13 January 2017

Agency Capture and the Copyright Office

There's an "argument" going on right now — resembling the posturing of silverback gorillas more than an argument — concerning whether the Copyright Office is a captured agency. On one side, there are "info free" warriors and allies, such as the so-called "Public Knowledge" group (a deceptively deceptive name, with multiple layers of ideological presumptions in it), claiming that the Copyright Office has been agency-captured by "copyright holders" to the detriment of the public at large. The opposition has been sniping around the edges, pointing at all of the problems — and, admittedly, they're serious ones — with the factual support offered for that position, but failing to engage with the underlying question of whether there has been a capture at all.

And then this happens: The recently-ousted Register gets a new job as CEO of the Association of American Publishers, continuing the long tradition of senior Copyright Office officials (and even not-so-senior) sliding easily into well-paying jobs specifically in the distributor/transferee segment of the entertainment industry. This exposes the meaninglessness of the posturing described in the first paragraph, because "copyright rights" is not a two-sided battle. It isn't even necessarily a battle... but it definitely has more than two sides. At minimum, copyright necessarily involves the rights of:

  • The actual, natural-person creators of copyrighted works;
  • The distributors and, where present, transferee-owners of those works after their creation;
  • Reusers of those works, who create useful derivatives within the framework of copyright (whether licensed or not, fair use or not,... legally or not);
  • End users of those works

The regulatory capture is the second area. And Ms Pallante's new job — which will fit in quite well with her advocacy over the years — is a pretty clear piece of evidence that capture has been successful. Ironically enough, because the Copyright Office is an arm of Congress, its employees are exempt from most of the "revolving-door" restrictions... which might have inhibited this particular embarassment if the Copyright Office had been in the Department of Commerce where it belongs, along with the Patent and Trademark Office.