Maria Pallante Out as Chief of Copyright Office: New Calls for Unified US Intellectual Property Office

In some interesting news – On Friday Oct 21st, Maria Pallante was apparently removed today from her post as Register of Copyright within the Library of Congress and Karyn Temple Claggett moved up as Acting Register.  According to reports, newly installed Librarian of Congress Dr. Carla Hayden ordered the change that involved Pallante being locked-out of her computer Friday morning.

An oddity – the US Copyright Office is part of the Library of Congress and thus under direct administration of Congress rather than the President (and Congress is not very good at running administrative agencies).  Under the current structure, the Register position is quite weak.  That said, Congress has recently relied upon the Copyright Office to make increasingly important market determinations.  However, the structure means that the President and Executive Agencies cannot rely upon the US Copyright Office for advice about copyright law or rely upon the agency to shape its policy.

In a 2012 post, I suggested creation of a United States Intellectual Property Organization (USIPO) akin to the UK IPO, Canadian IPO, and World Intellectual Property Organization (WIPO).  The structure would essentially be an expansion of the USPTO under presidential control although obviously still required to follow law set by Congress.  In 2012 I wrote that:

From a theoretical standpoint, it is unclear whether the [current] fractured administrative structure leads to rights that are either too strong or too weak.  What we can tell is that the [current] structure leads to a lack of coordination in administration of the various IP systems within the US.

A big problem with the fractured administration is that many operating businesses relying upon intellectual property (IP) rights typically do not focus on a single form of IP rights but instead take a layered approach that includes some combination of patent, trademark, copyright, contractual, employment, trade secret, and design rights, for instance. Each form of protection has weak points and overlapping coverage provides a greater level of certainty.  That overlapping nature also creates difficulties for users that hope to rely upon the public domain and fair use.  The overlapping approach suggests the need for a more unified administration approach to help ensure that IP rights serve their policy goals.

In her role as Register of Copyrights, Pallante had advocated transforming the Copyright Office into an executive agency.  It is unclear, however, whether those statements relate to her recent removal.

 

67 thoughts on “Maria Pallante Out as Chief of Copyright Office: New Calls for Unified US Intellectual Property Office

  1. OT but eternally relevant:

    link to scotusblog.com

    [T]he defendants (First Quality Baby Products and related companies) present a convincing case for the proposition that courts for half a century before the 1952 adoption of the Patent Act had been relying on laches as a basis for dismissing suits seeking damages for patent infringement. The Petrella court confronted no such tradition. The routine application of laches in patent cases for such a long period of time provides powerful support for the defendants’ reliance on a common statutory interpretion argument – that Congress’ adoption of the Patent Act without language rejecting that tradition brought the rule into the statute implicitly. Some excellent amicus briefs buttress the defendants’ position.

    When did logic, information and instructions become eligible for patent protection? Answer: not in 1952. It must have been some “rogue court” that forced that junk into to the patent system. Thank goodness the First Amendment isn’t at all implicated.

    1. Just more kvetching from you Malcolm.

      You still have not answered the question as to obtaining copyright for “logic and information”…

    2. Besides which, this topic was explained to you in very easy to understand simple set theory terms.

      Did you need another link to that explication? Another reposting here? Would we all simply see you run away yet again?

    3. Back in the day, there were courts of law and there were courts of equity. In order to get into a court of equity, one first would have to plead that the legal remedy was inadequate. Once in the court of equity, the traditional equitable defenses could be used to oppose on the grounds that those who seek of equity must do equity.

      Thus one seeking damages in a court of law had only to deal with statue limitations or estoppel, which is a form of contract, as affirmative defenses. One could not in a court of law use equitable defenses to bar a legal cause of action.

      Obviously there was some confusion in the American legal system after the merger of Law and equity. Almost every patent case sought both damages and an injunction. Obviously, courts made no distinctions between an equitable bar to damages and equitable bar to an injunction when the defense of laches was raised. But that lack of care does not make it right, especially when the issue apparently was never litigated and decided. Only when we get to Aukerman do we find that the issue was raised and decided.

      I do not know why the Federal Circuit is so blind to the differences between legal remedies and equitable remedies and law and equity in general. One of the most egregious offenses of the Federal Circuit, in my humble opinion, is FilmTec where the Federal Circuit decided that a present assignment of a future invention became effective as a legal assignment when the invention came in the being. As such, the inventor, according to the Federal Circuit, is foreclosed from raising equitable defenses to the legal assignment, equitable defenses that they would be entitled to raise if the equitable assignee was to sue in equity for specific performance of the obligation to assign.

      That being said, there seems to be a good argument that Congress did authorize equitable defenses to legal actions in section 282 of the patent act of 1952 when it stated that “unenforceability” was a defense “in any action involving the… infringement of a patent” to the extent that uneforceability includes any equitable defense.

  2. So it appears that Google and its revolving door reach into the executive branch is why Pallante was sacked…

    (at least that’s the Register’s take)

    1. …which only reverberates the view that “policy goals” of such important systems should NOT be at the mercy of the Executive.

      The Executive is not the branch of the government entrusted to take policy into consideration in the writing of the laws.

      There is a good reason for that.

      Until some more compelling reason is put forth (and we have a constitutional amendment to redelegate that ownership), we should ALL look askew at any proposals that seek to hide behind the mouthings of “common sense” or “reason” to so drastically change the legal playing field in what amounts to mere sleight of hand.

      1. The Executive is not the branch of the government entrusted to take policy into consideration in the writing of the laws.

        Odd, then, that the Constitution would explicitly assign to the President the power to veto laws.

        But don’t let me stop your rant! I can see you were just getting warmed up.

        Everybody! Look askew! Look askeeeeeewwwww! Common sense and reason are coming! Beware! Beware!

        1. You do know that veto is not the same as writing laws, right?

          (And I have no problem with the checks and balances of a veto – just as I have no problem with the checks and balances of the Judiciary throwing out a law as being unconstitutional).

          Then again, had you been paying attention, you would have already known that – and should have known that your “response” here is a bit off tangent from the point I presented.

          1. You do know that veto is not the same as writing laws

            You do know that the President typically has a policy rationale for exercizing his Constitutionally assigned veto power?

            Please keep digging, “anon”! You’re very serious! And you never, ever put your foot in your mouth. Nope. Not you.

            1. No one is questioning the policy involved with a veto.

              On the other hand, the actual formation of law – and policy related to that – is with the legislative branch.

              You like to tell me to “keep digging” at the same time that it is you that clutches the shovel, don’t you pumpkin?

              1. “anon” “policy goals” of such important systems should NOT be at the mercy of the Executive

                “anon” No one is questioning the policy involved with a veto

                Seems just a tad inconsistent. But like I said: continue on with the rant! Tell everyone how you’d rewrite the Constiution. We really care.

                1. “Seems” like you cannot handle the subtlety involved with law and checks and balances….

                  (“Go figure Folks” – right?)

                2. the “policy goals” of such important systems should NOT be at the mercy of the Executive

                  Is your capitalization of “not” part of your deep “subtlety”?

                  LOL

                3. Once again you focus on form rather than substance.

                  That does not work too well for you. I suggest that you try something else.

                4. you focus on form

                  Maybe instead of typing your silliness using ALL CAPS and expecting others to detect “nuance” where there is none, you can learn to type your “arguments” out carefully, using plain English and declarative sentences.

                  Or, you might consider putting a cork in your endless half-c0cked “separation of powers” preaching until you come up with something coherent.

                  And don’t forget: there’s tons of wingn@t bl0gs out there where you can rant about your extremely odd views of the Constitution all day long and nobody will blink. Oh, I forgot: you already do that. Never mind.

                5. Or maybe you can focus on what is actually said and ig nore the emphasis provided by the caps, bold, and italics.

                  Since I already use the language that you whine for, it should not be too difficult for you (although you might then switch to your Vinnie Barbarino meme…).

                  As for the separation of powers – what problem (besides the obvious that your “feelings” are more difficult to be changed into law), do you have with that legal concept.

                  You DID learn about that concept, right pumpkin?

                  And what exactly is your problem with my view of the Constitution? Do you think that I have erred? Where exactly? Please do more than just mouth empty, baseless ad hominem about knowledge of law – SHOW where the error is.

                  Of course, we both know that you will not because you cannot

                6. what exactly is your problem with my view of the Constitution?

                  It’s okay, Perfesser McPatentpants. I’m sure you have tons of superfans out there, even if I’m not one of them.

                7. Nice dodge. That doesn’t answer the question, now does it?

                  What is the matter Malcolm, lose your tongue when asked for particulars…?

    2. it appears that Google and its revolving door reach into the executive branch is why Pallante was sacked…

      The last time I checked, it’s pretty common for underlings to be sacked when a new boss takes over. It’s even more common when the underling makes noises that threaten or interfere with the boss’s authority.

      Moreover, it’s not uncommon for Registers to willingly depart after 5-10 years. Many have done so.

      Also, this might be come as a shock to a lot of people, but discussions about staffing and personnel changes typically do take place “behind closed doors.” It’s not an event that requires the donning of a tinfoil hat.

      Lastly, it never ceases to amuse that the ticks and leeches of the patent attorney world spend so much time complaining about their favorite sources of blood.

      1. lol – the ad hominem of your last paragraph does not even fit the topic here.

        Try something different.

        As for the rest – keep those eyes of yours clenched to anything off your script (and away from your precious fields of Rye)….

        1. your last paragraph does not even fit the topic here.

          You and your mentor/hero are both peddling the “Google is behind this” story. And there isn’t any evidence for that.

          Anyone could just as easily make up a story about Pallante accepting bribes from some “anti-Google forces” and fit it into the facts.

          But, hey, you guys really serious people. If you say that Google is behind everything “bad” about the patent system, then we have to believe you! After all, you’re totally not self-interested shills. Sure you’re not.

          1. Not sure why you think I am peddling anything (your odd 0bsess10n with “my mentor” aside), I asked for other inputs into the story and even regencies above that this was per the Register.

            You seem to be having a difficult time with that.

            Do you feel that your “field of Rye” is threatened somehow…?

            1. Not sure why you think I am peddling anything

              Right. It’s a total mystery! And a total coincidence that your mentor/hero jumped right on board, too.

              Nobody could have predicted that.

              1. You have a problem with what the Register said? You know something that they do not?

                Or are you just wrong again and whining like your usual self that your favorite “bad thing” is not the center of attention…?

                1. (And by the way, you might want to notice what the topic of this thread is – and then feel free to apologize for being your usual arse)

                2. You have a problem with what the Register said?

                  Oh my, how could anyone possibly question anything “the Register” said?

                3. That’s rather NOT the point, now is it, Malcolm?

                  Maybe you want to add something meaningful to the conversation (of course chances of that are practically nil, but might as well ask)

  3. OT, but November promises to be another exciting month for oral arguments at the CAFC.

    I’m curious about this one:

    Tuesday, November 01, 2016, 10:00 A.M.
    15-1734 PATO Microsoft Corporation v. Enfish, LLC

    Does anyone know what the issue is?

  4. link to scotusblog.com

    [T]he insurgent Star Athletica argues that copyright protection categorically should exclude garments. Because Congress has considered many times adopting a statute to protect industrial designs, but has never done so, Star Athletica argues that courts should adopt a presumption against affording protection to any garment. In Star Athletica’s view, protection should be available only if the design feature in question is entirely separate from the useful functions of the garment. In this case, because the principal design features – stripes, chevrons, zigzags and the like – are essential to the use of the article as a cheerleading uniform, they cannot be regarded as conceptually “separable” from the uniform. If they are not separable from the uniform, then they can receive no copyright protection.

    Varsity Brands, by contrast, argues that a work is conceptually separable if it can exist in a tangible medium other than the uniform. Because a graphic design can exist on a piece of paper, or any piece of fabric, Varsity Brands argues for a bright-line rule protecting all two-dimensional designs. For Varsity Brands, the only hard cases are those that involve three-dimensional designs, because a three-dimensional object (such as a statue) can hardly exist apart from its shape, and if its shape has functional attributes, it then becomes difficult to determine whether a copier has copied the expressive aspects or merely the functional aspects of the shape.

    Note to Varsity Brands: garments are three dimensional.

    The solicitor general’s brief in support of Varsity Brands is powerful. Among other things, it shows that the U.S. Copyright Office has had an unbroken tradition of accepting registration of graphic designs used on clothing for many decades.

    Wow, the US copyright office has an “unbroken tradition”.

    It seems more than a bit odd to allow someone to own a garment design (?!) for 100+ years but, hey, “unbroken tradition” of accepting registration. Super compelling stuff.

    1. I didn’t post the link and excerpts regarding this case for the “kvetching”. I posted because it illustrates the potential power of decisions at the Register level to influence both policy and law.

      The Register, fyi, is chosen by the Librarian of Congress, who is appointed by the President “with the advice and consent of the Senate.” It used to be a lifetime appointment. That changed recently:

      link to en.wikipedia.org

      [I]n 2015, Congress passed and President Barack Obama signed into law the “Librarian of Congress Succession Modernization Act of 2015” which put a 10-year term limit on the position with an option for reappointment. The legislation was seen as a critique of Librarian James H. Billington’s unwillingness to hire a permanent Chief Information Officer to effectively manage and update the Library’s Information Technology

      And so IP law grows up little by little …

      1. Well, maybe you should have used some of those short declarative sentences that you are always on about and state that – rather than just a rambling mewling post full of snark.

        You should try getting out of your own head sometimes. What you think about just is not clear to everyone merely because you are the one thinking about it.

        (and yes, this is often reflected in your number one meme of
        A
        O
        O
        T
        W
        M
        D

        as if that was not obvious to you – and everyone else)

        1. a rambling mewling post full of snark

          You’re apparently reading some imaginary post that you just dreamed up.

          But thank goodness you’re not prone to “kvetching” and “mewling” yourself. And you’re totally not a hypocrite. Nope. Not you.

      2. And so IP law grows up little by little …

        And to tie into the actual subject of the thread, one step forward and two steps back:

        The US Copyright Office has been given a brutal Silicon Valley-style sacking, the first time the Copyright Register has been dismissed in 119 years.

        From: link to theregister.co.uk

  5. The ineffectiveness of Congressional agencies is a feature, not a bug. Do we really need to relitigate Tam with the copyright office as well?

  6. RonK I do not consider imposing “fair use” in patent law a rational “intersectionality” for changing Patent law – it is a recipe to kill the patent system

    LOL

    But using the patent system to protect logic, information and instructions for computers — the Best Idea Ever! What could possibly go wrong? A deep dive into a metaphysical swamp is just what the patent system always needed!

    Here’s the thing about “fair use”, Ron: it flows from First Amendment. And the concerns are relevant and applicable to both the copyright and patent systems. That was recognized right from the beginning (“In truth, in literature, in science and in art, there are, and can be, few, if any things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science, and art, borrows, and must necessarily borrow, and use much which was well known and used before.” Justice Story, 1845).

    Thanks mainly to the CAFC’s inability to grasp the issues (for reasons we can only speculte at) the US patent system backed itself into the First Amendment. At their core, both Mayo and Alice can both be understood as reflecting First Amendment considerations which is one of the many great reasons those cases are never, ever ever going to be overturned.

    The big question out there remains (and it remains mainly because the software patent luvvers refuse to address it): do we want some kind of Fair Use injected into the patent system as a whole, or we want to use eligibility to expunge logic and information patents (including software patents) from the system? You will end up choosing between one or the other. I guarantee that. It might be a good idea to start thinking about your choice now, lest other people make the decision for you.

      1. Innuendo and insults galore. Maybe if you understood how to write a paragraph comprising declarative sentences in English …

        1. Do you see anything wrong with the sentence above?

          Really?

          Maybe you need a different script, Malcolm – without your number one meme of
          A
          O
          O
          T
          W
          M
          D

          You seem to rely on that to the exclusion of actually saying anything meaningful.

  7. Aside from the piggybacked “pet” efforts to sneak into patent law some more of the efficient infringer dogma,…

    Any actual words on the sudden (and thorough, including computer lock-out) exit of Miss Pallante?

    If this were concerning a similar action in the EPO, the boards would be rolling in comments. However, here, not a peep.

    1. link to billboard.com

      The Library of Congress has a reputation for using out-of-date technology, and during her tenure, Pallante advocated moving the Copyright Office into the executive branch of government, which would make the register of copyrights a presidential appointee. (The U.S. Patent and Trademark Office, which oversees the other two most important kinds of intellectual property, operates under the U.S. Department of Commerce.) One source speculated that this could have alienated Hayden.

  8. RonK: the “unified approach” for patents and copyrights of “fair-use” that Dennis suggests is contrary to statute and no agency has the power to implement it.

    What exactly did Dennis suggest that is “contrary to statute”? Again: nothing in any statute says “no agency will be permitted to take a unified approach to its intepretation of copyright and patent laws.”

    Also, I’m pretty sure the Constitution applies to the agency. Can an agency recognize the Constitution’s applicability to copyright and ignore its applicability to patent law? Is an agency free to inconsistently interpret a term that is relevant to both patents and copyrights? For the purposes of statutory intepretation or applying judicial precedent, can an agency pretend that one form of IP protection doesn’t exist and that nobody has considered the issues before in any context?

      1. Hey, I’m not the one that popped here to whine about some imaginary prohibition on a combined agency adopting a “unified approach” to copyright and patent law.

        That was you and your hero, Ron.

        But you two are all about “patent quality”, right? Sure you are.

  9. Handling the “overlapping nature” of IP cannot be a justification because there is no statutory basis for doing so. How does the PTO’s independent treatment of patents and trademarks in rules, procedures, and policies makes any difference to the public in the “overlapping nature” of patents and trademarks? It does not.

    Dennis, you failed to mention the most important benefit of the Copyright Office becoming an executive agency: it is the administrative protective provisions and judicial review that Congress imposed on agencies, which do not apply to an office operated by the Congress. These provisions are codified in the Administrative Procedure Act, the Regulatory Flexibility Act, the Paperwork Reduction Act, the Information Quality Act, the Housekeeping Act, the Independent Offices Appropriations Act, and the Congressional Review Act.

    1. RonK: Handling the “overlapping nature” of IP cannot be a justification because there is no statutory basis for doing so.

      There is no statutory prohibition that would prevent an agency from interpreting the IP laws in a logically consistent manner (i.e., taking a “unified” approach, as opposed to interpreting the laws in a theoretical vacuum).

      Put another way, you don’t need a “statutory basis” to use reason and common sense.

      1. That’s great Malcolm.

        You want to move the goal[posts back and actually try not to twist what is being said?

        Reason and common sense remain – trying to “unify” disparate intellectual property laws meant to protect different aspects of things is just NOT the same as using that reason and common sense.

        Try starting with this basic item that I have shared with you previously:
        Copyright: protect expression.
        Patent: protect utility.

      2. MM@2.2, I agree with you in principle that there is no prohibition. But I ask you what “unified” approach that is not specified in the Patent Act, the Copyright Act, the Administrative Procedure Act, the Regulatory Flexibility Act, the Paperwork Reduction Act, the Information Quality Act, the Housekeeping Act, the Independent Offices Appropriations Act, and the Congressional Review Act do you have in mind? Clearly, the “unified approach” for patents and copyrights of “fair-use” that Dennis suggests is contrary to statute and no agency has the power to implement it.

        1. There is no prohibition per se, but if one simply understands that the different IP laws are meant to cover different aspects of things, then it is only reasonable and common sense that there is NOT a “unified approach.”

          1. if one simply understands that the different IP laws are meant to cover different aspects of things, then it is only reasonable and common sense that there is NOT a “unified approach.”

            Which IP paradigm was meant to “cover” logic? Which IP paradigm was meant to “cover” written instructions? Which IP paradigm was meant to “cover” information?

            Also, it seems to me that a “unified approach” is exactly what you would need in the situation you describe, where certain “things” comprise different “aspects”, or where certain “aspects” of things arguably fall within the sphere of both paradigms (copyright and patent), or neither of them.

            1. You ask questions – yet have not answered questions asked of you that would inform the very questions you ask.

              Maybe less games from you and more critical (and inte11ectually honest) thinking…

              1. Hey, “anon”, when you think that you might get around to writing a single coherent paragraph on any subject, can you please let everyone know in advance? I want to be sure that I’m around to read it.

                1. More mindless and off tangent ad hominem.

                  Maybe less of that and more of you actually answering questions put to you….

    2. Ron,
      Section 701 of the Copyright Act provides:
      (e) Except as provided by section 706(b) [] and the regulations issued thereunder, all actions taken by the Register of Copyrights under this title are subject to the provisions of the Administrative Procedure Act of June 11, 1946, as amended (c. 324, 60 Stat. 237, title 5, United States Code, Chapter 5, Subchapter II and Chapter 7).

      Section 706 provides
      (b) Copies or reproductions of deposited articles retained under the control of the Copyright Office shall be authorized or furnished only under the conditions specified by the Copyright Office regulations.

      So, the copyright office is subject to APA. I’m not sure how (or whether) the other provisions are included (but I thought they refer to those actions covered by the APA, but I don’t have time to look that up).

      I agree that there is not overlapping basis in current law, but that can’t stop Congress from creating the US IP Office, and stating that the Executive Officials must, when issuing rules for any one area (tm, patent, c), consider the intersectionality of IP law and formulate a coherent IP policy (insert whatever standard you want for “consider” and “coherent”).

      I never thought I would use the word “intersectionality” after college/law school. Well, just proved myself wrong.

      1. slaffles@2.3,
        My point was that I agree with Dennis that there would be substantial benefits in making the Copyright Office an executive agency because it would be subject to all administrative law statutes. Have I mentioned the Freedom of Information Act? I do not believe that any of the other administrative statutes which usually define “agency” include in their definitions anything close to covering a Congressional office like the Copyright Office. For example the Paperwork Reduction Act in 44 U.S.C. 3502(1) defines the term “agency” to mean “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency..”

        You moved the goal-post from Dennis’ suggestion by suggesting that the consolidation can be made by a legislative act of Congress. Of course Congress can make laws to combine the Copyright Office into the PTO – and as I explained above, I would support that solely from the administrative law perspective. While the Patent Act and the Copyright Act have their constitutional basis in the same clause, neither you nor Dennis identify a single rational “intersectionality” of IP policy (that is not already in the Copyright Act, the Patent Act, and all administrative law), that would make sense for Congress to legislate.

        Of course, I do not consider imposing “fair use” in patent law a rational “intersectionality” for changing Patent law – it is a recipe to kill the patent system. Are you and Dennis merely suggesting a path for obfuscating a substantive weakening of patent rights by hiding it in some agency consolidation legislation? If that emerges as the path for consolidation, you will see much objection to it, including from those who would otherwise support a consolidation purely from the administrative law perspective.

  10. That overlapping nature also creates difficulties for users that hope to rely upon the public domain and fair use.”

    This assumes that each of the overlapping protections SHOULD have such things as “fair use.”

    This has NEVER been true.

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