House Passes Register of Copyrights Bill, But Senate Hurdles Remain

The two House Republicans who voted nay were Walter Jones, R-N.C., and Thomas Massie, R-Ky. House Minority Leader Nancy Pelosi, D-Calif., was among the House Democrats who voted against the bill. Democratic National Committee Vice Chairman Rep. Keith Ellison, D-Minn., ultimately voted in favor of the bill after having previously signed a “Dear Colleague” letter with 11 other House Democrats opposing it.

House Judiciary Committee Chairman Bob Goodlatte, R-Va., emphasized the committee's 27-1 March “bipartisan” vote in favor of HR-1695 (see 1703290066) and the committee's four-year copyright law review as evidence that he and ranking member John Conyers, D-Mich., hadn't rushed development of the bill. Making the register a presidential appointee is “appropriate” since the Patent and Trademark Office director is also an appointee, he said. The bill is also needed because the register's authority to “issue rulemakings has been challenged in the courts because the register is not subject to the nomination and consent process,” Goodlatte said. “This legislation would remedy that question once and for all.”

The final vote in favor of HR-1695 followed a contentious debate in which supporters and opponents argued over the extent to which it was a referendum on Librarian of Congress Carla Hayden or ousted Register Maria Pallante. Rep. Zoe Lofgren, D-Calif., and several other House Democrats opposed to HR-1695 called it an attempt to reduce Hayden's ability to oversee the Copyright Office. Rep. Jared Polis, D-Colo., said the bill's sponsors may have been motivated by a “dislike” for Hayden or her October decision to remove Pallante as CO head (see 1610210061, 1610240052 and 1701120027). Lofgren and Polis also criticized the bill for giving President Donald Trump the power to appoint the next register.

House IP Subcommittee Vice Chairman Doug Collins, R-Ga., and other HR-1695 supporters said they believed Hayden was qualified to lead the Library of Congress but noted House Judiciary had been intending to introduce legislation to change the register's selection process since well before previous Librarian James Billington's 2015 resignation. Collins also rejected references to a February LOC inspector general report on the library's systems development life cycle (SDLC) that appeared to reflect badly on Pallante's tenure at the CO. The report, disclosed during the House Judiciary markup, said 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) after spending $11.6 million on the project (see 1703290066). Use of the report during the debate over HR-1695 is an attempt at “character assassination” against Pallante, Collins said.

Polis and others argued the House's haste to consider HR-1695 was inappropriate given the possibility of a lapse in federal government funding at midnight Friday. Congressional Republican leaders said they're confident they will be able to secure at least a short-term continuing resolution before the deadline (see 1704210052 and 1704240045). “There will be plenty of time to figure out the intricacies” of copyright legislation once a government shutdown is averted, Polis said.

Amendments' Outcome

Polis and others also decried the House Rules Committee's 8-3 vote Tuesday to table House floor consideration of a proposed amendment from Lofgren that would allow Hayden to still appoint a permanent replacement for Pallante. Associate Register Karyn Temple Claggett has been acting register since Hayden removed Pallante. Lofgren unsuccessfully sought to attach similar amendments to HR-1695 during the House Judiciary Committee’s March markup (see 1703290066).

House Rules Chairman Pete Sessions, R-Texas, said Tuesday he was against allowing the amendment to proceed to the floor because it would mean “we would wait up to 10 more years” before HR-1695 could be utilized. Polis, one of the three committee Democrats who sought a floor vote for the Lofgren amendment, said Wednesday that House Rules' decision against the Lofgren amendment partially influenced his opposition to HR-1695. Lofgren told us before the Wednesday vote she sought the amendment as a “good-faith effort” to seek a compromise on the bill. “I still think [the bill] is a mistake,” but if its effects were delayed “that would allow the Copyright Office's modernization effort to take place” as planned, Lofgren said. “I thought there was some logic to that.”

The House approved two other amendments, both of which came from the bill's co-sponsors. It passed on a voice vote an amendment from Rep. Judy Chu, D-Calif., that would bar HR-1695 from affecting the CO’s mandatory deposit requirements. Chu said the amendment is aimed at ensuring larger CO modernization issues about the office's future relationship with the LOC should be saved “for another day.” Members voted 410-14 for an amendment from Rep. Ted Deutch, D-Fla., that would require the register to “be capable of identifying and supervising a Chief Information Officer or other similar official responsible for managing modern information technology systems.” Deutch said his amendment was aimed at ensuring that IT concerns are “always a part of the equation when selecting a new register.”

What's Next?

Several private sector supporters and opponents of HR-1695 said some Senate Democrats are still raising concerns about the bill before a Senate companion's introduction, but stakeholders disagreed on how significant those concerns are given the margin of the House vote. Copyright Alliance CEO Keith Kupferschmid told us before the House vote all indications pointed to strong Democratic support for the bill, which in turn would bode well for future Senate consideration. “I'm very optimistic” House Democrats' strong support for HR-1695 will spur on ongoing “conversations in good faith in the Senate to find solutions to concerns that might exist there,” a content-side lobbyist said.

“Some trepidation in some Senate Democrats' offices” could pose a problem for the Senate companion despite strong Democratic support in the House, a tech-side lobbyist said. Negotiations on HR-1695 haven't allayed concerns raised by Senate Minority Leader Chuck Schumer, D-N.Y., and Sen. Ron Wyden, D-Ore., among others (see 1704060064), another source said. “It would be a mistake to make the kind of change [the House] is talking about” in HR-1695, Wyden told us. “This is supposed to be about good policy, not the power of the special interests.”

The trajectory of the Senate companion may remain unclear until Senate leaders give a final answer to ongoing questions about whether the Senate Judiciary Committee or the Senate Rules Committee will have jurisdiction over the bill, several sources said. “We're working on that as we speak,” said Senate Rules Chairman Richard Shelby, R-Ala., in an interview. “We certainly have some say” over the bill. Shelby noted he doesn't believe CO modernization legislation should make the office fully independent of the LOC. Senate Judiciary Chairman Chuck Grassley, R-Iowa, and ranking member Dianne Feinstein, D-Calif., were strong supporters of HR-1695, but Shelby and Senate Rules ranking member Amy Klobuchar, D-Minn., are still “wild cards” on the bill, a tech lobbyist said.