Senate Should Either Fix Or Get Off The Pot On Copyright Office Bill
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The U.S. Senate is about to consider mostly pointless legislation that would make the nation's register of copyrights—the individual who heads the U.S. Copyright Office, officially a part of the Library of Congress—a presidential appointment that would be subject to Senate confirmation.While the measure has earned praise from some in the content industry, including the Motion Picture Association of America, unless senators can find better ways to modernize our copyright system, they really should just go back to the drawing board.The Register of Copyrights Selection and Accountability Act of 2017 already cleared the U.S. House in April by a 378-48 margin. Under the bill and its identical Senate companion, the power to select the register would be taken away from Librarian of Congress Dr. Carla Hayden. Instead, the president would select an appointment from among three names put forward by a panel that includes the librarian, the speaker of the House and the majority and minority leaders of both the House and Senate. And the register would now be subject to a 10-year term with the option of multiple reappointments, like the Librarian of Congress.The legislation is ostensibly the product of the House Judiciary Committee's multiyear series of roundtables and comments on modernizing the U.S. Copyright Office. In addition to changes to the process of selecting the register, the committee had recommended creating a stakeholder advisory board, a chief economist, a chief technology officer, making information technology upgrades at the office, creating a searchable digital database of ownership information to lower transaction costs in licensing and royalty payments, and creating a small claims court for relatively minor copyright disputes.Alas, while it’s billed as a “first step,” the current legislation gives up most of those more substantive reforms and instead amounts largely to a partisan battle over who will have the power to select the next register: Hayden, who was appointed by Barack Obama, or President Donald Trump.Opponents argue the bill will make the register and the Copyright Office more politicized and vulnerable to capture by special interests, while ceding more power to the executive. They argue that vetting the register through the nomination process could delay modernization efforts. Hayden needs the position to be filled expeditiously to implement her modernization program, and Trump already faces a sizable confirmation backlog.Meanwhile, proponents argue a more independent register, less tethered to the will of the Library of Congress, will make USCO more accountable. They say it will make the office run more efficiently and allow it to modernize. They also believe it will address important constitutional questions, such as the separation of powers and oversight by the president.At the heart of these constitutional questions is the fact the Library of Congress has both significant legislative and executive functions. Housed within the legislative branch, it also sets royalty rates and rules on exemptions from the Digital Millennium Copyright Act. Critics have derided the Copyright Office for being slippery about whether it is serving a legislative or executive role, depending on who’s asking. The contention is that this unusual arrangement renders USCO a “constitutional chameleon.”Of course, it is not uncommon for entities in one branch to perform the functions of another. The president has a role in the legislative process through his veto power. The International Trade Commission performs judicial functions, but is an independent agency housed within the executive branch. The federal government's separation of powers is not absolute. But there does come a point where those lines become so blurred as to call the original classification into question. In that respect, Congress should consider taking certain functions—such as the Copyright Royalty Board or the Triennial Section 1201 Proceeding—out of the Copyright Office.Some would propose moving the entire Copyright Office out of the Library of Congress and rendering it a standalone agency, which would elevate the register’s position to one of an officer of the United States. Under that highly controversial scenario, the Constitution's Appointments Clause definitely would require the job be filled by the president. But for now, since the librarian still has ultimate authority over the substantive regulatory powers surrounding copyright, changing who appoints the register won’t change anything outside of a short-term political calculation of who the next register is.The bottom line is that the current bill simply doesn’t do that much, good or bad. Making the position a presidential appointment is unlikely to speed up IT modernization efforts, at a time when the office has faced numerous setbacks and problems getting that IT infrastructure in place. The original policy proposal drafted by the House Judiciary Committee was a more comprehensive and substantial approach to modernization and many of its provisions were supported broadly. First step or not, this is a feeble try.As the Senate considers the bill in the coming weeks, they should either amend the legislation so that it will do something to modernize copyright, or just jettison it entirely. As currently written, the bill serves no purpose, and Congress shouldn’t waste its time on it.Sasha Moss is Technology Policy Manager for the R Street Institute
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posted at: 12:00am on 25-May-2017
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Titan Note Continues Trying To Sell Its Questionable Device: Its Own Actions Keep Raising More Questions
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A few weeks back, I wrote about IndieGogo shutting down a crowdfunding project for a small notetaking/speaker device called Titan Note. As I pointed out at the time, there were a lot of alarm bells about the product, but I had still backed it just to see if it might actually work. IndieGogo shutting it down actually had me relieved because the more I thought about it, the less sure I was the project was legit. Making things even more bizarre -- and leading to my post about it -- was the news that the guy behind Titan Note had sent a bogus DMCA takedown notice to the Verge over its skeptical take on the product. The DMCA notice targeted the use of Titan Note's promotional images -- which are clearly fair use for news publications.A few days after that all went down, I went to see if the guy behind Titan Note had anything to say about it. There was a post on Facebook claiming that it was all IndieGogo's fault and promising it would be on another "more trusted" platform soon:As you have noticed, your orders on Indiegogo have been refunded. We got into a dispute with Indiegogo and we decided to use another platform instead. Indiegogo doesn't have your best interest in mind and we decided to find a better solution for both you and ourselves. This seemed... sketchy for a variety of reasons. What kind of "dispute" could they have gotten into? A number of people asked in the comments, and the Titan Note guy (it's unclear if it's more than just one guy), just started pasting the same boilerplate response over and over again, insisting that there was a "dispute" over "payment and fees."The dispute was regarding the payment and the fees. Moreover, Indiegogo has a history of not taking responsibility for the users on its platform. Many are dissatisfied with the Indiegogo platform. It was a wrong move from our side to take orders on the Indiegogo platform in the first place and we truly apologize about that. We promise that we will make it up to you when we relaunch Titan Note on a more trusted platform next week. Please let us know if you have any other questions. More people began to question this, and then he started insisting he couldn't talk any more about it, because he was going to sue IndieGogo.We are in the process of pursuing legal action against Indiegogo for their misconduct. Because of this, neither we or them can go into more specific details. We appreciate your understanding and we apologize for the inconvenience this has caused you. Somewhere around this time, I decided to ask some questions on the Facebook page as well, noting that the boilerplate claims didn't make much sense. There's no reason to expect a dispute about "fees" since IndieGogo is pretty damn clear on the fee breakdown. I pointed out that there's simply no reason that he can't explain more of what the problem was, even if a lawsuit was in process -- and furthermore, suggested that it might make sense to delay a new crowdfunding campaign until after such a lawsuit was filed, so that backers could better understand the details. Separately, I asked about why they sent the DMCA notice.A few hours later, I noticed that my question about the DMCA was deleted. I saw someone else asked a similar question -- and that was deleted. After a few more people asked, he finally posted another boilerplate answer, responding to a bunch of users:About the DMCA: We sent the DMCA notice to the verge because they used our copyrighted images without our permission. No reputable publication would do that. They stole our property and we had to take action. I responded to that, noting that this explanation made no sense at all. First of all, the images were promotional images, released for the press. Second, the Verge's use was clearly fair use. And, finally, I pointed out that this explanation was clearly not true, and the reason for the DMCA notice was obviously the skeptical nature of the Verge's article because none of the other news articles that were hyping up the Titan Note -- and which the company proudly linked to -- appeared to have DMCA notices over their use of the very same images.And that's when I got blocked from commenting on the Titan Note Facebook page and all my remaining comments were deleted (he had already deleted my DMCA questions earlier).So that confirmed just how sketchy this whole project was to me. The DMCA notice was bad. The nonsensical explanations were worse. And deleting some fairly straightforward questions about all of that (and then blocking me from commenting any more)? That's not a trustworthy project.At almost the exact same time that I got blocked, Titan Note "relaunched" on a supposedly more trustworthy platform, an Australian site called Pozible. The project quickly got to nearly $100,000 in backing. I emailed Pozible to ask if they did any checking on projects, and pointed out that IndieGogo had taken the same project down. Almost immediately I got an email response from someone at Pozible, telling me that their own system had "flagged" the project and they were suspending the project until the creator provided more information.I similarly reached out to IndieGogo to find out if the "fee dispute" claim was legit. Not so, the company told me. While they would not go into the full reasons for the project being suspended, they did say that "a lengthy investigation" by the trust and safety team determined that the company was violating IndieGogo's terms and services, and made it clear "this was not a dispute about fees, but a violation on their end." IndieGogo's terms involve lots of things, but one line that stands out:Campaign Owners are not permitted to create a Campaign to raise funds for illegal activities, to cause harm to people or property, or to scam others. If the Campaign is claiming to do the impossible or it's just plain phony, don't post it. Not surprisingly, after Pozible shut down the campaign after just a few hours, a bunch of people went back to Facebook to ask questions and note that this was now two crowdfunding platforms that had shut down the campaign entirely, and demanding answers. A few joked that "boilerplate" answers would be coming soon. It actually took a few days, but eventually...To clarify, Neither of those platforms have seen our product. The outcome is not a reflection of Titan Note's quality and again, they have not seen our product. We have had competitors that have posted slanderous information to the platforms and we are in the process of bringing legal action against one of those platforms for their misconduct. We will not let a bump in the road stop our passion. So... yeah. That doesn't actually answer the question. Nearly all crowdfunding projects don't involve the platforms seeing the projects, but it's very rare for projects to be canceled. It certainly suggests something else is up with this project and that's why they were canceled. Besides, the original story was that IndieGogo canceled over a "fee dispute." If that's the case, why would it matter that it hadn't seen the product?And, of course, a few days after that -- earlier this week -- Titan Note launched its own website entirely (previously, one of the concerns was that the company didn't appear to have a website). And that website is allowing pre-orders. We won't link to it directly (no reason to give it free advertising), but astoundingly, the company is using the canceled IndieGogo project on its new website as proof of how cool it is:Yes, the IndieGogo campaign had over 12,000 backers and had initially raised over $1.1 million dollars. But that was canceled and all the money was refunded. It seems very, very, very questionable to then go on and put up a website that suggests the project successfully raised that much money when that's not how things actually ended.Distressingly, the project is also using the various positive press it got upon launching on the website, leaving out the Verge (obviously).Not surprisingly, I am not the only person concerned about all of this. There are still some users in the Titan Note comments concerned about this (I have no idea how many others had their comments deleted, as mine were). There's also a Facebook group on crowdfunding scams that has taken a special interest in Titan Note with a few different discussions on it -- including concern about the current offering directly off the website.Throughout all of this, I still would like the product to be legit, because it certainly would be an interesting product! However, with all of the red flags raised, and the questionable way that Titan Note has responded to these kinds of questions, it seems entirely reasonable to believe that the product is, at the very least, greatly exaggerated, and might possibly not exist at all. I did send Titan Note an email listing out a series of questions and letting them know I would be writing about this. So far, there has been no response. If one should come in, I will update this post.
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posted at: 12:00am on 25-May-2017
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