USCO is unique with expertise in both legislative administration and executive rulemaking, key to solve

Functionally, the duties of the Copyright Office have expanded and diversified over time. The Copyright Act dictates that the Office perform “all administrative functions and duties” required to implement the Act.76 This includes: (1) advising Congress, (2) providing information/assistance to federal departments, agencies, and the judiciary, (3) participating in meetings of international organizations, (4) conducting studies and programs, and (5) performing “such other functions as Congress may direct, or as may be appropriate in furtherance of the functions and duties [above].”77 These duties appear wholly legislative in nature; however, they have been supplemented by grants of specific rulemaking authority, which have given the Office a larger role in administration of a “complex federal statute.”78 Thus, much like the Library of Congress, the Copyright Office now appears to serve dual functions: the Office’s research and policy input seem to suggest a legislative role, while its rule- making and administrative activities “are more consistent with an executive agency.”79 It appears to be these new rulemaking and administrative functions that led President Clinton to declare, in a signing statement accompanying the Digital Millennium Copyright Act (DMCA), that the Office is an executive branch entity for constitutional purposes.80 At least one court has echoed that it is an agency’s function, rather than its structure, that dictates the branch of government to which it belongs and that it is not necessary to reconcile these two sets of characteristics.81 The Fourth Circuit in Eltra notoriously stated: “it would appear indisputable that the operations of the Office of Copyright are executive.”82 The registration of copyrights, the court said, “cannot be likened to the gathering of information ‘relevant to the legislative process’ nor does the Register perform a function ‘which Congress might delegate to one of its own committees.’”83 This point is itself arguable, since copyright registration is not re- quired to bring copyrights into existence. The intake and filing of copyright holders’ submissions of existing copyrights for registration seem to be merely an extension of the Library of Congress’s manifestly legislative recordkeeping function.84 Regardless, the Eltra court concluded the Copyright Office was emphatically executive, claiming Supreme Court agreement with this conclusion since 1909—despite not actually citing any alleged Supreme Court precedent.85 Importantly, Eltra was decided prior to three important Supreme Court cases on the separation of powers.86 These cases “embrace a formal rather than functional approach to situating entities like the [Copyright] Office within the legislative or executive branches, and potentially undermine Eltra’s analysis.”87 Most notably, in United States v. Brooks,88 the Eastern District of Pennsylvania articulated this syllogistic reasoning: the Library of Congress is clearly a part of Congress; the Library of Congress is therefore part of the legislative branch; the Copyright Office is a division of the Library of Congress; the Copyright Office is therefore part of the legislative branch.89 Any other conclusion, the court said, would be “untenable.”90 The Brooks court’s presiding judge responded specifically to the reasoning in Eltra, noting, “The status of the Copyright Office is an open question in the Third Circuit, and I do not find Eltra persuasive.”91 Although the court acknowledged that the Copyright Office is required to perform some administrative functions and duties under the Copyright Act, it disregarded Eltra’s functional approach.92 “Acting similar to an executive agency,” the court said, “is not the same as being part of the executive branch.”93 Of course, if the status of the Library of Congress is considered an open question, as it is in at least one circuit, the Brooks court’s otherwise compelling logic would seem inconclusive.94