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ABSTRACT
Studies of rulemaking often conclude that members of the public participate infrequently, while businesses participate actively and are more likely to influence final rules. I analyze a series of five Copyright Office rulemakings spanning the years 2000–2012. In contrast to the existing literature, I find high levels of public participation and a lack of influence by businesses. Instead, legal representation is the key predictor of influence over final rules. I also argue that the existing literature has wrongly theorized about how to measure public participation in rulemaking, thereby mischaracterizing the rulemaking process as undemocratic.
Acknowledgments
The author would like to thank Steven Balla, Susan Sell, Matthew Williams, and two anonymous referees for their feedback on this article. An earlier version of this work was presented at the American Political Science Association's Annual Conference in Seattle, WA, in 2011.
In order to facilitate replication and further research, both the dataset and the R code used to generate tables and figures are available at the author's Web site at http://www.gabrieljmichael.com, along with an appendix documenting data sources and coding procedures.
Notes
1. This type of measure was popular in the early days of personal computing. For example, the original version of Maxis’ SimCity, released in 1989, required the player to look up the population of a particular city (from a list of several dozen) included on a sheet that came with the game. This sheet was colored dark red to hinder photocopying. Failure to enter the correct number would cause the game to quit.
2. In October 1999, the month when DeCSS was released, common consumer-grade hard disks varied in capacity from 10 GB to 27 GB. A single DVD holds more than 4 GB. By 2002, 100 GB hard disks were widely available (CitationKomorowski, 2009).
3. E.g., speaking in his capacity as chairman of the House Commerce Committee, Rep. Bliley (VA) stated: “In holding hearings, it became apparent to our Committee that this and the Senate version of the legislation contained serious flaws. Not surprisingly, these bills were opposed by significant private and public sector interests … with a vital stake in the growth of electronic commerce … . In fact, the ‘anticircumvention’ provisions of the Administration's bill created entirely new rights for content providers that are wholly divorced from copyright law” (CitationBliley, 1998).
4. During the floor debate in the House, Rep. Bliley (VA), argued: “Section 1201(a)(1) is one of the most important provisions of this legislation, and one that must be included in any version of this bill eventually sent to the President for signature. It was crafted by the Commerce Committee to protect ‘fair use’ and other users of information now lawful under the Copyright Act … . That's why this bill assures that institutions like schools and libraries, and the public, will have an opportunity in a credible and permanent process to make the case that the new right we've adopted is interfering with fair use and other rights now enjoyed by information users under current law” (CitationBliley, 1998).
5. As of November 2013, searching the HeinOnline Law Journal Library database for articles, notes, and comments whose titles include either “DMCA” or “Digital Millennium Copyright Act” returned over 280 results. Expanding the search to the full text of articles returns thousands of results. Similar search results are obtained through Google Scholar.
6. The number of administratively determined exemptions is higher, since different exemptions are issued for the same activity if it affects different classes of copyrighted works.
7. The office does frequently modify the language of proposed comments, but the substantive thrust of the original proposal is always retained. See the beginning of the Notes section for a link to the author's Web site, which includes an appendix documenting the correspondence between proposed exemptions and final rules.
8. Although the law states that rulemakings must take place every three years, the fourth rulemaking was delayed until 2010.
9. For additional details regarding data sources and coding, the beginning of the Notes section.
10. For example, during the 2006 rulemaking, the Copyright Office wrote, “It should be noted, however, that the reply comment period is an opportunity to be responsive to the initial proposals, and the Office will only consider reply comments that provide additional facts and/or arguments in further support of or in opposition to genuine proposals for exemptions contained in the [initial] comments” (CitationU.S. Copyright Office, 2006). For information regarding the other rulemaking proceedings, see their respective notices in the Federal Register (CitationU.S. Copyright Office, 2000, 2002, 2008, 2011).
11. Since the inception of the rulemaking process, only one comment has been submitted by a government agency (a division of the Library of Congress, in 2000); this comment, like other comments originating from libraries, was coded in the “education” category.
12. I owe the idea for this variable to CitationHerman and Gandy (2006, p. 151), although CitationYackee and Yackee (2006 p. 136) use a similar variable. Herman and Gandy omitted comments less than one page in length from their analysis, arguing that longer comments were “necessary to begin developing a cohesive or unique argument”; Yackee and Yackee simply note whether a commenter submitted a comment longer than one page. In my analysis, I include comments of all lengths, even those less than one page, because I do not assume that uniqueness is necessary for a comment to have influenced the granting of an exemption.
13. For example, during the 2006 rulemaking, the Copyright Office wrote, “A significant number of these comments do not adhere to the requirements of the Office's Notice of Inquiry. For example, a number of commenters have failed to propose a ‘class of works,’ have proposed broad classes without factual support for such a class, have not identified a causal connection between a noninfringing use and the prohibition on circumvention, or have not identified an access control that would implicate the prohibition of circumvention. While the value of such comments to this statutory inquiry is questionable, the Copyright Office has decided to post these comments” (CitationU.S. Copyright Office, 2006). Note that this control variable only attempts to distinguish between comments that proposed a class of works and those that do not, without taking into account other factors the Copyright Office identified as relevant to whether a comment would be seriously considered. Specifically, the Copyright Office indicated that it also wanted commenters to show precisely how anti-circumvention rules were affecting non-infringing uses, and to identify the technology that they wanted to circumvent. While these other factors may have affected how seriously the Copyright Office considered a given comment, they are difficult to assess consistently across the entire dataset. Furthermore, comments that do identify a class of works are generally of high quality, and are likely to satisfy these other criteria.
14. Furthermore, individuals also accounted for significant portions of the reply comments in each rulemaking cycle. Reply comments are excluded from my analysis because they do not propose classes of works, and thus it is difficult to measure what, if any, effect they have on final rules.
15. reports one fewer observation than the other tables, because one comment did not request an exemption.
16. While one might expect a high degree of correlation between business commenters and legal representation, this turns out not to be the case. In fact, with the exception of individuals, who only rarely have legal representation, commenters are evenly split between those with and those without legal representation.
17. Again, one might expect a high degree of correlation between legal representation and comment validity; however, while comments with legal representation are highly likely to be valid, many comments without legal representation are also valid.
18. Because all initial comments submitted in the 2012 cycle were coded as valid, I did not include a variable for comment validity in this model.
19. Given the same conditions (a valid, 10 page comment), the probabilities for educational organizations and individuals without legal representation are 26.0% and 17.5%, respectively. With legal representation, the probabilities increase to 57.9% and 46.3%, respectively.
20. In order to supplement this statistical analysis, I attempted to schedule interviews with Copyright Office staff. However, the office informed me that the information I was seeking—who precisely evaluates public comments, staff perspectives on comment quality, and if and how the rulemaking process has changed over time—is all considered “work product” and could not be publicly disclosed. I also attended two public hearings held at the Library of Congress in Washington, DC, during the 2012 rulemaking cycle. The first, held on May 11, was a “technology hearing” during which interested parties could offer demonstrations in support or opposition to requested exemptions. The second, held on May 31, was a general public hearing in which testimony was heard from both supporters and opponents of the requested exemptions. Other public hearings were also held in Los Angeles, CA, and later in June in Washington, DC.
21. Note that the EFF did not request visitors to submit comments directly. This may indicate that the organization had learned from previous experience with the rulemaking process that overwhelming the Copyright Office with a large number of submissions from individuals proved ineffective.
22. For example, CitationYackee and Yackee (2006 p. 131) justify their decision to include only rules “receiving less than 200 or more than one comment” by arguing that they prefer “to focus on the ‘everyday business’ of agency rulemaking.”
23. To their credit, it appears that during the 2012 cycle, the Copyright Office imputed a broad class of works to several comments that would have otherwise been considered invalid.