Regulatory capture turns the aff.

Regulatory capture occurs when a government agency “is consistently or repeatedly directed away from the public interest and toward the interests of the regulated industry, by the intent and action of the industry itself.”1 This risk of “persistent policy bias” is “widely accepted, not only by public interest lawyers, but by academic critics, legislators, judges, and even by some agency members.”2 For example, in a recent series of essays, Senators Elizabeth Warren, Mike Lee, and Sheldon Whitehouse all agree that regulatory capture is a serious and pervasive problem.3

This report examines regulatory capture—both its sources and its consequences—at the U.S. Copyright Office. Capture at the Office is widely recognized among many copyright practitioners and stakeholders. As Professor Jessica Litman noted in 2006, “the Copyright Office has tended to view copyright owners as its real constituency, and has spent the past ten years moving firmly into the content industry’s pocket”—a statement that still holds true today.4 Section I of this report details how, consistent with the extensive academic literature identifying the main causes of regulatory capture, the Copyright Office’s entrenched bias arises from both material and cultural capture, as well as from political incentives for the Office’s leadership.

The consequences of this capture are equally clear, as described in Section II of this report. In both the interpretation of existing copyright law and the recommendation of potential changes,5 the Copyright Office typically sides with the interests of rightsholders—in particular, large entertainment industries and other corporate rightsholders—over the interests of other stakeholders, from consumers and technology providers to libraries and academics. As a result, the Copyright Office:

• Contorts existing copyright law with the effect of furthering the interests of rightsholders;

• Advocates for expanded copyright with fewer limitations, exceptions, and consumer protections;

• Inserts itself into more and farther-flung policy debates, issuing opinions on topics far beyond its expertise;

• Makes decisions that prioritize its own policy objectives over input from stakeholders; and

• Has its views ignored or outright rejected by courts, Congress, and other agencies.

As long as the Copyright Office remains heavily captured, these failures and missteps are likely to continue.6