MPAA: EFF Just Jealous It Doesn't Control Copyright Office Like Hollywood Does

from the regulatory-capture dept

Fri, Oct 28th 2016 8:39am — Mike Masnick

Earlier this week we wrote about the revelation, via a FOIA request by the EFF, that the Copyright Office consulted heavily with Hollywood (the MPAA directly, and a variety of movie studios) before weighing in on the FCC's set top box competition proposal. As we noted, the Copyright Office's discussion on the issue involved completely misrepresenting copyright law to pretend that an agreement between to industries (content studios & TV companies) could contractually wipe out fair use for end users. That's... just wrong. The FCC's proposal had absolutely nothing to do with copyright. It was just about letting authorized (paying) customers access content that was already authorized through other devices. What the FOIA request revealed was that the Copyright Office not only had many, many, many meetings with Hollywood, but that it actually prioritized those meetings over ones with the FCC -- and lied to the FCC to say that key Copyright Office personnel were not available the very same week they were meeting with the MPAA, in order to push back the meeting with the FCC.

It was a pretty big deal, given the Copyright Office's reputation for acting as a taxpayer-funded lobbying arm for Hollywood. Of course, the MPAA is now mocking the EFF over this story, with a blog post by Neil Fried, one of the top lobbyist's for the MPAA, and someone who features prominently in the conversations with the Copyright Office revealed by the FOIA request. The crux of Fried's post is that there's no news in the revelations, and that the Copyright Office met with the MPAA because the MPAA asked to meet with it.

The bottom line is that the Copyright Office did not approach stakeholders, selectively or otherwise. It spoke with any and all comers who asked for the opportunity. It then examined the issues and met its statutory obligation to advise federal agencies and Congress on the law. Any EFF suggestion to the contrary is entirely false.

Of 310 pages EFF has “uncovered” in a Copyright Office FOIA request, 232 are transmittals of FCC filings, congressional letters, and other documents from all sides that were already public. The remaining 78 are almost all snowballing email chains to schedule meetings and calls—also from parties on all sides, including the FCC itself and device maker TiVo.

That's... fairly misleading. It's true that there are those pages of email chains trying to schedule meetings, but the vast majority of those are from the MPAA or other Hollywood representatives. And those meetings are clearly eagerly being scheduled by the Copyright Office prior to meeting with the FCC to help shape the Copyright Office's response. The MPAA conveniently leaves out the Copyright Office's meeting with the FCC being pushed off so that the Office can meet with the MPAA first (and even telling the FCC that a key member of the Copyright Office is not available the same week she's meeting with the MPAA). Also, the "TiVo" meeting wasn't even on "the other side" of the debate, really, as the letter there notes that TiVo "will be advocating a simpler solution" compared to what the FCC proposed. It's also noteworthy that this meeting occurred on August 2nd of this year. That was the first time TiVo met with the Copyright Office, but by then the Copyright Office's position was set, as its response was delivered the very next day. The MPAA, on the other hand, first met with the Copyright Office back in early April and met a few times after that as well. So to say that the meetings were on the same level is clearly not true.

The documents reflect what we know to be true. The Copyright Office did not “jump into this fight,” as EFF asserts. Rather, it studiously avoided being brought into the debate until: 1) Chairman Wheeler asked for its analysis, and 2) Members of Congress requested it share that analysis so everyone, not just the FCC, could benefit from its expertise.

Right. About that. That's not true either. As the FOIA documents reveal, then head of the Copyright Office Maria Pallante apparently went directly to Congress and requested that it make a formal request to the Copyright Office to send an opinion on the FCC's proposal. It appears that Fried either missed or ignored this bit of the FOIA request in which a staffer for Rep. Ted Deutch contacts the Copyright Office asking for input on what Deutch should put into the letter requesting the Copyright Office weigh in, and explicitly noting that the reason it was doing so was because they had been told that Pallante wanted them to make that request.

That, uh, certainly doesn't look like "avoiding being brought into the debate" until after Congress requested it. It looks like the head of the Copyright Office going directly to Congress and concocting an excuse to publicly weigh in on the debate against the FCC. As a side note, there is plenty of talk that a big part of the reason why Librarian of Congress Carla Hayden was annoyed with Maria Pallante was her penchant for going directly to members of Congress with her own views concerning the Copyright Office, and this seems like just another example of that). Update: As pointed out in the comments, this potentially leaves out some context, in that the emails also show officials in the Copyright Office being surprised about the claim that Pallante wants Congress to weigh in an email (not from Pallante) saying that they're already coordinating with the FCC, which could be interepreted as asking not to have Congess make the request. Of course, that doesn't answer how Deutsch got the information that Pallante wanted him to make a formal request.

Finally, Fried basically mocks the EFF, suggesting that it's just upset that it didn't think to lobby the Copyright Office as aggressively as Hollywood did:

Like anyone else, the EFF could have just as easily made its own inquiries, rather than issue a hyperbolic blog complaining about the entirely legitimate practice of a government agency communicating with a range of parties.

Yes, well, the EFF is a small non-profit. The MPAA is a giant machine of Hollywood with offices blocks away from the White House. Guess who has better access and resources to bug the hell out of the Copyright Office and get it to side (once again) with misleading claims about copyright law?

Besides, when your argument boils down to "sure, the Copyright Office is a captured agency, and if you don't like it, go capture your own agency..." it's not exactly a ringing endorsement for functional policymaking.

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Filed Under: copyright office, fcc, lobbying, maria pallante, neil fried, power, regulatory capture
Companies: eff, mpaa

31 Comments

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Anonymous Coward, 28 Oct 2016 @ 9:01am

Tell it like it is brutha!
We own your government... STFU!

Sadly, we gave it to them too!!! And will keep giving it to them in the pursuit of trying to control them!
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Anonymous Coward, 28 Oct 2016 @ 9:25am

Good grief, Mike.

You say: "Ted Deutch contacts the Copyright Office asking for input on what Deutch should put into the letter requesting the Copyright Office weigh in, and explicitly noting that the reason it was doing so was because they had been told that Pallante wanted them to make that request. . . . That, uh, certainly doesn't look like "avoiding being brought into the debate" until after Congress requested it. It looks like the head of the Copyright Office going directly to Congress and concocting an excuse to publicly weigh in on the debate against the FCC."

Amazing how you DISHONESTLY don't include the very next message in the chain, which appears on the very same page. See page 151 of the documents: https://assets.documentcloud.org/documents/3179528/Foia-Dkt-No-22-2016-Response-and-Records-20161024 .pdf

Referring to the email from McLaren, Charlesworth tells Temple Claggett and Pallante the following: "Strange ‐‐ in every meeting in which I have participated on this topic, we have indicated that this is NOT something we wish to invite."

That DIRECTLY contradicts the claim that Pallante was soliciting the opportunity to weigh in. You are a dishonest liar, Mike. Always have been. Always will be. It's frankly disgusting.
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Anonymous Coward, 28 Oct 2016 @ 10:06am

Re:
I neglected to also mention the response from Temple Claggett: "FYI, I don’t know where she’s getting that from. I’m out Monday and Tuesday but could chat by phone." So your smoking gun isn't so smoking. I know you don't care about presenting all of the relevant evidence, since you have an axe to grind and are fundamentally dishonest, but others can pull up page 151 and see for themselves.
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Oninoshiko (profile), 28 Oct 2016 @ 10:07am

MPAA Lies,
in other news, the sun came up this morning!
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Anonymous Coward, 28 Oct 2016 @ 10:13am

Re: Re:
Speaking of axes to grind...
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Mike Masnick (profile), 28 Oct 2016 @ 10:18am

Re:
That DIRECTLY contradicts the claim that Pallante was soliciting the opportunity to weigh in. You are a dishonest liar, Mike. Always have been. Always will be. It's frankly disgusting.

That's not how I read it at all (and one can simply interpret things differently without being a "dishonest liar"). I read it as Pallante telling Deutch to ask the CO to weigh in, but doing so without telling JC or KTC. It certainly appears that at least some effort was made by someone at the Copyright Office to get that official request. Otherwise, why would Deutch's staff say that?

The only other explanation I've heard in talking to people was that Fried himself told Deutch's staff that Pallante wanted that letter, and thus it was the MPAA's doing in the first place.

Neither is a good look.

Anyway, what is more "disgusting"? Having a different interpretation on things, or actively misrepresenting copyright law for the sake of helping your lobbyist friends?

Meanwhile, you never answered me if your organization shows up in those emails? I wonder why...
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Anonymous Coward, 28 Oct 2016 @ 10:56am

since when has a single person connected to the entertainment industries come out with any truthful statement or information? think about the way the internet is heading, ie, towards being a totally locked object that no one can use without specific permission from Hollywood etc. and think of how and who are helping to achieve that at the expense of every other person, company, corporation and industry on the Planet! you've got it! every friggin government and security person, in every country other than those with communist governments who have in the past been condemned by the very people doing even worse now themselves, all because they want a bigger bank balance and a longer term in office!
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Anonymous Coward, 28 Oct 2016 @ 11:33am

Re:
Who are you that we may evaluate your track record of honesty?
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Anonymous Coward, 28 Oct 2016 @ 11:36am

Re: Re:
This is a perfect microcosm of everything that’s wrong with you and Techdirt.

(1) We have the June 17 email from McLaren, Deputy Chief of Staff for Deutch, to Temple Claggett indicating that her “boss had been told that she [Pallante] expressed a willingness to weigh in” if asked by Deutch.

(2) Temple Claggett immediately emailed Charlesworth indicating that she didn’t “know where she’s [McLaren] getting that from.”

(3) Charlesworth then responds to Temple Claggett, cc’ing Pallante, saying “Strange – in every meeting in which I have participated on this topic, we have indicated that this is NOT something we wish to invite.”

(4) On June 21, Temple Claggett responds to McLaren, cc’ing Charlesworth, saying: “At the Register's request our General Counsel's office is actually working closely on an interagency basis with the FCC on this issue.”

So we don’t know who told Deutch that Pallante would weigh in if asked. What we do know is that this suggestion was a surprise to both Temple Claggett and Charlesworth. We also know that Temple Claggett’s response to McLaren pointed out that the Copyright Office was already “working closely” with the FCC. Rather than jumping at the chance to have Deutch ask Pallante to weigh in, the response indicated that the Copyright Office was already working on things with the FCC directly.

What makes it dishonest on your part is that you didn’t present all of the evidence. You only showed the email from McLaren, not the subsequent emails from Temple Claggett and Charlesworth showing surprise at McLaren’s email. You also excluded Temple Claggett’s response to McLaren where she indicated that the Copyright Office was already working the FCC (and nothing about taking up Deutch on his offer).

In your post, you say: “That, uh, certainly doesn't look like "avoiding being brought into the debate" until after Congress requested it.” What you conveniently left out are the other emails that do in fact make it look otherwise. Being honest means presenting all of the facts, even the ones that cut the other way. You didn’t present those other facts.
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Anonymous Coward, 28 Oct 2016 @ 11:56am

EFF: copyright monopoly just jealous it doesn't control us
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Jeremy Lyman (profile), 28 Oct 2016 @ 11:56am

"The bottom line is that the Copyright Office did not approach stakeholders, selectively or otherwise."

Yeah! The government shouldn't ask specific people who likely know things to come in an educate them. They should just hang around the office waiting for whatever unvetted information wafts in the window. You don't see Congress or the FCC actively asking for input when they have to make decisions on complex topics. I mean, COME ON!

Then again, the Copyright Office was supposed to be the fraking expert on Copyright, which is why they were "asked" in the first place. So I'm not sure why they needed to gather input from stakeholders at all.
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Anonymous Coward, 28 Oct 2016 @ 12:15pm

Re: Re: Re:
I'd be grateful if you have evidence to back that up.

That's a hell of an assertion.
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Anonymous Coward, 28 Oct 2016 @ 12:25pm

Re: Re: Re: Re:
I linked to the FOIA documents above, but here is the link again: https://assets.documentcloud.org/documents/3179528/Foia-Dkt-No-22-2016-Response-and-Records-20161024 .pdf

See pages 151 and 153 in the pdf.
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Mike Masnick (profile), 28 Oct 2016 @ 1:29pm

Re: Re: Re:
This is a perfect microcosm of everything that’s wrong with you and Techdirt.

Also a perfect microcosm of why we leave our comments open for people like you to present your viewpoint. I will note that the MPAA and many of your friends don't do this.

Your interpretation of the emails is interesting and certainly a possible explanation. We did, in fact, post the entire file for anyone to look at in the original post, so your claim that we hid it is inaccurate.

You make a reasonable argument that I should have made it clear that others in the Copyright Office were confused by the statement from Deutch's staff, so I'll add that to the post.

Again: what you see as dishonest may simply be a different interpretation. And, really, you still haven't answered the organization that pays your salary and whether or not it appears in those emails. Because, you know, that's kinda relevant as to where you're coming from, no?

Anyway, maybe instead of attacking me as dishonest and despicable and whatnot, you might consider that sometimes I just have a different opinion and perhaps a different interpretation of things.

I mean you'd probably argue the same thing regarding the NPRM, in which you falsely claim that it implicates copyright. This is because you misread it. I don't think you're DISHONEST and a LIAR and a awful human being, I just think you don't understand what the NPRM actually says.
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I Love Capitalism, 28 Oct 2016 @ 2:20pm

The USA has the best government money can buy.
Go buy your own government if you don't like it.
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Anonymous Coward, 28 Oct 2016 @ 3:41pm

Re: Re: Re: Re:
He's just upset that Hillary was forced to unambiguously say that she does not support TPP in order for her to get votes. Voters are getting increasingly fed up with corporations writing laws and it's beginning to become an election issue.
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Anonymous Coward, 28 Oct 2016 @ 3:45pm

Re: Re: Re: Re: Re:
Plus the fact that Hillary was forced to publicly denounce TPP proves the shill argument that it is a small vocal minority against these laws completely wrong. It is the overwhelming majority of voters that don't want these laws, so much so that this one issue alone is enough to sway an election and candidates know this. A small vocal minority does not have a lot of voting power for candidates to fear.
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Anonymous Coward, 28 Oct 2016 @ 3:55pm

Re:
BTW, I want you to know that the world is a much worse place because of people like you. You are the bane of society. Certainly everyone else knows this and even you know this. Don't kid yourself. Is this what you really aspire to be?
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Thad, 28 Oct 2016 @ 4:27pm

Re: Re: Re: Re: Re: Re:

It is the overwhelming majority of voters that don't want these laws, so much so that this one issue alone is enough to sway an election and candidates know this.

I don't know about enough to sway an election. She certainly seemed to think it was enough to sway a primary, which is why she changed her stance: to shore up her blue-collar bona fides in the race against Sanders.

Whether she'd have felt the need to do the same thing in the general election if she'd skated to the nomination with no sufficient challenge is an open question, and of course one we'll never know the answer to.
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Anonymous Coward, 28 Oct 2016 @ 5:20pm

Re: Re: Re: Re: Re: Re: Re:
In one of the general debates Donald Trump directly challenged her on that issue and she responded by unambiguously stating that she is against TPP.
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Anonymous Coward, 28 Oct 2016 @ 5:20pm

Re: Re: Re: Re: Re: Re: Re: Re:
(in at least one of the general debates)
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Anonymous Coward, 28 Oct 2016 @ 5:24pm

Re: Re: Re: Re: Re: Re: Re: Re:
Here it is to be sure

https://www.youtube.com/watch?v=SIfP5NhaZ2E
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Anonymous Coward, 28 Oct 2016 @ 5:55pm

So the MPAA is boasting that the EFF is jealous because it didn't bribe the copyright office hard enough? Real convincing character there...
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Anonymous Coward, 28 Oct 2016 @ 7:49pm

Re: Re: Re:
Your blog sucks.
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techflaws (profile), 28 Oct 2016 @ 10:49pm

Re: Re: Re:
> You didn’t present those other facts.

Straight from the **IA's playbook but this way you don't like it?
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Anonymous Coward, 29 Oct 2016 @ 1:25am

Re: Re: Re: Re: Re: Re: Re:
Never did she feel like supporting TPP would gain her votes. Only opposing, demonstrating that these laws that corporations want are not what the voters want. So why is Obama pushing laws/treaties that no one wants?
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art guerrilla (profile), 29 Oct 2016 @ 4:40am

Re:
i would like to second that: whether masnick is 100% correct in his reading of the emails and implications, the MAFIAA have PROVEN THEY ARE NOT TRUSTWORTHY, nor have the interests of their marks, er, customers at heart...
I DO NOT CARE if the MAFIAA types are actually factually correct every once in a while (the phrase, 'even a blind pig...' comes to mind), THEY ARE WORKING AGAINST THE INTERESTS of the 99%, 99% of the time...
that a shill gets all holier-than-thou because someone MAY have misinterpreted a sequence of emails, etc, is noise in the machine: the salient point is, the machine keeps running us down...
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Anonymous Coward, 29 Oct 2016 @ 6:53am

Re: Re: Re: Re: Re: Re:
Plus if she had lost the primaries she would more than likely lose the general elections and hence even on that first point it is enough to sway an election, or at least very close to enough. It's enough to have potentially changed the outcome of the entire election by ensuring she lost the primaries and hence the general election.

So you miss the point on two fronts.
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Anonymous Coward, 29 Oct 2016 @ 7:11am

Re:
Reading through that PDF it becomes clear that those against reform are making a very dishonest argument.

They keep arguing that the reform allows third parties to use content without licensing it. That's a lie. It allows third parties to provide their own content that they are legally able to provide. The laws against infringement do not change.

Until IP shills can at least make one honest statement this whole conversation is a non-starter. These people have no business at all telling government what to do and we need to run these corporations out of office when it comes to writing our laws.
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Anonymous Coward, 29 Oct 2016 @ 7:16am

Re: Re: Re:
Hey, scumbag, can you at least acknowledge that the purpose of opposing the reform is to hinder competition and it has nothing to do with allowing third parties to infringe. Because that PDF tries to argue that allowing third parties to play their own content allows them "to use content for their own services without licensing it". Acknowledge this is a lie you dishonest liar or else you will continue to be regarded as a dishonest liar and not be taken seriously for that.

The reform does not make it legal for third parties to infringe and IP laws still apply. If you can't acknowledge this then you are just a liar and this conversation is over.

You are a scumbag you dishonest liar. Not an honest bone in your body. Is this what you aspire to be?
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Anonymous Coward, 29 Oct 2016 @ 7:23am

Re: Re:
The entire PDF file arguing against set top box reform is dishonest and based on an obviously dishonest argument. That the government would take this garbage seriously is embarrassing. Politicians and regulators should be ashamed of themselves for being so bought (ie: the copy'right' office).
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