Copyright Office Playing Government Shutdown Games

Moments ago I opened an e-mail from AIPLA regarding the Copyright Office’s recent report that recommends a small claims proceeding be established within the Copyright Office to handle disputes of up to $30,000. Wondering exactly how a small claims process for copyrights could be Constitutional in light of the 7th Amendment to the United States Constitution I clicked on the link to access the full report. I was taken to the Copyright Office website, which displays a notice saying that since the government is shutdown the Copyright Office website is not available. Indeed, copyright.gov now redirects to copyright.gov/eco/notice_special.html.

Really? This action seems purely intended to punish the people for the inability of Democrats and Republicans to come together and accomplish even seemingly simple tasks. Even the White House did not delete the contents of its website and blame it on the government shutdown. So why would the Copyright Office take such a ridiculous and punitive measure?

Here is what the copyright Office website says as of 12:10pm on Tuesday, October 1, 2013.

As of the writing of this article the USPTO website remains up and appears to be fully functional. Indeed, the USPTO has this operation status statement posted to its website:

During the general government shutdown that began October 1, 2013, the United States Patent and Trademark Office will remain open, using prior year reserve fee collections to operate as usual for approximately four weeks. We continue to assess our fee collections compared to our operating requirements to determine how long we will be able to operate in this capacity during a general government shutdown. We will provide an update as more definitive information becomes available.

Should we exhaust these reserve funds before the general government shutdown comes to an end, USPTO would shut down at that time, although a very small staff would continue to work to accept new applications and maintain IT infrastructure, among other functions. (Should it become necessary for USPTO to shut down, details of the agency’s plan for an orderly shutdown are available on page 78 of the United States Department of Commerce’s shutdown plan, available here.)

Any new or updated public information related to USPTO operations during the government shutdown will be placed on this page.

So if the USPTO can keep its website full of publicly available, free information up during a government shutdown why did the Copyright Office need to remove everything from its website and pretend that this is required by a government shutdown? For crying out loud they have the funds to keep the website live on the Internet and post this ridiculous notice.

This is the exact type of strong arm scare tactics used with the sequester, where the government engaged in fear mongering and then set out to make the cuts appear draconian in the eyes of the public to punish us so we would pressure Congress (i.e., Republicans) to relent.

We deserve better government than this.

Gene Quinn Gene Quinn is a patent attorney and a leading commentator on patent law and innovation policy. Mr. Quinn has twice been named one of the top 50 most influential people [...see more]

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com.

Join the Discussion

16 comments so far.

Calvin
October 7, 2013 12:28 pm
So ridiculous, i payed my fee for a single copyright before this happened , a few days later i sent the mail submission and now they are obviously unable to accept it until they reopen. This is dangerous regarding works that need to have copyright as soon as possible. If we pay for this service, government related issues shouldnt affect it.
Gene Quinn
October 4, 2013 02:22 pm
Luclus-

First, I’m still waiting for more information on the Constitutional right to defecate in public and commit acts of violence in a public park while occupying that park for months and denying access to others. Earlier you said that the occupy movement was exercising First Amendment rights and somehow those law abiding citizens wanting to access federal land have no right to do so. Your silence is interesting indeed.

Why exactly would I not stand by my earlier comments? This may come as a shock to you since you seem to think everything you have said (even the clearly erroneous things) are persuasive, but I am not persuaded. It seems clear to me that there are games going on over the shutdown. What more evidence do you need than a Senior White House Official being quoted in the WSJ saying that they don’t care how long the shutdown lasts because they feel they are winning?

Oh right, you didn’t call me ignorant directly. What you did was say that my positions sounds like those who are ignorant enough to believe… Right. That isn’t calling me ignorant and you are a helpless and misunderstood victim.

Sure, I could have said don’t associate my positions with the positions you deem ignorant, but I believe the positions you deem ignorant because the are NOT ignorant.

Your legal arguments are laughable. Do you really believe that there would be no sovereign immunity because the government is shutdown? If you want to talk about absurd and ignorant that takes the cake my friend. Are you a lawyer?

I’m glad that you are comfortable that Obama can’t be silenced. Are you equally comfortable with a President that refuses to negotiate? Oh, wait… that isn’t exactly correct. President Obama talks with dictators and tyrants, he only refuses to negotiate with Republicans.

Best regards to you too!

-Gene
Lucius
October 4, 2013 09:20 am
Gene,

I think I gave reasonable explanations why you would both take down a static website without anyone to monitor it and why you would close public parks without maintenance crews and security force. You said “I see no reason why static information on a website … should be removed” and “there is NO justification for open aid monuments to be closed.” I wonder if you stand by those two assertions.

I never called you ignorant (although you called me numerous names) but I said “you start to sound as ignorant as ignorant as people who can’t understand why open air monuments need to be closed” – perhaps the nuance was lost and I’m sorry you perceived it as a direct attack. Do you still believe “there is NO justification for open air monuments to be closed”? This time without spilling into a first amendment exercise. Somehow in this you pinned me as an occupy supporter which is false. However, the attorneys that NYPD and NPS PD did deem those protests as first amendment activities. You do realize you could have said “don’t peg me with the people who think open air monuments MUST stay open, they ARE ignorant!” The sheer risk of negligence liability with no clear sovereign immunity for this situation makes cordoning off parks justifiable.

Reasonable minds can differ about the “vital”ness of whitehouse.gov but at the end of the day its not our decision. I’m comfortable knowing POTUS can’t be silenced by legislative bickering and whoever is in that seat can make decisions about a website.

Best regards,

Lucius
Lucius
October 4, 2013 09:17 am
Gene,

I think I gave reasonable explanations why you would both take down a static website without anyone to monitor it and why you would close public parks without maintenance crews and security force. You said “I see no reason why static information on a website … should be removed” and “there is NO justification for open aid monuments to be closed.” I wonder if you stand by those two assertions.

I never called you ignorant (although you called me numerous names) but I said “you start to sound as ignorant as ignorant as people who can’t understand why open air monuments need to be closed” – perhaps the nuance was lost and I’m sorry you perceived it as a direct attack. Do you still believe “there is NO justification for open air monuments to be closed”? This time without spilling into a first amendment exercise. Somehow in this you pinned me as an occupy supporter which is false. However, the attorneys that NYPD and NPS PD did deem those protests as first amendment activities. You do realize you could have said “don’t peg me with the people who think open air monuments MUST stay open, they ARE ignorant!”

Reasonable minds can differ about the “vital”ness of whitehouse.gov but at the end of the day its not our decision. I’m comfortable knowing POTUS can’t be silenced by legislative bickering and whoever is in that seat can make decisions about a website.

Also, .
Gene Quinn
October 4, 2013 08:46 am
Luclus-

You are write whatever long comment you want, but it doesn’t change the reality of the situation. It is ridiculous to believe that running a website is “vital.” So you can say all you want that different agencies have different views on what is or what is not vital. That is nice to say, but the fact that you say it doesn’t change the reality that running a website is not at all vital to the national government. This is true even if the Obama the Great decrees that the White House website is vital to our nation. Running the White House website is vital only in the sense that it allows President Obama to push his propaganda.

I also understand that IT departments will do all kinds of things to prove their self-worth, but I also know first hand how controlling the Obama Administration has been on agencies. The Obama Administration micro-manages everything. To believe they are not micro-managing the shutdown is unbelievable.

I appreciate you being a long time reader, but if you didn’t want to pick a fight why did you call me ignorant in your first comment? We obviously see the world of politics very differently, but that doesn’t make me ignorant. In fact, by calling me and those who share my views ignorant you demonstrated just how ignorant you really are.

Also, I still can’t find a First Amendment right to occupy a public park for months, defecate in public and commit acts of violence. Perhaps that is within the right to freely assemble, but something tells me that defecating in a park (etc.) wasn’t what the Founders had in mind.

-Gene
Lucius
October 3, 2013 11:18 pm
Gene,

We agree on a lot of IP issues and I enjoy reading your blog regularly. I genuinely think you are smart and funny. I do think you should have done more research before blaming Library of Congress’ IT shutdown on President Obama.

You say (a couple posts up): “it is overwhelmingly clear that there are a lot of clearly non-vital parts of the government that are running like nothing has changed, while other things that require no funding to be open and operate are removed or blocked.”

This is absolutely true and absolutely how things are supposed to happen. I think this is why we keep failing to get on the same page. Please remember this isn’t a total government shutdown but its a partial government shutdown. Congress doesn’t have the power to effect a full government shutdown because so much of federal spending is on autopilot. (Not arguing that its a good thing, its just a given.) The only thing congress has control over is discretionary spending. Discretionary spending must be appropriated each year to the cabinet level departments.
http://www.washingtonpost.com/blogs/wonkblog/wp/2013/09/30/absolutely-everything-you-need-to-know-about-how-the-government-shutdown-will-work/

Without appropriations passed funding the yearly budget of the twelve departments/agencies that need them, the departments/agencies must have a contingency plan for an orderly shutdown. Here are all of the FY14 contingency plans
http://www.govexec.com/pay-benefits/2013/09/agencies-post-shutdown-plans-online/70976/

That’s why Obamacare moves forward without appropriation, its not discretionary but rather mandatory spending.
“32. Will a shutdown put the brakes on implementing the Affordable Care Act, or “Obamacare?” No. . . . 33. Why not? Like Social Security or Medicaid, Obamacare is a permanent entitlement that isn?t subject to annual funding by Congress. “Many of the core parts of the health care law are funded through mandatory appropriations and wouldn?t be affected,” Gary Cohen, the Health and Human Services Department official overseeing the health care rollout, said last week.” http://www.federaltimes.com/apps/pbcs.dll/article?AID=2013309300013

You say: “So some website within the executive branch are automatically funded and others are not? Interesting argument. I don?t see any proof, just speculation that makes no sense.”

It was speculation, but it wasn’t that far off. Each department/agency is operating under a completely different contingency plan written by different executives who may prioritize their IT resources differently. They may tell their staffs to handle things differently. Each of these departments/agencies are run by competent people who can make acceptable decisions, but there is no reason for them all to have consensus.

“53. Who decides which employees work and which go home? Each agency is responsible for coming up with its own contingency plan, based on guidance from the Office of Management and Budget and the Office of Personnel Management. Those plans are then sent to the White House for review. 54. Will the president be paid during a shutdown? Yes. The president?s $400,000 salary is mandatory spending. If furloughs begin to affect the government?s ability to process payroll, his paycheck could be delayed. 55. What about White House staff? Some high-ranking presidential appointees are exempt from the Annual and Sick Leave Act of 1951, which means they can essentially be made to work unpaid overtime. Also, any employee necessary for the president to carry out his constitutional duties is exempt.”
http://www.federaltimes.com/apps/pbcs.dll/article?AID=2013309300013

That’s why the executive (the person, not the branch – sorry for unnecessary breadth before) is still fully funded as well as anyone he deemed necessary to fulfill his constitutional duties. Maybe you think the whitehouse.gov IT staff isn’t important, but POTUS thinks they are, and he didn’t send them home.

This isn’t by the seat of his pants, here is the contingency plan for the Executive Office of The President http://www.whitehouse.gov/sites/default/files/docs/eop_contingency_plan.pdf

You say: “So why not explain why the National Parks website is off and the Department of Interior website is still running? Is there automatic funding for DOI generally speaking but not the constituent parts of DOI?”

Just like the USPTO, a constituent part of DOC, is funded very differently from the DOC the Interior has a separate contingency plan
http://www.doi.gov/shutdown/fy2014/upload/DOI-Summary-Contingency-Plan.pdf
from the National Park Service
http://www.doi.gov/shutdown/fy2014/upload/NPS-contingency-plan.pdf
for good measure here is DOC’s contingency with USPTO at page 83
http://www.commerce.gov/sites/default/files/documents/2013/september/2013_doc_lapse_in_appropriations_plan_9_27.pdf

You say: “I don?t see any reason why a band of anarchists should be allowed to live in a park for months, commit a variety of crimes and make the park otherwise unavailable to law abiding Americans.”

Nice strawman. I agree with you.

You say: “If the server is up and running hackers could still get in and do mischief. If it is hackers they are worried about then the servers should have been taken offline altogether”

Here is my conjecture-filled response: It is possible that the servers with good, useful information are down and safe.

I don’t understand why you’re convinced that the home page you are seeing right now is running on the same http server as it was last week. Even if it is, there’s a good chance the pdfs you were trying to get to are hosted on a different machine and that machine is down and safe.

If the library of congress doesn’t have enough IT in their contingency plan (here it is by the way http://www.state.gov/documents/organization/215074.pdf ) to actively maintain and defend against cyber attack on their real system then they should shut down the good servers and open up some simple http servers to host the “lights off” message.

You say “If hackers is the concern then every single federal government server should have been turned off, including the White House server, and all the servers the federal government.”

I’m not following your argument here. We just saw how POTUS and the EOP fall under mandatory, not discretionary, funding. Therefore POTUS and the EOP IT team can monitor for attack constantly and counteract. I showed you above how State and Library of Congress don’t have the same budgetary flexibility and must come up with a different plan. You can’t compare apples and oranges.

You say: “There is no reason to take down a static information website. What is the justification in removing information about national parks history, for example? Fear that a hacker might change information about a national park?”

Apples, oranges, and now bananas. NPS is in the same boat as State, with no one to actively defend against cyber attack I’m guessing they brought down the main site for safe keeping and threw up a dummy in its place to inform the public they have no staff and to prevent the good site from being ruined.

I acknowledge that I could be dead wrong about the server configurations, but there is some benefit to keeping your main servers (or at least your file servers) down during a shutdown ready to be flipped back on when appropriations kick back in and the IT staff can keep them going.

If there is any spite in these sites dropping services it probably falls squarely on the IT departments proving their self-worth rather than a central mastermind trying to punch us where it hurts. (That’s how bureaucracy usually works).

I am sorry that after reading your blog for years the first time I contribute to the comment section it is to pick a fight.

Best regards,

Lucius
Gene Quinn
October 3, 2013 05:18 pm
Luclus-

You say: “Surely you can appreciate the difference between walking through a park and invoking your first amendment rights.”

Apparently not. Remember, you indirectly called me ignorant. I don’t see any reason why a band of anarchists should be allowed to live in a park for months, commit a variety of crimes and make the park otherwise unavailable to law abiding Americans. That has nothing to do with first amendment rights and the fact that you don’t understand that is extraordinarily telling. There is NO first amendment right to live in a public park and commit acts of violence against others. If you think otherwise brush up on your constitutional law.

You say: “As far as servers being shutdown, what if one was overtaken by hackers?”

The servers are still up and running, they just post a message that says that all the information has been removed because of the government shutdown, which is utter nonsense. So your argument, again, is wholly without merit. If the server is up and running hackers could still get in and do mischief. If it is hackers they are worried about then the servers should have been taken offline altogether, but that isn’t what they are concerned about and it isn’t what happened. They are just punishing the people pure and simple.

You say: “What if you counseled a client on old or false law because a hacker posted an alternate draft?”

You say that as if that wouldn’t be an issue or concern except during a government shutdown. If hackers is the concern then every single federal government server should have been turned off, including the White House server, and all the servers the federal government. Rather, what has happened is the Obama Administration is keeping servers up and running to continue to get out its propaganda but has turned off servers that contain basic information. There is no reason to take down a static information website. What is the justification in removing information about national parks history, for example? Fear that a hacker might change information about a national park? Do you actually speak these thoughts out loud and listen to them before you propose them?

You say: “Many functions of the executive also don’t rely on appropriations, but automatic funding. I’m guessing website is part of that.”

So some website within the executive branch are automatically funded and others are not? Interesting argument. I don’t see any proof, just speculation that makes no sense.

So why not explain why the National Parks website is off and the Department of Interior website is still running? Is there automatic funding for DOI generally speaking but not the constituent parts of DOI?
Lucius
October 3, 2013 11:37 am
Gene,

You are right – some of these decisions seem arbitrary but its a fallacy to think that access to open air monuments doesn’t cost anything. The guards stepped up and did the right thing with the honor flight heroes – he reminded then of three magic words, “first amendment activity.” Surely you can appreciate the difference between walking through a park and invoking your first amendment rights. Do the citizens have a right to the parks? Maybe, are they there for “first amendment activity?” If the barricades can keep operating costs down by reflecting citizens who don’t need to be there or who don’t know their rights, that’s fine by me.

To say in one breath that open air monuments don’t cost money, then think harder before you make arguments invoking the occupy movement. All the jurisdictions affected spent a lot more on overtime than they ever wanted to once the needs of the public space changed. So if we can limit the needs of this public space, maybe we can save some money. Not just in labor costs but from liability.

Is it dishonest for the guards to mislead people about their access to public lands? Maybe, but that’s second nature for law enforcement and I’d argue its a vital part of their jobs to keep information imbalance in their favor. Especially this time if it saves us money and keeps something else going.

I never said the exchanges don’t need funding, that funding doesn’t need to be appropriated. As far as servers being shutdown, what if one was overtaken by hackers? What should the skeleton (or non existent) IT crew do then? It’s the same problem as the fruit orchard. If you have nice things, you have to keep them maintained of someone can get hurt. What if you counseled a client on old or false law because a hacker posted an alternate draft?

Many functions of the executive also don’t rely on appropriations, but automatic funding. I’m guessing website is part of that.

-Lucius
Gene Quinn
October 3, 2013 11:13 am
Luclus-

So without supervision law abiding American people don’t have a right to occupy public lands and parks, but homeless people and professional protesters have a right to live indefinitely wherever they like and create whatever nuisance they want, excluding law abiding citizens from public parks? If the government were there to make sure everything was safe and secure they would have arrested ever “occupy protester” in every city. So spare me the stories about 4th graders and the fact that it only makes sense to prevent people from open air monuments. Where was that same government concern when a bunch of anarchists were occupying cities all across the country? The hypocrisy is ridiculous.

So why exactly don’t the Obamacare exchanges require funding to operate? Are federal government employees monitoring the servers and responding to inquiries for free? After all, about two-thirds of the exchanges are being operated by the Federal government and not state governments.

Why exactly is the White House website vital during a shutdown? To get out the President’s propaganda?

What exactly is vital about the college football teams from Army, Navy and Air Force playing this weekend?

Choices are being made and it is overwhelmingly clear that there are a lot of clearly non-vital parts of the government that are running like nothing has changed, while other things that require no funding to be open and operate are removed or blocked. The servers are still running saying that access to information the people have already paid for has been taken down due to a government shutdown. Public parks and monuments are blockaded out of some ridiculous notion that law abiding citizens can’t be trusted… of course criminals and anarchists are welcome to occupy whatever they want, wherever they want and don’t ever go to jail.

You need to wake up. The hypocrisy is everywhere and I am sick and tired of government punishing people because they refuse to negotiate and do their job. This “our way or no way” approach is ridiculous when it comes from Republicans and it is ridiculous when it comes from Democrats.

-Gene
Lucius
October 3, 2013 10:46 am
Gene,

I don’t have all the answers but I will think through the problems you raise and give it my best shot. Each agency head determines which resources are vital in a shutdown, since the courts are open through the 14th without appropriations maybe that’s why ECFR is still up. Obamacare exchanges don’t need appropriations, media has made that clear. WH made the decision they should keep their website going, do you think one branch of government should be silenced because of another?

My friend’s family owns a fruit orchard. They’ve done a beautiful job growing productive trees and have balanced a number of species in such a way that there is always fruit ready to be picked. Their fruit, regardless of species, is very popular and since there is a daily crowd they open their orchard every day. They are in a locality that does not give agribusiness any immunity for negligence and so they must employ a maintainence staff and a security team. The maintenance staff clears fallen limbs, makes sure there are no overhead dead branches, trims back roots that might cause someone to trip, fills in holes from burrowing animals, amongst other things. Since there is no set schedule for when these dangers might present themselves the maintenance staff must check the entire property with a certain amount of regularity. The security staff makes sure visitors don’t hurt themselves or others during the day and protects the fruit trees from being vandalized. My friend’s family knows that having their orchard is a blessing but also realizes that inviting people onto your property causes you to bears some responsibility and safeguard them. If either the maintenance crew or security crew went on strike the prudent thing would be for then to close the whole orchard or they could be sued for negligence or have their fruit trees damaged beyond repair. One day all of the maintenance crew didn’t show up for work and half of the security crew did. They put up big closed signs and blocked the front entrance. To pitch in my friend is watching the back entrance to the park. A bus shows up with eighteen 4th graders and two chaperones. If you were my friend’s mother or father what would you hope my friend would do?
Gene Quinn
October 3, 2013 10:32 am
Luclus-

I’m the ignorant one? No, you are the ignorant one.

Please, I understand the differences between funding between the USPTO and the Copyright Office. But since you are such a genius why not explain why the White House website is still up and running? WHy is ECFR.gov up and running? Why are the Obamacare Exchange websites up and running?

And there is NO justification for open air monuments to be closed. The fact that you don’t get that speaks volumes about your lack of intellectual honesty. As if without unionized workers to clean facilities the public has no right to occupy publicly owned lands. Pathetically laughable.

You probably believe this is all the fault of the Republicans too! Seriously. Anyone who blames the Republicans hasn’t been paying attention, isn’t very bright or is just a pathetic ideologue. Harry Reid and President Obama have gleefully proclaimed for weeks they will not negotiate. It is the Democrats way or no way, yet so many truly ignorant people think that the Republicans not caving to the obstinate Obama machine is the problem.

You need to grow up and get a clue.

-Gene
Lucius
October 3, 2013 09:17 am
Gene,

Step back and think about what you are saying. There are clear differences in funding for the USPTO, library of congress, and the white house. Without relying on conspiracy theories the different levels of service can be explained purely in who has funding and who doesn’t. If you don’t understand why you can’t leave up a website up (regardless of static or dynamic content) without constant monitoring then you start to sound as ignorant as people who can’t understand why open air monuments need to be closed when maintenance crews and a full security force aren’t funded.

-Lucius
Gene Quinn
October 2, 2013 05:43 pm
Reason-

The problem I have is that some websites remain operational while others have been taken down. The White House has their own website up and running to continue to push their own propaganda. See: http://www.whitehouse.gov/blog/2013/10/01/president-obamas-message-pass-budget-and-end-government-shutdown

ECFR.gov is also still operational as well.

I see no reason why static information on a website, such as the PDF documents and HTML pages that make up the Copyright Office website, should be removed. Static pages do not require maintenance.

-Gene
step back
October 2, 2013 05:27 pm
4 more weeks according to this article … (oh, for the PTO):
http://iplj.net/blog/archives/6343
Reason for the Season
October 2, 2013 03:28 pm
Government employees are very scared of running afoul of the Antideficiency Act during a shutdown, which provides for harsh penalties against any employee that causes the government to incur costs for non-essential activities during a shutdown. The law is Congress’s way of making sure the Executive does not override their (non-)funding powers. Even making a phone call has triggered punishments in the past; I would think keeping a web server up and operational would be even worse.

http://en.wikipedia.org/wiki/Antideficiency_Act
David
October 2, 2013 08:51 am
USDA.gov also has a similar notice, but some aspects of the USDA website were still available.

EPA website is up.

Seems very random.