Public “Selective” Knowledge II: This Time It’s Personal

Public Knowledge has launched unprecedented and unfounded attacks on the widely respected Copyright Office in a transparent bid to bully, berate, and discredit that Office in furtherance of the drastic policy goals PK has failed to achieve for decades. That may sound harsh, but the statements coming from PK in recent weeks are so outrageous and so far afield of what constitutes reasonable discourse that they demand a forceful response. PK has led a relentless campaign that portrays reasonable policy differences as evidence of impropriety. Apparently, they are unable to imagine that anyone could, in good faith, disagree with their orthodoxy. This is compounded by a Stalin-esque recounting of history, both tortured and selective, in an attempt to support their absolutist approach.

In a new “report” released last week, PK levels the severe charge that the Copyright Office is systematically captured by industry interests. They begin to try to support this by asserting a “revolving door” between the Office and copyright industries. But their evidence fails to support the claim, and they leave out many facts that are inconvenient to their biased narrative. For example, former Register of Copyrights, Marybeth Peters, spent virtually her entire professional life at the Copyright Office. Over nearly 45 years, she worked her way up through the ranks, ultimately leading the agency for the last 16 years of her tenure. Then, in semi-retirement, she took a part-time slot in a boutique law firm. For this, PK lists her as one of their top examples of a “revolving door.” PK similarly attacks the current Register, Maria Pallante, but shamelessly omits the eight years she worked at the Guggenheim Museum. PK quotes the writing of copyright lawyer Bill Patry, but conveniently fails to acknowledge that he is a former Copyright Office employee who is now Senior Copyright Counsel at Google. Nor does PK choose to mention other former Copyright Office lawyers who went to internet and tech companies, the Smithsonian Museum, the FCC, and other places that no one would mistake for copyright industries. [Full disclosure: PK also lists me, because I was at the Copyright Office and then went into the private sector. But PK apparently misunderstands what “revolving door” means; my trip was one-way, as were others they listed.]

PK follows this with a narrative stressing the influence of major copyright industries. Again, they leave out the most telling facts that disprove their assertions. For example, in 2001 then-Register Peters and then-General Counsel David Carson (both on PK’s “revolving door” list) refused to accept a filing from major motion picture studios for the royalties to which they were entitled under the cable and satellite compulsory licenses, due to a clerical error that rendered the filings late. The Copyright Office regulations allowed for a waiver, but Peters and Carson held firm to an impartial application of the rules and were upheld by the D.C. Circuit Court of Appeals in a decision written by now Chief Justice Roberts. Peters’ and Carson’s decision cost those studios upwards of $10 million; hardly the act of a “captured” agency.

PK then turns to a selective list of policy disagreements with the Copyright Office and instances in which courts did not follow the Office’s lead. Yes, there have been times when a court disagreed with the Copyright Office. There are also many examples where courts accepted and even relied on the Copyright Office’s analysis, sometimes in opposition to the assertion of copyright protection and sometimes in support of it. See examples here, here, here, here, here, and here, just to name a few. Even PK relies on the judgment of the Copyright Office when it suits their purposes.

Perhaps most telling is that PK singles out the Copyright Office for attack, when in fact many other policy makers had similar views. For example, successive Presidential Administrations and Congresses, controlled by both political parties over the past two decades, have negotiated and ratified treaties confirming that the United States provides the equivalent of a full “making available” right in its copyright law, which is fully consistent with the position of the Copyright Office. Similarly, PK assails the Copyright Office for expressing concerns about FCC Chairman Wheeler’s proposed set top box regulations, ignoring the fact that hundreds of Members of Congress have expressed similar concerns about the same proposal. In general, PK does not acknowledge the many statements from a bipartisan list of Members of Congress in the House and again in the House and Senate and again in the Senate recognizing the valued and respected contributions of the Copyright Office.

PK also attacks the policy reports issued by the Copyright Office, including repeating several attacks that I have rebutted before, but without addressing the facts presented in that rebuttal. It also supplements the old false attacks with new false attacks. On the issue of orphan works, the Copyright Office continues its consistent policy over the past decade of seeking new limitations to copyright protection that PK (among others) requested, twice. PK can only see the cloud in this silver lining, quibbling over the details as though it is evidence of bias. PK even goes so far as to accuse the Copyright Office of “mission creep” for doing nothing more than being responsive to the issues raised by the public comments in its statutorily mandated Section 1201 rule making. Further, PK entirely ignores the fact that in the most recent rule making the Copyright Office supported an unprecedented twenty-two exceptions to protection. Also completely absent from PK’s accusations is the Copyright Office’s report and role in mediating negotiations for new copyright exceptions designed to facilitate distance education, and in support of a new treaty mandating copyright exceptions to benefit the visually impaired.

PK’s two dimensional “Us vs. Them” approach reflects a lack of sophistication that, in itself, indicates that the organization is unqualified to judge the performance of the Copyright Office. The reality is that on any given day the Copyright Office is confronted with the differing and often competing perspectives of a rainbow of participants in the copyright system: authors, performers, publishers, distributors, exhibitors, educators, librarians, telecommunications companies, cable companies, satellite companies, sports leagues, broadcasters, consumers, newspapers, documentary film producers, internet companies, and even infringers. The nuanced and complex interaction of these interests with marketplace practices, technology, and the law stand in stark contrast to PK’s polemics.

Worse than the oversimplification and worse even than the litany of half-truths, is that it is all in service of PK’s thinly-veiled goal of discrediting the Copyright Office. PK sees an opportunity to win through invective and mudslinging the drastic policy goals that they cannot win through Congress or the courts. And, like other long-time advocates for weakening copyright, they think they have found the right time to do it.

It is my hope that this post will tell the rest of the story that PK selectively omits. In the meantime, the taunting has already begun, and I will look forward to more ad hominem attacks, devoid of substance, from PK. After all, that is their strategy.

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 veiws expressed are his own.