The Copyright Office Acts As Hollywood's Lobbying Arm... Because That's Basically How It's Been Designed

Last month, we wrote about a blog post by Public Knowledge questioning why the Copyright Office kept acting like a lobbying firm for Hollywood, often stepping into issues where it has no business and almost always pushing the Hollywood viewpoint. It turns out that was just a sneak peak of a much larger report that PK has now released on The Consequences of Regulatory Capture at the Copyright Office. The full 50-page report is worth a thorough read.

It details the obvious bits concerning the revolving door between copyright maximalists and the Copyright Office, with much of top management coming from jobs in the entertainment industries, and then many former top Copyright Office folks going right back into that industry upon leaving. But the more interesting part of the report is looking at how frequently the Copyright Office appears to blatantly misinterpret copyright law in an attempt to expand what the law actually covers.

From safe harbor provisions to statutory licenses, the Copyright Office has, fordecades, misapplied, ignored, or "creatively interpreted" statutory and common law. Itassumed a strained and flatly unfeasible reading of safe harbor provisions in order to stripwebsites of statutory legal protections when they are sued by certain sound recordingrightsholders; concluded against the force of common and statutory law that a broad"making available" right existed where it does not; and mischaracterized key aspects ofcopyright law with regard to proceedings at the Federal Communications Commission, all insupport of the position of rightsholders against other industries and the public

That seems like it should be a pretty big concern, no?

There are some eye-opening examples of problems as well. For example, the time when the Copyright Office provided a memo in a lawsuit the record labels had filed against Launch Media. It originally included a footnote saying that Launch Media was likely a "non-interactive service" (which has many, many fewer restrictions than an interactive one). Magically, the footnote was then updated to say it wasn't a non-interactive service, but an interactive one. What changed?

In a memorandum from Kenneth L. Steinthal, attorney for Launch, admittedinto evidence at trial, Steinthal stated that he spoke with the individual in theCopyright Office who drafted the footnote. Steinthal stated that according tothat individual, someone from the RIAA had called the Copyright Office and asa result, the substance of the footnote was changed.

Yup. Apparently the RIAA can just make a phone call, and the Copyright Office is willing to switch positions overnight.

The report also notes how the Copyright Office keeps expanding its own mandate, and keeps getting smacked around for it. The examples of courts looking skeptically at the Copyright Office is fairly telling:

Courts have repeatedly taken a dim view of the Copyright Office's analysis of largerquestions-and, on occasion, even of their judgment in their core function of issuingregistrations. The Second Circuit in Vimeo took the Office to task, slamming its analysis of safeharbors in the Pre-1972 Sound Recordings report as "arbitrary and without legalfoundation," "incompatible with a literal and natural reading of the text," and "based inmajor part on a misreading of the statute." The Court also commented that the Office'sposition was "[a]t the very least, a strained interpretation-one that could be justified only byconcluding that Congress must have meant something different from what it said."

The conclusion is that we need to rethink the Copyright Office and how it's set up:

The Copyright Office, isolated from effective mechanisms of governmental accountability,has become deeply and troublingly captured by major entertainment industries and otherrightsholder interests. As a result, it has regularly disregarded the concerns of otherstakeholders, such as libraries, archives, and the public at large. It has frequently aligneditself with the agendas of industry trade groups, pushed for expansion of copyright at theexpense of consumers' established rights, and published reports that embrace extremeinterpretations that rise above and beyond the scope of settled law.

Of course, it's not too difficult to see how this came about. If you're not deep in the weeds of copyright issues, it's actually fairly natural to assume that the people who best understand copyright law are those in companies who use copyright law to their own advantage. Of course, that ignores that the very purpose of copyright law is not to benefit copyright holders, but the public (this is also something that the Copyright Office has, consistently, gotten wrong). But, that's like saying that the best banking regulators should be former bankers (oh wait...) and the best FCC commissioners should be ex-telco lawyers (oops). In the end, what we're seeing is pure regulatory capture, but it's especially troubling in the copyright context, given that copyright is explicitly designed with the benefits of the public in mind, and it's only over time (thanks to this kind of regulatory capture) that the mission has been warped and twisted to the false belief that maximizing copyright is important, rather than maximizing the public's benefit.

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