How a New Librarian of Congress Could Improve U.S. Copyright

The federal government’s librarian has sweeping powers to change law. Will he or she use them?

A copyright demonstration in Bucharest in 2013 (Bogdan Cristel / Reuters)

Many things are said about the Librarian of Congress.

Some claim that he has not been seen in years, that his encyclopedic intellect is now stored in thousands of Laserdiscs kept in an Amazon-owned hangar in Virginia.

Others insist that in one of his many descents into the library’s special-collection catacombs, he found the Philosopher’s Stone, which of course guarantees the owner eternal life.

And still others murmur that his power is so great that he can dictate U.S. law—can declare, triennially, what shall constitute a copyright violation in the United States of America and what shall not.

The first of these two rumors are, of course, silly and wrong. The third is not. Such is the awesome ability of the nation’s foremost Librarian.

The Librarian of Congress has a somewhat strange position. He or she both runs the world’s largest library—which has a staff in the thousands and a collection in the millions—and oversees the Copyright Office, the government office that manages the register of all copyrighted materials.

So when the current Librarian of Congress, James Billington, announced plans to retire last week, it wasn’t only librarians who perked up. Copyright advocates did so too, because of the Librarian’s incredible power. I talked to some of them last week about how a new person in the role could shift the American copyright scheme.

When Billington, the outgoing Librarian, was appointed in 1987, copyright did not attract public interest as it did now. Presidents didn’t take positions on it, and few ordinary Americans thought of themselves as having strong stances on the issue—but that’s partly because few thought they could go to jail or face huge fines for it.

“With the Semiconductor Chip Protection Act in the late 1970s and early-to-mid 1980s, the Copyright Office was the only actor, so the administration didn’t really take a position on that kind of issue,” Pamela Samuelson, a law professor at the University of California Berkeley who studies intellectual property, told me.

“It’s only been in the last couple of decades that copyright policy has had all that much attention paid to it. In the 1990s it started to be a big deal, largely because of the Internet,” she says.

In other words, the entire span of U.S. history in which copyright has been a divisive issue has happened during Billington’s tenure. During his tenure, too, the Librarian took on new and broader legal powers: In 1998, the Digital Millennium Copyright Act deeded to the Librarian—and not the Copyright Office—the power to exempt certain kind of copyright violations.

The Librarian has the power to grant exemptions that enable people to copy or remix otherwise protected works. (Technically, the Librarian’s authority is to exempt the Digital Millennium Copyright Act’s ban on opening digital locks—like an encrypted DVD, for instance. Which means that people can still unlock and access such works for legal purposes, like copying a clip of a DVD as part of a remix.) The idea is to be sure there’s a way around locks or encryptions that would prevent lawful use of a class of locked works.

This is a big deal. As Jessamyn West, a librarian and the former Chief Operating Officer of the legendary web community Metafilter, puts it: “The Librarian of Congress gets to say, these things you could go to jail for? They’re okay.” And he or she does this every three years.

To be clear, the Librarian does not resolve individual copyright disputes. When one rights-holder thinks another has violated their copyright, the case is resolved by the courts, not by the Librarian or the Copyright Office. The recent “Blurred Lines” ruling, which found that Robin Thicke and Pharrell infringed Marvin Gaye’s “Got to Give It Up,” was decided by a federal jury, for example. But the Librarian can exempt certain classes of works from the DMCA’s ban on picking digital locks: He or she can (and, right now, does) permit people to copy obsolete software or video games that are not available on any other platform.*

Billington has historically deferred to the Copyright Office when granting these exemptions. He lets the Office research and holds hearings about them, then approves their recommendation. In fact, only once, in 2012, did Billington go rogue and personally exempt a kind of copyright infringement that the Copyright Office declined to recommend, when he permitted software that reads ebooks aloud, so that they could be more accessible to the blind.

“Though formally the Librarian has power, that power has been delegated to the office,” Samuelson says. “Now, that’s something that could be shifted if a new Librarian came in and also if the Copyright Office stays where it is.”

(By “stays where it is,” Samuelson is referring to an argument from some legislators and advocates that the Copyright Office should be moved to the Department of Commerce, which already manages the Patent and Trademark Office. Experts said that is less likely now that Billington has retired.)

“In theory, the Librarian could do whatever he or she wants,” in terms of granting exemptions, says Jonathan Band, a lawyer in Washington, D.C., who specializes in technology and intellectual property law. “They could be more aggressive and grant more exemptions and broader exemptions.”

But it would be hard for a new Librarian to immediately shape copyright policy, as the hearings about the new round of exemptions were just held in May. Any new exemptions would probably have to wait until the next round in 2018.

In the shorter term, though, a new Librarian could make changes a smaller scale.

“A lot of people are very happy that Billington finally stepped down, so we can get some better technology infrastructure for both the Copyright Office and the Library,” said Samuelson. The previous Librarian of Congress did not hire a permanent chief information officer—despite being exhorted to do so by the Government Accountability Office—and has instead churned through five IT chiefs in the last three years alone.

A new Librarian could also shape copyright policy, Band said, just by communicating to libraries that they should take advantage of recent changes to fair use. The 2012 HathiTrust decision, for instance, found that searching ebooks and making them accessible to the disabled is covered by fair use.

The Copyright Office “is very troubled by the evolution of fair use,” Band told me. “A different Librarian who is more involved with these issues should say, ‘No, libraries can take more advantage of fair use than the Copyright Office feels.’”

West said that, as a fellow librarian, she just wished the Librarian would make a bigger deal of the exemptions—even if he or she failed to meaningfully expand them. “Libraries are about sharing, and this is the Librarian of Congress—the biggest librarian in the land—saying more should be shared.”

* This story originally stated that the Librarian of Congress can exempt certain classes of works from copyright infringement law. In fact, the Librarian can exempt the prohibition against accessing those works when they're encrypted or otherwise locked, but the Librarian does not change the copyright status of the works themselves. We regret the error. Additionally, the story has been updated to clarify the role of the Librarian of Congress.