Senate Introduces Register of Copyrights Selection and Accountability Act (S. 1010)

As the House of Representatives version of the Register of Copyrights Selection and Accountability Act of 2017 passed the House on April 26, a version of that House bill was duly introduced in the Senate on May 2 as Senate Bill 1010.

The Senate bill is identical to the House bill and is sponsored by Senate luminaries Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), ranking member Dianne Feinstein (D-Calif.), former chairmen Patrick Leahy (D-Vt.) and Orrin Hatch (R-Utah).

Remember that the House bill  passed with an extraordinarily lopsided bipartisan vote of 378-48 demonstrating broad support for the purpose of the bill:   to elevate the position of the head of the Copyright Office to a Presidential appointment (confirmed by the Senate), thus making the office comparable to the U.S. Patent & Trademark Office and certain other legislative branch positions.  The “Register of Copyrights” is currently (and historically) appointed by the Librarian of Congress as would a more junior job, but the Congress decided to upgrade the position after recent controversy illuminated the benefit of that most justified disruption.

The Senate bill was read twice and referred to the Senate Rules Committee (which has direct jurisdiction over the Library of Congress).  If no amendments are offered in the Senate, S 1010 can proceed straight to the President for signature.

Elevating the Register of Copyrights to a Presidential appointment is a long overdue first step toward modernizing the Copyright Office and allowing it to innovate separately from the extraordinary management weaknesses at the Library of Congress identified by the Government Accountability Office in its 2015 report (“Library of Congress Needs to Implement Recommendations to Address Management Weaknesses“).

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Congress Brings Sanity to the Appointment of the Head of US Copyright Office

As you may have read, the newly appointed Librarian of Congress terminated the head of the U.S. Copyright Office (called the “Register of Copyrights”) through a process that I believe would be considered what’s called “retaliatory constructive termination”.  This is when an employer doesn’t actually fire an employee–usually a senior employee or whistleblower–but puts them in what is effectively a demoted position to make them miserable enough to quit and then announces that the person quit.

This hasn’t worked since Cinderella, and it doesn’t work today.  By demoting the Register of Copyrights, who was Maria Pallante, the new Librarian effectively fired her in a move that was condemned by two former Registers and both current and former Members of Congress as well as songwriters like Don Henley.  The firing was condemned as Google-backed chicanery by no less than the august Editorial Board of the Wall Street Journal.

No one should have been surprised when Pallante quit.

While several in the anti-copyright crowed crowed about Pallante’s demotion being business as usual because Pallante wanted greater independence for the Copyright Office, the justification that they gave was that the Librarian has the power to appoint the Register, so she also has the power to constructively terminate a Register that someone else appointed.  I guess they didn’t realize that they were actually strengthening Pallante’s constructive termination case if anybody cared to listen.

So it looks like somebody did care to listen–in the form of the House and Senate Judiciary Committees.  This is, after all, the Library of Congress after all.  If anybody forgot who they worked for, it now looks like that person was the Librarian, Dr. Carla Hayden.

The House Judiciary Committee has just issued a carefully worded policy paper regarding the appointment of the next Register–notwithstanding the rather mean spirited “and your little dog, too” justifications given by some in the anti-copyright crowd who are promoting the Library’s recent deal with the Berkman Center’s Digital Public Library of America to turn a digitized Library of Congress into a kind of feeder to Kickass Torrents with sovereign immunity.  (You won’t be surprised to learn that DPLA is overseen by at least one director formerly of the Google Books project.)

Here’s the money line from the House Memo:

Currently, the Register is not subject to the same nomination and consent process as other senior government officials.  To ensure that the American people have an opportunity to provide input into the selection of future Registers of Copyright through their elected officials, the next Register and all that follow should be subject to a nomination and consent process with a 10-year term limit, subject to potential re-nomination.

Let it not be lost on anyone that Congress is about to adjourn for the year and will return in January with a new Congress in a new session.  This memo served as a warning to the Librarian that Dr. Hayden should not get any further delusions of grandeur that manifested in appointing a new Register during the recess.  Not only should she not be thinking about a recess appointment, but she just lost the unilateral right to appoint the Register forever.

The Committee should be commended for coming up with a real solution to put a stop to what was a shabby little story of inside Washington back stabbing that was widely condemned by fair minded people everywhere and exposed the anti-copyright crowd for what they really are.