©2023. Published in Landslide, Vol. 15, No. 4, June/July 2023, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
Marybeth Peters, who directed the United States Copyright Office with distinction from June 1994 to December 2010, died on September 29, 2022, at the age of 83. After her retirement, Marybeth became affiliated with Muncy, Geissler, Olds & Low, where Rebeccah Gan is a principal. Rebeccah caught up with another former Register, Maria Pallante, who served in the position from January 2011 to October 2016 and was a close friend and colleague of Marybeth. Maria currently leads the Association of American Publishers, a national policy organization.
Rebeccah: Marybeth Peters lived such an interesting life, as have you.
Maria: Yes, thank you, Rebeccah, and thank you to Landslide for the invitation to interview. Everyone interested in copyright should know about Marybeth. She served 16 years as Register and some 45 years in the Copyright Office. Every Register serves at a distinct point in time, but Marybeth led through many significant developments.
She was an inspiring public leader and a highly respected lawyer. She enjoyed people immensely—anyone who met her will remember her iconic joyful laugh. Before she was Register, Marybeth was instrumental in implementing and teaching the 1976 Copyright Act, which her mentor, Register Barbara Ringer, had substantially drafted. Marybeth authored the General Guide to the Copyright Act of 1976, which seems to have guided many people through the vast changes—just recently, a lawyer in New York showed me his tattered copy.
Later, she became Register just as the United States was heading into treaty negotiations pertaining to the digital transmission of creative works, and she advised Congress on the implementing amendments to U.S. law known as the Digital Millennium Copyright Act (DMCA). Her span of service from analog to digital issues was truly remarkable.
Rebeccah: You worked for Marybeth at two different intervals before succeeding her.
Maria: Yes, I served for a short time as a policy advisor when she was a relatively new Register, and then again toward the end of her career, when I had the privilege of serving as her deputy general counsel and then her Associate Register for Policy and International Affairs.
It’s worth mentioning that Marybeth formalized a Policy and International Affairs department as one of her first acts, because she understood the importance of the international framework. Current Register Shira Perlmutter was the first to lead in that Associate Register role, just in time for the treaties. It was an exciting time to be there.
Rebeccah: But you met Marybeth before you worked for her.
Maria: I first met her when she was speaking at a program in New York before she was Register, and I was recently out of law school and working for the Authors Guild. Marybeth was so friendly, so humble, and so enthusiastically interested in what I was doing—just meeting her made a huge impact. I realized later that countless people had similar experiences and credit Marybeth with encouraging their careers. Marybeth was such a force in the copyright community that everybody in the field knew who she was, not just in the United States but internationally.
Rebeccah: I read that she started her career as a shelf-lister.
Maria: Yes, I believe she had an indexing position for the Library of Congress for about one year. Marybeth had been a young teacher in her home state of Rhode Island, but she moved to D.C. to start over after a marriage didn’t work out. As the story goes, the Library held an orientation program for new employees, and Register Barbara Ringer spoke about the very exciting legal work of the Copyright Office. Marybeth immediately wanted to work for Barbara, which is how I felt when I met Marybeth.
Rebeccah: Marybeth said Barbara Ringer believed in and mentored her.
Maria: Well, Barbara Ringer was a brilliant person, and she was astute about the particular challenges for women. She had a difficult time finding a job after graduating from Columbia Law School and was later forced to sue the Library of Congress for discrimination, when she was passed over for Register.
I do think there is a tradition in the copyright field of paying it forward and paying it backward and being willing to both mentor others and recognize their achievements—I try to honor that. I am fortunate to have had generous mentors in my career, including Marybeth, and I know what a difference it makes.
Rebeccah: Is mentoring another legacy of Marybeth’s?
Maria: Yes, anyone who interacted with Marybeth could feel her support, and I think people were aware that she would make time for phone calls or meetings or lunch. She was like that, unlike most government officials, and I do think that it’s a piece of her legacy that people try to carry on. You never know. You’re talking to an intern, and maybe they’ll be Register one day.
Rebeccah: Marybeth became a music examiner during Barbara Ringer’s tenure. Was she musical?
Maria: I believe she played more than one instrument and as a teenager wanted to be a musician. Many copyright colleagues know this story, but an aunt who taught at Juilliard told Marybeth, in so many words, “You’re very good, but not great, so this is not the path for you.” But she loved music all of her life. For years, she would leave the Office after a long day and head to the Kennedy Center, sometimes with a friend but sometimes alone, to enjoy the National Symphony Orchestra. She spoke proudly about her start as a music examiner and later ran the entire division.
Rebeccah: You didn’t need to be a lawyer to be an examiner, right?
Maria: Right, but one can learn a great deal of copyright law from the registration system—it involves questions of copyrightability, joint authorship, publication, term of protection, licensing, and more.
Marybeth enrolled in law school at night and graduated from George Washington University Law School in 1975, just in time to work in the general counsel’s office at a pivotal time, and then lead the public information office. What’s important to know is that she had a talent for translating really complicated material into English. You have to keep in mind that the 1976 Copyright Act was not a minor update but a complete overhaul of the antiquated 1909 statute. Among other major changes, it made registration permissive rather than mandatory.
Rebeccah: And it expanded the term of copyright protection from a fixed term with a renewal to a period of life of the author plus 50 years.
Maria: Yes, that change reflected international norms and paved the way for the United States to join the international Berne Convention in 1989, as well as later treaties that incorporate it.
Rebeccah: Did this term of expansion exacerbate the “orphan works” issue, which was one of Marybeth’s areas of focus?
Maria: It’s a good question. Marybeth and her then Associate Register Jule Sigall produced a comprehensive report on orphan works, describing the gridlock challenge when rights holders cannot be located, and proposing to limit remedies if the user conducted a reasonably diligent search.
When I returned to the Office in 2007, we worked with stakeholders on legislative negotiations for a couple of years. But then visual artists, songwriters, and other authors began to come forward because they were worried about exacerbating enforcement challenges, especially for claims of low monetary value. That insight informed the small claims study we conducted when I was Register, which informed the small claims board that Congress enacted and my successors implemented. Building blocks are important in policy.
Rebeccah: But the orphan works legislation was not enacted, right?
Maria: No, it lost steam from both sides. The interest of the user community may have been overtaken by a particularly active period of fair use litigation, a willingness to wait.
Rebeccah: Fair use can be a very intense topic. There are lots of strong opinions.
Maria: I would agree, although I don’t think anyone would dispute it’s a critical part of the law. The question is how to evolve the doctrine responsibly while also preserving the author’s statutory rights, especially as to new uses and derivative works. Many decisions today involve a concept called “transformative use” and what that means or doesn’t mean for the overall doctrine.
Rebeccah: Marybeth was Register when the Sonny Bono Copyright Term Extension Act expanded the copyright term.
Maria: She was, yes, although that extension did not originate with Marybeth or the Copyright Office. Congress was looking at the standards worldwide, which by the time of the extension had moved to life of the author plus 70 years.
Rebeccah: Proponents argued that people were living longer so there needed to be a longer term.
Maria: Exactly. Something I said as Register is that maybe during the last 20 years, the heirs should be made to assert their successor interests to permit some flexibility for users during the end of a long term. I still think this makes sense, but we also have to solve more immediate problems that affect authors themselves at the outset, like digital piracy.
Rebeccah: In one interview I read, Marybeth called herself a Luddite and said she did not own a computer. And yet, she instituted the online registration system. Would you say that is her legacy?
Maria: It is one of her legacies. But she was first and foremost the nation’s public copyright lawyer during a long and important period that included the transition of copyright law to the internet. As part of this transition, she knew that the Office’s own functions had to be modernized.
Rebeccah: Marybeth once said, “Had the Office not been working on electronic filing in 2001, the repercussions of September 11th would have forced us to move in that direction.”
Maria: Marybeth had intimate knowledge of how the Copyright Office actually functioned and the many ways it could be disrupted, because she had rotated through all of the major operational divisions during her career. I was practicing in New York at that time, but even when I directed the Office 10 years later, the heightened security protocol on Capitol Hill meant that mail was screened offsite and registration deposits were sometimes accidentally destroyed.
Rebeccah: When she graduated from law school in 1975 and pursued a highly public legal career, she was living in a rarefied space for women at that time. The fact that you were able to live that life with young children years later is amazing, but in the 1970s, that might not have been possible.
Maria: Yes, it was a different era. I was the first Register who was a working mother, but it was 2011 by then, and despite the significant pressures of the position, I was hardly alone among female leaders in the law. There were sacrifices to be sure—including for my children and husband—but I benefited immensely from a strong support system and equal partner on the home front. To your point, I think it is possible that if Barbara or Marybeth had needed to balance motherhood earlier in their careers, they might have been derailed or discouraged from pursuing such demanding work. One interesting fact: both of Barbara’s parents were attorneys when she was growing up in the 1920s and ’30s, but she unsurprisingly described her mother’s career as secondary to her father’s, despite her talent.
I’ll tell you a story, though. My first child was born during my first tour at the Office in 1997, a very pressed time. She was in the Little Scholars day care center on Capitol Hill, which closed at 6:00 p.m. But in the Register’s office, there is always a deadline—a congressional study is due, or somebody is testifying—so sometimes I would rush to the daycare and return to the Office with my infant. Marybeth would put a blanket on the floor in her office and play classical music. I would be with my colleagues working on whatever deadline we were working on, and the Register of Copyrights entertained my baby with Brahms.
Rebeccah: I love that story.
Maria: Marybeth was a genuinely kind person, and she was interested in people’s lives. She said to me and many other people, “You need to do what’s best for you and your family or you won’t be happy.” In my case, when I left the Office to return to New York before my daughter turned one, she was wonderful about it and said, “You never know, maybe you’ll come back.”
Rebeccah: And you did.
Maria: Yes, 10 years later! I had been working at the global Guggenheim Museums, an art and intellectual property practice that I absolutely loved. But Marybeth encouraged me to return to public policy, and this time it made sense for my family.
Rebeccah: Marybeth was an ambassador for creators.
Maria: She respected creators immensely and believed the Copyright Office had a responsibility to support and help speak for them. She was also an advocate for copyright law. Everyone wanted to be a copyright lawyer right after meeting her.
Rebeccah: After you became Register, you testified before Congress in March 2013 and conceptualized “The Next Great Copyright Act” to modernize copyright law and address some of the issues we have discussed. A decade after your testimony, where are we now?
Maria: Following that testimony, which followed my Manges Lecture at Columbia Law School, the House Judiciary Committee conducted a multiyear review of both the 1976 Copyright Act and the 1998 DMCA. The deliberations were interesting and comprehensive and eventually led to a series of key amendments: they created a small claims board within the Copyright Office, set harsher penalties for criminal streaming, and enacted sorely needed reforms for music licensing.
As far as outstanding issues, I do think it’s time to rebalance the notice and takedown process of the DMCA, especially as to infringements that won’t stay down. That result is antithetical to copyright law. As for new issues, questions of copyright and artificial intelligence have begun to explode and will keep everyone very busy.
Rebeccah: Marybeth once said, “The current Copyright Act reads like the tax code, and there are sections that are incomprehensible to most people, and difficult to me.”
Maria: She was right. The law should be more accessible to those who are affected by it, or need to apply it, which covers a lot of people.
For more tributes to Marybeth Peters and information about her memorial fund, please visit https://copyrightalliance.org/tribute-blog-former-register-copyrights-marybeth-peters.