In a one-line order that was expressly “not a ruling on the merits” of the case, the Supreme Court sided with Shira Perlmutter, current Register of Copyrights, on the narrow question of whether she could keep her job pending resolution of her lawsuit against Todd Blanche over the President’s attempt to fire her. But the Supreme Court’s much bigger decision in Trump v. Slaughter can’t be good news for Copyright Office independence. Her lawsuit challenging the President’s attempt to dismiss her invokes constitutional and statutory assumptions that the Slaughter majority rejected. In Slaughter’s terminology, the Library of Congress (where the Copyright Office sits) cannot act as a “headless fourth branch” insulated from absolute presidential control while exercising executive power in the administration of copyright laws. What now?
In the near term, some members of Congress have already expressed concern about the extension of executive power into the walls of the Library of Congress. The Library (and its Congressional Research Service) provides lawmakers with useful, and sometimes confidential, information to support their legislative work. Executive influence on that process raises bipartisan concerns about separation of powers.
Legislators in the House have proposed two responses. One is a bill, H.R. 6028, which recently passed in the House on a voice vote. The bill attempts to carve the Library, along with a few other agencies, out of the Executive Branch, jettisoning the Copyright Office from the Library in the process. The other is a bit of language in the Legislative Branch Appropriations Act that simply makes the Librarian a Congressional appointee, with no mention of the Copyright Office. Both approaches are misconceived.
The funding bill language (see page 1) attempting to simply take Congressional control over the Library is a non-starter on two fronts. After Slaughter, the move is probably unconstitutional: Congress can’t arrogate to itself the appointment and removal of officers who exercise executive power, which the Copyright Office likely does. Alternatively, if the Library were successfully converted to a fully legislative branch agency, then it could not exercise executive power. The Copyright Office’s substantial rulemaking activities (the DMCA triennial process, of course, but also rules and administrative decisions about deposit and registration) would all be vulnerable to constitutional challenge.
H.R. 6028 makes the opposite error: by jettisoning the Copyright Office fully into the Executive Branch without further changes to its power, the bill needlessly surrenders important Congressional prerogatives, failing to fully protect the Library of Congress from Executive interference. For example, H.R. 6028 makes no meaningful change to the Copyright Office’s control over copyright deposit. Deposit gives the Library an opportunity to acquire copies of books and other works submitted as part of copyright registration, a mechanism that has helped make the LOC the greatest library in the history of the world. Absent Librarian oversight, the Copyright Office will be free to limit or even functionally eliminate deposit, to condition deposit on content-based criteria, or on any other criteria it chooses. H.R. 6028 requires the Copyright Office to “consult” the Librarian regarding deposit, but the Office is free to disregard the Library’s input. If Congress is concerned about executive influence on library collections, deposit is a major loophole.
That’s not the only loophole in H.R. 6028, however. The Copyright Office is also tasked with “advis[ing] Congress” on copyright policy, and members of the Judiciary Committees routinely call upon the Office to draft reports, conduct studies, and convene stakeholders as input to legislative deliberations. If Congress intends to insulate its sources of information and advice from executive influence, it should seriously consider taking this role out of the Copyright Office and placing it in the Congressional Research Service or another solidly legislative entity.
Finally, consider this warning from Justice Gorsuch’s concurrence in Slaughter:
Congress has also delegated to [agencies] vast legislative and judicial powers, effectively allowing these agencies to make laws and decide disputes under them. And, after today’s decision, the President can effectively exercise all those powers too.
Congress should consider how total executive control over the Copyright Office might upset its pre-Slaughter assumptions about how copyright rules would be administered. For example, Congress created the triennial Section 1201 rulemaking to protect the rights of fair users whose lawful activities are impeded by digital locks. The rulemaking is conducted by the Copyright Office, with participation by the National Telecommunications and Information Administration (NTIA), and final approval by the Librarian of Congress. One might expect, and experience has shown, the NTIA to be generally more receptive to arguments favoring innovation, the Copyright Office to be more solicitous of copyright holders, and the Librarian (when they assert themselves, which is admittedly rare) to speak up for broad values like accessibility. Can this process continue to safeguard the rights of the public if the Copyright Office (and the President) now have the final say on which rules will be granted? It’s a serious question that demands at least some consideration. H.R. 6028 ignores it.
The Library of Congress and the Copyright Office are just two in a long list of government agencies whose fundamental design may need to be reconsidered in light of Slaughter. But they are exceptional in that there are already two legislative initiatives in play that would reconfigure them expressly to reassert legislative control. Unfortunately, both efforts are on the wrong track. Congress should step back and reconsider the full implications of Slaughter before attempting to re-engineer the copyright administrative apparatus.