Register of Copyright Shira Perlmutter Sues to Keep Her Job

In a move expected by many observers, Register of Copyrights Shira Perlmutter is asking a federal court to block the Trump administration’s attempt to fire her and replace her with veteran DOJ attorney Paul Perkins.

In a 14-page complaint, Perlmutter claims that Trump lacks the authority to fire the Register of Copyrights, or appoint a replacement. Those powers are, by law, reserved for the Librarian of Congress the suit argues. Furthermore, the suit claims that Trump also lacks the authority to appoint a new Acting Librarian of Congress to replace Carla Hayden, meaning that Trump’s choice to succeed Hayden, his former criminal attorney Todd Blanche, also lacks the authority to fire Perlmutter.

The suit seeks an injunction that keeps Perlmutter in charge at the Copyright Office absent "a decision by a lawfully appointed Librarian of Congress" to remove her; that blocks Blanche's appointment as Acting Librarian of Congress; a declaration that the Federal Vacancies Reform Act does not authorize the appointment of a temporary acting Librarian of Congress; and that Robert R. Newlen remains the acting Librarian of Congress.

“The Administration’s attempts to remove Ms. Perlmutter as the Register of Copyrights are blatantly unlawful,” the complaint states. “Congress vested the Librarian of Congress—not the President—with the power to appoint, and therefore to remove, the Register of Copyrights. Accordingly, the President’s attempt to remove Ms. Perlmutter was unlawful and ineffective. Nor can Ms. Perlmutter be removed by Mr. Blanche, whom the President purported to appoint as acting Librarian of Congress. The President has no authority to name a temporary replacement Librarian of Congress, much less name a high-ranking DOJ official whose presence offends the constitutional separation of powers.”

Lawyers for Perlmutter go on to back up what multiple lawyers told Words & Money in the days after Trump fired Hayden: That the Federal Vacancies Reform Act does not authorize the president to fill temporary vacancies at the Library of Congress.

“Instead, Congress chose to authorize the Librarian of Congress to ‘make rules and regulations for the government of the Library,’ and, pursuant to those rules, interim Principal Deputy Librarian Robert R. Newlen now exercises the powers of the acting Librarian of Congress,” the complaint argues. “In short, the President’s attempt to name Mr. Blanche as acting Librarian of Congress was unlawful and ineffective, and therefore Mr. Blanche cannot remove or replace Ms. Perlmutter.”

Notably, Perlmutter’s complaint also notes that she was fired following the release of the third part of a Copyright Office report on AI, which questioned the way various tech firms are using copyrighted works. The complaint stops short of alleging that Perlmutter was fired because of the report or because of Perlmutter's guidance on AI, however.

Meanwhile, as of press time, Robert Newlen reportedly remains in charge at the library. And while Newlen hasn't spoken out publicly since he became the Acting Librarian of Congress, it seems highly unlikely that he would acquiesce to the administration's demands to fire Perlmutter, as Perlmutter's performance as Register has been widely praised.

Perlmutter’s lawsuit comes after multiple lawyers told Words & Money last week that Trump's firing of Shira Perlmutter was almost certainly illegal, and that the president does not have the statutory or Article II authority to appoint either an acting register, or an Acting Librarian of Congress.

Still, lawyers added that, even if Perlmutter manages to win her case and keep her job, it could prove to be a short-lived victory. Trump is free nominate a new Librarian of Congress at any point, and once confirmed by the Senate, the new Librarian of Congress could then remove Perlmutter and install a new Register of Copyrights.

Trump's actions also raise a larger question about the future of the Copyright Office: Will it stay within the Library of Congress?

Overlooked in the outrage over Perlmutter's firing is that Congress—with the support of the publishing industry—voted to hand the Copyright Office over to Trump in 2017, during the president's first term.

The Register of Copyrights Selection and Accountability Act would have given the president the power to appoint the Register of Copyrights for a 10-year, renewable term, subject to Senate confirmation, as well as the power to fire the Register at any time. That legislation grew out of a House Judiciary Committee policy proposal supported by the current president and CEO of the Association of American Publishers Maria Pallante during her tenure as register. The bill passed the House by a wide margin in April 2017, but was ultimately blocked in the Senate.