25 October 2016

Weekend Update

... the original one. As in, "Billboard, you ignorant slut." The suddenness — and apparent method — of Ms Pallante's removal from her role as Register of Copyright are, indeed, surprising. But the ignorant spin on whose interests are served is, I'm afraid, no surprise at all.

It’s not clear why Hayden removed Pallante, but media business lobbyists reacted with dismay and some politicians expressed concern. After Pallante resigned, Congressman Bob Goodlatte (R-Va.) and John Conyers, Jr. (D-Mich.), respectively the Chairman and Ranking Member of the House Judiciary Committee, which has responsibility for copyright issues, issued a statement that Pallante’s departure would be “a tremendous loss for the Copyright Office and for America’s creators, innovators, and users of copyrighted works.” They don’t mention Hayden, who informed members of Congress of her decision the day before the announcement, but their displeasure with her decision is implied.

Although Hayden spoke about the importance of copyright during her confirmation hearings, she is perceived to favor looser copyright laws, since she previously served as president of the American Library Association, an organization that lobbies for greater public access to creative works, sometimes as the expense of creators. The Obama Administration also has close ties to technology companies, which would like to see a Copyright Office that values fair use and other exceptions to copyright over the rights of creators and copyright owners.

The unstated assumption in this passage — which, sadly, reflects silently-assumed roles in public debate on copyright — is that the interests of the distribution industries that were well-protected by Ms Pallante and even more so by her predecessor Ms Peters (who is quoted earlier in the article as proclaiming that she is "very disturbed") actually do align with the interests of creators; that Rep. Goodlatte knows a bloody thing about the interests of individual creators, as opposed to the interests of corporate lobbyists for the content-distribution industries;... and that the interests of librarians in making things available to the public are inimical to creators. Umm, not so much.

One example of how this is untrue is the Morris fiasco, in which Ms Peters (and, later, Ms Pallante) came down on the side of distributors and reusers — and against the interests of nonemployee authors — with cramped interpretations of the scope of copyright registration and how registration of a periodical does (or does not) protect freelancer contributions. The subtext is that the freelancers must pay additional fees to the Copyright Office to register their works, subverting the very intent of providing a "serial registration" in the first place (not to mention making use of registration data to determine chain of title virtually impossible, creating multiple registration chains for the same work). Consider the current issue of The Magazine of Fantasy and Science Fiction. If one took the concept of registration at face value, this would garner a single $35 fee for the Copyright Office, protecting its entire content regardless of who owns it. Not so fast: Under the Morris doctrine, each freelance work must be separately registered to be protected. That means that sixteen of the eighteen items appearing in this table of contents will each require a registration, for a total of perhaps as much as $560 in fees (perhaps less if authors take advantage of various group registrations, at the potential risk of being "late" to register and thereby losing statutory-damages and attorney's fees in litigation against an infringer).

Then there's the failure of the Copyright Office to provide definitive, APA-compliant guidance on how to terminate (revoke) a license under § 304(c) (for works first published prior to 01 Jan 1978) and § 203 (for works first contracted on or after 01 Jan 1978). It's only been forty bloody years since the 1976 Act was passed, but this is still an open question: What form a termination notice must take, how it must be delivered and to whom, when it must be delivered, whether the termination letter is recordable and when, under what circumstances an intermediate agreement (say, for another edition) forfeits termination (revocation) rights, and so on. This particular failure to even act is anti-creator and pro-distributor, if only because it enables continued publisher quibbling that "the notice wasn't technically correct."

Then there's the substantive problem of actual conflict, epitomized by the mess that the music industry made of 2Live Crew. Remember, there were creators on both sides in that case, but it results from humor-impaired bullying by the major industry figure that valued an existing revenue stream that flowed not to the actual creator, but to a particularly difficult-to-negotiate-with "music publishing company," over the creativity of rap artists outside of the N'ville establishment. (Note: Neither version is to my taste or even all that "good" in an analytic sense.) Similarly, the problems arising from and around The Wind Done Gone and Sixty Years Later: Coming Through the Rye also reflect agency capture: The Copyright Office has failed to act, and by doing so has kept matters in practice imbalanced in favor of distributor/publisher interests.

None of this is to say that the way Ms Pallante's departure appears to have been accomplished represents best management practices. Indeed, I simply do not know what led to it, although in the Department of Defense "moving to a new position without prior notice and locking out of the computer/administrative systems" would be a sign that some non-performance-related matter required an immediate change of command. It could be health; it could be allegations of misconduct that will later prove unfounded, but have a serious appearance; it could be discovery of a conflict of interest so serious that no "unwinding" is possible, even one imputed from another family member; it could be real and serious misconduct. <SARCASM> Perhaps it's just an audition to take over for Mr Drumpf on The Apprentice. </SARCASM> It could, of course, just be heavy-handed bureaucracy at work, or even spin coming from one side that the official sources have chosen not to respond to. We don't know, we probably won't know in the near future, and we need to just move on... but we also need to watch for this methodology again. We should also ponder the irony that because Ms Pallante is a mere employee of Congress, she has less protection for her job than she would have had if the Copyright Office was in the Department of Commerce, along with its intellectual-property counterparts of patents and trademarks.

Nonetheless, Billboard's self-interested explication is ignorant bullshit. The establishment figures of the music-publishing and music-distribution industry simply do not represent the interests of songwriters/composers and performers, except incidentally. And of course I manipulated the time stamp on this entry by an hour or so (the 'net connection was dicey for a while). I just couldn't resist.