Miscellaneous

Nationalizing 5G networks? Why that’s a bad idea.

by on January 29, 2018 · 0 comments

There was a bold, bizarre proposal published by Axios yesterday that includes leaked documents by a “senior National Security Council official” for accelerating 5G deployment in the US. “5G” refers to the latest generation of wireless technologies, whose evolving specifications are being standardized by global telecommunications companies as we speak. The proposal highlights some reasonable concerns–the need for secure networks, the deleterious slowness in getting wireless infrastructure permits from thousands of municipalities and counties–but recommends an unreasonable solution–a government-operated, nationwide wireless network.

The proposal to nationalize some 5G equipment and network components needs to be nipped in the bud. It relies on the dated notion that centralized government management outperforms “wasteful competition.” It’s infeasible and would severely damage the US telecom and Internet sector, one of the brightest spots in the US economy. The plan will likely go nowhere but the fact it’s being circulated by administration officials is alarming.

First, a little context. In 1927, the US nationalized all radiofrequency spectrum, and for decades the government rations out dribbles of spectrum for commercial use (though much has improved since liberalization in the 1990s). To this day all spectrum is nationalized and wireless companies operate at sufferance. What this new document proposes is to make a poor situation worse.

In particular, the presentation proposes to re-nationalize 500 MHz of spectrum (the 3.7 GHz to 4.2 GHz band, which contains mostly satellite and government incumbents) and build wireless equipment and infrastructure across the country to transmit on this band. The federal government would act as a wholesaler to the commercial networks (AT&T, Verizon, T-Mobile, Sprint, etc.), who would sell retail wireless plans to consumers and businesses.

The justification for nationalizing a portion of 5G networks has a national security component and an economic component: prevent Chinese spying and beat China in the “5G race.”

The announced goals are simultaneously broad and narrow, and at severe tension.

The plan is broad in that it contemplates nationalizing part of the 5G equipment and network. However, it’s narrow in that it would nationalize only a portion of the 5G network (3.7 GHz to 4.2 GHz) and not other portions (like 600 MHz and 28 GHz). This undermines the national security purpose (assuming it’s even feasible to protect the nationalized portion) since 5G networks interconnect. It’d be like having government checkpoints on Interstate 95 but leaving all other interstates checkpoint-free.

Further, the document author misunderstands the evolutionary nature of 5G networks. 5G for awhile will be an overlay on the existing 4G LTE network, not a brand-new parallel network, as the NSC document assumes. 5G equipment will be installed on 4G LTE infrastructure in neighborhoods where capacity is strained. As Sherif Hanna, director of the 5G team at Qualcomm, noted on Twitter, in fact, “the first version of the 5G [standard]…by definition requires an existing 4G radio and core network.”

https://twitter.com/sherifhanna/status/957891843533946880

The most implausible idea in the document is a nationwide 5G network could be deployed in the next few years. Environmental and historic preservation review in a single city can take longer than that. (AT&T has battled NIMBYs and local government in San Francisco for a decade, for instance, to install a few hundred utility boxes on the public right-of-way.) The federal government deploying and maintaining hundreds of thousands 5G installations in two years from scratch is a pipe dream. And how to pay for it? The “Financing” section in the document says nothing about how the federal government will find tens of billions of dollars for nationwide deployment of a government 5G network.

The plan to nationalize a portion of 5G wireless networks and deploy nationwide is unwise and unrealistic. It would permanently damage the US broadband industry, it would antagonize city and state officials, it would raise serious privacy and First Amendment concerns, and it would require billions of new tax dollars to deploy. The released plan would also fail to ensure the network security it purports to protect. US telecom companies are lining up to pay the government for spectrum and to invest private dollars to build world-class 5G networks. If the federal government wants to accelerate 5G deployment, it should sell more spectrum and redirect existing government funding towards roadside infrastructure. Network security is a difficult problem but nationalizing networks is overkill.

Already, four out of five [update: all five] FCC commissioners have come out strongly against this plan. Someone reading the NSC proposal would get the impression that the US is sitting still while China is racing ahead on 5G. The US has unique challenges but wireless broadband deployment is probably the FCC’s highest priority. The Commission is aware of the permitting problems and formed the Broadband Deployment Advisory Committee in part for that very purpose (I’m a member). The agency, in cooperation with the Department of Commerce, is also busy looking for more spectrum to release for 5G.

Recode is reporting that White House officials are already distancing the White House from the proposal. Hopefully they will publicly reject the plan soon.

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Clinton’s “Progressive” Tech Policy Still Wise Today

by on January 25, 2018 · 0 comments

Co-authored with Adam Thierer

Why would progressives abandon the most successful progressive technology policy ever formulated?

In a recent piece in The Washington Spectator, Marc Rotenberg and Larry Irving have some harsh words for progressives’ supposed starry-eyed treatment of Internet firms and the Clinton Administration policies that helped give rise to the modern digital economy. They argue that the Internet has failed to live up to its promise in part because “[p]rogressive leaders moved away from progressive values on tech issues, and now we live with the consequences.”

But if the modern Internet we know today is truly the result of progressive’s self-repudiation, then we owe them and the Clinton Administration a debt of gratitude, not a lecture.

Unfortunately, Rotenberg and Irving take a different perspective. They criticize progressives for standing aside while “a new mantra of ‘multistakeholder engagement’” replaced traditional regulatory governance structures, unleashing a Pandora’s Box of “self-regulatory processes” that failed to keep the private sector accountable to the public.

Rotenberg and Irving are also upset that the First Amendment rights of Internet companies have received stronger support following the implementation of Section 230 of the Communications Decency Act, which was enacted by Congress in 1996 and signed into law by President Clinton as part of the Telecommunications Act of 1996.

All of this could have been avoided, they argue, if the Clinton Administration had instead embraced the creation of a National Information Infrastructure (NII) to govern the Internet. As part of its 1993 proposed “Agenda for Action,” the Clinton White House toyed with the idea that “[d]evelopment of the NII can help unleash an information revolution that will change forever the way people live, work, and interact with each other,” citing specific examples of how it would: empower people to “live almost anywhere they wanted, without foregoing opportunities for useful and fulfilling employment”; make education “available to all students, without regard to geography, distance, resources, or disability”; and permit healthcare and other social needs to be delivered “on-line, without waiting in line, when and where you needed them.” Luckily, all these things came to pass precisely because the Clinton Administration went a different route, ignoring the heavy-handed regulatory approach offered by early tech policy wonks and opting instead to embrace a different governance framework: The Framework for Global Electronic Commerce.

The 1997 Framework outlined a succinct, market-oriented vision for the Internet and the emerging digital economy. It envisioned a model of cyberspace governance that relied on multistakeholder collaboration and ongoing voluntary negotiations and agreements to find consensus on the new challenges of the information age. Policy was to be formulated in an organic, bottom-up, and fluid fashion. This was a stark and welcome break from the failed top-down technocratic regulatory regimes of the analog era, which had long held back innovation and choice in traditional communications and media sectors.

“Where governmental involvement is needed,” The Framework advised, “its aim should be to support and enforce a predictable, minimalist, consistent and simple legal environment for commerce.” The result was one of the most amazing explosions in innovation our nation and, indeed, the entire world had ever witnessed. It was precisely the flexibility of multistakeholder governance—as well as the strong support for the free flow of speech and commerce—that unleashed this tsunami of technological progress.  

It’s strange, then, that Rotenberg and Irving decry the era of “multistakeholder engagement” that the Clinton Administration Framework presaged, especially because they included similar provisions in their own frameworks. For example, in “A Public-Interest Vision of the National Information Infrastructure,” the authors specifically called for “democratic policy-making” in the governance of the emerging Internet, arguing that “[t]he public should be fully involved in policy-making for the information infrastructure.” They go even further by citing the value of “participatory design,” which emphasized iterative experimentation and information feedback loops (learning by doing) in the process of designing network standards and systems. These “[n]ew approaches,” Rotenberg and Irving argue, “combine the centralized and decentralized models, obtaining the benefits of each while avoiding their deficiencies.” Embracing “[b]oth participatory design and the experimental approach to standardization,” they concluded, would “achieve the benefits of democratic input to design and policy-making without sacrificing the technical advantages of consistency and elegance of design.”

On this point, Rotenberg and Irving are correct. Unfortunately, it seems their valuation of such processes do not apply to the regulatory structures overseeing these technologies. This is despite the “Agenda for Action” explicitly calling for the NII to “complement … the efforts of the private sector” by “work[ing] in close partnership with business, labor, academia, the public, Congress, and state and local government.” What’s more “multistakeholder” than that?

For all their lamentations of the multistakeholder process, Rotenberg and Irving engaged in that very process in the 1990s. Their proposals had their shot at convincing the Clinton Administration that a national regulatory agency governing the Internet was necessary to usher in the digital age. And in one of those ironic twists of history, they failed to get their agency, but nevertheless bore witness to the emergence of a free and open Internet where innovation and progress still flourish.

We shouldn’t lose sight of this miraculous achievement and the public policies that made it all possible. There’s nothing “progressive” about rolling back the clock in the way Rotenberg and Irving recommend. Instead, America should double-down on the Clinton Administration’s vision for innovation policy by embracing permissionless innovation, collaborative multistakeholderism, and strong support for freedom of speech as the cornerstones of public policy toward other emerging technologies and sectors.

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A welcome restructuring at the FCC

by on January 9, 2018 · 0 comments

The FCC released a proposed Order today that would create an Office of Economics and Analytics. Last April, Chairman Pai proposed this data-centric office. There are about a dozen bureaus and offices within the FCC and this proposed change in the FCC’s organizational structure would consolidate a few offices and many FCC economists and experts into a single office.

This is welcome news. Several years ago when I was in law school, I was a legal clerk for the FCC Wireless Bureau and for the FCC Office of General Counsel. During that ten-month stint, I was surprised at the number of economists, who were all excellent, at the FCC. I assisted several of them closely (and helped organize what one FCC official dubbed, unofficially, “The Economists’ Cage Match” for outside experts sparring over the competitive effects of the proposed AT&T-T-Mobile merger). However, my impression even during my limited time at the FCC was well-stated by Chairman Pai in April:

[E]conomists are not systematically incorporated into policy work at the FCC. Instead, their expertise is typically applied in an ad hoc fashion, often late in the process. There is no consistent approach to their use.

And since the economists are sprinkled about the agency, their work is often “siloed” within their respective bureau. Economics as an afterthought in telecom is not good for the development of US tech industries, nor for consumers.

As Geoffrey Manne and Allen Gibby said recently, “the future of telecom regulation is antitrust,” and the creation of the OEA is a good step in line with global trends. Many nations–like the Netherlands, Denmark, Spain, Japan, South Korea, and New Zealand–are restructuring legacy telecom regulators. The days of public and private telecom monopolies and discrete, separate communications, computer, and media industries (thus bureaus) is past. Convergence, driven by IP networks and deregulation, has created these trends and resulted in sometimes dramatic restructuring of agencies.

In Denmark, for instance, as Roslyn Layton and Joe Kane have written, national parties and regulators took inspiration from the deregulatory plans of the Clinton FCC. The Social Democrats, the Radical Left, the Left, the Conservative People’s Party, the Socialist People’s Party, and the Center Democrats agreed in 1999:

The 1990s were focused on breaking down old monopoly; now it is important to make the frameworks for telecom, IT, radio, TV meld together—convergence. We believe that new technologies will create competition.

It is important to ensure that regulation does not create a barrier for the possibility of new converged products; for example, telecom operators should be able to offer content if they so choose. It is also important to ensure digital signature capability, digital payment, consumer protection, and digital rights. Regulation must be technologically neutral, and technology choices are to be handled by the market. The goal is to move away from sector-specific regulation toward competition-oriented regulation. We would prefer to handle telecom with competition laws, but some special regulation may be needed in certain cases—for example, regulation for access to copper and universal service.

This agreement was followed up by the quiet shuttering of NITA, the Danish telecom agency, in 2011.

Bringing economic rigor to the FCC’s notoriously vague “public interest” standard seemed to be occurring (slowly) during the Clinton and Bush administrations. However, during the Obama years, this progress was de-railed, largely by the net neutrality silliness, which not only distracted US regulators from actual problems like rural broadband expansion but also reinvigorated the media-access movement, whose followers believe the FCC should have a major role in shaping US culture, media, and technologies.

Fortunately, those days are in the rearview mirror. The proposed creation of the OEA represents another pivot toward the likely future of US telecom regulation: a focus on consumer welfare, competition, and data-driven policy.

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The Top 10 Tech Liberation Posts in 2017

by on January 2, 2018 · 0 comments

Technology policy has made major inroads into a growing number of fields in recent years, including health care, labor, and transportation, and we at the Technology Liberation Front have brought a free-market lens to these issues for over a decade. As is our annual tradition, below are the most popular posts* from the past year, as well as key excerpts.

Enjoy, and Happy New Year. Continue reading →

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Commissioner Brendan Carr on Title II and stifling Internet innovation

by on December 13, 2017 · 0 comments

In 2015 after White House pressure, the FCC decided to take the radical step of classifying “broadband Internet access service” as a heavily-regulated Title II service. Title II was created for the AT&T long-distance monopoly and telegraph network and “promoting innovation and competition” is not its purpose. It’s ill-suited for the modern Internet, where hundreds of ISPs and tech companies are experimenting with new technologies and topologies.

Commissioner Brendan Carr was gracious enough to speak with Chris Koopman and me in a Mercatus podcast last week about his decision to vote to reverse the Title II classification. The podcast can be found at the Mercatus website. One highlight from Commissioner Carr:

Congress had a fork in the road. …In 1996, Congress made a decision that we’re going to head down the Title I route [for the Internet]. That decision has been one of the greatest public policy decisions that we’ve ever seen. That’s what led to the massive investment in the Internet. Over a trillion dollars invested. Consumers were protected. Innovators were free to innovate. Unfortunately, two years ago the Commission departed from that framework and moved into a very different heavy-handed regulatory world, the Title II approach.

Along those lines, in my recent ex parte meeting with Chairman Pai’s office, I pointed to an interesting 2002 study in the Review of Economics and Statistics from MIT Press about the stifling effects of Title II regulation:

[E]xisting economics scholarship suggests that a permissioned approach to new services, like that proposed in the [2015] Open Internet Order, inhibits innovation and new services in telecommunications. As a result of an FCC decision and a subsequent court decision in the late 1990s, for 18 to 30 months, depending on the firm, [Title II] carriers were deregulated and did not have to submit new offerings to the FCC for review. After the court decision, the FCC required carriers to file retroactive plans for services introduced after deregulation.

This turn of events allowed economist James Preiger to analyze and compare the rate of new services deployment in the regulated period and the brief deregulated period. Preiger found that “some otherwise profitable services are not financially viable under” the permissioned regime. Critically, the number of services carriers deployed “during the [deregulated] interim is 60%-99% larger than the model predicts they would have created” when preapproval was required. Finally, Preiger found that firms would have introduced 62% more services during the entire study period if there was no permissioned regime. This is suggestive evidence that the Order’s “Mother, May I?” approach will significantly harm the Internet services market.

Thankfully, this FCC has incorporated economic scholarship into its Restoring Internet Freedom Order and will undo the costly Title II classification for Internet services.

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Why the FCC silence on NBC license challenges? Other priorities, and it’s not up to them.

by on October 16, 2017 · 0 comments

Broadcast license renewal challenges have troubled libertarians and free speech advocates for decades. Despite our efforts (and our law journal articles on the abuse of the licensing process), license challenges are legal. In fact, political parties, prior FCCs, and activist groups have encouraged license challenges based on TV content to ensure broadcasters are operating in “the public interest.” Further, courts have compelled and will compel a reluctant FCC to investigate “news distortion” and other violations of FCC broadcast rules. It’s a troubling state of affairs that has been pushed back into relevancy because FCC license challenges are in the news.

In recent years the FCC, whether led by Democrats or Republicans, has preferred to avoid tricky questions surrounding license renewals. Chairman Pai, like most recent FCC chairs, has been an outspoken defender of First Amendment protections and norms. He opposed, for instance, the Obama FCC’s attempt to survey broadcast newsrooms about their coverage. He also penned an op-ed bringing attention to the fact that federal NSF funding was being used by left-leaning researchers to monitor and combat “misinformation and propaganda” on social media.

The silence of the Republican commissioners today about license renewals is likely primarily because they have higher priorities (like broadband deployment and freeing up spectrum) than intervening in the competitive media marketplace. But second, and less understood, is because whether to investigate a news station isn’t really up to them. Courts can overrule them and compel an investigation.

Political actors have used FCC licensing procedures for decades to silence political opponents and unfavorable media. For reasons I won’t explore here, TV and radio broadcasters have diminished First Amendment rights and the public is permitted to challenge their licenses at renewal time.

So, progressive “citizens groups” even in recent years have challenged license renewals for broadcasters for “one-sided programming.” Unfortunately, it works. For instance, in 2004 the promises of multi-year renewal challenges from outside groups and the risk of payback from a Democrat FCC forced broadcast stations to trim a documentary critical of John Kerry from 40 minutes to 4 minutes. And, unlike their cable counterparts, broadcasters censor nude scenes in TV and movies because even a Janet Jackson Superbowl scenario can lead to expensive license challenges.

These troubling licensing procedures and pressure points were largely unknown to most people, but, on October 11, President Trump tweeted:

“With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!”

So why hasn’t the FCC said they won’t investigate NBC and other broadcast station owners? It may be because courts can compel the FCC to investigate “news distortion.”

This is exactly what happened to the Clinton FCC. As Melody Calkins and I wrote in August about the FCC’s news distortion rule:

Though uncodified and not strictly enforced, the rule was reiterated in the FCC’s 2008 broadcast guidelines. The outline of the rule was laid out in the 1998 case Serafyn v. CBS, involving a complaint by a Ukrainian-American who alleged that the “60 Minutes” news program had unfairly edited interviews to portray Ukrainians as backwards and anti-Semitic. The FCC dismissed the complaint but DC Circuit Court reversed that dismissal and required FCC intervention. (CBS settled and the complaint was dropped before the FCC could intervene.)

The commissioners might personally wish broadcasters had full First Amendment protections and want to dismiss all challenges but current law permits and encourages license challenges. The commission can be compelled to act because of the sins of omission of prior FCCs: deciding to retain the news distortion rule and other antiquated “public interest” regulations for broadcasters. The existence of these old media rules mean the FCC’s hands are tied.

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A Guide on Breaking Into Technology Policy

by on October 10, 2017 · 0 comments

In recent months, I’ve come across a growing pool of young professionals looking to enter the technology policy field. Although I was lucky enough to find a willing and capable mentor to guide me through a lot of the nitty gritty, a lot of these would-be policy entrepreneurs haven’t been as lucky. Most of them are keen on shifting out of their current policy area, or are newcomers to Washington, D.C. looking to break into a technology policy career track. This is a town where there’s no shortage of sage wisdom, and while much of it still remains relevant to new up-and-comers, I figured I would pen these thoughts based on my own experiences as a relative newcomer to the D.C. tech policy community.

I came to D.C. in 2013, originally spurred by the then-recent revelations of mass government surveillance revealed by Edward Snowden’s NSA leaks. That event led me to the realization that the Internet was fragile, and that engaging in the battle of ideas in D.C. might be a career calling. So I packed up and moved to the nation’s capital, intent on joining the technology policy fray. When I arrived, however, I was immediately struck by the almost complete lack of jobs in, and focus on, technology issues in libertarian circles.

Through a series of serendipitous and fortuitous circumstances, I managed to ultimately break into a field that was still a small and relatively under-appreciated group. What we lacked in numbers and support we had to make up for in quality and determined effort. Although the tech policy community has grown precipitously in recent years, this is still a relatively niche policy vocation relative to other policy tracks. That means there’s a lot of potential for rapid professional growth—if you can manage to get your foot in the door.

So if you’re interested in breaking into technology policy, here are some thoughts that might be of help. Continue reading →

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Come Work with Me on Tech Policy at the Mercatus Center!

by on September 5, 2017 · 0 comments

Are you interested in emerging technologies and the public policy issues surrounding them? Then come to work with me at the Mercatus Center at George Mason University!

The Mercatus Center is currently looking to hire a new Senior Research Fellow in our Technology Policy Program. Our tech policy team covers a large and growing array of cutting-edge issues, including: robotics, AI, and autonomous vehicles; commercial drones; the Internet of Things; virtual reality; cryptocurrencies; the Sharing Economy; 3D printing; and advanced medical and health technologies, just to name a few current priorities.

But the most exciting—but challenging—thing about covering tech policy is that the landscape of issues and concerns is always morphing and growing. Our new Senior Research Fellow will help our team determine our tech policy priorities going forward and then be responsible for engaging in scholarly work and public speaking on those topics.

All the finer details about this new position are listed on the Mercatus website. If you’re interested and qualified, please apply! Or, if you know of others who might be interested in this position, please forward this notice along to them.

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Why not auction off low-altitude airspace for exclusive use?

by on June 27, 2017 · 0 comments

By Brent Skorup and Melody Calkins

Tech-optimists predict that drones and small aircraft may soon crowd US skies. An FAA administrator predicted that by 2020 tens of thousands of drones would be in US airspace at any one time. Further, over a dozen companies, including Uber, are building vertical takeoff and landing (VTOL) aircraft that could one day shuttle people point-to-point in urban areas. Today, low-altitude airspace use is episodic (helicopters, ultralights, drones) and with such light use, the low-altitude airspace is shared on an ad hoc basis with little air traffic management. Coordinating thousands of aircraft in low-altitude flight, however, demands a new regulatory framework.

Why not auction off low-altitude airspace for exclusive use?

There are two basic paradigms for resource use: open access and exclusive ownership. Most high-altitude airspace is lightly used and the open access regime works tolerably well because there are a small number of players (airline operators and the government) and fixed routes. Similarly, Class G airspace—which varies by geography but is generally the airspace from the surface to 700 feet above ground—is uncontrolled and virtually open access.

Valuable resources vary immensely in their character–taxi medallions, real estate, radio spectrum, intellectual property, water–and a resource use paradigm, once selected requires iteration and modification to ensure productive use. “The trick,” Prof. Richard Epstein notes, “is to pick the right initial point to reduce the stress on making these further adjustments.” If indeed dozens of operators will be vying for variable drone and VTOL routes in hundreds of local markets, exclusive use models could create more social benefits and output than open access and regulatory management. NASA is exploring complex coordination systems in this airspace but, rather than agency permissions, lawmakers should consider using property rights and the price mechanism.

The initial allocation of airspace could be determined by auction. An agency, probably the FAA, would:

  1. Identify and define geographic parcels of Class G airspace;
  2. Auction off the parcels to any party (private corporations, local governments, non-commercial stakeholders, or individual users) for a term of years with an expectation of renewal; and
  3. Permit the sale, combination, and subleasing of those parcels

The likely alternative scenario—regulatory allocation and management of airspace–derives from historical precedent in aviation and spectrum policy:

  1. First movers and the politically powerful acquire de facto control of low-altitude airspace,
  2. Incumbents and regulators exclude and inhibit newcomers and innovators,
  3. The rent-seeking and resource waste becomes unendurable for lawmakers, and
  4. Market-based reforms are slowly and haphazardly introduced.

For instance, after demand for commercial flights took off in the 1960s, a command-and-control quota system was created for crowded Northeast airports. Takeoff and landing rights, called “slots,” were assigned to early airlines but regulators did not allow airlines to sell those rights. The anticompetitive concentration and hoarding of airport slots at terminals is still being slowly unraveled by Congress and the FAA to this day. There’s a similar story for government assignment of spectrum over decades, as explained in Thomas Hazlett’s excellent new book, The Political Spectrum.

The benefit of an auction, plus secondary markets, is that the resource is generally put to its highest-valued use. Secondary markets and subleasing also permit latecomers and innovators to gain resource access despite lacking an initial assignment and political power. Further, exclusive use rights would also provide VTOL operators (and passengers) the added assurance that routes would be “clear” of potential collisions. (A more regulatory regime might provide that assurance but likely via complex restrictions on airspace use.) Airspace rights would be a new cost for operators but exclusive use means operators can economize on complex sensors, other safety devices, and lobbying costs. Operators would also possess an asset to sublease and monetize.

Another bonus (from the government’s point of view) is that the sale of Class G airspace can provide government revenue. Revenue would be slight at first but could prove lucrative once there’s substantial commercial interest. The Federal government, for instance, auctions off its usage rights for grazing, oil and gas retrieval, radio spectrum, mineral extraction, and timber harvesting. Spectrum auctions alone have raised over $100 billion for the Treasury since they began in 1994.

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Senate Should Either Fix Or Get Off The Pot On Copyright Office Bill

by on May 26, 2017 · 0 comments

Guest post from Sasha Moss, R Street Institute (Originally published on TechDirt on 5/24/07)

The U.S. Senate is about to consider mostly pointless legislation that would make the nation’s register of copyrights—the individual who heads the U.S. Copyright Office, officially a part of the Library of Congress—a presidential appointment that would be subject to Senate confirmation.

While the measure has earned praise from some in the content industry, including the Motion Picture Association of America, unless senators can find better ways to modernize our copyright system, they really should just go back to the drawing board.

The Register of Copyrights Selection and Accountability Act of 2017 already cleared the U.S. House in April by a 378-48 margin. Under the bill and its identical Senate companion, the power to select the register would be taken away from Librarian of Congress Dr. Carla Hayden. Instead, the president would select an appointment from among three names put forward by a panel that includes the librarian, the speaker of the House and the majority and minority leaders of both the House and Senate. And the register would now be subject to a 10-year term with the option of multiple reappointments, like the Librarian of Congress.

The legislation is ostensibly the product of the House Judiciary Committee’s multiyear series of roundtables and comments on modernizing the U.S. Copyright Office. In addition to changes to the process of selecting the register, the committee had recommended creating a stakeholder advisory board, a chief economist, a chief technology officer, making information technology upgrades at the office, creating a searchable digital database of ownership information to lower transaction costs in licensing and royalty payments, and creating a small claims court for relatively minor copyright disputes. Continue reading →

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