Section 508: Hiding in Plain Sight, and Boxes

A 21st Century Copyright Office
Recently, Public Knowledge released a great report titled "A Copyright Office for the 21st Century, Recommendations to the new Register of Copyrights."  After a 16 year tenure as Register, and prior service at the Copyright Office, Marybeth Peters recently announced her retirement at the end of 2010.  The Public Knowledge report provides a list of ten recommendations to the next Register in addition to commentary reflecting their necessity in light of technological revolution and technical possibility, the expanded policy role of the Office, and the legal basis and/or barriers to implementation of most of the suggestions.&

The report provides just enough detail (for my taste!), excellent references and is not too long and technical.  I congratulate the authors on putting together a concise, accessible list of recommendations.  Highly recommended reading for those interested in these issues.  Below, I offer comments on a provision of the Copyright Act that has been hiding in the open since its passage in 1976.  As my research and a conversation with someone at the Copyright Office confirmed, the provision is actually hiding in disorganized boxes in the General Counsel’s office.

Section 508
I want to begin by saying that this post is not an attack on the Copyright Office.  Everyone I've ever spoken to there is extremely nice, very helpful and keenly aware of the Office's (funding) limitations.  Thirty five dollars per registration doesn’t go very far.  However, as a dedicated student of copyright and strong believer in the importance and utility of open access to information about the law, my goal is simply to raise awareness about the lack of implementation of 17 U.S.C. 508, what I’ll call the “public litigation records” provision of the U.S. Copyright Act.  Section 508 requires federal court clerks to notify the Register of Copyrights of the pendency and final disposition of copyright cases, and for the Register to make the records available to the public.  I’ve been able to find a few historical references to the provision.  Unfortunately, nothing points to the type of implementation that would make this information very useful for practitioners, researchers or the general public.

The House Report accompanying the passage of the 1976 Act notes that Section 508 "is intended to establish a method for notifying the Copyright Office and the public of the filing and disposition of copyright cases." (emphasis added).  Soon after the passage of the Act, the Office hinted at interest in the provision.  Federal Register notices in 1978 (43 Fed. Reg. 24,151, June 2, 1978), 1980 and 1986 discuss the provision.  The 1986 notice, signed by then-Register Ralph Oman, states that the cumbersome index card system for tracking Section 508 notices would be discontinued and the Office would receive and retain the documents “until enough have accumulated to fill one reel of microfilm.”  It also notes that at the time, the Office received fewer than five requests per year for access to the information.

Section 508 popped up again in 1993 in the Advisory Committee On Copyright Registration And Deposit (ACCORD) Report.  The Committee formed in response to legislative proposals and requests from Senators to form a public-private committee to analyze registration and deposit requirements.  The report concluded that Section 508 wasn’t working as intended, and suggested putting the onus of filing notifications on plaintiffs, rather than on court clerks.  Some federal courts require, at the time of filing a complaint, completion of a form which the clerk then forwards to the Copyright Office.  For example,  Local Rule 3-1 of the District Court for the Central District of California requires completion of Form AO 121 in copyright cases invoking the court’s jurisdiction under 28 U.S.C. § 1338.

Identical paragraphs in the 2004 (p. 43) and 2005 (p. 59) Copyright Office Annual Reports state that compliance with Section 508 would be studied and electronic filing and other options considered after meeting with the administrative office of the courts.  The 2007 Annual Report discusses a plan to retain the records for three years but does not discuss the stalemate with respect to access.   It references a Federal Register notice scheduled to be published on May 16, 2007, but I could not find anything related around that time period.  Finally, there is no reference in the Compendium II (a manual of the Office’s rules and policies) or in Circular 6, "Obtaining Access to and Copies of Copyright Office Records and Deposits."

The Public Knowledge report details the inadequacies of current public search facilities, so it is not surprising that the availability of the Section 508 records is lacking.  Again, I’m sure everyone at the Copyright Office would like a (much larger) budget to implement these ideas, especially with respect to search and registration.

What the Copyright Office Had to Say
Next, I called the Copyright Office’s general help line.  The representative, as usual, provided a friendly response in noting that he doesn’t think the forms are digitally available.  He transferred me to a gentleman who provided much more detail.  The more senior official emphasized that the Office receives and keeps the forms and they are public records.  He told me they’re kept in boxes in the General Counsel’s office.  According to the official, the records sit in boxes (about four per calendar year), people occasionally look through them, they’re not indexed, he doesn’t think the Office gets all of them and the Office would have no way of knowing the rate of compliance with Section 508's requirements.  I understand the obvious point that manpower and money, as in most areas of human endeavor, are tight constraints on the Office’s ability.  Perhaps I’m letting ideology get in the way of practicality?

In this context,  one can also question whether the Copyright Office should bother worrying about these records in light of the powerful search capabilities in Westlaw or Lexis, for example.  For a recent graduate who no longer has ubiquitous access to these services, I’d like to see a bit more effort from the Office.  And, Section 508 is still the law.  The Copyright Office representative also told me that since the advent of PACER, the Office has considered recommending that Section 508 be dropped out of the law.  The identical paragraphs in the 2004 and 2005 Annual Reports, referenced above, confirm this view: "The Office will use such data [gathered about §508] to determine what changes should be made to this section, including the possibility of permitting electronic filing of §508 notices and the possibility of repealing the requirement."  I didn't think to ask for the data gathered (I suppose I could file a FOIA request), and I wasn’t looking to pick a fight.  So, I didn’t point out that PACER (PAY-CER?) would not, in my opinion, provide an effective substitute in its current form.  He ended by agreeing with me and the few of you in Internet-land actually reading this: the Office wishes they had the resources to improve the situation.

On a related note, the Copyright Office comes under the umbrella of the Library of Congress, which is a rare creature in the federal government hierarchy.  Unlike most agencies which are tied to the executive branch, the Library of Congress is an agency of the legislative branch.  Thus, the Copyright Office isn’t covered by 2009’s Open Government Directive.  

Making these records available would enable analysis of litigation trends without having to rely on paid services.  Making the records available in an open format would allow mark-up with more granular information beyond that required by the law as currently written.  For example, when a law student or practitioner reads a case, they could enter information such as which Section 106 right is at issue, whether international issues are at play, what technology might be involved, the type of copyrighted work, etc. 

Perhaps tweaking the RECAP Firefox extension could make this possible, or public.resource.org's Law.Gov project or Google Scholar could take on the OCR conversion and distribution of these records.  Google, for example, has some experience with Copyright Office records as part of the Google Books project.  As the Copyright Office proceeds into the 21st Century, let’s hope that Section 508, the recommendations of Public Knowledge and the interests of the public are not lost in the shuffle.

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