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maradyddAs promised:
The House version of the Orphan Works Act of 2008
The Senate version of the Orphan Works Act of 2008
As some readers have observed, there are slightly different provisions in the two bills, and only one or the other of them (possibly amended) can be signed into law; either the House version will pass the House and be voted on in the Senate, or the Senate version will pass the Senate and be voted on in the House, or neither version will pass its own chamber and it won't be an issue.
I intend to post a point-by-point comparison of the two bills, but it may be a while in coming. My friend Eric's death is hitting me pretty hard, and I'm not really up for doing a lot of blogging at the moment. In the meantime, Alex Curtis over at Public Knowledge has some good commentary; feel free to collect other useful links in the comments to this post, if you like.
The House version of the Orphan Works Act of 2008
The Senate version of the Orphan Works Act of 2008
As some readers have observed, there are slightly different provisions in the two bills, and only one or the other of them (possibly amended) can be signed into law; either the House version will pass the House and be voted on in the Senate, or the Senate version will pass the Senate and be voted on in the House, or neither version will pass its own chamber and it won't be an issue.
I intend to post a point-by-point comparison of the two bills, but it may be a while in coming. My friend Eric's death is hitting me pretty hard, and I'm not really up for doing a lot of blogging at the moment. In the meantime, Alex Curtis over at Public Knowledge has some good commentary; feel free to collect other useful links in the comments to this post, if you like.
I wish you were in the real world.
Date: 2008-05-28 06:29 pm (UTC)Six Misconceptions About Orphaned Works
You do disservices to all that want important information on this future law. You hold yourself out to be the authority on the issues, yet you then say I am not an attorney, so don’t count on anything I say.
I think you are the FUD whom is seriously confused.
Before you discount me read the letter from an attorney below…whom for the record states the real issues.
Next this bill if enacted into law most likely will be unconstitutional and will be challenged by a copyright owner who has the financial resources to see it to end.
To all that read this, let me tell you I come from an experience that is real. I am in year 3 of a copyright litigation that, my legal bill now exceeds $500,000.00 USD. US copyright laws currently lack “MORAL RIGHTS”…. before any “ORPAN WORKS LAW” should be considered the copyright laws need to address at least “Mandatory Attribution” bc I don’t think that moral rights can be enforced by law.
My case involves thousands of images that were marked with my “CMI” embedded into each and every image, with metadata….client removed said data, and then licensed my images to hundreds of third parties who then licensed my images to thousands of additional third parties under their “Affiliate Marketing Programs”
So if you are an artist and are concerned with your artwork then you better be concerned with this proposed legislation, and the impacts it will have on your ability to sustain yourself.
As an aside, although I was the copyright owner, I was the defendant in this lawsuit. I was forced to incur $500,000.00 USD in legal fees to protect my copyrights. As a result I now have thousands of images being used by thousands of people whom are all using my images to make money….they have not paid one red cent for these assets…I can not pursue each and every one of them….and those that I do can claim as a defense that the work is either in public domain or an orphaned work, or that it was an innocent infringement.
How many of you readers have the kind of USD it take to protect your copyrights, even under the laws as they now stand? If the orphan works law passes as now proposed it will cost more to protect your rights both in real dollars and in your personal time, and emotions.
Propet USA v. Lloyd Shugart WD WA. Federal Court
Lloyd Shugart
Lawsuit of Countless Illegal Copies
Date: 2008-06-04 12:13 am (UTC)I know of a similar, if not exactly the same situation. One of my pieces was owned by this sticker maker (you know, for cars). I had 'sold' it to him so it was legally his. That's not the point, but it's part of a big batch of stolen designs.
From what I heard from the store owner, this customer bought lots of different designs, then mass produced it on a CD that was sold to countless sticker shops and there was no possible way of recovery, except an out-of-court settlement.
I would guess...
The orphan works act would assist in the recovery of all of these pieces, or perhaps the act is so gosh dang confusing as heck, that I don't have the cognitive abilities to see the act as a whole, and maybe it would just make things worse for these lawsuits.
I'm not able to read the complete bill and understand it in it's entirety. I have two syndromes that cause cognitive deficiencies and short term memory loss... this means, I can't see the bill as a whole for I forget most of what I've read.
I would hope that someone in an official position would summarize the bill (saw one in govtracks, but that's not 100% official). Nothing against Meredith, I thought she did a wonderful job at summarizing it (when no summary existed). The majority of artists I talk to have disagreed with the bill, mostly due to that "good faith" search. I'm still trying to figure out if I agree or oppose this bill.
I don't know who to believe now. I just know the lawsuit regarding hundreds of stolen sticker designs wouldn't be so nasty if there was a clearer definition of what defines a piece as "Public Domain". By my understanding of current laws, if too many copies get out there, by default, it's Public Domain.
Whoever stole these designs and mass produced them, probably did so with a full understanding of the inability of recovery for the pieces, and was quick to mass produce in such a short amount of time.
I wrote a piece regarding this, because my artwork is part of that mass production, but not quite:
http://green-roc.livejournal.com/3652.html
The new owner altered my design, so it may have been the big piece of evidence, proving the owner of the pieces, or at least that one design.
From what I currently know, Orphan Works Act would have helped the sticker's rightful owner. Why? No matter how many pieces are out there... if an owner CAN be found, then it cannot be used without permission. We gotta love that! but sadly, that isn't the law... yet.
Re: Lawsuit of Countless Illegal Copies
Date: 2008-06-19 09:46 pm (UTC)At best, you won't be harmed by this legislation if you want to believe that very exhaustive searches will be made to find copyright owners. You won't be helped by it, but it might not hurt you. At worst, this legislation could open wide the gates to new legal forms of copyright infringement if the standards for conducting searches aren't very stringent. Unfortunately, there are no examples being maintained by the copyright office to provide an indication of what such searches will require.
No copyright owner should want these bills. At most, they should be restricted to nonprofit use and that will drastically limit the amount of new infringements allowed by the bills while maintaining the intent of the bills to foster the use of historical material (the bills have no age limit to stop something produced today from being orphaned tomorrow).
Richard Gagnon
Re: Lawsuit of Countless Illegal Copies
Date: 2008-06-20 01:40 am (UTC)The infringer in this situation is not required to make a diligent search under current law, and so penalties can be sought when a copyright owner makes a claim of infringement. If this bill were to become law, the paperwork that the infringer is required to have in order to use the work should be rejected by the government if filed correctly. The infringer would not be able to legally sell the piece in the first place as the infringer would not be able to prove the work is an orphan (unless they lie on their paperwork).
Personal opinion on what a "good faith search" is, seems to be a big factor in these arguments about this bill. My opinion of the bill is based on the whole process, not just the search. I take into consideration the registration of the work with the government and the government's process to review the paperwork to ensure that nothing was filed incorrectly. If infringement was intentional, I do not see how they could legally file paperwork, unless they forged the paperwork (well, that's where we may have a problem, cheaters lying so they can cheat). I trust the government to do a good job. Perhaps this is where the lack of faith lies. Lack of faith in the government, or the all-too-common awareness that interested parties will lie when filing paperwork.
I want the Orphan Works Act to pass. My faith and trust in the government on their process to do a "good faith search" is strong.
Until this bill is passed into law, I am struggling with ignorant people making copies of my work. Just about everyday, I search for copies of my work. I need to get rid of those unauthorized public displays as soon as I find them. The longer I wait, the more copies that could be made to a point where I could not prove I am the creator. With the Orphan Works Act, I don't have to act immediately. I just come out of nowhere, and say, "hay! That's mine, and here's my proof."
The bill, if law, would help me avoid that daily stress that I have to endure for the rest of my creative life. But no... I must remain on my toes, keeping watch for those who would remain uneducated about the laws of copyright. My creativity is hindered due to ignorance. I want this bill to pass so I can relax.
~Green
Re: Lawsuit of Countless Illegal Copies
Date: 2008-06-26 09:42 pm (UTC)The orphan legislation removes the right to sue the infringer if a work is legally defined as orphaned. It protects people who want to use copyright orphaned works. There is nothing in this bill that helps copyright owners.
The difference between current law and the amended law, with the orphan bill, is that the infringer can use the work without the copyright owner's permission if the owner cannot be found. Under current law, it doesn't matter whether you can be found or not--nobody can use your copyrighted works without your okay. If you believe a diligent search will find you, the orphan law will neither benefit or harm you. If you think that, somewhere in the decades that you own your copyrights while you are alive, and a few decades after you're dead, that you might not be found with such a search, then it will hurt you.
This bill provides you no protection that you do not already have. It is designed for people who do not wnat to be sued when they use old copyrighted works. The people infringing your work today will have more protection from this bill than they do today. You will have no legal recourse to sue them if they meet the definition for conducting a good search. Today, you have the right to sue them no matter what kind of search they make.
There is no reason for any copyright owner to want this bill unless they intend to profit from the copyrighted works of others.
Re: Lawsuit of Countless Illegal Copies
Date: 2008-06-26 09:52 pm (UTC)Re: Lawsuit of Countless Illegal Copies
Date: 2008-06-27 02:19 am (UTC)I hope I am not making a mess out of this column... o.o
Uh, question...
I thought I saw a comment that said that no profits can be made from these Orphaned Works. Is this part of the Bill? Can you tell me more about it please? Thank you for all your patience.
Re: Lawsuit of Countless Illegal Copies
Date: 2008-06-27 02:35 am (UTC)Consider: I can direct one of Shakespeare's plays and sell tickets, because Shakespeare's plays are in the public domain. Suppose I find a play I want to direct, and I'm not sure whether its copyright has expired or not. Under this legislation as I understand it, I would be able to sell tickets, provided I'd documented my search for the copyright holder first.
Re: Lawsuit of Countless Illegal Copies
Date: 2008-06-27 05:27 pm (UTC)Thank you, for everything on this topic. You have brought so much to this Act, and so many people to rethink their opinions, even me. I am glad we are on the same level.
Re: Lawsuit of Countless Illegal Copies
Date: 2008-07-01 09:04 pm (UTC)I made the statement from the standpoint of a copyright owner whose work can be infringed safely by these bills.
To that extent, are you for this law so that somebody, who cannot find you, through a diligent search, can safely legally use your works without securing your express permission (or that of your heirs far in the future?
Let's ignore whether or not you believe that you can always be found through a diligent search since the exact standards for those searches have only loosely been described and will differ on a case by case basis on the type of work. The question isn't whether you can be found, but whether or not, as a copyright owner, you're comfortable with a law, that allows your copyrighted works to be used by others. The resources that would be used to find the copyright owner of a recording will differ from those that ought to be used to find the owner of an old book or that of an unattributed photograph. Artists and photographers tend to be more concerned about the bills than writers because net search engines use words for searching.
The only aspect of the bill, that might be worthwhile, is that of freeing up copyright orphans for public view. To that extent, your being for the bill will probably be less as a copyright owner and more as an audience for what was lost. In everything I've read, I've yet to hear of specific examples of what lost works will be resurrected. Everybody keeps speaking in generalities.
The vast majority of "lost" works are not copyright orphans. They're not so much lost as they are not financially viable for the owner to release. The bulk of "lost" works are owned by the publisher/company that either released them nationally or by whatever company bought the rights to them. If you can think of a movie or book or song that you'd like to have available today, the odds are that some large corporation owns it and has no compelling financial reason to release it because it won't sell enough copies to make the effort worthwhile. For those works to be known, they had wide distribution to be historically noteworthy. That distribution was usually at the hands of a company with signficant resources. The orphan bills will not free up those works.
I would love to hear of what movies, books, radio shows, pulp magazines, music, or other orphaned works will become available to the public with the release of these bills. It would be nice to see examples of diligent search requirements that the Register of Copyrights will hold as standards for these bills prior to the bills being enacted. These things are only spoken of in generalities. I'd hate to see the bills become law without having more specifics in place. It would be nice to know what the public gains over the potential risks of copyrights being violated. For every specific valid use of a copyright orphan, the bills can be more specifically tailored to allow that need without being as broad as they currently are.
Richard Gagnon
Re: Lawsuit of Countless Illegal Copies
Date: 2008-07-01 11:53 pm (UTC)To repost key elements of what was mentioned:
*******
"My case involves thousands of images that were marked with my “CMI” embedded into each and every image, with metadata….client removed said data, and then licensed my images to hundreds of third parties who then licensed my images to thousands of additional third parties under their “Affiliate Marketing Programs”
So if you are an artist and are concerned with your artwork then you better be concerned with this proposed legislation, and the impacts it will have on your ability to sustain yourself.
As an aside, although I was the copyright owner, I was the defendant in this lawsuit. I was forced to incur $500,000.00 USD in legal fees to protect my copyrights."
*******
Now I will explain why I am in favor of this law...
I am the artist of a piece that was part of a collection that was infringed in much the same manner. The infringing party included my artwork with many other pieces on a CD-Rom to be sold to third party retailers. the rightful owner of my art (that I wrote a statement saying that he is the owner of my artwork) told me he was settling out of court, and could not reclaim all of those pieces that rightfully belong to him, and my piece was a crucial piece of evidence to prove who is owner.
I understand that this law would make sure that the legal fees would be less, but I am considering the bigger picture... Given the requirements to use Orphaned Works, I don't predict lawsuits taking place between owner and intentionally infringing party, I see the infringing party having to prove themselves against the government for filing falsified documents of improper dilligent searches.
Yet, if you think about it, this person who sold these CD-Roms containing my artwork, they never filed paperwork with the governemnt because it isn't required by current law. If the infringing party had filed paperwork, the government's dilligent search would come up with several locations where you would find my piece on the internet... secretly hiding with a way to contact me.
If this bill were law, the government would fight the fight, and not my artwork's copyright owner. On top of that, it would be manditory that all uses would be forced to cease and decist the use of the work.
Considering all the third parties and also the customers using the design on their cars, the act of regaining complete ownership of the design(s) would be an incredible undertaking, but it would be enforced once the Orphaned Works Act is Law.
This is why I support the bill. Under current law, if too many copies get out there, a piece of art becomes public domain without recovery if not acted upon immediately.
I don't care about getting money from lawsuits. I just don't want people copying my art and taking advantage of my God-given talents.
Once this Bill is law, and with little time on my hands, I don't want to spend every day searching the web for unauthorized display or uses. I just let the laws of the Bill say that I own the rights to my work at all times, even if someone registers my work, I can still come out and get it back. I think that is an incredible miracle of a bill that, at anytime someone happens to infringe on my work (intentionally or accidentally), I can still recover it.
This Bill relieves the damaging stress that I feel daily, because then I know I can come out years later and say, "hey, this is mine, give it back" and by the Orphaned Works law they must. Until then, I am uptight as heck, worrying everyday and with every piece, "how many copies are people making without me knowing about it?"
Re: Lawsuit of Countless Illegal Copies
Date: 2008-06-27 01:58 am (UTC)If the Orphan Works Act was in place, the infringing party would not be sued by a copyright owner over infringement, he would be facing the government for filing improper paerwork, if the infringing party went as far as to lie to the government, and the pieces would not be approved for sale to begin with, for the government would do a search of their own and find that turtle design registered to me, and connected to public contact info.
The infringing party would not face a lawsuit by the owner I sold it to, he would face the court system of the government directly (what do they call that? I forget what it is called) for lying to the government, or perhaps failing to file paperwork, whatever the case may have been, and the turtle may never have been sold in the first place.
Everyone who does not want this to pass needs to look at the bigger picture, to look at the whole process, before and after... to know that it is all covered. There can't be any legal infringement if the paperwork is not passed in the first place. the government will make sure of that, for they will be making a search of their own, and they will not have infringement on their minds, which seems what you all are worried about... Infringing parties lying on their registration papers.
My opinion overall...
Faith in the government is what this disagreement is all about, not faith in an undefined search.
Re: Lawsuit of Countless Illegal Copies
Date: 2008-06-27 02:17 am (UTC)I forgot my point I wanted to make when relying to the comment about how I will not get more protection.
In a way, I see what you are saying... then one has to think if the infringing party is infringing intentionally or unintentiinally. I think it is fair to the unintentional infringer that the lawsuit costs are less.
The likelyhood of intentional infringement would be easier to win a case over in court for the reasons above... they need documents approved by the government.
Re: Lawsuit of Countless Illegal Copies
Date: 2008-07-01 08:25 pm (UTC)With or without the orphan law, you have to take legal action to protect your work. These bills change nothing in that regard.
Richard Gagnon