Protestor arrives outside The Library Of Congress in response to Trump's firings of Carla Hayden and ... More Shira Perlmutter. Getty Images 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. The Constitutional Legal Issue 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.” MORE FOR YOU Bitcoin ‘Going To Take Over’—Tesla CEO Elon Musk Backs Shock $40 Trillion U.S. Dollar Collapse Warning Amid Price Boom Everything To Know About ‘Wicked: For Good’—And How To Watch The Trailer Trump’s Bedminster Golf Club Flagged For 18 Health Violations In Latest Inspection—Earned Lowest Grade In County 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. Getty Images 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. Getty Images 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? Is the Copyright Office Sort of a Unicorn? 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. Impact on the Copyright Office and Creators 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. Editorial StandardsReprints & Permissions