The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
(There's been quite a kerfuffle over at the U.S. Copyright Office with the announcement of the resignation of Maria Pallante as register of copyrights. I haven't been following it too closely, but my friend and colleague Annemarie Bridy has, and what follows is her guest post. -DGP)
Making Sense of the Recent Upheaval at the U.S. Copyright Office
Over the last week or so, there's been a lot of speculation, much of it unproductive, concerning Maria Pallante's sudden departure from her position as register of copyrights. (See, for example, here, here, and here.) The clickbait headline in the Register was "Murder in the Library of Congress," beneath which appeared the obligatory photo of a Parker Brothers Clue game board. Even members of the House Judiciary Committee, which has oversight of intellectual property legislative matters, weighed in. In Copyright Land, Pallante's moving on is big news. What to make of it?
Commentators are right to point out that the unexpected change in leadership at the Copyright Office comes at a politically sensitive time, with substantial legislative proposals pending for the creation of a copyright small-claims tribunal and much-needed modernization of the office's registration and recordation systems. As someone who works closely on matters of copyright law and policy, I can also say we're at a moment of extreme political polarization over some fairly basic questions about the role of the Copyright Office and the current allocation of benefits and burdens in the copyright system.
I would like to offer what I think is a simple and plausible explanation for why the register no longer has her job. I have no inside information on which to base this hypothesis, and I'm sure those who feel certain that something unwholesome was afoot will find it unpersuasive. With those caveats, here it is: The new librarian of Congress, Carla Hayden, made a rational executive decision to protect the structural integrity of her organization in the face of a fairly brazen internal challenge. In Hayden, we have a new, highly qualified and energetic librarian whose appointment follows an extended period of torpor in the leadership of the Library of Congress. When she arrived on the job, she was confronted with the uncomfortable fact that the director of a major unit within her organization—the Copyright Office—was in the process of actively trying to withdraw that unit from the organization, of which it has been a part since 1897. During her tenure, Pallante made no secret of her displeasure at having the Copyright Office operate under the umbrella of the Library of Congress. While there was doubtless good reason for the register to chafe under the regime of the former librarian, who to all appearances had negligible interest in bringing the library's operations into the 21st century, there is no reason to believe that Hayden intends to run the library in the same way her predecessor did. On the contrary, all of the evidence suggests that she will be a modern leader for a modern library. And that's a very welcome development.
In any complex organization, it's crucial for senior management to be unified in their understanding of the organization's mission and how that mission can best be accomplished. It seems fairly basic that any new leader is entitled to expect, at a minimum, that all of the members of her management team actually want to be part of the organization—that they see a future for themselves and their staffs in the organization. In the academic world, where I spend most of my time, everyone expects a new university president to make major, senior-level personnel changes when he or she takes the helm. Sometimes those changes come quickly—as when there is a sharp divergence of views on a matter central to the shape and identity of the institution. Sometimes they come more slowly, as time reveals more subtle conflicts or incongruities between a given administrator's approach to his or her job and the new president's vision for the future of the institution. Always, however, personnel changes come. They're a normal and healthy part of institutional evolution, even if they produce some short-term disorientation.
We'll likely never know the details of Pallante's departure from her job. I'll go out on a limb and suggest that the logical explanation is probably the actual one. I have no difficulty believing that Hayden and Pallante are both principled, independent, capable people who disagreed on a structural matter so fundamental to the future of the library and the Copyright Office that it was simply not possible for them both to continue in the jobs to which they had been appointed. The Copyright Act gives the librarian supervisory authority over the register of copyrights: "The Register of Copyrights, together with the subordinate officers and employees of the Copyright Office, shall be appointed by the Librarian of Congress, and shall act under the Librarian's general direction and supervision." (17 U.S.C. § 701.) Hayden operated within her authority when she reassigned Pallante to another position within the Library of Congress. The register graciously and understandably declined the new appointment.
Those of us who care about the future of the copyright system and the important cultural values it is intended to further—and we are a big tent full of strong-minded people—should get to work finding the next register of copyrights. It's past time to move beyond the suspicion and rancor that have come to dominate debates over copyright policy. We have a new librarian of Congress, and we will soon have a new register of copyrights. As a community of big and small creators and technologists, we should help the librarian and the register work together to build a more technologically advanced and operationally focused Copyright Office.