Stakeholder Divisions Seen in Responses to Goodlatte/Conyers CO Proposal, LOC Survey

Stakeholders we spoke with indicated they expected opinions about the Goodlatte/Conyers proposal’s language on the CO’s autonomy from the LOC to be particularly divided. The proposal called for keeping the CO within the legislative branch but giving the office more autonomy on budgets and technology needs. Goodlatte/Conyers also backed all future registers being subject to Senate approval and serving a 10-year term. Language on the register has been seen as a bid to effectively pre-empt Librarian of Congress Carla Hayden from advancing the process for finding a permanent replacement for ousted Register Maria Pallante.

Most tech sector stakeholders and digital rights groups are likely to agree on opposing changes to the register’s selection process and will urge only “measured” CO modernization, amid concerns about “further entertainment industry capture” of the office, a tech sector lobbyist said. The Internet Association opposed the Goodlatte/Conyers CO language, saying the office “does not suffer from a lack of independence: instead, it is in need of robust leadership, technical expertise, and tailored policies and resources from Congress that provides a pathway for successful modernization.” The proposal’s calls for more CO autonomy, and changes to the register’s selection process “are neither necessary nor helpful steps in achieving the end goals of a more technology-friendly, balanced system of administration,” IA said. “The Register should not be a political position: the Register’s role should focus on management, with a proven ability to oversee a workforce, ensure technological integrity and accessibility of data and IT systems, and responsibly execute a core mission.”

The Digital Media Association echoed IA, opposing changes to the register’s selection process because a Senate confirmation process “would likely lead to considerable disruption, diminished accountability and inspire a level of partisanship within the [CO] that has not previously existed.” DiMA said the Senate failed to act on U.S. Court of Appeals for the D.C. Circuit Chief Judge Merrick Garland’s now-scuttled nomination to the Supreme Court and almost 80 other nominations by now-former President Barack Obama before the close of the 114th Congress. DiMA urged House Judiciary to focus CO modernization legislation on fixes to the CO’s “internal IT operations,” including creating a centralized digital copyright records database and access to digital copyright recordation.

The Electronic Frontier Foundation is also expected to oppose making the register a Senate-confirmed position, said Senior Staff Attorney Mitch Stoltz. EFF was expected to caution House Judiciary to seek only legislation on CO modernization that would “do so in a way that avoids regulatory capture” so the CO “doesn’t transform further into an advocate for a particular group” of stakeholders and is able to advise Congress “in a neutral way,” Stoltz said. The Computer and Communications Industry Association urged the committee to “clarify that the [CO] should remain within the [LOC]. Creating a new, free-standing agency in the Legislative Branch would prove counterproductive, as infrastructure, organization, and resources presently provided by the Library itself would have to be replicated.”

Rightsholders Pro-Modernization

Content-side stakeholders and some right-leaning groups appeared equally united in urging wider ranging CO modernization legislation and making the register subject to Senate confirmation.

The Copyright Alliance said CA planned to file comments after our deadline that would “strongly support” giving the CO more autonomy from the LOC and “taking the necessary steps to ensure not only that the historical deference afforded to the [CO] on matters of domestic copyright policy continues, but also that it has autonomy over its IT, budget, and staffing decisions, subject to Congressional oversight.” The group said it also planned to urge lawmakers to separately seek legislation on register selection “to address the issue while the Register position remains vacant and followed up shortly thereafter by legislation that would address the remaining [CO] modernization issues that may take longer to consider.”

Music industry stakeholders are “uniformly” in favor of giving the CO more autonomy within the legislative branch, which would allow Congress to play a “much more direct role in issues of policy, resources and IT modernization,” said an industry lobbyist who had reviewed several submissions. “That’s very much in line with what Goodlatte is trying to do.” Many music stakeholders also “think it’s a good idea” to make the register a Senate-confirmed position, the lobbyist said. There’s likely to be more division among content-side stakeholders on the Goodlatte/Conyers language directing the CO to create a centralized digital copyright database because “a good segment of people believe a government-owned database is not a good idea,” the lobbyist said. Some of those involved are also concerned that mandating data be entered in a centralized database may violate the terms of the Berne Convention, the lobbyist said.

The Free State Foundation praised the Goodlatte/Conyers proposal’s CO modernization language, saying giving the CO more autonomy “is critical to overcoming administrative and technological obstacles that now keep the Office from carrying out its key registration and recordation functions as efficiently and effectively as it should.” The register “needs to have control over the Office's budget and, within the bounds of Congress' delegation of authority, the ability to set the Office's priorities and to execute them,” FSF said. Tom Sydnor, visiting scholar at the American Enterprise Institute's Center for Internet, Communications and Technology, said he planned to file comments that would in part favor the proposal’s backing for the CO’s 2013 plan for establishing an alternative copyright small claims process (see report in the Oct. 1, 2013, issue).

The copyright small claims process proposal drew a wider range of opinions. The CA “strongly supports” the small claims proposal, as did FSF. IA said it's “interested in further discussion of remedies, including a small claims court and statutory damages,” but “this matter is best addressed in a separate legislative discussion that offers a more comprehensive and holistic view of the remedies system.” EFF planned to raise concerns about the small claims proposal, Stoltz said. EFF believes the CO’s plan would make such a process “a new avenue to lawsuit abuse” and could “encourage copyright trolling,” Stoltz said. The small claims process is designed as a lower-cost way of handling copyright litigation, which by its very nature could result in “copyright trolls” abusing it “as a way of making quick money” from internet users, he said.

Controversial LOC Survey

The LOC’s register survey continued to be a lightning rod for criticism from content-side stakeholders. Tech sector stakeholders said they believe it would be useful in providing transparency to the selection process.

Music industry lawyer Chris Castle said he remains concerned that survey responses the LOC collects could include a “surge of identical comments” via a campaign similar to the one 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 (see 1604040051). Stoltz said he believed concerns about spam responses to the LOC survey are “silly,” but even public input driven by digital rights groups like FFTF “nonetheless represents the views of the public.” The LOC said it implemented security protections to prevent the submission of spam responses to the survey.

EFF planned to tell LOC the next register should “be a competent administrator, one who understands technology,” Stoltz said. EFF also will urge LOC to pick a register who's “able to consider broad variety of interests and preferably one who doesn’t come from any interest groups that has historically dominated copyright policy debate on either side,” he said. The next register “must be able to effectively direct all functions of the Office as a manager rather than as a political figure,” IA said. "The Register should ideally have experience executing large-scale technical upgrades and/or organizational development, in addition to being knowledgeable on copyright law.”

CCIA and IA said the next register should prioritize IT modernization and outreach to all copyright interests. The next register “must have the necessary experience to modernize the Office’s information technology,” CCIA said. “In addition to being steeped in all of the complexities of copyright law, including the importance of balance, it is crucial that he or she have experience managing information technology, since the Register’s role is to oversee the technical specialists engaged in registration and recordation.”