CO Bias Criticisms Could Factor in Debate on Register's Role, Lobbyists Say

Public Knowledge resurrected Thursday a September report in which PK claimed the CO was allowing major entertainment industries to capture the agency and significantly influence its policies (see 1609080084). PK Staff Attorney Meredith Rose said during an American Library Association webinar it will be important for Hayden to get input from a more varying set of perspectives as she searches for a permanent register, rather than only relying on legacy content-side groups like the Authors Guild and RIAA. Other fixes are needed to address concerns about CO bias, including legislation aimed at modernizing the office and putting it within the bounds of Administrative Procedure Act jurisdiction, Rose said. The CO as a part of LOC currently is exempt from the APA, Rose said.

Meanwhile, The Wall Street Journal said an editorial for Congress should “take a look” at the search for a permanent replacement to Pallante. The editorial raised concerns about the possible influence Google might have over Hayden’s choice for a permanent register, given her previous role as American Library Association president. Google has donated to the ALA. “Don’t be surprised if she chooses someone whose experience includes time at Google,” the newspaper said. “If the position is open to political influence, then the register should be politically accountable -- and report to elected officials, not the nation’s librarian.” The CO didn't comment.

The ALA webinar on the CO bias report was scheduled before Pallante’s ouster, but PK hopes the report might help inform Hayden’s search for Pallante’s successor, Rose said in an interview. “To the extent that [Hayden] was made aware of the report going in ... that’s good. An informed choice” is a good thing. It’s important for the new register to have the necessary "administrative chops" and the ability to balance the interests of rightsholders, the tech sector, libraries and consumers, she said. The register search process would be a “welcome opportunity” for a public discussion on the register's role, Rose said.

Reminders to lawmakers and other stakeholders about the “need for a balanced register couldn’t be more timely” given Pallante’s removal, said Computer & Communications Industry Association Vice President-Law and Policy Matthew Schruers. Rightsholders’ criticisms of Pallante’s ouster aren’t surprising given perceptions that she “championed their interests,” Schruers told us. Pallante’s vocal support for CO independence was seen as “latent insubordination” and the top factor in her removal, a tech sector lobbyist said. LOC leaders attempted to resolve their concerns about Pallante’s support for independence via “less drastic measures” before removing her as register, the lobbyist said.

Sentinel Worldwide CEO Steve Tepp said the existing CO structure, with the Librarian of Congress appointing the register, “is not a structure that’s going to work.” The office “needs some degree of autonomy if we’re going to have a balanced copyright system,” Tepp said. He said he’s “not at all surprised” that PK is continuing to promote its report, which includes “baseless ad hominem attacks” against him and other former CO officials for their roles in the private sector. Tepp criticized the PK report in September as an attempt to bully the CO in order to further the group’s copyright policy goals (see 1609130034). Rose told us she views the criticism of the PK report as being “reflective of the fact that the CO has been insulated from accountability for so long” that many rightsholders view the criticism “as an existential threat.”

It “wouldn’t surprise me” if the House Judiciary Committee and others in Congress examine questions about bias in copyright policymaking and the role of the register amid the search for Pallante’s replacement, Schruers said. It’s unlikely either issue would become the subject of a hearing, but they would be wrapped up in the larger debate on CO modernization since that remains the likeliest copyright policy issue that House Judiciary will have an appetite to address, Schruers said. It’s possible a conversation about the register’s role could occur during the upcoming lame-duck session, though House Judiciary’s priorities are continuing to shift, a tech sector lobbyist said. PK “would welcome” Congress taking a look at the register’s role through the lens of policymaking bias but it’s unclear if such a conversation will occur, Rose said.

It’s likely the search for a new register will cause a stronger push for making the register a presidential appointee, said Jay Rosenthal, a Mitchell Silberberg lawyer who represents music industry content owners. “I’d expect that [House Judiciary and others in Congress] will insert their views about who will replace” Pallante, “whether it’s going to be someone who’s management oriented, IT oriented or someone who’s more pro-copyright,” he said. “My understanding is that many on Capitol Hill were caught off guard by” Pallante’s ouster. Lawmakers “who are in favor of strong copyright will press for one type of register and those who are not will press for someone who’s much more interested in streamlining the copyright process,” Rosenthal said.

PK's concerns appear to have “had nothing to do with Pallante’s reassignment,” though the report “raised valid concerns” about the CO “parachuting into policy areas” outside its jurisdiction, Schruers said. The office in February opposed DOJ Antitrust Division inclusion of language in its closing statement on its review of the American Society of Composers, Authors and Publishers and Broadcast Music Inc. consent decrees clarifying Justice's stance in favor of 100 percent licensing rules (see 1602260034). The CO more recently criticized the FCC set-top box rulemaking amid concerns the proposal would interfere with copyright owners' ability to license and control dissemination of their works (see 1608040062). The rules may be stalled (see 1611030055).