind of copyright policy decisions might President Trump make during his time in office? We already heard his campaign promise to “open up our libel laws” so subjects of “hit pieces” could more easily sue the newspapers that published them. Many campaign promises never keep, of course, but it’s worth noting that the newspapers are already trying to cozy up to him. Newspaper trade organization the News Media Alliance (née the Newspaper Association of America) just sent the Trump administration a white paper (PDF) requesting that it loosen up its position on cross-platform media ownership and tighten its view of fair use to help them fight Google.
As Techdirt points out, restricting fair use would be a double-edged sword to papers, who rely on it so frequently themselves. Do the papers really want to put that sword in the hand of the man who only just talked about making it easier to sue them? Also, copyright wasn’t intended to ensure publishers could make a profit. And, perhaps most importantly, Google’s aggregation already gives the newspapers most of their traffic. What more do they want?
Prior attempts to fight Google over its aggregation strategy haven’t gone so well. When Germany passed a law in 2014 requiring that Google to pay license fees if it used content from online papers, Google simply said it would follow the law to the letter and stop aggregating the content of any news publisher who did not explicitly permit Google to use it for free. Surprise surprise—suddenly a whole bunch of German news publishers decided to permit Google to use their content for free. What does the News Media Alliance expect to happen if they try something similar in the USA?
What Trump will do is anybody’s guess—about copyright, issues in general, or just on a daily basis. But it’s worth keeping in mind that his decisions will affect the copyright balance for at least the next four years, and Trump is a media producer himself. (Indeed, he plans to keep working on Celebrity Apprentice “in [his] spare time.”) This suggests that his interests might lean in the same direction as those aforementioned media conglomerates, which in turn suggests the copyright interests of the general public may be in for a rocky time ahead.