By Kevin Smith

When the Copyright Office issued its Notice of Inquiry (NOI) about a “Draft Revision of the Libraries and Archives Exception in U.S. Copyright Law,” I happened to be at a large meeting of librarians. The conversation turned quickly to this new NOI, in regard to which librarians are, of course, a major stakeholder, and I learned two things.

First, the group confirmed my previous intuition that section 108 — the exception in question — still works pretty well for the limited activities it enables – copying for library preservation and for users doing private research and study (which includes interlibrary loans). Second, there is considerable mistrust of the Copyright Office in the library community.

I have channeled some of this mistrust in previous comments about the CO, suggesting that they represent the interests of the legacy content industries too strongly, and give short shrift to the public interest, including the role of libraries, which ought to be central in discussions of copyright. In this new NOI, I and many colleagues see this problem again.

The first problem is the process outlined by the NOI. The Copyright Office has limited its inquiry to some very specific questions, and has decided to accept only private meetings to discuss those questions. Such a process clearly favors the lobbyists for the content industries. This clear preference for hearing industry voices is exacerbated by the fact that this discussion will be essentially secret. Without written comments that are publicly available, the normal procedure in such inquiries, no one will be able to know what any one else told the CO.

This process tends to confirm my suspicion that the CO already knows what it wants to do. The NOI seems to suggest that a draft revision already has been written, although it is not yet public. The process thus seems designed to give the CO cover when they release that draft, because they will be able to say that it conforms to what they heard from those who commented, and no one will be able to challenge that claim.

Such suspicion may seem paranoid, but it is confirmed by the attitude that the CO has taken toward library opinions whenever this topic of section 108 reform is raised. Over and over the library community has told the CO that such reform is not needed and would likely harm library functions more than it would help them. The fear is that we would end up with an exception as complex and unusable as the TEACH Act (section 110(2)), or laden with industry-demanded fees and burdensome requirements. Yet these concerns are routinely ignored. I made these points in person to a CO representative who had given a presentation at a libraries conference in March, and received a bland answer that simple reasserted that section 108 is “obsolete,” which is absurd. It was very clear that I, like so many of my colleagues, was being entirely ignored.

Apparently the CO often says that it wants to hear the opinions of “working librarians” as a justification for ignoring what they are told by the library organizations. But I am a working librarian, and my opinion was dismissed just a summarily, apparently because it did not coincide with the preconceived, lobbyist-driven vision of the CO. “Working librarian” seems to be a code for listening only to those who tell the CO what it wants to hear, and their double-secret inquiry process appears designed to protect that bias.

In a court decision issued last week, we had an additional illustration of this bias the Copyright Office displays toward the legacy content industries, even to the extent of misrepresenting the plain meaning of the copyright law and earning them a (gentle) rebuke from the federal courts.

The decision came from the Second Circuit Court of Appeals in the case of Capital Record v. Vimeo, and involved the issue of whether or not the DMCA “safe harbor,” which exempts internet service providers from potential infringement for content uploaded by users if the ISP follows specific procedures for notice and take down, was available when the uploaded content was pre-1972 sound recordings that are not, of course, subject to federal copyright law.  The lower court had held that the safe harbor was not available to Vimeo, so that it could be liable for videos uploaded by users that contain music from some of these pre-1972 recordings.  The Court of Appeals, however, felt otherwise, ruling that if the intent of the DMCA provision was to protect the ISPs when they did not know about or control the activity, that provision should apply even if the content was not subject to federal copyright.

The content industries originally negotiated and accepted the notice and take down provision back in 1998.  But in recent years they have come to dislike it intensely and to try multiple ways to undermine it in the courts.  If they are able to do this, it would make the ISPs essentially enforcement arms of these rights holders, relieving the latter of the expense of protecting their own copyrights.

The Vimeo case, then, is another instance of a content company suing to try to chip away at the safe harbor provision (section 512(c) of Title 17).  Specifically, the plaintiff, Capitol Records, asked the courts to find that the safe harbor did not apply if the content in question was a pre-’72 sound recording, so that the ISP (Vimeo) could be held liable for the presence of such material on its site.  Their position was supported by a report on such sound recordings written by the Copyright Office in 2011, which seems to have been written and timed, in part, for that purpose.  The CO offered a specific opinion, which it was not asked to provide, that the safe harbor did not apply to pre-1972 sound recordings.  The Office is certainly entitled to its opinion, and the District Court relied heavily on that opinion when it ruled in favor of Capitol Records in 2013.  But the Second Circuit was not impressed by the CO’s efforts on behalf of Big Content.

In the opinion issued last Thursday, Judge Pierre Leval, perhaps the most noted copyright authority on the federal bench, politely demolished the arguments offered by the Copyright Office in its report.  Judge Leval noted, first, that the CO had implied that there was a definition of “copyright infringement” in section 501(a) that dictates the outcome of the case.  But as the Judge points out, the claimed definition simply is not there; to make that claim involves a forcible misreading of the language of the section.  Opinions from executive agencies are entitled to some degree of deference in the courts, as Judge Leval notes, but they do not get deference when they misrepresent the actual wording of a statute.  Later, the CO tries to rely on “canons of statutory interpretation” to foist its opinion on the Court.  After noting that, since this is not an area of expertise for the CO, they are not entitled to any degree of deference, Judge Leval careful picks apart the claims made to try and bolster Capitol Records’ position.  The canons are misapplied, the Judge tells us, and the cases cited are misunderstood.

Overall, Judge Leval finds that the Copyright Office has “misread,” “misunderstood,” and “misapplied” the evidence it cites in its report on section 512 and pre-1972 sound recordings.  This should be a pretty comprehensive embarrassment for the CO.  Unfortunately, as it continues to embrace a role more akin to a lobbying organization than a federal agency, there is little sign that the Copyright Office is embarrassed.  For the rest of us, however, the ruling is further evidence of a Copyright Office that has gone off the rails; they have aggressively chosen sides in the alleged conflict between tech giants and content corporations and are simply no longer a reliable authority on copyright in the U.S.

Kevin Smith

Kevin Smith is a librarian, a lawyer focusing on copyright issues, a scholarly communications advocate, and the Dean of Libraries at the University of Kansas.

Comments (4)

  1. What can we do to get ahead of this?

    1. Does anyone know where Carla Hayden stands on this?

  2. One wonders why Kevin makes no mention here of the Section 108 Study Group, which issued a report in 2008 and which included among its members several librarians such as Lolly Gasaway (who co-chaired the group), James Neal, Bob Oakley, and Peter Hirtle. Certainly it was not the conclusion of this group that Section 108 needed no change. Does Kevin think all these distinguished librarians were simply wrong, or were somehow coopted by the Copyright Office and its nefarious scheme to serve as a stalking horse for rightsholders?

    1. The Study Group report is now eight years old and nothing has come of it in all that time; it pretty much arrived at the CO with no chance of making an impact. Indeed, one could cite the Study Group report as an example of the Office ignoring the voices of librarians. Instead, it will probably be used the way Sandy wants to use it — to wrongly assert that librarians have already had their say on 108. In fact, several of the distinguished librarians on the study group now oppose the reform effort of the CO.

      The 108 Study Group report is outdated for several reasons:
      1. The leadership at the Copyright Office has changed, and it has moved farther toward representing only the interests of Big Content.
      2. Congress is even more dysfunctional, so the chance of even-handed consideration of reform proposals is less likely than it was before.
      3. The courts have helped during the intervening years to clarify the role of fair use in the digital environment, to the point where, contrary to CO assertions, it is a reliable tool for many library functions.

Leave a Reply

Your email address will not be published. Required fields are marked *