Whose Copyright Office?

            In 2013, in a lecture at Columbia University, Register of Copyrights Maria Pallante announced an ambitious vision for the “Next Great Copyright Act.” That vision appropriately included a prominent role for the Copyright Office in helping policy makers work through some difficult issues relating to copyright and evolving technologies. The Register closed her lecture by stating that a revised Copyright Act “[m]ost importantly…would serve the public interest.” For those of us in the copyright world who believe that balance in the system between the interests of right holders and the interests of the public is structurally and substantively critical to good copyright policy, the Register’s words were greatly reassuring. Some recent developments raise questions, however, about the extent to which the Copyright Office is demonstrating genuine commitment to balanced copyright policy in the public’s interest.

            One such development came last month, when the Second Circuit Court of Appeals in Capitol Records v. Vimeo sharply criticized a Copyright Office report which concluded that the DMCA safe harbors do not apply to infringement claims involving pre-1972 sound recordings. The Office’s report supported the record label plaintiffs’ position in the litigation. In its opinion, the court engaged in an extended deconstruction of the Office’s argument, concluding that it was “flawed in several respects” and that it “substantially overstated, and misapplied, what the Supreme Court said.” In a blog post at the time, I pointed out how unusual it is for a court to speak in such strong terms about shortcomings in the legal analysis of an expert government agency on a matter within its domain of expertise. Had the court accepted what it concluded was the Office’s highly problematic analysis of the safe harbor eligibility question, the recording labels would have been handed a significant windfall, and Vimeo (and similarly situated online service providers) would have suffered a commensurate loss.

            This month, the Office has become involved in an FCC rulemaking proceeding that proposes to open up the cable set-top box market to competition from non-cable equipment providers. (For some background on the rulemaking, see here and—less wonky—here.) The position the Office appears to be taking on the copyright implications of the FCC’s proposal aligns with that of the cable and motion picture industries, which flatly oppose the proposal. In connection with the rulemaking, I joined the EFF and some academic colleagues—Peter Jaszi, Pam Samuelson, Betsy Rosenblatt, and Rebecca Tushnet—in submitting comments to the FCC explaining that no parade of copyright horribles (viz. unchecked piracy) will flow from “unlocking the box.” We pointed out in our comments that the FCC’s proposal is fully attentive to the content protection issues that could arise from opening up cable programming streams to non-cable equipment manufacturers. The cable box, in other words, is not a copyright Pandora’s box; it can be opened carefully, in a way that both protects copyright holders and enables overdue innovation in the way that cable subscribers access content for which they’ve paid.

            Out of concern that the Copyright Office is developing a position in the FCC proceeding that is at odds with the Supreme Court’s clear guidance in Sony v. Universal concerning the limited scope of the copyright monopoly, my academic colleagues and I submitted a letter today to the Librarian of Congress, who has oversight of the Copyright Office. In our letter, we expressed our view that “[i]nterpretations of copyright law that operate to expand copyright entitlements into copyright-adjacent fields of commerce run counter to Supreme Court precedent and the copyright system’s goal of increasing public access to knowledge and information.” We hope that the FCC and members of Congress who have taken an interest in the current rulemaking will see that the copyright issues being raised are either not properly within the scope of copyright or, to the extent that they are, have been adequately addressed in the FCC’s proposal. Sony makes it clear that copyright holders do not get to control the manufacture or distribution of video equipment with substantial non-infringing uses. The threat of piracy should be taken seriously, but it cannot vitiate Sony’s important copyright-limiting principle.

            By statute, the Copyright Office has authority to “[a]dvise Congress on national and international issues relating to copyright, other matters arising under this title, and related matters.” The Office thus plays a legitimate and important role in shaping copyright policy. To properly fulfill that role, Office staff must take into account the public’s interest in both the protection of copyrighted works and the development of affordable new technologies for accessing and disseminating those works. Copyright is not just for the benefit of copyright holders, and neither is the Copyright Office.     

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