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Forbes
20 hours ago
- Politics
- Forbes
Trump 2.0 Takes Aim At Copyrights
Protestor arrives outside The Library Of Congress in response to Trump's firings of Carla Hayden and ... More Shira Perlmutter. President Trump's executive orders become hard to keep up with as they are so fast moving and disruptive, affecting on tariffs, immigration, universities, and so much more. Now it seems the administration has its eye on copyright. If copyrights and copyright law become a target of partisan politics, it is a cause for concern for the rights of authors and artists. As a copyright law practitioner, I wasn't expecting that the executive branch's stream of executive orders was going to directly affect my clients (artists and filmmakers) or my area of practice. Then I learned that, on May 8, the administration had fired the Librarian of Congress, which oversees the U.S. Copyright Office. No reason was cited, nor any notice given, just a simple two sentence note: 'On behalf of President Donald J. Trump, I am writing to inform you that your position as the Librarian of Congress is terminated effective immediately. Thank you for your service.' And then on May 10, Trump abruptly fired the Register of Copyrights and Director of the Copyright Office, Shira Perlmutter, in similar fashion. On May 22, Perlmutter sued the Trump administration over her firing. She also moved for a temporary restraining order (TRO) effectively asking to be reinstated in her role as Register. The hearing on that motion occurred on May 28. The TRO request was denied for failure to show irreparable harm to Perlmutter. The legal issue in this dispute is whether the executive branch has the authority to fire the Librarian or the Register, or whether these actions are exclusively within Congress' power, and thus violate the constitutional separation of powers. The more important issue, in my view, is the consequential one, addressed below: if the executive branch can control the leadership and the functioning of the Copyright Office, this could put copyright creators – such as authors, filmmakers, photographers and fine artists – at risk of having their works and creations put at the behest of political ideologies, rather than within the proper boundaries of copyright law. Let's take a closer look at the parties' positions on the legal issue, which helps inform the consequential issue. Perlmutter, formerly the head of copyright and international policy at the US Patent and Trademark Office, Chief IP Counsel at Time Warner, and copyright advisor to the Clinton Administration, among other accomplishments, is widely highly regarded in the copyright law field. I've worked with her in the past and can attest to her deep expertise and integrity. She asserts in her complaint that Congress vested the Librarian of Congress, not the President, with the power to appoint, and therefore to remove, the Register of Copyrights. Her position is that the Library of Congress is, statutorily and functionally, under control of the legislative branch, and argued at the TRO hearing that 'just logically, Congress wouldn't give the President sole and unreviewable authority to appoint an acting Librarian of Congress to oversee an agency that performs critical legislative functions and cut itself entirely out of that process.' The White House argues that the Library of Congress is 'part of the Executive Branch and is subject to presidential control.' Its position is that the President has the authority to name an acting Librarian and Register of Copyrights who can serve temporarily under the Federal Vacancies Reform Act — much as the president can name acting leaders for any other federal agency with a presidentially appointed and Senate-confirmed chief. Perlmutter asserts that Congress vested the Librarian of Congress, not the President, with the power ... More to appoint, and therefore to remove, the Register of Copyrights. Let's review the relevant statutory scheme: The Library of Congress is an agency that Congress has designated as a part of the legislative branch of the U.S. government. The Library of Congress is led by the Librarian of Congress, who is appointed by the President of the United States and confirmed by a vote of the Senate. The Register of Copyrights leads the Copyright Office, is appointed by the Librarian of Congress, and acts under the Librarian's general direction and supervision. The Register is the principal advisor to Congress on national and international copyright matters, testifying upon request and providing ongoing leadership and impartial expertise on copyright law and policy. The Register of Copyrights is statutorily required to perform the following functions and duties, among others: • 'Advise Congress on national and international issues relating to copyright, other matters arising under this title, and related matters'; • 'Provide information and assistance to Federal departments and agencies and the Judiciary on national and international issues relating to copyright, other matters arising under this title, and related matters'; • 'Participate in meetings of international intergovernmental organizations and meetings with foreign government officials relating to copyright, other matters arising under this title, and related matters, including as a member of United States delegations as authorized by the appropriate Executive branch authority'; • 'Conduct studies and programs regarding copyright, other matters arising under this title, and related matters, the administration of the Copyright Office, or any function vested in the Copyright Office by law, including educational programs conducted cooperatively with foreign intellectual property offices and international intergovernmental organizations'; and • 'Perform such other functions as Congress may direct, or as may be appropriate in furtherance of the functions and duties specifically set forth in this title.' It seems clear that in founding, function, and practice, the Library of Congress and the Copyright Office are part of the legislative branch. The name seems to say it all; as one senator put it: 'It's the Library of Congress, after all, not the Library of the President.' From this point of view, the fact that Todd Blanche, a high-ranking DOJ official and Trump's former criminal defense lawyer, has been named as the acting Librarian of Congress "offends the constitutional separation of powers," says Perlmutter in her complaint. Trump Administration argues that if the President has the power to appoint the Librarian, who in ... More turn has the power to appoint the Register, both institutions could be subjected to executive branch authority. On the other hand, if the President has the power to appoint the Librarian, who in turn has the power to appoint the Register, does that mean both institutions are subject to executive branch authority? At the hearing on the TRO, presiding Judge Timothy J. Kelly, indicated that maybe the answer wasn't so clear, and that both sides had good points. 'I think there's a sprinkling of evidence on both sides, and maybe some evidence points to the fact that the Library of Congress is sort of a unicorn in that it has some functions that are properly part of different branches,' he said. The case will go on, with each side providing more law, and more clues, as to how the Library and the Copyright office should be treated under our doctrine of separation of powers. But let's be mindful of the practical consequences that may befall Congress, the public and content creators, from the court's decision on this interesting constitutional question. A change in leadership in the Copyright Office could adversely affect creators. The job of the Register of the Copyright Office is complex. The Office examines, grants or denies applications for registration of copyrighted works, which are required for copyright enforcement. Some copyright practitioners has pointed out that the Copyright Act suggests that only the Register can finalize registrations—raising questions about whether certificates issued without a lawfully-designated Register's stamp of approval while this dispute is pending would be valid. In addition, the Office, among other things, runs a complex system for the recordation of copyright transfers, terminations, and renewals of copyrights, leads a project to transition the aforesaid system to digital online access, runs the Copyright Claims Board (a small claims court for small copyright infringement matters), runs the Copyright Royalty Board (which determines rates and distribution of statutory licenses), provides a triennial rule-making process for certain DMCA exceptions, promulgates regulations relating to copyright, and renders reports and advisory opinions on copyright law issues to Congress for domestic matters and international treaties. In short, the Copyright Office functions to serve and secure the rights of authors as guaranteed by the Copyright Clause of the Constitution. The US Constitution grants Congress, not the President, the power to safeguards those rights. Article I, Section 8, Clause 8: [The Congress shall have Power . . . ] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. As mentioned above, the President gave no reason for the firings. Many have speculated, however, that the motivation for firing Perlmutter was in retaliation for the Copyright Office's report, released the day before her firing, which was the third installment in a series of reports exploring issues at the intersection of AI and copyright law. In that report, the Copyright Office said that many uses of training AI with copyrighted materials would be viewed as fair use (and thus not requiring the permission of the copyright owners), noting that outputs from using AI research or analysis systems likely won't serve as market replacements for the creative works used to train the models. "But making commercial use of vast troves of copyrighted works to produce expressive content that competes with them in existing markets, especially where this is accomplished through illegal access, goes beyond established fair use boundaries," the report added. Could this be the motivation? Because perhaps Elon Musk's xAI takes issue with this view? And although the government did not elaborate during the hearing on the TRO, it is telling that the government argued: "This Court should not enter an order forcing someone into office that the President has now said, "I do not think that you can pursue my policy prerogatives moving forward." Follow me on LinkedIn and check out my website for further insights.
India Gazette
2 days ago
- Business
- India Gazette
DPIIT and Copyright Office to host special event marking 68 years of the Copyright Act; focus on reforms for the digital era
New Delhi [India], June 3 (ANI): The Copyright Office under the Office of controller General of Patent, Designs and Trade Marks, in collaboration with the Department for Promotion of Industry and Internal Trade (DPIIT), Ministry of Commerce & Industry, is organizing a special event to commemorate the 68th anniversary of the enactment of the Copyright Act, 1957, the ministry said in a release on Tuesday. The celebration, centered around the theme 'Reform in Copyright Act in the Digital Era,' will be held on Wednesday, June 4, 2025, from 4:30 PM onwards. The event will take place at Seminar Hall 2 & 3, Kamala Devi Complex, India International Centre, New upcoming event is designed to offer insightful discussions and reflections on the evolution and future of copyright law in India. This event provides a crucial platform for stakeholders to deliberate on the challenges and opportunities presented by the digital landscape in the context of copyright protection and enforcement. Since the digitization of the copyright registration process, over 3,50,000 copyrights have been registered as of 2025, reflecting a significant rise in awareness and adoption of copyright protection mechanisms among creators across various sectors. The Copyright Act, 1957, has been a cornerstone of intellectual property law in India, governing the rights of creators over their literary, dramatic, musical, and artistic works, as well as cinematograph films and sound recordings. Since its enactment, the Act has undergone various amendments to keep pace with technological advancements and international treaties. Originally framed to protect creators' rights in a more traditional media landscape, subsequent reforms have aimed to address challenges posed by evolving technologies, including the digital era. (ANI)
Forbes
29-05-2025
- Business
- Forbes
U.S. Copyright Office Shocks Big Tech With AI Fair Use Rebuke
In latest pre-publication report, U.S. Copyright Office Warns AI Training May Dilute Creative ... More Markets On May 9, the U.S. Copyright Office released its long-awaited report on generative AI training and copyright infringement – just one day after President Trump abruptly fired Librarian of Congress Carla Hayden. Within 48 hours, Register of Copyrights Shira Perlmutter was also reportedly out, after the agency rushed to publish a 'pre-publication version' of its guidance – suggesting urgency, if not outright alarm, within the Office. This timing was no coincidence. 'We practitioners were anticipating this report and knew it was being finalized, but its release was a surprise,' said Yelena Ambartsumian, an AI Governance and IP lawyer, and founder of AMBART LAW pllc. 'The fact that it dropped as a pre-publication version, the day after the Librarian was fired, signals to me that the Copyright Office expected its own leadership to be next.' At the center of the report is a sharply contested issue: whether using copyrighted works to train AI models qualifies as 'fair use.' And the Office's position is a bold departure from the narrative that major AI companies like OpenAI and Google have relied on in court. One of the most consequential findings in the report is the Copyright Office's rejection of the broadest fair use defense advanced by AI companies – that training models on copyrighted content is inherently transformative because the resulting models don't 'express' the same ideas. 'The Copyright Office outright rejected the most common argument that big tech companies make,' said Ambartsumian. 'But paradoxically, it suggested that the larger and more diverse a foundation model's training set, the more likely this training process would be transformative and the less likely that the outputs would infringe on the derivative rights of the works on which they were trained. That seems to invite more copying, not less." This nuance is critical. The Office stopped short of declaring that all AI training is infringement. Instead, it emphasized that each case must be evaluated on its specific facts – a reminder that fair use remains a flexible doctrine, not a blanket permission slip. Perhaps the most provocative portion of the report involves the so-called 'fourth factor' of the fair use test – the effect on the '...potential market for or value of…' the copyrighted work. Here, the Copyright Office ventured into uncharted territory. 'The report expounded a market dilution theory, which it admits is 'unchartered territory' but claims is supported by statute,' Ambartsumian noted. 'No court has applied this yet, but it's a powerful new argument for rights holders – and it comes straight from the federal agency responsible for interpreting copyright.' In essence, the Office warns that if AI models are trained on, say, romance novels, and then generate thousands of similar books, the flood of AI content could dilute the market for human-authored works. That theory mirrors real-world fears from creators who worry they'll be displaced not just by plagiarism but by sheer volume of potential category bloat from generative AI exploiters. The report also puts to rest a long-simmering debate around opt-out systems for copyright holders, where creators must actively signal if they don't want their work used for training. The Copyright Office essentially shut that door. 'This is a damning blow to the tech giants,' Ambartsumian said. 'The Office all but rejected the opt-out proposal and instead focused on exploring voluntary collective licensing mechanisms. That's a far more creator-centric approach.' Collective licensing – like the way music royalties are handled – could allow publishers, authors and other rights holders to be compensated for training use of their works. But the Office also acknowledged the difficulty of implementing such a scheme at scale. This legal backdrop comes amid broader political turbulence. OpenAI's own March 13 proposal to the White House urged the federal government to weigh in on copyright litigation, and floated the idea of federal preemption to override state-level AI laws. The Congress is now considering a bill that would bar states from regulating AI for the next 10 years. Ambartsumian sees these moves as connected. 'OpenAI asked the government to weigh in on copyright cases,' she said. 'But then the Executive branch turned around and weighed in on the Copyright Office itself.' Even if courts don't formally cite the pre-publication report, its influence is likely to linger. 'We can't unsee it. Judges and clerks will read it. Litigants will cite it. And the Copyright Office, despite the leadership shake-up, has now staked out a policy position,' Ambartsumian said. What happens next will depend on whether that report remains available, whether the courts embrace its logic, and whether Congress steps in to legislate a framework for AI and copyright in the coming months. For now, creators, developers, and policymakers alike are left with a central—and urgent—question: Can the law catch up with the pace of AI?
Yahoo
28-05-2025
- Business
- Yahoo
Judge denies US Copyright Office director's request to halt her firing
By Blake Brittain (Reuters) -A federal judge in Washington, D.C., on Wednesday rejected U.S. Copyright Office Director Shira Perlmutter's emergency bid to block the Trump administration from firing her. U.S. District Judge Timothy Kelly ruled during a hearing that Perlmutter had not shown she would be irreparably harmed if not immediately reinstated as the case continues. Kelly said Perlmutter's loss of her job was not significant enough to grant her emergency request. He said recent rulings from the U.S. Supreme Court and D.C. Circuit "gave a side-eye" to the idea that the harm of her firing would justify a restraining order against the administration. Attorneys for Perlmutter did not immediately respond to a request for comment on the decision. A spokesperson for the Copyright Office declined to comment. The administration had terminated Perlmutter from her position by email on May 10, which she called "blatantly unlawful" in a lawsuit filed on May 22. The Copyright Office, a department of the Library of Congress, confirmed on May 12 that the administration had fired Perlmutter. Her removal sparked a backlash from Democratic politicians, who said that Congress had "purposely insulated" the Copyright Office from politics. The administration, in a court filing responding to the lawsuit, said the Library of Congress is "not an autonomous organization free from political supervision," but did not give a specific reason for Perlmutter's firing. White House spokesperson Anna Kelly said in a statement that the president "reserves the right to remove employees within his own Executive Branch who exert his executive authority." The administration also fired Librarian of Congress Carla Hayden on May 9, citing her advancement of diversity, equity and inclusion policies. Perlmutter's firing came one day after the Copyright Office released a report on the intersection of artificial intelligence and copyright law. The office said in the report that technology companies' use of copyrighted works to train AI may not always be protected under U.S. law.
Associated Press
28-05-2025
- Business
- Associated Press
Judge refuses to temporarily block the Trump administration from removing Copyright Office director
WASHINGTON (AP) — A federal judge refused Wednesday to temporarily block the Trump administration from removing and replacing the director of the U.S. Copyright Office. U.S. District Judge Timothy Kelly ruled from the bench that the office director, Shira Perlmutter, hasn't met her legal burden to show how removing her from the position would cause her to suffer irreparable harm. Kelly's refusal to issue a temporary restraining order isn't the final word in the lawsuit that Perlmutter filed last week. If Perlmutter decides to seek a preliminary injunction, the judge is giving her attorneys and government lawyers until Thursday afternoon to present him with a proposed schedule for arguing and deciding the matter. Perlmutter's attorneys say she is a renowned copyright expert who also has served as Register of Copyrights since the Librarian of Congress appointed her to the job in October 2020. Earlier this month, Trump appointed Deputy Attorney General Todd Blanche to replace Carla Hayden as Librarian of Congress. The White House fired Hayden amid criticism from conservatives that she was advancing a 'woke' agenda. Perlmutter's lawyers argued that the president doesn't have the authority to unilaterally remove the Register of Copyrights or appoint an acting Librarian of Congress. ___
