Is it Time for the Inspector General to Review the Copyright Office’s Administration of Address Unknown NOIs?

If you haven’t been following the address unknown NOI debacle, you can get up to speed with my recent article on the subject for the American Bar Association Entertainment & Sports Lawyer.  If you have been following, you’ll know that the Copyright Office has accepted millions upon millions of address unknown NOIs that implicate repertoire from all over the world.

The punchline–if all a digital music service needs to do in order to claim they have a licene to reproduce and distribute a song is send a notice to the Copyright Office is send a notice saying they can’t find the song copyright owner, how hard do you think they’ll look?  Particularly if they know that the Copyright Office won’t check?

And that is where the Inspector General comes in.  Formed by the Inspector General Act of 1978, there are 73 Inspectors General in the US government, including the Library of Congress (which is where the Copyright Office is currently housed).  There are also inspector generals for the Department of Commerce and the Department of Justice, two other branches where the Copyright Office might end up some day.

If there were ever a situation that cried out for review and investigation by the Inspector General, it is the address unknown NOI filings where Big Tech is running roughshod over songwriters.

For example, we did some spot checking on the NOI filings.  Remember, the address unknown NOI is only available if the copyright owner is not identifiable in the public records of the Copyright Office, notwithstanding the CO’s own position by regulation (for service of termination notices) that a search of the Copyright Office records and the ASCAP, BMI, GMR or SESAC databases would also suffice.

For example, here is an address unknown from Google for Sting’s song “Fragile” which supposedly was not identifiable in the public records of the Copyright Office:

Sting Fragile Google NOI

and here is the registration for “Fragile” in the public records of the Copyright Office:

Fragile Song Registration

Not only has the NOI for “Fragile” been served improperly, it raises the question of just how many other of the address unknown NOIs have been improperly served.  Even if we were to assume a 1% error rate (and I for one firmly believe it is much, much higher), that is 550,000 songs that have been improperly served.  While the assumption might be that only the obscure works would be included in these filings, the Sting example suggests that is not the case.

But–because no one is checking to confirm proper notice, that means that there is no protection against moral hazard and loophole seeking behavior by some of the biggest corporations in the world, including monopolists like Google and Spotify.  Since the Copyright Office refuses to do this work by fiat (see 37 C.F.R. § 201.18(g)), it logically falls to the Inspector General to determine both if the Copyright Office has behaved properly and also if the law is being properly administered to allow 55,000,000 (plus) songs to be exploited without compensation.

 

@thatkatetaylor: Concordia University caught on the wrong side of copyright

Here’s the future of the Library of Congress!

Normally, finding your book on a university reading list or course outline can be the fulfilment of an author’s fondest hopes: It means that scholars take your work so seriously they want to pass it on to the next generation.

And it can mean a big increase in book sales, directly to students or to university libraries.

 At Montreal’s Concordia University, however, those hopes turned to bitter disillusionment this week when poets realized that the Centre for Expanded Poetics had been scanning their books and posting them to its web page without their permission.

“I find it distressing,” said Alana Wilcox, editorial director at Toronto’s Coach House Books, the publisher of two of the books. “Poets make so little money … making their work available for free on a public website feels very disrespectful. … These aren’t tenured professors with salaries; these are poets who are scraping by, getting no compensation for their hard work.”

 As well as works by Coach House poets Damian Rogers and Jeramy Dodds, the page for the centre’s contemporary poetry reading group featured high-quality reproductions of entire books by such high-profile Canadian writers as Governor-General’s Award winner Dionne Brand and nominee Lisa Robertson, and international poetry superstar Anne Carson, as well as leading U.S. poets including Claudia Rankine, Ariana Reines and Maggie Nelson.

The books, most of which would retail for less than $20, were available to download free to anybody who clicked on a link. Apparently, centre director Nathan Brown has been running books through a sophisticated scanner to produce copies: a picture on the reading group’s Facebook page in January shows him working on a Atiz brand book scanner of a type that costs at least $10,000.

Read the post on the Globe and Mail

Howard Berman: A tribute to an outstanding Register of Copyrights

Dr. Carla Hayden, the newly installed Librarian of Congress, removed Maria Pallante from the position of Register of Copyrights on Friday, Oct. 21. The move was sudden, resulting in the extensive speculation over the decision that we have seen since. Lost amid this speculation is the fact that Pallante served the nation well for nearly six years as an outstanding Register of Copyrights.

Over the course of my 30 years in Congress — and especially during my tenures as chairman and ranking member of the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet — I had the opportunity to work with several Registers, all of whom I relied upon for independent, expert counsel. As Register, Pallante continued that fine tradition, bringing a strong vision for the future of the Copyright Office and the American copyright system in the rapid technological advances of the 21st century….

Whatever the basis for Dr. Hayden’s decision to remove Register Pallante, we should not overlook that Maria Pallante served the Copyright Office, the Library of Congress, the Congress and the nation with rare vision, dedication and fairness. We can only hope that her successor has those qualities in equal measure.

Read the post on The Hill