House Judiciary Clears Register of Copyrights Bill Amid Lofgren Criticism

Chairman Bob Goodlatte, R-Va., and ranking member John Conyers, D-Mich., insisted Wednesday that Congress needs to act ahead of any additional planned legislation to address Copyright Office modernization issues. “We should not hold up” the process for selecting a permanent replacement for ousted Register Maria Pallante “to resolve the other issues that will take more time to address,” Goodlatte said. “The lack of a nomination and consent process for the register has led to repeated litigation that this legislation would finally resolve.”

The bill reflects “bipartisan consensus” that the CO “needs to be more accountable to Congress and that it should have greater independence” from the Library of Congress, Conyers said: “It is only reasonable that Congress play a role in deciding who leads” the CO given that office's history of advising lawmakers on copyright policy matters. Pallante resigned from LOC in October, almost immediately after Librarian of Congress Carla Hayden removed her as CO head (see 1610210061, 1610240052 and 1701120027). Associate Register Karyn Temple Claggett is acting register.

House Judiciary approved by voice vote an amendment from Rep. Sheila Jackson Lee, D-Texas, that would establish a seven-member panel to select and submit at least three register candidates to the White House. The panel would include the librarian, House speaker, the House and Senate majority and minority leaders and the president pro tempore. This process would ensure that both the librarian and Congress have a role in choosing the register nominee, effectively seeking a “balance” among all parts of the copyright community, Jackson Lee said.

House IP Subcommittee Chairman Darrell Issa, R-Calif., joined other House Judiciary leaders in strongly supporting the Jackson Lee amendment because “we must balance the strength or weakness” of a particular LOC head with “our constitutional responsibility” to have oversight over the CO. Hayden's removal of Pallante, which she didn't inform either the House and Senate Judiciary committees about beforehand, violated “the spirit of the relationship between this committee and the librarian,” Issa said. He also cited Hayden's decision to move forward with her process for selecting a new register despite House Judiciary leaders' concerns as evidence of “how we’re regarded currently” by LOC. Lofgren voted against the Jackson Lee amendment, saying it didn't address her underlying concerns with the bill.

Lofgren's Opposition

HR-1695 is effectively a “vote of no confidence” in Hayden, particularly since President Barack Obama nominated her in part because of her history of being able to “hire and manage” staff to complete a large-scale IT transition effectively, Lofgren said. She also said she was concerned the bill would “create more conflict” and uncertainty at the CO given the likelihood that it will take a significant amount of time for the White House to select a register nominee and shepherd that nominee through a Senate confirmation process. President Donald Trump has yet to select nominees for 495 positions that require Senate confirmation, meaning “a vote for this bill is a vote to delay” ongoing CO modernization work, Lofgren said. “We have no idea how long this seat will be vacant.”

Lofgren delved further into the controversy over Hayden's decision to remove Pallante as register, suggesting Pallante “did nothing” to promote needed CO modernization efforts and that the office has “made more progress” in fixing its myriad issues during the first six months of Hayden's tenure than it did during the final 10 years of former Librarian James Billington's tenure. Lofgren cited a FY 2016 LOC inspector general report on the library's systems development life cycle that found the CO “did not follow sound SDLC methodologies,” which led to its FY 2016 decision to scrap further development of its planned Electronic Licensing System. The office aimed for eLi to streamline its receipt of copyright royalty payments and management of royalty investment accounts.

The CO canceled a contract in October to develop eLi and is now evaluating how to proceed with the project, including “identifying what elements are functional or recoverable,” said Kearney & Co. in a LOC performance audit we obtained in connection with the IG report. The CO “continued to report” throughout six years of eLi's development that the project “was occurring near or on schedule,” the IG's office reported. The CO “did not disclose” to LOC leaders and Congress “the magnitude of issues and cost overruns related to the project,” the IG said. “Congress and [LOC] executives did not have adequate information to timely act on and address the issues.” The documents show Pallante “lied” to Congress and the LOC, Lofgren said. The LOC didn't comment.

House Judiciary voted down three amendments from Lofgren.

One amendment would have delayed the bill from taking effect until after Sept. 15, 2026 -- the end-date for Hayden's term. A second amendment would have allowed either the librarian or president to fire the register. “How can you expect the librarian to properly supervise” the CO “when the register is answerable to no one except” the White House, Lofgren said. A third amendment would have required any register nominee to have “experience in managing modern information technology systems” and experience in copyright law.

Pushback

The urgent need for HR-1695 “could have been avoided in the first place” if Hayden hadn't “forced out” Pallante, Goodlatte said. Goodlatte and others took issue with Lofgren's characterization of Pallante's tenure. Lofgren's claim that Pallante lied to Congress “is actually a fantasy,” said House IP Subcommittee Vice Chairman Doug Collins, R-Ga. House Judiciary can choose to hold a hearing on Pallante's performance as register but “that's not what we’re here for” at the markup, he said.

Lofgren's comments drew criticism from some content-side stakeholders, who strongly supported HR-1695. Pallante's performance “is not what the bill is about,” said Association of American Publishers Vice President-Legal and Governmental Affairs Allan Adler. Pallante became AAP president in January. “The bill has no direct relationship to what happened and the way in which Pallante was dismissed," said Adler: "That was not the impetus for the bill” given that discussions about revamping the register selection process significantly predated Pallante's ouster. Meanwhile, Lofgren's attempt to “cast aspersions on [Pallante's] performance as register” is concerning because the IG report wasn't public before the markup, Adler said. “To make those allegations when no one else has access to the report, and particularly to accuse [Pallante] of lying, is wholly inappropriate as a means of addressing this legislation.”

Adler and Copyright Alliance CEO Keith Kupferschmid separately said they don't believe Lofgren's criticisms will prevent full House passage. “That [House Judiciary] cleared the bill so decisively shows it has a fantastic chance” of passing on the House floor, Kupferschmid said. He said Lofgren “actually proved our point of why this bill is necessary. She based her opposition on the performance of [Pallante] and made it personal rather than about policy. That's why we need to get this bill passed before [Hayden] selects a new register. We're trying to avoid this debate being about the person.”

Proponents of HR-1695 “already tried to make this debate about personalities” by idolizing Pallante after her ouster as a “champion of the entertainment industries,” but Pallante's performance shouldn't be a focus for either side anymore “because she's no longer the register,” said Electronic Frontier Foundation Senior Staff Attorney Mitch Stoltz. “The CO needs a new head” regardless of whether Hayden or Trump is ultimately responsible for selecting Pallante's replacement and “that should be [the] focus.”

A tech lobbyist questioned whether the easy clearance portends easy House passage. Leaders could push for a floor vote before the House adjourns for its April 10-21 Easter/Passover recess, a copyright lobbyist said. An executive supporting HR-1695 said all signs thus far show the bill shouldn't face significant opposition on the House floor, noting that House leaders intend to move the bill through regular order. The bill also faces potential headwinds in the Senate, where at least two high-ranking Democratic senators signaled misgivings, two tech lobbyists told us.