LOC Survey on Search for New CO Head Draws Content Community's Ire

The survey comments will inform “development of knowledge, skills and abilities requirements” for the register, the LOC said. The survey in part asks commenters to list what they believe should be the register’s “top three priorities,” and what should be the register’s most important “knowledge, skills and abilities.” The library plans to publish all appropriate survey submissions, the LOC said. Comments are due Jan. 31.

LOC staff reportedly informed congressional staffers about the plan to survey the public on the register’s qualifications before its Friday launch, said two industry lobbyists. But the survey is likely to irk key members of Congress since House Judiciary Committee leaders earlier this month released a policy proposal calling for all future registers to be subject to a nomination and consent process, lobbyists said. Many viewed the proposal’s call for a revamp of the nomination process for the register as a warning to Hayden after her removal of Pallante (see 1612080061 and 1610240052). It’s “breathtaking” how LOC is proceeding with the selection process, especially since the library pegged the due date for responses on the same day as comments are due in to House Judiciary leaders on the CO-centric policy proposal, a content-side lobbyist said. “It seems like they’re running a rogue operation over there.”

House Judiciary Committee Chairman Bob Goodlatte, R-Va., and committee ranking member John Conyers, D-Mich., were “very clear” in their proposal that they want a revamp of the register nomination process, so LOC’s decision to proceed appears to be an act of “open defiance,” said Copyright Alliance CEO Keith Kupferschmid. “I think this sets up an interesting confrontation” between House Judiciary and the LOC. “Members of Congress were already not happy about the way [Pallante’s removal] went down” and the move on selecting Pallante’s replacement “won’t help” the relationship, said Jay Rosenthal, a Mitchell Silberberg lawyer who represents music industry content owners. “This will be an ongoing fight over” whether the librarian or Congress decides who runs the CO, he said. House Judiciary didn’t comment.

Tech stakeholders viewed the LOC’s decision to run the survey more positively. “I think it’s a responsible way for undertaking the search,” said Digital Media Association General Counsel Greg Barnes. “It brings transparency to the process and that’s something that everyone should support and get behind.” House Judiciary leaders’ proposal for changing the register nomination process shouldn’t hamstring the LOC from selecting a permanent replacement for Pallante, particularly because “as we’ve seen it’s been quite difficult to get nominees confirmation hearings” in recent years, Barnes said. “The role of register is too important to get bogged down in a partisan political fight.” CCIA is “encouraged that the [LOC] has actively solicited stakeholder input on what qualifications and priorities that the incoming register should have,” said Computer & Communications Industry Association Vice President-Law and Policy Matthew Schruers. “This will ensure that the new register is prepared with the skill sets required to address the operational challenges facing” the CO.

Kupferschmid and others questioned the wisdom of running an online survey to solicit public comment rather than using the LOC’s traditional notice-and-comment process, which funnels comments through the federal Regulations.gov portal. Online surveys have backfired on government agencies, such as when the U.K.’s Natural Environment Research Council’s 2014 use of an online consultation process to name a new polar research vessel resulted in the selection of the name “Boaty McBoatface,” Kupferschmid said. NERC subsequently chose to name the ship the Royal Research Ship Sir David Attenborough, saying the online poll was nonbinding. Using an online survey to fill any government position “is ridiculous,” Kupferschmid said.

Use of an online survey raises questions about what controls SurveyMonkey is implementing to ensure the LOC survey isn’t spammed or that commenters are U.S.-based, said music industry attorney Chris Castle. The survey does require commenters to write out their comments, but it still presents an opportunity for the type of batch comment submissions that Fight for the Future used during the collection of comments on the CO’s study of the Digital Millennium Copyright Act’s Section 512, Castle said. FFTF claimed credit for generating more than 86,000 of the Section 512 comments via users who used its TakeDownAbuse.org website (see 1604040051). Geoblocking and requiring submitters to identify themselves would add reliability to the comments process, Castle said.

The survey “has firewalls and other mechanisms in place to prevent spam responses,” an LOC spokeswoman said in an email. “We have also set up the survey to prevent multiple responses from the same device, and we can block certain IP addresses if we find that they’re generating a lot of spam.” It is “important to understand that the goal of this effort is to receive substantive input from users of the U.S. copyright system,” the spokeswoman said. “This is a qualitative, not a quantitative, exercise. Questions, as you can see, are open ended, not simple yes/no responses to be tallied like a vote.”