April 25, 2017

Pallante Resignation May Indicate New Approach at Copyright Office

U.S. Copyright Office sealOn October 21, Carla Hayden, the new Librarian of Congress, reassigned Maria Pallante, Register of Copyrights and head of the U.S. Copyright Office, to a non-managerial advisory role. On Monday, October 24, Pallante declined the reassignment and resigned from the Library of Congress, effective October 29. Many publishing, music, and film industry groups have expressed surprise at the move, describing it as a firing.

A post on authorsguild.org called the move “unprecedented” and stated that Authors Guild leadership was “disappointed to see Pallante go,” praising her work toward creating a small claims tribunal for copyright holders, and her “uncommon willingness to comprehend and to balance the positions of all copyright stakeholders. Especially important to the Guild was Pallante’s conviction that ultimately the creative industries cannot thrive without respect for individual creators.”

If one views the reassignment as a dismissal, it’s true that this marks the first time the Register of Copyrights has been dismissed since the position was created 119 years ago. But if Hayden wishes to retain the Copyright Office as part of LC’s organizational structure, it’s no surprise that she would not want to have it led by Pallante, who openly advocated for removing the office from LC oversight.

In a March 23, 2015 letter to Rep. John Conyers Jr., Ranking Member of the House Committee on the Judiciary, Pallante wrote that “many people, including Members of Congress, are surprised to find that the copyright system is currently accountable to the national library. There are mounting operational tensions with this arrangement and…a number of legal concerns. In considering the issues and the options, we have come to believe that the national copyright system would be better served by an independent copyright agency,” led by a Presidential appointee.

The ten-page letter to Conyers also cautions against relocating the Copyright Office to the Department of Commerce as a sibling to the U.S. Patent and Trademark Office, and offers, “at Congress’s direction…to create and submit a summary of other financial considerations” involved with establishing and running a new, independent copyright agency.

“There is a bit of outcry from rights holders right now over Pallante’s removal. It tells you how much of an anomaly the Copyright Office is in our government, that there’s this much political pushback when a new head of a department comes in and changes some of the leadership under her,” said Ryan Clough, general counsel for Public Knowledge, a Washington, DC–based nonprofit public interest group focused on intellectual property law. “In most other departments, that would be a fairly normal thing, especially in a situation where the [lower ranking] officer had a history of advocating for independence for their part of the department…. If you compare it to other federal agencies, it’s not unusual.”

Still, a YouTube video by nonprofit advocacy group The Council of Music Creators insinuated that technology corporations might have pushed for the move, and urged viewers to contact their senators and congressional leaders to demand an investigation. In an article titled “Murder in the Library of Congress” technology news site theregister.co.uk took aim directly at Google. “The legal duty of the Register is to uphold a functioning rights marketplace, something Silicon Valley isn’t keen to see, as the windfall profits of today’s giant web companies come from aggregation rather than trade,” the article argues.

And Billboard magazine’s Robert Levine speculated that “her sudden removal could suggest a more skeptical view of the value of intellectual property in Washington, DC” and that Hayden “is perceived to favor looser copyright laws, since she previously served as president of the American Library Association [ALA], an organization that lobbies for greater public access to creative works, sometimes [at] the expense of creators.”

Digital conflicts

The idea that Hayden, or ALA for that matter, “favor[s] looser copyright laws” or that Pallante’s reassignment/removal suggests “a more skeptical view of the value of intellectual property” is arguable. First sale doctrine, first codified in the 1909 Copyright Act and later clarified in the Act’s 1976 revision, has long protected the right of U.S. libraries to loan books and other physical media, such as DVDs. Digital content, however, is not afforded these same protections, primarily due to the way it is transferred. Publishers and rights holders have convinced the courts that the ease of copying and transferring digital files necessitates the passage of punitive laws such as the Digital Millennium Copyright Act (DMCA). So, generally speaking, libraries and library organizations have spent the past two decades trying not to run afoul of these new rules while still conducting key functions such as preservation, archiving, and of course, providing equitable access to information, regardless of format.

Levine may be alluding to the library field’s consistent opposition to additional punitive copyright legislation, such as the Stop Online Piracy Act (SOPA), a widely controversial 2011 bill that proposed maximum penalties of five years in prison for illegal streaming activity, and would have given law enforcement the power to shut down entire Internet domains based on copyright infringement on a single web site, among other provisions. Pallante was at odds with ALA’s public stance on this issue. She argued before the House Judiciary Committee in November 2011 that “the U.S. copyright system will ultimately fail” without laws like SOPA.

Ernesto Omar Falcon, legislative counsel for the Electronic Frontier Foundation, recalled that the political conversation that framed SOPA tended to focus on piracy in countries such as China. “That was the argument back then. [Movie studios and other rights holders] were talking about how much money they were losing in China.” In the years since, despite SOPA’s failure to pass, the movie industry has seen dramatic profit increases at the Chinese box office, he said. “I tend to think the assumption that we need more punishment, more controls, more restrictions…the vast majority of consumers want to consume [content] lawfully. But, when you make it very difficult for them, you get this [piracy] behavior.”

Clough contended that “instead of acting as a cautious, objective advisor [who] provided a way for Congress to understand different stakeholders, different perspective, and copyright law itself, the office [under Pallante’s direction] acted much more like an advocate for particular stakeholder views.”

There is evidence of this perspective in “The Next Great Copyright Act,” an extended transcript of a March 2013 lecture at Columbia Law School published in The Columbia Journal of Law & the Arts, in which Pallante discusses the need for a review and overhaul of U.S. copyright laws.

“The issues of authors are intertwined with the interests of the public,” Pallante states. “As the first beneficiaries of the copyright law, authors are not a counterweight to the public interest but are instead at the very center of the equation. In the words of the Supreme Court, ‘[t]he immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.’ Congress has a duty to keep authors in its mind’s eye, including songwriters, book authors, filmmakers, photographers, and visual artists.”

This is certainly a reasonable viewpoint, and Pallante’s related advocacy for tough copyright enforcement in digital environments appealed to rights holders and publishers.

But Falcon argued that the needs of other stakeholders should not be overlooked. “When we talk about copyright, it’s much more than just rights holders that are part of the underlying constitutional question about copyright. It’s users, it’s follow-on derivative works and the progress of the sciences and fine arts. Extending the monopoly or having monopoly controls that control every usage, or trying to change the law to make it harder for people to use [copyrighted content] in a lawful way, is antithetical to the whole purpose. The whole purpose is to incentivize people to create, and at some point those creations should be free. That’s the premise.”

Clough speculated that Hayden might prefer that the office play a more neutral role in advising Congress going forward. He later argued that LC’s oversight of the Copyright Office is appropriate, and that it should not be made into a standalone agency.

“The Copyright Office’s fundamental mission really aligns with the library. The library’s goal—and it appears Dr. Hayden’s goal—is to make intellectual and cultural works available to as many Americans as possible. And while copyright, obviously, is an exclusive right and restricts access to works in certain cases, that [library mission] isn’t inconsistent with the mission of the copyright office, which should be, first and foremost, to make information about the ownership of those works as available as possible—being able to find the owners, being able to license the works, and so on.”

The memorandum detailing Pallante’s reassignment offers a few insights into Hayden’s views on these issues. Had Pallante accepted her role as Senior Advisor to the Librarian, one of her key assignments would have been creating a process for determining the copyright status of published printed U.S. works between 1923 and 1963.

“According to analysis from the HathiTrust, as many as 50 percent of the books published in the U.S. between 1923 and 1963 may be in the public domain,” Hayden wrote. “To maximize our ability to make the national collection available online, the Library needs a well-defined, efficient procedure for determining the rights status of books first published between 1923–1968.”

Another key assignment involved creating an implementation plan for “strengthening and clarifying mandatory deposit provisions and steps the Library could take in the near term to acquire digital works through mandatory deposit.”

LC did not issue a statement regarding Pallante’s resignation, but when asked whether the library intended to continue with these plans, Director of Communications Gayle Osterberg wrote “Yes. All of those assignments are important for the Library.”

Karyn Temple Claggett, an associate register, was appointed Acting Register of Copyrights while the agency seeks Pallante’s replacement.

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Matt Enis About Matt Enis

Matt Enis (menis@mediasourceinc.com; @matthewenis on Twitter) is Associate Editor, Technology for Library Journal.

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