Copyright Reform CP - Michigan 7 2024 BFHR

Copyright Office CP---Neg
Notes
Core
1NC
The United States federal government ought to create an agency for Copyright Reform. The agency ought to recommend that the Copyright Office [xxxx].
It solves and spurs modernization.
Steven Tepp 15, founder of Sentinel Worldwide who provides intellectual property legal and policy counsel; Ralph Oman, Professorial Lecturer at the George Washington University Law School and former intellectual property lawyer, October 2015, “A 21st Century Copyright Office: The Conservative Case for Reform,” https://s3.amazonaws.com/media.hudson.org/files/publications/20151012TeppOmanA21stCenturyCopyrightOfficeTheConservativeCaseforReform.pdf, ajs
The options of an independent agency or a stand-alone agency within the legislative branch offer the greatest opportunity for the Copyright Office to design and implement a modernization program that is precisely tailored to its needs. However, these approaches raise other concerns, namely that the Office be subject to sufficient limits to its regulatory authority and appropriate oversight to ensure that the Office does not abuse its authority.
At present, the Copyright Office’s regulatory authority is relatively narrow. The Register is authorized “to establish regulations…for the administration of the functions and duties made the responsibility of the Register under this title.”111 The functions and duties of the Register involve the registration of copyright, recordation of transfers of copyright, the procedures for submitting statements and royalties under statutory licenses, and the procedures for filings for various other purposes enacted by Congress.112 The Copyright Office has no enforcement role (beyond the indirect function of advising the enforcement agencies on technical and legal issues), nor does it have a basis to expand the current scope of its functions and duties through regulatory act. Only Congress can do that. This limited scope of authority distinguishes the Copyright Office from certain existing agencies that have generated significant controversy (and litigation) by forays into expansive rulemaking and enforcement activities. Nor is there any reason to think that Congress would have to enact new legislation to expand the scope of the Office’s regulatory authority as part of any restructuring option.
It is worth noting that, uncharacteristically for a modern bureaucracy, the Copyright Office has repeatedly and consistently recommended steps that would have the effect of reducing its regulatory authority. Specifically, the Copyright Office has recommended for years, across different Registers, the elimination of certain statutory licenses in favor of free market negotiations.113 Were Congress to adopt this approach, it would reduce significantly the scope of the Office’s authority and eliminate the statutory licenses that generate a large amount of the regulatory activity of the Office as well as an overwhelming majority of the royalty payments collected and distributed by the Copyright Office.
Nonetheless, there is always the potential for a more bureaucratically aggressive Register sometime in the future, so strong oversight mechanisms would be important. Some form of stakeholder monitoring and oversight panel – which would include representatives from the full range of copyright perspectives, and to which the Register would provide reports on Office activities and receive back comment and criticism – would be advisable. While this body might lack legal authority to constrain the Office, it would be an early warning system and an avenue for whistleblowers should the need arise. In addition, a more formal Inspector General arrangement could be established so that an outside authority can investigate claims of mismanagement or impropriety. Finally, but by no means least, it is envisioned that Congress would continue its long history of close engagement and oversight of the Copyright Office.
[Net Benefit]
Competition
Perm: Do the CP---2NC
‘Do the counterplan’ is a nonstarter. The counterplan doesn’t fiat the plan on any condition.
“Should.” Requires certain and immediate legal effect.
Justice Summers 94, Oklahoma Supreme Court, “Kelsey v. Dollarsaver Food Warehouse of Durant”, 1994 OK 123, 11-8, http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=20287#marker3fn13
4 The legal question to be resolved by the court is whether the word "should"13 in the May 18 order connotes futurity or may be deemed a ruling in praesenti.14 The answer to this query is not to be divined from rules of grammar;15 it must be governed by the age-old practice culture of legal professionals and its immemorial language usage. To determine if the omission (from the critical May 18 entry) of the turgid phrase, "and the same hereby is", (1) makes it an in futuro ruling - i.e., an expression of what the judge will or would do at a later stage - or (2) constitutes an in in praesenti resolution of a disputed law issue, the trial judge's intent must be garnered from the four corners of the entire record.16
[FOOTNOTE]
13 "Should" not only is used as a "present indicative" synonymous with ought but also is the past tense of "shall" with various shades of meaning not always easy to analyze. See 57 C.J. Shall § 9, Judgments § 121 (1932). O. JESPERSEN, GROWTH AND STRUCTURE OF THE ENGLISH LANGUAGE (1984); St. Louis & S.F.R. Co. v. Brown, 45 Okl. 143, 144 P. 1075, 1080-81 (1914). For a more detailed explanation, see the Partridge quotation infra note 15. Certain contexts mandate a construction of the term "should" as more than merely indicating preference or desirability. Brown, supra at 1080-81 (jury instructions stating that jurors "should" reduce the amount of damages in proportion to the amount of contributory negligence of the plaintiff was held to imply an obligation and to be more than advisory); Carrigan v. California Horse Racing Board, 60 Wash. App. 79, 802 P.2d 813 (1990) (one of the Rules of Appellate Procedure requiring that a party "should devote a section of the brief to the request for the fee or expenses" was interpreted to mean that a party is under an obligation to include the requested segment); State v. Rack, 318 S.W.2d 211, 215 (Mo. 1958) ("should" would mean the same as "shall" or "must" when used in an instruction to the jury which tells the triers they "should disregard false testimony"). 14 In praesenti means literally "at the present time." BLACK'S LAW DICTIONARY 792 (6th Ed. 1990). In legal parlance the phrase denotes that which in law is presently or immediately effective, as opposed to something that will or would become effective in the future [in futurol]. See Van Wyck v. Knevals, 106 U.S. 360, 365, 1 S.Ct. 336, 337, 27 L.Ed. 201 (1882).
Perm: Do Both---2NC
Expertise and resources. New policies before modernization overburden the office.
Aaron Perzanowski 18, professor of law at Case Western Reserve University, 10/26/2018, “The Limits of Copyright Office Expertise,” https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=3051&context=faculty_publications, ajs
In light of the foregoing discussion, proposals to shift additional authority from the courts and Congress to the Office should be met with skepticism. Recent years have seen suggestions for the Office to adjudicate small claims,226 resolve fair use disputes,227 and craft exemptions to traditional infringement liability.228 But the Office is poorly positioned to take on these additional obligations. 229 It lacks the necessary expertise and resources. Although it continues to make progresses, the Office is struggling to hoist its registration and recordation systems into the twenty-first century.
Rather than expanding the Office’s portfolio, Congress should consider scaling back its duties. The DMCA rulemaking is an obvious place to start. Short of repealing § 1201 altogether—an option that has considerable merit beyond lessening the burdens facing the Office230—there are a number of steps worth considering. Informed in part by the Office’s prior rulemaking efforts, Congress should significantly expand the existing statutory exemptions for reverse engineering, security testing, and encryption research.231 Moreover, Congress should consider crafting new permanent statutory exemptions. Those might address specific concerns, like repair and unlocking, that have emerged since the DMCA’s enactment.232 Or more broadly, Congress could exempt circumvention that lacks any nexus with infringement 233 or circumvention undertaken by the owner of a device or copy.234 After twenty years, the unintended consequences of § 1201 have become abundantly clear to anyone paying attention.235 Rather than force the Office to plug new holes in the dike every three years, Congress should take responsibility for the over breadth of the anticircumvention rules.
Structural biases. They deck the office’s credibility absent oversight.
Aaron Perzanowski 18, professor of law at Case Western Reserve University, 10/26/2018, “The Limits of Copyright Office Expertise,” https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=3051&context=faculty_publications, ajs
Even when the Office does hear from the public, structural biases tend to favor the perspective of rights holders. In an interview with the American Bar Association, former Register Pallante revealed her fundamental misunderstanding of our copyright system and the Office’s role within it. As she put it, “Copyright is for the author first and the nation second.”257 While it would be a mistake to attribute this constitutionally flawed view to the Office as a whole, it is suggestive of the Office’s long-recognized tendency to prioritize the interests of copyright holders over those of the public.258
In some ways, this tendency is understandable. The Office regularly interacts with copyright holders in its day-to-day operations, and rights holders and their various trade associations and industry groups are regular, repeat participants in every policy process the Office undertakes. Moreover, it is not uncommon for Office personnel to represent those same interests before and after their government service, reinforcing the ties between the Office and industry. 259 More broadly, copyright policymaking faces familiar challenges when it comes to fully accounting for the public interest. While rights holders are a concentrated, organized, and sophisticated constituency, the public interest is diffuse, largely unorganized, and poorly resourced. 260 Although recent years have seen certain technology firms serve as an effective counterbalance to the copyright industries, those firms are often, at best, an imperfect proxy for the interests of consumers.
Solvency
Modernization---2NC
The counterplan results in successful modernization.
Seth Cooper 17, Director of Policy Studies & Senior Fellow at The Free State Foundation; Randolph May, Founder and President of The Free State Foundation, 11-8-2017, "U.S. Copyright Office Needs an Upgrade for the Digital Age Economy," https://fedsoc.org/commentary/fedsoc-blog/u-s-copyright-office-needs-an-upgrade-for-the-digital-age-economy, ajs
A restructured Copyright Office that is autonomous from the Library of Congress and that has authority over its own budget would be better positioned to make long overdue technological upgrades. For example, the Copyright Office needs to build a comprehensive searchable database of copyright registration and transfer records. Prospective purchasers of copyrighted works would benefit from more reliable and less costly searches. And the resulting facilitation of voluntary exchanges would enhance economic values for current copyright owners. Technology-enabled reductions in registration burdens would also benefit creators of copyrightable works.
Additionally, restructuring is needed to alleviate an existing constitutional incongruity: the Copyright Office performs significant executive administrative functions, yet Congress deems the Office a legislative sub-agency within the within the Library of Congress. Long-standing Congressional identification of the Copyright Office as part of the Legislative Branch is at odds with the reasoning of U.S. Supreme Court and lower court decisions involving the Constitution’s Appointments Clause, contained in Article II, Section 2, Clause 2. The Clause is intended to ensure that administrative agencies performing executive functions be accountable to the President through the process of appointment. Decisions in Eltra Corporation v. Ringer (4th Cir. 1978) and Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board (D.C. Cir. 2012) have concluded that the Librarian is an “Officer” and the “Head of a Department” in the Executive Branch and that the Register is an “inferior Officer” in the Executive Branch.
Modernization---AT: Too Expensive---2NC
No-cost and in-kind contracting solve.
Steven Tepp 15, founder of Sentinel Worldwide who provides intellectual property legal and policy counsel; Ralph Oman, Professorial Lecturer at the George Washington University Law School and former intellectual property lawyer, October 2015, “A 21st Century Copyright Office: The Conservative Case for Reform,” https://s3.amazonaws.com/media.hudson.org/files/publications/20151012TeppOmanA21stCenturyCopyrightOfficeTheConservativeCaseforReform.pdf, ajs
An additional and important consideration in any reform effort is the cost. The Copyright Office has undergone budget and staff cuts. Added to that, the desired modernization of the Office’s functions, particularly with regard to IT operations, can reasonably be anticipated to involve an up-front capital investment. Ironically, we do not have a reliable estimate of those costs because at present the Copyright Office lacks the authority even to study the matter. Nonetheless, this section will compare in broad-brush the costs and benefits of Copyright Office modernization.
To place the matter in context, general taxpayer funds account for only approximately one third of the of the Copyright Office’s annual budget, roughly $15 million. In comparison, there is a $1.1 trillion industry that is supported by the Copyright Office. That’s a return of over $73,000 per tax dollar spent. The Copyright Office may be the best value in the federal government.
An array of conservative, pro-small government organizations recognize this value proposition. Americans for Tax Reform sees the potential that “A modern Copyright Office will reduce friction in the over $1.1 trillion marketplace for copyrighted works, incentivize creativity, innovation investment and jobs….”127 The American Conservative Union demands that the Copyright Office be “brought into the 21st Century.” 128 And Citizens Against Government Waste agrees, “The twenty-first century needs a modern Copyright Office….”129
Keeping Costs Low. There are several elements than can be employed to help keep the costs of restructuring and modernization as low as possible.
As the Copyright Office moves out of the Library, the cost of services previously provided by the Library for operational elements, including human resources, facilities, and IT, will not be new expenses, the funding for those can simply be rolled over to the restructured Office. Logically, there may be some start-up costs as the new entity opens its doors, but these will be temporary. It is also worth noting that by virtue of the deposit copies supplied to the Library through the copyright system, the Copyright Office provides additional value not normally calculated in the federal budget process.
The restructured Copyright Office can also take steps to keep costs low. For example, no-cost contracting would allow private IT services to supply needed technology (e.g., in support of online recordation submission) which would be billed to the user, with no cost to the Copyright Office or the federal budget. Similarly, in-kind contracting would allow the Copyright Office to receive valuable services at no cost because of the value to the contractor of being the provider of those services. One might imagine a database management company taking on such a role.
Net Benefit
Warming---1NC
Modernization is key to creative sector growth.
AFTR 15, Americans for Tax Reform, 6/9/2015, "Copyright Office Modernization: A Win For Consumers, Creators, Innovators, And Congress", https://www.atr.org/copyright-office-modernization-win-consumers-creators-innovators-and-congress/, ajs
The Copyright Office should reflect the creativity and innovation of the market it serves. The United States has the most prolific knowledge-based economy in the world, and a well-functioning Copyright Office is necessary to promote the continued growth of the creative sector.
Last week, Congressman Tom Marino (PA-10) and Congresswoman Judy Chu (CA-27) took an important step in the right direction by releasing a discussion draft, titled the Copyright Office for the Digital Economy Act or CODE Act. Their work will serve as the basis for a long overdue discussion on how best to bring the Copyright Office into the 21st century. A modern copyright office will reduce friction in the over $1.1 trillion marketplace for copyrighted works, incentivize creativity, innovation, investment and jobs, and represent a meaningful achievement for Congress.
We look forward to working with Representatives Marino and Chu as they continue to craft legislation that bolsters the Copyright Office’s ability to administer the United States copyright system.
Read more from Digital Liberty: Copyright Office Stuck in the Past
“The United States’ copyright industry grew 3.9 percent from 2009 to 2013, which is 70 percent faster than the overall economy. Meanwhile, the copyright office uses many manual recordation techniques akin to the copyright office of the 1870s, rather than a copyright office suited for 2015. “
The creative sector is critical for environmental sustainability.
Kumi Naidoo ND, former International Executive Director of Greenpeace International and climate activist, “Creativity as a Force for Good,” https://www.climatecommunications.earth/whitepaper-articles/creativity-as-a-force-for-good, ajs
The relationship between culture and climate is becoming increasingly critical in the context of exacerbating climate impacts. Historically, the creative community — especially the fashion and advertising sectors — have been significant drivers of consumption, and have often not acted sustainably1 But we can’t deny that they’re big players, and that we need their superpowers to transform climate communications.
Cultural and creative industries are an influential economic force, generating $2,250 billion in global revenues and providing 29.5 million jobs worldwide — exceeding entire GDPs such as India’s. The industry plays a huge role in shaping cultural identity, and is driven by youth-led innovation.2 But the industry also has a considerable environmental footprint — whether directly through their operations or indirectly through driving consumption — through resource-intensive practices and rapidly changing trends.3
But the creative sector can also drive visions of a sustainable future — both through technological progress like digital traceability, or acknowledging advertised emissions (see The New Role of Advertising and Marketing and Emerging Technologies). Some major shifts have started to happen, including the growing number of PR firms refusing to work with fossil fuel companies and clients who deny human-caused climate change. But the broader creative sector — especially advertising agencies — are still falling short of aligning business and ethical priorities.4
Creative solutions are essential for addressing environmental and social challenges. Previously, climate protection was seen as a mostly technical issue concerning scientists and professionals in the sector. Today, the issue is a lot more people-centered — highlighting the need for a creative approa

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