There’s a lot to be said for the adage that “we shouldn’t let the perfect be the enemy of the good.” While true in many situations, it also requires there be enough “good” to be worth the effort you’re engaged in, and not wasting energy better deployed doing something else.
In a recent blog post on Truth on the Market, Kristian Stout of the International Center for Law and Economics takes issue with my framing of a bill that would require the register of copyrights—the person who heads the Copyright Office within the Library of Congress—to be a presidential appointment. I should add the proposal comes during a time when President Donald Trump is considerably behind in selecting and confirming his appointees to a broad range of executive branch positions.
Unfortunately, Stout mischaracterizes and misreads my position. In my TechDirt piece, I described both points of view about the bill, writing that “opponents argue the bill will make the register and the Copyright Office more politicized and vulnerable to capture by special interests.” Stout takes this out of context and represents it as my position, rather than a description of what others have said.
There are a number of other issues with Stout’s piece, not all of which are worth addressing. But I will tackle the main ones.
It’s true, as Stout claims, that the idea for making the register a nominated and confirmed position has been under discussion for several years as part of the House Judiciary Committee’s copyright review, but so were a lot of other things that didn’t come to fruition. My point is not that this idea is totally new, but that the impetus for the bill to be rushed through now is motivated by the political dynamic between Congress and Librarian of Congress Carla Hayden, as well as her removal last year of then-Register of Copyrights Maria Pallante. Stout attests Hayden’s nomination was not politicized, when in fact, it was. The Heritage Foundation, among other conservative groups, argued against her confirmation. Heritage Action even urged senators to vote “no” on her nomination, a position with which we disagreed.
To set the record straight — I don’t think it’s a terrible bill. As I’ve argued in TechDirt and The Hill, there are some reasonable arguments in its favor. There are also some plausible arguments against it. I simply don’t think it does much to move the ball either way.
The main point of the bill, according to many of its proponents, would be to make the Copyright Office position more politically accountable. In theory, with congressional input, stakeholders on all sides would have an opportunity to weigh in on who gets confirmed for the position. This could limit edge cases where there is a truly awful candidate. But the Senate rarely, if ever, rejects presidential appointments who are otherwise broadly qualified — particularly for what is not a Cabinet-level position. And there wouldn’t be many groups capable of mounting a successful opposition fight over this position, as they might over a Supreme Court seat (even then, it’s rarely the primary factor). Even for Heritage, likely the most powerful conservative group in Washington, key-vote scoring against Hayden in a Republican-controlled Senate only got them 18 votes.
This, in itself, is not much of a justification for a bill.
One of the key points of Stout’s argument for the legislation is that: “Separating the Copyright Office from the Library is a straightforward and seemingly apolitical step toward modernization.” But changing who appoints the register shouldn’t be conflated with separation or modernization. Indeed, the librarian of Congress still has final authority over all of the office’s substantive regulatory powers. Changing who picks the register also has nothing to do with meeting the challenges of modernizing the office’s information technology infrastructure. If an independent office is what you want, this bill isn’t that.
For the record, we at R Street are not necessarily opposed to an independent (or relocated) Copyright Office. Some scholars, including former Register Pallante, make a plausible case that the systemic bureaucracies of the Library are part of what’s holding the Copyright Office back. But it’s also hard to separate the Library’s well-documented IT problems from the decadeslong tenure of the previous librarian, James Billington. Additionally, there are IT modernization challenges at every level of the federal government, including independent agencies, and it may be worth giving the new librarian a chance to fix them.
At heart, the location of the Copyright Office is a complex question of public administration that is worthy of deep consideration and review. An immediate step I have suggested in conversations with colleagues is to have Congress ask the National Academy of Public Administration to conduct a review of the internal structural challenges of the Library and its component agencies (as it did for the PTO in 2005). This would inject a much-needed dose of objectivity into a discussion that has unfortunately served as another proxy battle between the entrenched sides of the intellectual property debate.
In his conclusion, Stout makes an excellent point: “Sensible process reforms should be implementable without the rancor that plagues most substantive copyright debates.” I agree. Regardless of how strong you think our nation’s copyright laws ought to be, you should be in favor of making the system’s core functions work better. This bill will do little, if anything, to advance that goal. I look forward to working with stakeholders on all sides, including Stout, to find solutions that do.
Image by Jirsak