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Separating Fact from Fiction in ALA’s Disinformation Campaign Against S. 1010

Separating Fact from Fiction in ALA’s Disinformation Campaign Against S. 1010 by Keith Kupferschmid

December 17, 2018

In recent weeks, the American Library Association (ALA) has taken to spreading false information about a bill pending in Congress that would make the Register of Copyrights a Presidential appointee confirmed by the Senate. The ALA’s mission is to support libraries and to provide public access to information, which makes its mischaracterization of S. 1010, the Register of Copyrights Selection and Accountability Act, so troubling. Instead of supporting pending legislation that would contribute to the modernization of the U.S. Copyright Office, ALA is opposing the bill.

Today, the Register of Copyrights is hired and fired by the Librarian of Congress without any input from the public, Congress or the President. The Librarian, Dr. Carla Hayden, was President of ALA approximately 15 years ago, so understandably ALA is a little biased here. No doubt, they believe they can unduly influence Dr. Hayden and future Librarians of Congress when it comes time for her and them to choose future Registers of Copyrights. Therefore, they don’t want the existing process to change. So, ALA’s focus is on how to activate its members to oppose a bill that would change the process without disclosing the real reason they don’t want change to occur.

How are they going about this? ALA has been blogging (see here and here), tweeting and otherwise urging its members to contact their Senators and urge that they oppose the bill. Instead of telling their members the truth, they are opting to make it seem like S. 1010 is something worth opposing. With this being the case, it’s important to clarify the real purpose and facts about the bill; and if ALA members (or anyone else) want to oppose it after reading this blog, at least they’ll be doing so with their eyes wide open and based on the correct information.

What is the reality regarding S. 1010? The Register of Copyrights Selection and Accountability Act would create a more balanced, neutral and transparent process for selecting the Register. A companion bill, H.R. 1695, passed the House last year by a very wide margin. The version of the S. 1010 presently pending in the Senate would make the Register of Copyrights a position appointed by the President and confirmed by the Senate. Like the process for numerous other Presidential appointees, the bill would create a panel of Congressional leaders, including the Librarian, to develop a slate of candidates to be considered for the Register of Copyrights position. The President may then choose a candidate from this slate, after which the candidate would be vetted and confirmed by the Senate.

Unlike the present process for selecting the Register, which leaves the hiring and firing of this position to the Librarian of Congress and doesn’t involve Congress, the bill would actively involve Congress in the selection and confirmation process, which in turn would allow the public to voice its opinion on candidates through their elected officials, thereby creating a much more transparent process than exists today.

So, let’s compare ALA’s recent claims against the facts:

ALA says that S. 1010 would “undermin[e] the authority of the Librarian of Congress.”

The facts are: Nothing in the bill would alter the Librarian of Congress’ authority over the Register of Copyrights. Section 701(a) of the Copyright Act states that the Register “shall act under the Librarian’s general direction and supervision.” The bill does not alter this language in any way.

ALA says that S. 1010 would “lay[] the groundwork to move the Copyright Office out of the Library of Congress.”

The facts are: Presently, the U.S. Copyright office resides in the Library of Congress. There is nothing in the bill that would alter the location of the Copyright Office now or in the future. After the bill passes, the Copyright Office will remain a division of the Library and the Register will continue to report to the Librarian. There is nothing nefarious happening here. In fact, during the recent hearing before the Senate Rules Committee, the Copyright Alliance went on record urging Congress not to move the location of the Copyright Office.

ALA says that, under the bill, “Congress would voluntarily give up its power to appoint its own copyright advisor.”

The facts are: Congress is not giving up its power to appoint the Register because, today, Congress has no power to appoint the Register. That power resides solely with the Librarian of Congress. The bill would establish a bipartisan, bicameral committee that includes “the Speaker of the House of Representatives, the President pro tempore of the Senate, the majority and minority leaders of the House of Representatives and the Senate, and the Librarian of Congress” to recommend candidates for the Register position to the President. After the President selects a candidate, the Senate would have the opportunity to consider the candidate through the confirmation process. None of this exists today. The bill would, for the first time ever, give Congress a formal role in selecting its own advisor, make the Register more accountable to Congress, and enable Congress to receive the independent, expert advice it needs to exercise its responsibilities under the Constitution’s Copyright Clause. The ALA’s statement that Congress is giving up its power to appoint the Register could not be more wrong.

ALA says that S. 1010 “would politicize the Register’s position to the public’s detriment.”

The facts are: Today, the Register is selected behind closed doors. The Librarian selects the Register without any input from the public, Congress or stakeholders. The bill would create transparency where there is none today. It would implement a process to appoint a Register that is identical to the process used to appoint hundreds of other presidentially-appointed government officials – including the Librarian. Under the bill, the Register would be publicly vetted, giving the public and all interested stakeholders visibility into the selection process and an opportunity to weigh in through their elected representatives. Importantly, the Librarian is nominated by the President and confirmed by the Senate, yet no one claims the selection of the Librarian has been politicized. If this bill politicizes the Register position, as ALA claims, then the Librarian position is equally tainted. This blatant inconsistency in ALA’s arguments demonstrates the deceptiveness of their opposition to the bill.

ALA says that S. 1010 would “slow the critically needed modernization of the Copyright Office.”

The facts are: It is critical that the U.S. Copyright Office be modernized, but nothing in this bill would alter or slow that process in any way. In February 2016, the U.S Copyright Office delivered a “comprehensive and exhaustive” Provisional IT Plan to the House of Representatives, including a “fully-mapped out future-state IT enterprise and a detailed cost analysis for a modern IT environment for the national copyright system,” and “incorporate[ing] government best practices, as identified by OMB, GAO and other authorities.” The plan has already been developed, the public has had a chance to comment on it, and the Acting Register has been implementing it. A new Register could seamlessly and immediately begin to put it into practice given the necessary resources and authority, especially if that new permanent Register is the Acting Register, Karyn Temple.

While I am debunking some of ALA’s deceptive tactics, it makes sense to also address other bogus assertions regarding the bill, including:

Why do we want to give more power to President Trump?

The facts are: This bill isn’t about taking power from the current Librarian or giving power to the current President. It isn’t about any individual, whether it’s President Trump, Dr. Hayden, or Dr. Hayden’s would-be appointee. The bill does not give more power to the President. Rather, it gives more power to Congress and the American people in the selection of future Registers. The President presently has the power to select the Register without consulting Congress by demanding that the Librarian, a Presidential appointee, select a particular Register. If the Librarian refuses to select the Register of the President’s choosing, he can remove the Librarian and appoint a replacement who will. The version of S. 1010 that is pending before Congress, would authorize Dr. Hayden to select the next Register and would allow the next President —whomever follows President Trump — to select the next Register. President Trump would not select the next Register unless she failed to complete her ten-year term while he was still in office. However, if the bill does not pass this week, things could change such that President Trump could potentially select the next Register, since (under S. 1010) the Librarian’s authority to select the next Register under the bill expires at year’s end.

Is S. 1010 an attack on Dr. Hayden?

The facts are: Legislation to make the Register a presidential appointee has been before Congress for approximately six years, and advocated by the copyright community long before Dr. Hayden was even mentioned as a candidate for the position. This bill has nothing to do with any one individual, and certainly is not intended to be a statement on Dr. Hayden’s performance as the Librarian of Congress. Instead, the bill is about putting the U.S. Copyright Office on sounder footing to serve Congress and the American people, and about having a more transparent, more neutral, more balanced process for selecting the Register of Copyrights.

In attempting to politicize a nonpolitical effort, ALA is doing a grave disservice by not telling its members the whole story. This situation is ironic when you consider ALA’s role is supposed to be supporting the mission of libraries, as well as providing public access to information.

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