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> While the Copyright Office's interpretation of copyright law is not always affirmed by the Courts or Congress, more often than not it is I don't think I've s

> While the Copyright Office's interpretation of copyright law is not always affirmed by the Courts or Congress, more often than not it is I don't think I've seen that asserted before. I certainly wouldn't bank on it these days. As for timing, there were companies speculating well before '72 that copyright would be the game. Archival work found a copyright-based license agreement from IBM from as early as 1969. See https://www.create.ac.uk/blog/2018/11/14/the-first-software-licensing-agreement-and-its-relationship-with-copyright-law/ https://www.create.ac.uk/blog/2018/11/14/the-first-software-.... That's not the same as saying the question was settled. After the Copyright Act amendment, it sure was.

skissane 3y ago
> I don't think I've seen that asserted before. I certainly wouldn't bank on it these days. Let me ask the question historically: in previous decades, how often have the legal interpretations of the Copyright Office ended up being affirmed by the Courts and/or Congress, versus how often have they been overturned by them? Also, the Courts owe a certain degree of deference to regulatory agency statutory interpretations, as established by the Supreme Court cases Skidmore v. Swift & Co. (1943) and Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984)–the second of which came after the time period we are discussing, but the first came before it. There is no obvious reason why that deference would not also apply to the US Copyright Office's interpretations of copyright law, and indeed there is case law applying those decisions to it. > That's not the same as saying the question was settled. The journal article I cited says that the question was settled all along for source code, and the legal doubts were only about object code.
- kemitchell 3y ago
  The assertion about the Copyright Office's batting average was yours. If you want to make the assertion, the research question's also yours! As I recall, Skidmore held that what agencies say laws mean gets only the deference it deserves. In other words, the courts will reconsider for themselves how persuasive their arguments are. Chevron starts with the question of whether the administrative agency's decision was made in a way that a statute gives the force of law. The Copyright Act gives the Copyright Office that power in administering some processes, like copyright registration. But last I checked, which was well after Chevron, questions about whether an application followed the registration process got deference, but the more basic question of whether something's copyrightable in the first place remained with the courts. Just because it's called the "Copyright Office" doesn't mean the courts will defer to it about the whole Copyright Act. This difference could very well matter for some going issues, like the Copyright Office's recent rejection of some artwork created with the help of generative AI. I would be very, very surprised to see appeals courts handing that legal question over the Copyright Office.
  - skissane 3y ago
    > The assertion about the Copyright Office's batting average was yours. If you want to make the assertion, the research question's also yours! I can't claim to have researched it formally, but my impression from reading a number of cases on the topic is that most of the time, the Courts end up agreeing with the Copyright Office. And more often than not, when they disagree with it, the disagreement gets reversed. For example, in National Broadcasting Co. v. Satellite Broadcast Networks, Inc (940 F.2d 1467 (11th Cir. 1991)), the 11th Circuit concluded that satellite broadcasters were cable systems. After oral argument, but before the decision was handed down, the Copyright Office issued a rule that they were not. The Court decided that the Office's rule was not retroactive, and hence did not apply to the case; they expressed doubts about whether they owed it deference, but avoided deciding that. Subsequently, in Satellite Broadcasting & Communications Ass'n of America v. Oman (17 F.3d 344 (11th Cir. 1994)), a different panel decided the Copyright Office rule was owed Chevron deference, and reversed a District Court decision applying that 1991 decision. > As I recall, Skidmore held that what agencies say laws mean gets only the deference it deserves. In other words, the courts will reconsider for themselves how persuasive their arguments are. You make Skidmore sound weaker than it actually is – in Skidmore, SCOTUS reversed the District Court and the 5th Circuit for failing to give sufficient deference to the statutory interpretations issued by the Department of Labor. Skidmore instructs Courts to evaluate an agency's "rulings, interpretations, and opinions", in light of "the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade". In other words, if a Court wants to reject an agency's interpretation, it has to present a persuasive argument that it is flawed on one of those grounds, or else the rejection has significant odds of being overturned on appeal. > But last I checked, which was well after Chevron, questions about whether an application followed the registration process got deference, but the more basic question of whether something's copyrightable in the first place remained with the courts In Varsity Brands, Inc. v. Star Athletica, LLC (799 F.3d 468 (6th Cir. 2015)), the Court of Appeals ruled that copyright registration decisions were owed Skidmore deference, and overturned the District Court for failing to extend that deference – in a dispute about copyrightability. It said that (in the 6th Circuit at least) when the Copyright Office judges a work to be copyrightable, as expressed through its decision to register the work, there is a rebuttable presumption that the Copyright Office's judgement is correct. That decision was upheld by the Supreme Court on appeal, but all three of majority, concurrence and dissent dodged the issue of deference entirely.

skissane 3y ago

> I don't think I've seen that asserted before. I certainly wouldn't bank on it these days. Let me ask the question historically: in previous decades, how often have the legal interpretations of the Copyright Office ended up being affirmed by the Courts and/or Congress, versus how often have they been overturned by them? Also, the Courts owe a certain degree of deference to regulatory agency statutory interpretations, as established by the Supreme Court cases Skidmore v. Swift & Co. (1943) and Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984)–the second of which came after the time period we are discussing, but the first came before it. There is no obvious reason why that deference would not also apply to the US Copyright Office's interpretations of copyright law, and indeed there is case law applying those decisions to it. > That's not the same as saying the question was settled. The journal article I cited says that the question was settled all along for source code, and the legal doubts were only about object code.

kemitchell 3y ago
The assertion about the Copyright Office's batting average was yours. If you want to make the assertion, the research question's also yours! As I recall, Skidmore held that what agencies say laws mean gets only the deference it deserves. In other words, the courts will reconsider for themselves how persuasive their arguments are. Chevron starts with the question of whether the administrative agency's decision was made in a way that a statute gives the force of law. The Copyright Act gives the Copyright Office that power in administering some processes, like copyright registration. But last I checked, which was well after Chevron, questions about whether an application followed the registration process got deference, but the more basic question of whether something's copyrightable in the first place remained with the courts. Just because it's called the "Copyright Office" doesn't mean the courts will defer to it about the whole Copyright Act. This difference could very well matter for some going issues, like the Copyright Office's recent rejection of some artwork created with the help of generative AI. I would be very, very surprised to see appeals courts handing that legal question over the Copyright Office.
- skissane 3y ago
  > The assertion about the Copyright Office's batting average was yours. If you want to make the assertion, the research question's also yours! I can't claim to have researched it formally, but my impression from reading a number of cases on the topic is that most of the time, the Courts end up agreeing with the Copyright Office. And more often than not, when they disagree with it, the disagreement gets reversed. For example, in National Broadcasting Co. v. Satellite Broadcast Networks, Inc (940 F.2d 1467 (11th Cir. 1991)), the 11th Circuit concluded that satellite broadcasters were cable systems. After oral argument, but before the decision was handed down, the Copyright Office issued a rule that they were not. The Court decided that the Office's rule was not retroactive, and hence did not apply to the case; they expressed doubts about whether they owed it deference, but avoided deciding that. Subsequently, in Satellite Broadcasting & Communications Ass'n of America v. Oman (17 F.3d 344 (11th Cir. 1994)), a different panel decided the Copyright Office rule was owed Chevron deference, and reversed a District Court decision applying that 1991 decision. > As I recall, Skidmore held that what agencies say laws mean gets only the deference it deserves. In other words, the courts will reconsider for themselves how persuasive their arguments are. You make Skidmore sound weaker than it actually is – in Skidmore, SCOTUS reversed the District Court and the 5th Circuit for failing to give sufficient deference to the statutory interpretations issued by the Department of Labor. Skidmore instructs Courts to evaluate an agency's "rulings, interpretations, and opinions", in light of "the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade". In other words, if a Court wants to reject an agency's interpretation, it has to present a persuasive argument that it is flawed on one of those grounds, or else the rejection has significant odds of being overturned on appeal. > But last I checked, which was well after Chevron, questions about whether an application followed the registration process got deference, but the more basic question of whether something's copyrightable in the first place remained with the courts In Varsity Brands, Inc. v. Star Athletica, LLC (799 F.3d 468 (6th Cir. 2015)), the Court of Appeals ruled that copyright registration decisions were owed Skidmore deference, and overturned the District Court for failing to extend that deference – in a dispute about copyrightability. It said that (in the 6th Circuit at least) when the Copyright Office judges a work to be copyrightable, as expressed through its decision to register the work, there is a rebuttable presumption that the Copyright Office's judgement is correct. That decision was upheld by the Supreme Court on appeal, but all three of majority, concurrence and dissent dodged the issue of deference entirely.