Roadblocks Emerge in Path for Register of Copyrights Bill

House Majority Leader Kevin McCarthy, R-Calif., unsuccessfully attempted to put HR-1695 up for a vote this week under suspension of the rules after a push by House Judiciary Chairman Bob Goodlatte, R-Va., said several familiar with legislative moves on the bill. Goodlatte and House Judiciary ranking member John Conyers, D-Mich., led introduction of HR-1695. The House Administration Committee raised objections to the move to bring HR-1695 up for a vote on jurisdictional grounds and is currently seeking partial jurisdiction over the bill because of its potential effects on the Library of Congress, the informed parties said. They said House Administration's jurisdictional request appears to have some buy-in from committee Republicans but originated at the behest of ranking member Bob Brady, D-Pa., and committee member Zoe Lofgren, D-Calif. House Administration didn't comment.

Goodlatte told us he expects the full House to vote on HR-1695 “soon.” House leaders are expected to rule by late Friday on whether to grant House Administration partial jurisdiction, though the committee may have only a short window to examine the bill. “Even if [House Administration] does get jurisdiction, the plan is to give them a 24-to-48-hour window,” which “wouldn't give them an opportunity to do anything substantive” to the bill, said a content-side lobbyist. “This is not going to be as easy to pass as we thought it would be last week,” said another HR-1695 supporter.

It won't be clear how much a House Administration role in vetting HR-1695 will affect the bill's path forward until House leadership defines the parameters of the committee's jurisdiction over the bill, said Copyright Alliance CEO Keith Kupferschmid. “We should have an idea of when this bill will come to the House floor” depending on the rules for House Administration's jurisdictional role, he said. Even if the delay means HR-1695 will “have to wait until the end of the month” for a House vote, “that still means we are moving at quite a good pace,” a content-side lobbyist said.

Tech Critics

Critics in the tech sector and other copyright community factions believe a delay until after the recess will allow Congress to “slow down and think about this more and what its implications are” for the Copyright Office and LOC, said one tech sector lobbyist.

Tech sector and digital rights groups questioned why Goodlatte and HR-1695's other Capitol Hill backers have sought to fast-track the bill. A slowdown is particularly necessary so House members can digest the contents of a February LOC inspector general report on the library's systems development life cycle (SDLC) that appeared to reflect badly on former Register Maria Pallante's tenure at the CO, one tech lobbyist said. Lofgren disclosed the LOC IG report's contents during House Judiciary's HR-1695 markup.

The LOC IG report circulated widely among stakeholders and lawmakers since the House Judiciary markup. The LOC IG 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 (eLi). The office spent $11.6 million on eLi, which it aimed to streamline its receipt of copyright royalty payments and management of royalty investment accounts. Lofgren cited the IG report as evidence LOC oversight of the CO remains important. Development of HR-1695 was seen as entwined with House Judiciary's displeasure over Librarian of Congress Carla Hayden's October ouster of Pallante as CO head (see 1610240052 and 1612080061), though the bill's supporters tried to minimize that connection.

Senate Waits

Senate Judiciary Committee leaders are waiting for the House to act on HR-1695 before they file a Senate companion, said committee ranking member Dianne Feinstein, D-Calif.

Feinstein and Senate Judiciary Chairman Chuck Grassley, R-Iowa, strongly supported HR-1695 and appear best positioned to shepherd the bill's Senate companion, but Senate Rules Committee leaders also expressed interest in taking a role on the bill, industry officials said. Staffers for Senate Rules Chairman Richard Shelby, R-Ala., have been holding meetings on the legislation, a tech lobbyist said. Ranking member Amy Klobuchar, D-Minn., has also been “actively” looking at how that committee can have a role in the bill's vetting, the lobbyist said.

Some senators privately already noted their misgivings with HR-1695 despite the lack of a Senate companion, including Senate Minority Leader Chuck Schumer, D-N.Y., and Sen. Ron Wyden, D-Ore., said several informed parties. Schumer told us he would “have to wait and see” on the bill. Aides to Schumer and Wyden didn't comment. Meetings with several senators' staffers revealed concerns not only with House Judiciary leaders' “rush” to advance HR-1695 but also with perceptions the bill is aimed at “punishing” Hayden for the Pallante ouster, a tech lobbyist said.

Stakeholders offered varying forecasts on the IG report's potential effect on HR-1695's prospects, with content community members criticizing the report's dissemination as an attack on Pallante and others saying the report shows the need for continued LOC oversight of the CO. The IG report seemed to contribute to the perception by some lawmakers “that we need to slow down because we don't have all of the relevant information yet,” though “I don't know that it will ultimately change the outcome” for HR-1695, a tech lobbyist said. “I think what you're seeing is a natural slowdown.” Democratic National Committee Vice Chairman Keith Ellison, D-Minn., and 11 other House Democrats also were circulating a “Dear Colleague” letter urging fellow Democrats to vote against HR-1695. Other signatories include former Congressional Black Caucus Chairmen G.K. Butterfield, D-N.C., Jim Clyburn, D-S.C., and Elijah Cummings, D-Md.

Lofgren “has made her case” against HR-1695 “and once we explain the facts, people realize they are being hoodwinked,” Kupferschmid said. “It's hypocritical of [Lofgren] to attack a woman who was the register while not putting the blame on a man [former Librarian of Congress James Billington, who ran the LOC during the majority of the time when eLi was under development] while at the same time saying this bill is anti-woman” because it undermines Hayden's role as librarian. “You can't separate this bill from the political context” of Pallante's removal given calls for the need to “stop” Hayden from naming a permanent successor register before House Judiciary can act on CO modernization legislation, a tech lobbyist said. “You saw that” in House Judiciary's amendment to HR-1695 aimed at forming a seven-member commission to nominate register candidates that includes the librarian, which was an “attempt to alleviate concerns that this was an attack on Hayden."

Kupferschmid, Public Knowledge General Counsel Ryan Clough and others told us they will continue to actively lobby on HR-1695 in the weeks ahead. “We certainly have serious concerns about this legislation and we are making those concerns known” in Congress, Clough said. HR-1695 is “not about any one individual,” Kupferschmid said. It's not about President [Donald] Trump, it's not about [Hayden] or for that matter whoever the future register will be. It's about what is good policy for the nation, what is good policy for creators, what is good policy for the public.”