[Orphan Works] Keeping y'all updated; radio semi-silence

[maradydd]

As 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.

Comments

Re: Lawsuit of Countless Illegal Copies

[green-roc.livejournal.com]

Thank you for your reply Richard. You reassure me of what I already am aware of, and I thank you.

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

[(Anonymous)]

The infringer, in your example, is violating copyright and can be sued for copyright infringement. Under current copyright law, anybody who wants to use a copyrighted work must secure rights from the copyright artist to use the work. The only exemption to that is for fair use and fair use examples are defined in the law and on the copyright office's website.

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

[maradydd.livejournal.com]

After considering it for quite some time, I want this bill to pass, and I have no intention of profiting from anyone's copyrights other than my own, so your last statement is patently false.

Re: Lawsuit of Countless Illegal Copies

[green-roc.livejournal.com]

Hello again Meredeth.

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

[maradydd.livejournal.com]

I think you're thinking about the clause (which may only be in one version of the bill) that says that nonprofit organisations would not be liable for damages if a work's owner claims copyright and the organisation immediately ceases use. I don't recall having read anything in either bill stating that orphaned works could not be used in a for-profit fashion.

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

[green-roc.livejournal.com]

Ah. Thank you for the enlightenment. Perfect example of The Orphaned Works Act doing what it is meant for. Why waste a good play just because an owner can't be found.

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

[(Anonymous)]

It's not false until you give your reasons.

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

[green-roc.livejournal.com]

I had a piece of my artwork lost to the public domain in an almost identical, if not exact situation to what Lloyd Shugart describes in his post somewhere above this comment.

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

[green-roc.livejournal.com]

Suing for copyright infringement is costly, and in the case of my art piece, the design was unrecoverable. The copyright owner (not me, someone I sold the design to) did not have the means to make a full recovery for the illegal copies and sales of his rightful material.

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

[green-roc.livejournal.com]

I was distracted by multiple phone calls...

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

[(Anonymous)]

The government does not go after copyright violators. That is the responsibility of copyright owners. The orphan bills do not provide any additional copyright protection to copyright owners. They only remove the option for the copyright owner to recover legal damages if the infringer meets the standards for performing a good faith search for the copyright owner. The search requirement does not provide you protection. It provides protection only to the infringer.

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