Public “Selective” Knowledge

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Disagreement on law and policy in the field of copyright have become routine. But in the past few weeks, Public Knowledge has crossed the line of civil and intellectual debate, levelling ad hominem attacks against the widely respected U.S. Copyright Office, claiming it “has a long history of being bad at its job, and misrepresenting the law.” But a critical review of Public Knowledge’s own statements reveals that these attacks are baseless, self-serving, and hypocritical.

Both the trigger and central focus of PK’s vitriol appears to be the Copyright Office’s analysis of FCC Chairman Wheeler’s proposal to mandate retransmission of television programming without regard for copyright. Chairman Wheeler himself asked for that analysis, recognizing the Copyright Office’s expertise, and the Copyright Office put the analysis in writing in response to a bipartisan request from Congress. PK posted a blog the same day arguing for the Wheeler proposal, astonishingly claiming that “the Copyright Office does not ‘administer the Nation’s copyright laws.’” PK couldn’t be more wrong. Sections 701 and 702 of the federal Copyright Act specifically charge the Register of Copyrights with administering the Act, promulgating regulations, and providing expertise on copyright law and policy to Congress, the judiciary, and federal agencies.

But that was just the beginning of PK’s misstatements. In the same blog post accusing the Copyright Office of “misrepresenting the law,” PK claims the Copyright Office is pushing a 2008 proposal regarding copyright exceptions for libraries that “libraries and archives…uniformly opposed.” What PK doesn’t say is that the 2008 proposal was co-written BY libraries and archives as part of a lengthy process and report overseen by the same Copyright Office that PK maligns. PK even lauded that process at the time for identifying “critical areas for reform.” It is true that since then, in light of certain expansive fair use court decisions, some (but not all) library organizations have flip-flopped and now oppose the proposal they once helped write. Meanwhile, the Copyright Office has remained consistent in its support for modernizing the law.

That blog is similarly selective in its description of the Copyright Office’s report, again, at the request of Congress, on the Making Available Right in the United States. The issue is whether the United States Copyright Act provides rights equivalent to the right of “making available to the public” as required by World Intellectual Property Organization treaties. PK’s blog sneered: “If they [Congress] decline to write the actual statutes, that’s a pretty clear sign that they’re not interested.” Except that this once again ignores what really happened. Congress was very clear that it wanted to implement the treaties fully, and felt confident that “[t]he treaties do not require any change in the substance of copyright rights or exceptions in U.S. law.” PK also accuses that “the Copyright Office conveniently omitted the fact that numerous courts (the majority of those considering it, in fact) have rejected the idea.” That is simply false. The Copyright Office wrote on page 75 of its report:

Nevertheless, the case law on this question is far from uniform, and a number of courts have concluded that Section 106(3) applies only to completed transfers. To date, however, the cases that have directly held to that effect are limited to district courts. Moreover, nearly all of those decisions either cited directly or relied on prior cases citing, the Nimmer on Copyright language that Professor Nimmer has since retracted in light of Professor Menell’s recent legislative history scholarship.

PK has also declared the Copyright Office “unqualified” to provide an analysis of collective licensing of copyright rights in musical works, because it overlaps with antitrust issues. Just as in the other cases, the Copyright Office was asked by Congress to provide an analysis of a copyright issue, this time “the licensing of jointly-owned works by the [performing rights organizations]” and the Justice Department (“DOJ”) review of the consent decree under which the two major PROs operate. The Copyright Office had already produced a tremendous study of music licensing, generally, so it was only logical to ask for its analysis of this sub-issue as well. In its analysis, the Copyright Office expressed concern that DOJ might be considering prohibiting fractional licensing of jointly owned works [that is, different co-owners license to different people], and noted that in its recent study, that this “longstanding practice of the music industry — went unquestioned as a background fact by the many stakeholders who participated, including both licensors and licensees.” The Copyright Office was prescient; DOJ did indeed seek to prohibit fractional licensing and as a result generated a firestorm of controversy and criticism.

Most recently, PK declared, “The Copyright Office Doesn’t Understand Economics,” in another attack on the Copyright Office’s analysis of the FCC Chairman Wheeler’s proposal. PK asserts that the Copyright Office’s analysis “has been widely panned by consumer and technology groups alike” and that the Copyright Office is particularly mistaken on the issue of fair use. PK ignores the widespread praise for the Copyright Office’s cogent analysis, ranging from FCC Commissioner Pai, to creators to Citizens Against Government Waste. PK also fails to mention that leading technologist Larry Downes wrote that the problems with the Wheeler proposal are distinct from fair use issues, and that the Wheeler proposal is deeply flawed and bad for consumers.

Why is PK so unhinged about the Copyright Office, particularly after its critique of the Wheeler plan? Only they know for sure. But another thing they don’t mention in any of these blogs is that the co-founder and former president of PK now works as none other than special counsel to Chairman Wheeler.

I worked at the Copyright Office for almost a dozen years, and you get used to taking some lumps: No matter what you do, somebody doesn’t like it. But it is irresponsible to level charges of malfeasance and even dishonesty simply because you disagree with someone. It is all the more telling when those hurling the epithets are contradicting themselves, being selective with the facts, and working in furtherance of hidden agendas.

Steven Tepp formerly served as Senior Counsel for Policy and International Affairs at the U.S. Copyright Office. He is currently Founder and President of Sentinel Worldwide, where he advises creative industry clients, including the MPAA. The views expressed are his own.

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Steve is President & CEO of Sentinel Worldwide, providing expert strategic counsel on intellectual property. His full bio is at: http://sentinelww.com/about-me/

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