Can economic and historical analyses end copyright law’s property/monopoly disputes? — Tom Sydnor: “We can now resolve 300-year-old debates about whether copyrights are monopoly rights or property rights. Modern law and economics provide no basis for distinguishing copyrights from other private property rights that also tend to promote imperfect competition by innovation among producers of differentiated goods, services, and works.”

95% of YouTube Views Come from Just 5% of Videos — “Of [YouTube’s] 1.1 billion videos, just 5.3 percent (roughly 58.6 million) of videos on YouTube have 10,000 views or more. These videos have generated a cumulative 7.4 trillion views, or about 95% of all views.”

Three More Reasons Why the Supreme Court Needs to Clean up the Mess of Transformative Use — Those three reasons, according to Stephen Carlisle, are the recent decisions in Author’s Guild v. Google, Inc., Katz v. Google, and Galvin v. Illinois Republican Party.

Is Google Books leading researchers astray? — “By not taking into account the relative popularity of texts, Google Books leaves itself open to disproportionate influence from less widely recognized sources. ‘It’s as if you’re giving every work in a library the same weight,’ Dodds said. When an author publishes numerous books about a single character, for example, that character’s name may appear to be far more central to an era’s discourse than it actually was. Dodds pointed me to the example of Star Trek novelizations, which made names like Spock appear with improbable frequency. By contrast, Dodds noted, a long-standing best-seller like A Tale of Two Cities has trouble making a dent at all, even in eras when everyone was reading it.”

CPIP 2015 Fall Conference — The Center for Protection of Intellectual Property has now posted videos of all the panels from its recent fall conference, The IP Platform: Supporting Invention and Inspiration. A must watch!

On Friday, the Second Circuit published its long-awaited decision in Authors Guild v. Google, holding that the Google Books project was fair use. The litigation has extended over a decade, and the court’s opinion ably recounts the factual and legal background so there is no need to repeat that here. Surely it will provide fodder for plenty of commentary over the coming months, but for now, I wanted to highlight an ancillary point: the court’s apparent overlook of its fair use holding in Cariou v. Prince.

Cariou involved the appropriation, without permission, by celebrity artist Richard Prince of over thirty photos taken by professional photographer Patrick Cariou, to create a series of new works. Prince asserted a fair use defense after Cariou sued him for copyright infringement. The district court rejected the fair use defense. 1Cariou v. Prince, 784 F.Supp.2d 337 (SDNY 2011). Key to its holding was its response to Prince’s assertion that “use of copyrighted materials as raw materials in creating ‘appropriation art’ which does not comment on the copyrighted original is a fair use.” The court disagreed, saying it was “aware of no precedent holding that such use is fair absent transformative comment on the original.”

To the contrary, the illustrative fair uses listed in the preamble to § 107—“criticism, comment, news reporting, teaching […], scholarship, [and] research”—all have at their core a focus on the original works or their historical context, and all of the precedent this Court can identify imposes a requirement that the new work in some way comment on, relate to the historical context of, or critically refer back to the original works.

On appeal, the Second Circuit reversed, finding all but five of Prince’s works to be fair use (the remaining five were remanded to the district court on the issue). 2Cariou v. Prince, 714 F.3d 694, 706-07 (2nd Cir. 2013). In doing so, the Second Circuit disputed the above statement from the lower court, saying, “The law imposes no requirement that a work comment on the original or its author in order to be considered transformative … Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so.”

The New York Times noted that the decision was criticized by copyright experts and photographers. I also criticized the decision, and later wrote that it ignored a long-standing principle that fair use requires that the use of the original work is essential to the new work for some purpose related to those listed in the statute (“criticism, comment, news reporting, teaching […], scholarship, [and] research”). 3See also William F. Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Entertainment L. J. 667, 714-15 (1992) (“If the defendant is commenting on something that has nothing to do with the plaintiff’s work, he has no need to use the plaintiff’s work to make that comment. He can equally well create his own expression, or use material in the public domain. … In the absence of a need to use that particular work, there is inadequate justification for carving out a substantial chunk of the copyright owner’s exclusive rights.”). This necessity principle, I observed, can be derived from the underlying justifications of fair use—which include furthering the goals of copyright itself and providing First Amendment safeguards.

My discussion was motivated by the Seventh Circuit’s 2014 decision in Kienitz v. Sconnie Nation, which, after criticizing the Second Circuit’s holding in Cariou, touched briefly upon the necessity requirement. 4766 F.3d 756 (7th Cir. 2014). There, Judge Easterbrook said,

There’s no good reason why defendants should be allowed to appropriate someone else’s copyrighted efforts as the starting point in their lampoon, when so many non-copyrighted alternatives (including snapshots they could have taken themselves) were available. The fair-use privilege under §107 is not designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright proprietors.

Following the Supreme Court’s denial of cert in Sconnie Nation, it seemed like we’d be stuck with a bit of a circuit split between the Seventh Circuit and the Second (and Ninth) Circuit. Until Authors Guild.

Judge Leval, who authored the opinion, began his fair use analysis by exploring what it means to be “transformative” in the fair use context (a term he himself introduced into copyright jurisprudence). 5See Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990). It “does not mean that any and all changes made to an author’s original text will necessarily support a finding of fair use.” To explain the distinction, Leval turned to the same passage from the Supreme Court’s opinion in Campbell v. Acuff-Rose that I relied on to describe the necessity requirement. There, the Court explained (as quoted by Leval),

[T]he heart of any parodist’s claim to quote from existing material . . . is the use of . . . a prior author’s composition to . . .comment[] on that author’s works. . . . If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish). . . . Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s . . . imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.

Leval drives this point home, saying,

In other words, the would-be fair user of another’s work must have justification for the taking. A secondary author is not necessarily at liberty to make wholesale takings of the original author’s expression merely because of how well the original author’s expression would convey the secondary author’s different message. Among the best recognized justifications for copying from another’s work is to provide comment on it or criticism of it. A taking from another author’s work for the purpose of making points that have no bearing on the original may well be fair use, but the taker would need to show a justification.

This would appear to contradict Cariou—there, Prince did not have any justification for using Cariou’s photos; indeed, he did not articulate any reason at all for using them, but the court nevertheless held that to be a fair use. I say appear to contradict since a panel court cannot overrule prior holdings by the same court, so we are left with a state of tension between the holdings in Cariou and Authors Guild.

Nevertheless, and setting aside other aspects of this decision, the Second Circuit’s recognition of the necessity requirement of fair use is a welcome one.

 

References   [ + ]

1. Cariou v. Prince, 784 F.Supp.2d 337 (SDNY 2011).
2. Cariou v. Prince, 714 F.3d 694, 706-07 (2nd Cir. 2013).
3. See also William F. Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Entertainment L. J. 667, 714-15 (1992) (“If the defendant is commenting on something that has nothing to do with the plaintiff’s work, he has no need to use the plaintiff’s work to make that comment. He can equally well create his own expression, or use material in the public domain. … In the absence of a need to use that particular work, there is inadequate justification for carving out a substantial chunk of the copyright owner’s exclusive rights.”).
4. 766 F.3d 756 (7th Cir. 2014).
5. See Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).

Oops, DNS blocking did not break the Internet — “[O]pponents of stronger digital copyright enforcement have staked their reputations on predictions that have clearly not come true. Policymakers, therefore, should not accept the falsehood that blocking a website or taking other actions to shut down infringing sites equates to an assault on the security and reliability of the Internet as a whole. Instead, they should recognize that selective targeting of websites dedicated to infringement is an effective strategy to combat piracy.”

Think tank: Take Copyright Office out of Library of Congress — “In a report, the think tank called for lawmakers to remove the Copyright Office from the Library of Congress — where it is one of a mere handful of agencies in the legislative branch. The report outlines constitutional arguments for a restructuring while underscoring ongoing problems with the office’s dated information technology systems as another driver. The Copyright Office currently falls under the umbrella of the Library of Congress, upon which it must depend for its IT — as well as for human resources, budget requests and other functions.”

Bear McCreary on The Walking Dead Season 6 — The composer of the AMC series discusses scoring the latest season, which premiered this past Sunday. “The creative model for this series has been to reinvent itself every eight episodes, with each run taking on a unique tone, and following our characters on a specific arc. Of course there are larger macro narrative arcs that span the entire series as well. This richly layered drama creates a unique challenge for me as a composer. With each season I strive to integrate elements from my previous seasons’ work into new themes, sounds and styles. My task is always to tell the immediate story at hand, but to also help thread the entire series together, to remind viewers they are taking part in a story that goes all the way back to the first episode.”

RIAA Obtains Restraining Order Against Aurous — On Saturday, the developer of Aurous publicly launched the unlicensed music service. On Tuesday, the major labels sued the developers. And yesterday, the Florida court granted a temporary restraining order against operation of the site, with a hearing on a motion for preliminary injunction scheduled for October 28.

The magic depends on us all, creators and audiences alike — “Art cannot be created on an automated assembly line. It is not a matter of plugging some numbers into a spreadsheet. The people in front of the camera and behind it – who write, light, film, act, cater, edit, costume, and create scenery – are the lifeblood of the business. We are the workers who craft these productions… And we, the behind-the-scenes magicians, are dependent on so many others to keep those opportunities flowing. We are dependent not only on the studios and networks but also on the audience who come to our movies or watch our TV shows on any number of screens and platforms. And we too are affected by the rampant theft of our work. When someone accesses our movies or shows on a pirate site, they steal our ability to make a living.”

Court’s docket shuns bankruptcy and IP cases — The US Supreme Court has started its new Term, but, as SCOTUSBlog reports, with 65% of its docket already filled, there is not a single IP case to look forward to.

Copyright Doesn’t Restrain Culture – Part II — Newhoff: “…because building upon what has come before is a well-established part of the creative process—because artists themselves throughout history admit to knowing how to steal—the argument is often made that modern copyright tips the scale too far toward a presumption of ‘originality,’ supposedly resulting in a kind of intellectual land grab whereby a minority of creators and corporations now own and charge rents for too much of the fertile ground necessary for creative endeavor. Nevertheless, by some miracle, literally millions of creators can simultaneously and independently produce new works while only very occasionally create conflicts of copyright.”

Rothman’s Roadmap to the Right of Publicity (via Rebecca Tushnet’s 43(B)log) — An incredibly useful guide to laws protecting the right of publicity in each of the fifty states.

Does Piracy Cost Content Creators a Fistful of Dollars? — “Copious research has countered claims that piracy is de facto publicity that spurs sales for individual recording artists or that increases in merchandising opportunities offsets the lost revenue from pirated films. While the literature is still open to new contributions, current research and analysis is demonstrating more and more that piracy has a measurable, negative impact on content creation and profits, which shouldn’t be a surprise to anyone.”

The problem is the music-streaming companies — Paul Williams: “Bottom line: the problem is neither transparency nor what is being paid out to songwriters and other copyright holders by PROs… the real problem is how little is being paid into the system by streaming companies”

As Batman so sagely told Robin, “In our well-ordered society, protection of private property is essential.”

Ninth Circuit, holding that Batmobile is protected as a copyrighted character. 1DC Comics v. Towle, No. 13-55484 (9th Cir. 2015).

Kim Dotcom case is ’simple fraud’, court told — “Gordon said Megaupload, the now-defunct site at the heart of Dotcom’s online empire, was part of a scheme to steal copyright-protected material. ‘The respondents took part in a conspiracy,’ she said. ‘They deliberately introduced copyright-infringing material to their website, they deliberately preserved that material, they deliberately took steps to profit from that material and made vast sums of money.'” See also Let’s Get Real about Kim Dotcom: The Indictment Clearly Alleges Felony Copyright Infringement.

Behind the Authors Guild’s New Proactive Approach — “Since Mary Rasenberger took over as executive director of the Authors Guild last November, the writers’ group has undertaken two significant projects: its Fair Contract Initiative and the first survey of guild membership in six years. Both efforts, Rasenberger said, are designed to help the organization better represent the interests of its 9,000 members, not just with publishers, but with government officials and other groups that can affect the livelihood of all authors.”

Valuing Music in a Digital World — Cary Sherman: “Compounding the harm is that some major online music distributors are taking advantage of this flawed system. Record companies are presented with a Hobson’s choice: Accept below-market deals or play that game of whack-a-mole. The notice and takedown system—intended as a reasonable enforcement mechanism—has instead been subverted into a discount licensing system where copyright owners and artists are paid far less than their creativity is worth.”

This free online encyclopedia has achieved what Wikipedia can only dream of — Spoiler: It’s the Stanford Encyclopedia of Philosophy, which predates Wikipedia by six years. Unlike Wikipedia, the Stanford Encyclopedia manages to be authoritative, comprehensive, and up-to-date, and does so by relying on a hierarchy of editors and expert authors rather than “the wisdom of the crowd.”

USTR Releases Detailed Summary of TPP Objectives — Included are the objectives of the free trade agreement’s copyright chapter.

GroupM And TAG Partner To Fight Piracy, The “Seed That Grows Into Ad Fraud” — “’The people who create pirate sites are the same ones who perpetrate clickbot fraud – they’re the ones who spread malware and create the armies of bots that generate most of the automated clicks in the business,’ said John Montgomery, chairman of GroupM Connect, North America , and co-chair of the Trustworthy Accountability Group’s (TAG) antipiracy working group.”

The Fake Traffic Schemes that are Rotting the Internet — “’I can think of nothing that has done more harm to the Internet than ad tech,’” says Bob Hoffman, a veteran ad executive, industry critic, and author of the blog the Ad Contrarian. ‘It interferes with everything we try to do on the Web. It has cheapened and debased advertising and spawned criminal empires.’ Most ridiculous of all, he adds, is that advertisers are further away than ever from solving the old which-part-of-my-budget-is-working problem. ‘Nobody knows the exact number,’ Hoffman says, ‘but probably about 50 percent of what you’re spending online is being stolen from you.'”

References   [ + ]

1. DC Comics v. Towle, No. 13-55484 (9th Cir. 2015).

Nearly four years ago, the US Justice Department indicted Kim Dotcom (née Kim Schmidt)—along with six other individuals and two corporations—on a number of charges related to the operation of Megaupload and alleged “massive worldwide online piracy.” 1Researchers found that “the shutdown of Megaupload and its associated sites caused digital revenues for three major motion picture studios to increase by 6.5-8.5%.”

Since then, Dotcom has consistently questioned the charges, claiming not innocence but a lack of legal basis for the charges themselves—that is, that his conduct in creating and operating Megaupload does not make him criminally liable for copyright infringement and related charges. His defense team even took the highly unusual step of publishing a “white paper” that explores its arguments against the criminal charges. 2I wrote previously about the arguments raised in the white paper here.

Despite this insistence of legality, Dotcom’s defense has repeatedly delayed an actual trial with procedural challenge after procedural challenge. This week, despite those efforts, his extradition hearing has begun and is expected to last four weeks.

But that still doesn’t mean Dotcom is confident his legal claims will hold up in court. In fact, his legal team has enlisted the aid of presidential candidate Lawrence Lessig to support their case. Lessig recently filed an expert opinion in the extradition hearing to support the argument “that the Superseding Indictment and Record of the Case filed by the DOJ do not meet the requirements necessary to support a prima facie case that would be recognized by United States federal law and subject to the US-NZ Extradition Treaty.”

There are a couple things worth highlighting about Lessig’s declaration.

Lessig, of course, has become a popular figure in the copyright world for his work in addressing how the law should work in a networked, digital world. However, his track record in accurately describing how the law actually works has been less than stellar.

This is not the first time he has appeared in litigation as an expert witness—he appeared in the godfather of online copyright cases, A&M Records v. Napster. In his expert declaration for Napster, Lessig argued in part that in evaluating whether the service enabled infringement, a court should look at whether it has “potential for substantial noninfringing purposes.” He concluded that Napster was capable of “vast” noninfringing uses, including “the sharing of non-copyrighted music, the sharing of copyrighted music that had been authorized for sharing (for example, for purposes of sampling), and the sharing of other non-copyrighted content on the net in a peer-to-peer manner.” Lessig added that, by passing the Audio Home Recording Act, Congress expressly left “private, noncommercial home recording unregulated by copyright law.”

None of these arguments were successful in the Ninth Circuit. 3A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). The court did note it was bound by Sony‘s holding regarding substantial noninfringing purposes and would not “impute the requisite level of knowledge to Napster merely because peer-to-peer file sharing technology may be used to infringe plaintiffs’ copyrights” However, the court explained “Napster’s actual, specific knowledge of direct infringement renders Sony‘s holding of limited assistance to Napster. We are compelled to make a clear distinction between the architecture of the Napster system and Napster’s conduct in relation to the operational capacity of the system.”

The Ninth Circuit also rejected the argument that “that MP3 file exchange is the type of ‘noncommercial use’ protected from infringement actions by” the Audio Home Recording Act, holding that the plain language made the statute irrelevant to the issues at hand.

Lessig also spent a considerable amount of time and energy during the 2000s arguing that the Copyright Term Extension Act, as regarding the term extension of existing copyrights, violated the Copyright Clause of the Constitution. This litigation went all the way up to the Supreme Court, which rejected Lessig’s arguments unequivocally in Eldred v. Ashcroft. 4537 US 186 (2003). In doing so, the Court concluded its opinion by saying, “Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing the CTEA’s long terms. The wisdom of Congress’ action, however, is not within our province to second-guess.”

Given this track record, it might be said that Dotcom is more interested in making a statement than beating the charges.

The second thing about Lessig’s declaration that jumps out is an apparent contradiction between Lessig and Dotcom’s defense team regarding the applicability of the DMCA safe harbors to Megaupload.

In the white paper, Dotcom’s defense team says

Even if the U.S. government’s wishful expansion of the criminal copyright law into the realm of secondary infringement were tenable (which it is not), Megaupload is shielded from criminal liability by specific “safe harbor” provisions in the Digital Millennium Copyright Act (DMCA), included in the law to protect companies like Megaupload that make efforts to remove infringing material in response to “take-down” notices issued by copyright holders

But in his declaration, Lessig asserts “The DMCA is only a defense in the civil context”. The reversal is notable.

I do think Lessig is correct here. As I wrote in 2012 following the indictment,

Though [the DMCA] references only “infringement of copyright” — which could include both criminal and civil infringement — it merely shields service providers from “liab[ility] for monetary relief, or [in some circumstances] injunctive or other equitable relief.” This is civil lawsuit language — criminal defendants are punished with fines, not liable for monetary relief.

In addition, criminal liability would seem to preclude safe harbor protection solely as a matter of common sense. Criminal copyright infringement requires willful infringement. The DMCA safe harbor only protects service providers from liability for passive infringement. If the evidence shows that a defendant was willfully infringing copyrighted works beyond a reasonable doubt, it doesn’t seem possible that that same defendant could ever meet the requirements for safe harbor protection under the statute.

Nevertheless, for Lessig to contradict a point the defense has been asserting for three years cannot be welcome news for Dotcom.

References   [ + ]

1. Researchers found that “the shutdown of Megaupload and its associated sites caused digital revenues for three major motion picture studios to increase by 6.5-8.5%.”
2. I wrote previously about the arguments raised in the white paper here.
3. A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).
4. 537 US 186 (2003).

The Flux Capacitor and the Copyright Office — “American businesses and consumers deserve a Copyright Office that is suited to the modern era and the future.  Last weeks’ outage is yet more evidence that the Copyright Office needs authority over its own systems to make that happen.  And we hope Congress gives this the attention it deserves.”

Ninth Circuit Gets Fair Use Wrong to the Detriment of Creators — To reach its conclusion that fair use is a right, the Ninth Circuit selectively quotes an Eleventh Circuit decision to make it sound like there is support for that position, when in fact, the Eleventh Circuit is saying the opposite. Stunning.

Priest on Market-Pressure Based Enforcement of Global Copyright — A new article from Univ. of Oregon Law School professor Eric Priest “proposes a framework for evaluating and improving market-pressure strategies aimed at redressing copyright infringement in markets where enforcement is lacking.”

Full of Schmidt — “…it turns out the demagogues of Silicon Valley are themselves inveterate elitists who slyly and consistently employ populist rhetoric for their own profit-hungry purposes. They elevate the quantitative formulations of Big Data into unalloyed truth, conveniently overlooking the helplessness of quantity alone to identify quality (nowhere in the history of humanity have we ever seen sheer numbers equate with human value), and also conveniently overlooking the subjectivity that will always embed itself into algorithmic selection, because (hey, how about that!) algorithms are at some point in the process created and overseen by human beings and will ever more reflect subjectivity even when posing as immutably objective.”

MPA Reveals 500+ Instances of Pirate Site Blocking in Europe — That’s a lot of broken internets.

“We Own You” – Confessions of an Anonymous Free to Play Producer — “Every time you play a free to play game, you just build this giant online database of who you are, who your friends are and what you like and don’t like. This data is sold, bought and traded between large companies I have worked for. You want to put a stop to this? Stop playing free games. Buy a game for 4.99 or 9.99. We don’t want to be making games like this, and we don’t want another meeting about retention, cohorts or churn.”

Three Quasi-Fallacies in the Conventional Understanding of Intellectual Property — In this forthcoming article, Jonathan Barnett argues that, contrary to the prevailing IP skepticism in academia, “reducing IP rights can increase costs for users while raising entry barriers for firms that adopt weakly integrated and other unbundled business models for implementing the innovation and commercialization process. The result is perverse: weaker IP rights raise entry costs, increase concentration and ultimately raise prices, limit output or otherwise distort innovation investments.”

If You Don’t Click on This Story, I Don’t Get Paid — A thought-provoking look at freelance writing in 2015. “’The people who make money off the internet are Facebook, Google, and Twitter and their billionaire executives,’ David Samuels, a contributing editor at Harper’s and frequent contributor to the New Yorker, said. ‘They are fantastically rich because they ate this whole world. Everybody in this world of internet publications is essentially providing content for them one way or another for free. If that’s your job, you’re very very nervous every day about the one little misstep that’s completely meaningless to Facebook, Google, or Twitter but might be the difference between life and death for you and for your publication.'”

How Unethical Hosts Fake DMCA Compliance — Jonathan Bailey has a practical guide for dealing with sites using tactics to make it seem like they are complying with DMCA notices without actually removing infringing material.

Recorded Music is the MOST Valuable — David Newhoff has a fascinating piece on the importance of recorded music and how the public loses out if artists are told to stick to live performances because the market for recorded music has eroded. “When recorded works themselves cease to be a commodity (i.e. they’re made for the purpose of selling something else), they cease to be the basis for investment, and this can limit the range of creators’ options to collaborate and produce a richer universe of sounds.”

On Sunday, September 6, US Copyright Office systems, including its electronic registration system, came back online. The systems had been down for over a week, having failed to come back online after being shut down for routine maintenance by the Library of Congress.

The Washington Post reported on Thursday, six days into the nine day outage, that the outage “cost[] the office an estimated $650,000 in lost fees and caus[ed] headaches for approximately 12,000 customers.” The final numbers are higher.

Unfortunately for the Copyright Office and its constituents, this outage was beyond its control. “The Copyright Office does not have its own Information Technology (IT) infrastructure,” said Keith Kupferschmid during a House Judiciary Committee hearing on the functions and resources of the Office earlier this year. “[I]t uses the network, servers, telecommunications, security and all other IT operations controlled and managed by the Library of Congress.” 1The Copyright Office: Its Functions and Resources Hearing Before the H. Comm. on the Judiciary, 114th Cong. (2015) (statement of Keith Kupferschmid, General Counsel and Senior Vice President, Intellectual Property Software & Information Industry Association). This outage underscores the critical need to give the US Copyright Office the tools and resources it needs in order to function efficiently and effectively in the twenty-first century.

The first step in that process is giving the Office greater autonomy over its own functions and resources. Maintaining Library authority over the US Copyright Office creates a number of structural barriers to modernization, with little concomitant benefit. Indeed, there is very little logic regarding the housing of the Copyright Office within the Library in the first place. This wasn’t the result of any deliberative process at all, but rather through the ambition of Librarian of Congress Ainsworth Spofford, who served in that position 1864-1897.

Building a Library

This story begins with legal deposit—that is, a legal requirement to submit a copy of a published work to a specified institution. As a 1960 Copyright Office study explains:

The deposit of copies of copyrighted works serves two purposes: to identify the copyrighted work in connection with copyright registration, and to provide copies for the use of the Library of Congress. The deposit of copies for the first purpose has been an integral part of the U.S. copyright system since its beginning in 1790. Deposit for the Library of Congress was inaugurated in 1846. Before 1870. the deposit for each purpose was made separately. Since the administration of the registry system was placed in the Library of Congress in 1870, a single deposit has served both purposes. 2Elizabeth K. Dunne, Deposit of Copyrighted Works, Copyright Law Revision Study No. 20 (1960).

It was this centralization in 1870 which would eventually lead to the creation of the US Copyright Office. Spofford was a huge proponent of deposit as a mechanism for Library acquisitions. To that end, he sought throughout his tenure as Librarian to increase the effectiveness of deposit by, for example, introducing legal penalties for failure to deposit works. But, as historian John Y. Cole has explained, this was still insufficient to Spofford.

He found that even with the “utmost diligence” it was impossible to obtain all the copyrighted publications, since he was forced to pursue delinquent publishers and authors through the 44 U.S. district courts where the original copyright registrations were still being made.

The entire system needed changing, and Spofford proposed to eliminate the district courts and the Patent Office from the copyright system altogether by centralizing all registration and deposit activities at the Library of Congress. According to his plan, both deposit copies-the copy for legal record and the copy for library use-would be sent directly to the Library of Congress. The Librarian would be responsible for registration and for keeping the copies deposited as legal evidence separate from the general collection. 3John Y. Cole, Of Copyright, Men & a National Library, Library of Congress (1995) (originally published in 28 Quarterly Journal of the Library of Congress, 1971.

Spofford was, according to Cole, “a skillful politician”, and he shepherded his plan from idea to legislative reality in little over a year. 4Id. But his success was double-edged. Cole writes that centralization “created serious problems. Spofford was overwhelmed by the unceasing flow of deposits into his cramped Library. He cried to Congress for help almost immediately.” But the new arrangement only drew more and more works to the Library. “In 1875 Spofford warned Congress that its Librarian would soon be presiding over the ‘greatest chaos in America,’ and by 1877 more than 70,000 books were ‘piled on the floor in all directions.'” Too many books might seem a nice problem for a library to have. But Cole notes several problems that weighed down the benefits. “The most serious problem was the chaotic condition of the deposits themselves. Virtually inaccessible without the aid of Librarian Spofford’s remarkable memory, the accumulated wealth of the collections was not fully appreciated until they were transferred into the new building and cleaned, sorted, examined, and counted.” Consequently, many deposits were also damaged or lost before becoming available to the public. (Or stolen from Spofford’s office.)

Spofford made his case to Congress for a separate building to house the Library. Congress concurred, and on November 1, 1897, the Thomas Jefferson building opened its doors to the public. That same year, Congress also established a separate Copyright Department within the Library of Congress, headed by a Register of Copyrights, to administer registration and deposits. The first Register, Thorvald Solberg, was ambitious, and almost immediately transformed the office from a ministerial department to an expert agency. Under his leadership, the office “served as substantive experts within the U.S. government, provided policy advice to Congress, and represented the United States at international meetings,” a role the Office continues to this day. 5Maria Pallante, The Next Great Copyright Act, 36 Columbia Journal of Law & the Arts 315, 316 (2013).

Distinct Missions

So from its beginning, the Copyright Office has had a distinct mission from the Library of Congress. Aside from legal deposit (which doesn’t necessitate having the Copyright Office under the authority of the Library of Congress), there is little benefit to either institution from the historic arrangement, a point the recent outage demonstrates well, and one supported by two recent GAO reports on the Library of Congress and the Copyright Office.

By law, the Office must perform a number of functions. Among these, it must be able to “receive and examine copyright registration applications, collect and maintain deposited copies of copyrighted works as necessary to support the production of ‘facsimile reproductions’ and retention of works up to 120 years, produce certificates of registration and certified copies of applications, and maintain records of the transfer of copyright ownership.” 6GAO Copyright Office Report at 7. These functions rely heavily (if not entirely) on technology. The Library of Congress, in contrast, deploys information technology for a different set of purposes, such as “bibliographic cataloging and electronic archiving of important historical works.” 7The Copyright Office: Its Functions and Resources Hearing Before the H. Comm. on the Judiciary, 114th Cong. (2015) (statement of Robert Brauneis, Professor, George Washington University Law School).

The Library and the Copyright Office also have different administrative needs. Unlike Library actions, actions taken by the Register to implement the Copyright Act are subject to the Administrative Procedure Act. 8GAO Copyright Office Report at 8. This means, among other things, that copyright records are governed by the Freedom of Information Act and the Privacy Act. 9Id. The result, as the GAO concluded, is that legal requirements “requirements necessitate actions by the Copyright Office that differ from otherwise-standard Library processes.” 10GAO Copyright Office Report at 8-9. Add to this the different data retention and security requirements of a library and a registration system.

It doesn’t appear that either department realizes any synergies from this arrangement. Indeed, it seems as though it may be that having the two systems integrated is worse than having the two separate. In its report, the GAO noted a number of “duplicative or overlapping efforts” between the two systems, “for example, the Copyright Office provides Internet management and desktop support services, which overlap similar services by ITS.” 11GAO Copyright Office Report at 22.

In addition, the GAO’s audit of the Library of Congress’s own IT found significant weaknesses in strategic planning, governance and investment management,  information security and privacy, service management, and leadership. Addressing these will take considerable time and attention. Under the current structure, that could mean continued delays in modernizing Copyright Office systes.

The conclusion to be drawn from this discussion seems unavoidable, and best stated by Register Pallante in testimony to the House Judiciary Committee earlier this year. “The mission of the Copyright Office is fundamentally different from the mission of the Library, and I believe that the Copyright Office must have its own CIO, technology staff, and management autonomy, including the ability to implement IT investment and planning practices that focus not on agency-wide goals but on its own specific mission.”

This recent outage demonstrates that at the very minimum, Congress should address the acute technological and administrative challenges facing the Office by giving it the autonomy and resources it needs, without further delay.

References   [ + ]

1. The Copyright Office: Its Functions and Resources Hearing Before the H. Comm. on the Judiciary, 114th Cong. (2015) (statement of Keith Kupferschmid, General Counsel and Senior Vice President, Intellectual Property Software & Information Industry Association).
2. Elizabeth K. Dunne, Deposit of Copyrighted Works, Copyright Law Revision Study No. 20 (1960).
3. John Y. Cole, Of Copyright, Men & a National Library, Library of Congress (1995) (originally published in 28 Quarterly Journal of the Library of Congress, 1971.
4. Id.
5. Maria Pallante, The Next Great Copyright Act, 36 Columbia Journal of Law & the Arts 315, 316 (2013).
6. GAO Copyright Office Report at 7.
7. The Copyright Office: Its Functions and Resources Hearing Before the H. Comm. on the Judiciary, 114th Cong. (2015) (statement of Robert Brauneis, Professor, George Washington University Law School).
8. GAO Copyright Office Report at 8.
9. Id.
10. GAO Copyright Office Report at 8-9.
11. GAO Copyright Office Report at 22.

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