House, Senate Judiciary Leaders Close to Bowing Register of Copyrights-Centric Bills

Chairman Bob Goodlatte, R-Va., and ranking member John Conyers, D-Mich., were expected to file the bill as early as Thursday but could hold off until early next week. The bill appears likely to further escalate a behind-the-scenes conflict between the congressional Judiciary committees and Librarian of Congress Carla Hayden over her existing role in Copyright Office matters, lobbyists said.

The House Judiciary leaders' bill would give the appointed register a 10-year term, though the register “may serve until a successor is appointed, confirmed, and taken the oath of office.” The president could reappoint the register after the original term expires. If Hayden appoints a register before Congress can enact the bill, the appointed register would need to get the presidential appointment and Senate confirmation processes. The language mirrors register-centric provisions included in the Goodlatte/Conyers CO legislative proposal the leaders released in December (see 1612080061).

Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and ranking member Dianne Feinstein, D-Calif., separately confirmed Thursday they're working on an expected Senate stand-alone bill to change the register's appointment process (see 1702230047). Feinstein and Grassley indicated they were working with Goodlatte's office on the bill and that it would mirror the House legislation. They told us they expect to file their bill soon but there were still details to finalize.

The bills would follow a contentious March 1 meeting among Hayden, Conyers, Goodlatte, Grassley and Sen. Patrick Leahy, D-Vt. The congressional leaders urged Hayden to scuttle the library's ongoing search for a permanent replacement for ousted Register Maria Pallante until they could pass a CO modernization bill, several lobbyists said. Acting Register of Copyrights Karyn Temple Claggett is running the CO.

Hayden's 'Obligation'

Hayden subsequently sent a letter to Goodlatte, Grassley and others recognizing they would likely introduce the stand-alone register bills but saying she still would move forward in selecting a register. “It is my obligation to ensure an efficient and effective Copyright Office to serve Congress and the wide variety of stakeholders,” Hayden said in the letter. She told the lawmakers she would continue to update them on the appointment process. The LOC didn't comment.

Hayden's “lack of willingness” to delay her appointment of a new register at the Judiciary leaders' request or give them further input into her selection “has forced their hand” and made the bills' introduction virtually inevitable, said a content-side lobbyist. “If [Hayden] is not going to respect congressional prerogatives,” lawmakers are justified in “trying to take away her authority to appoint” the register via a stand-alone bill and then address other CO modernization issues separately, the lobbyist said. Goodlatte and Conyers were initially resistant to moving a stand-alone bill but apparently persuaded by “how poorly the Hayden meeting went,” said a tech sector lobbyist.

Stand-alone legislation “makes a tremendous amount of sense,” because if Hayden selects a new register before Congress can consider a full CO modernization bill, the policy debate likely will become entangled with a debate over the person Hayden selects, said Copyright Alliance CEO Keith Kupferschmid. Stand-alone legislation could make it through Congress before the anticipated appointment of a new register in June or July, Kupferschmid said.

The bills are the latest step in the “back and forth” between the Judiciary committees and Hayden ongoing since Hayden ousted Pallante as register in October, the content-side lobbyist said. Pallante resigned from the LOC soon after Hayden moved her into a role as the library's digital strategy adviser (see 1610210061, 1610240052 and 1610250062). Introduction of the Goodlatte/Conyers CO proposal and the LOC's December SurveyMonkey poll on needed qualifications for the next register were viewed as exacerbating the conflict (see 1612160053).

Observers should not conflate the register bills entirely with the controversy over Pallante's ouster or the Hayden meeting, since concerns about the librarian's power to select the register significantly predate that incident, Kupferschmid said. “It's about the bigger picture,” including providing more transparency to the appointment process and giving all stakeholders “a greater say in who the next register will be,” he said. Framing the register bills in the context of addressing a perceived lack of deference to Congress could be helpful in ensuring buy-in from some House Judiciary Democratic members, a tech sector lobbyist said.

Roadblocks Ahead

Other roadblocks are possible, particularly if private sector opponents of the register bills frame them as a bid to increase President Donald Trump's authority, a tech lobbyist said. “I'm already hearing from Democratic members” that “this is not the best time for them to embrace this type of bill,” the lobbyist said.

A tech lobbyist signaled that a Trump-centric strategy may be in the works, saying “no member of Congress should support expanding [Trump's] power at this point.” Tech clashed with Trump on several issues since he took office, particularly over immigration executive orders (see 1701290001, 1703070021 and 1703160034).

Electronic Frontier Foundation Senior Staff Attorney Mitch Stoltz signaled more general misgivings with the bills, which he said “will really tend to politicize that position more than it is and make it more captive of the entertainment industries.” The current appointment process for the register and other CO modernization issues are “essentially the same thing” since “the mission of the LOC is about access to information and that should be the main goal of copyright as well,” Stoltz said. Judiciary leaders' move to pursue the register bills “is a bit surprising” given Goodlatte's insistence throughout House Judiciary's copyright law review that any legislation have consensus buy-in, Stoltz said. “I suspect he's feeling pressure from the entertainment industries to carry out some part of his copyright reform agenda.” Library and tech sector stakeholders raised significant concerns in January about the register appointment process language in the Goodlatte/Conyers proposal (see 1701310047).

Kupferschmid believes there's significant, if not unanimous, stakeholder agreement on the need for changes to the register appointment process. “You're never going to get every single person on board” with any piece of legislation, he said. “If you play that way, you'll never be able to legislate.” The bills' future “will depend on whether there's any opposition that comes out of the woodwork,” but the “very targeted” nature of the bills bodes well for their prognosis, Kupferschmid said. “Library groups will be adamantly against the bills” but others are likely to be more supportive, a content-side lobbyist said. Many tech sector interests are still “trying to digest” the bills' language, but how vocal they are in opposing the bills will depend on how Judiciary leaders proceed, a tech lobbyist said.