Mission creep and lack of actual expertise dooms the USCO, anything else risks bad policy adoption

Designed to serve the crucial yet prosaic function of registering copyright claims, the United States Copyright Office (“Office”) increasingly asserts wide- ranging authority to interpret copyright law, advise courts and federal agencies, promulgate administrative and substantive rules, and broadly shape copyright policy. 1 Recent years have witnessed a flurry of Office rulemaking and policy studies addressing issues from bulk registration2 and the location of copyright notices 3 to resale royalties 4 and orphan works. 5 More controversially, the Office is in the midst of its seventh triennial rulemaking under § 1201 of the Digital Millennium Copyright Act (DMCA) 6 and has waded into, among other topics, copyright’s application to software-enabled consumer devices like cars, kitchen appliances, and medical devices. 7 Should security researchers be required to disclose the flaws they uncover to device makers and developers before going public? Should farmers be able to repair their tractors over the objections of manufacturers? These are the sorts of bizarrely incongruous questions that the Office confronts today. At the same time, the Office faces nagging constitutional questions about the scope of its authority and an often contentious relationship with the Library of Congress, of which it remains a subordinate office. Motivated in part by these concerns, some have called for greater independence for the Office. These proposals are closely linked to ongoing efforts to concentrate additional authority within the Office. To take a recent example, the Copyright Alternative in Small-Claims Enforcement (CASE) Act would establish a small claims tribunal within the Office that has the power to adjudicate infringement disputes.8 As the federal body responsible for administering copyright law, the Office offers considerable expertise on questions at the core of its competence. However, as a result of both Congressional mandates and the Office’s own ambitions, mission creep poses a problem. The Office regularly tackles complex economic and technological questions that extend well beyond both its historical mission and its most credible claims of subject matter expertise. Mission creep is a cause for concern for at least two reasons. First, through both the input it provides to Congress and its own direct regulatory action, the Office may advocate or adopt flawed policies. Second, the Office’s growing docket distracts it from its core task of developing and maintaining a registration system that serves the needs of copyright holders and the public. In some ways, the strains facing the Office are an unavoidable byproduct of an environment that is profoundly shaped by technological change and the expanding scope and significance of copyright law. Software copyright, technological protection measures, and digital distribution have altered the copyright landscape in dramatic ways. 9 Copyright law now regulates the use of software, both directly and indirectly, that is embedded in an astounding range of every day devices, even in the absence of traditional copyright infringement. 10 The need for experts to inform copyright policy in light of these developments is evident. Copyright law today implicates matters of security, privacy, and industrial competition that were entirely foreign to copyright policy debates just a few decades ago. But delegations and assertions of authority are insufficient to establish genuine expertise. If the Office intends to lead the policy conversation moving forward, it needs to build competence in those areas in which it is currently lacking. That process should begin with a frank assessment of the questions the Office is well-positioned to answer and those it is not.