9:15am PT by Eriq Gardner
Did Donald Trump Just Make a Copyright Change to Protect Transgender Individuals?
Since taking office, President Donald Trump has made moves that have set off alarms among those worried about legalized discrimination. The executive order on new immigration limits certainly is most prominent while a draft executive order is reportedly being circulated that affords leeway to religious-minded organizations to claim moral objections to same-sex marriage, premarital sex, abortion and trans identity. So it's somewhat surprising to see a government entity on Thursday do something in the interest of protecting transgender individuals.
It's an obscure change to copyright rules, and to be quite clear, there's no evidence that the Trump Administration was involved in this. To go further, we'd bet that Trump has no idea.
According to a final rule published in today's Federal Register — essentially the daily journal of the U.S. Government — the Copyright Office now will allow for the removal of personally identifiable information from registration records. The rule allows authors and copyright claimants to request that such information as home addresses and personal phone numbers be taken out of the Copyright Office's digital public catalog. But perhaps most noteworthy is allowing authors to replace their names in the online catalog.
Why was that latter change made?
The National Center for Transgender Equality and an individual identified as T. Brown argued that while currently it may be possible to use a supplementary registration to change one's name, the original information remains in the records. These commentators worried that having both names in the records could jeopardize the "well-being and personal and professional life," putting them in danger, or subjecting them to "employment discrimination, bodily harm and/or worse."
The Copyright Office responded that it found the arguments "compelling" and so it adopted their proposal to the final rule.
These changes made in the interest of privacy are being issued despite some commentators who argued during the rule-making process that changing or removing a name is not necessary as long as associated personal identifiable information was removed. Others made the contention that allowing authors to remove or alter their names may lead to confusion regarding the term of copyright protection for the work.
Privacy proponents didn't get a complete win. The changes will impact what's shown online, but original records will be kept offline. Additionally, the Copyright Office rejected attempts by the National Writers Union and the American Society of Journalists and Authors to not require any contact information be made publicly available.
Back to the Trump Administration.
Those familiar with the structure of the U.S. Copyright Office might note that it sits within the Library of Congress — and Congress, of course, is in the legislative branch. There even was a recent brouhaha when U.S. Register of Copyrights Maria Pallante was removed from her job after advocating that the Copyright Office be moved into the executive branch.
As such, some might object to any notion that the Trump Administration holds responsibility on this copyright rule change protecting transgender individuals.
But take a look at a 2012 opinion from the DC Circuit Court of Appeals.
In Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., a highly technical case involving webcasting royalty rates and the grant of constitutional powers, DC senior circuit judge Stephen Williams wrote:
"Despite our language in Keeffe, the Library of Congress is a freestanding entity that clearly meets the definition of 'Department.' To be sure, it performs a range of different functions, including some, such as the Congressional Research Service, that are exercised primarily for legislative purposes. But as we have mentioned, the Librarian is appointed by the President with advice and consent of the Senate, 2 U.S.C. § 136, and is subject to unrestricted removal by the President. Further, the powers in the Library and the Board to promulgate copyright regulations, to apply the statute to affected parties, and to set rates and terms case by case are ones generally associated in modern times with executive agencies rather than legislators. In this role the Library is undoubtedly a 'component of the Executive Branch.'"
Guess who was on this DC Circuit panel and voted in favor of this opinion? None other than Merrick Garland, Obama's choice to fill Scalia's seat on the high court.
Congress doesn't make regulations in the interest of enforcing statutes. That's the executive branch's job. So if one wants to be extra generous, credit Donald Trump, the guy who famously told Today show co-host Matt Lauer that Caitlyn Jenner could use any bathroom at Trump Tower she wished. Then again, as mentioned above, perhaps Trump has no idea about the change.