New orphan works bills introduced
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Yesterday bills were introduced in the House (PDF) and the Senate (PDF) addressing the orphan works copyright issue about which I’ve written many times before. Alex Curtis has a great write-up of the bills over at the Public Knowledge blog.
An orphan work is a work under copyright the owner of which cannot be located so that a potential re-user cannot ask for permission to use or license the work. If you can’t find the owner, even after an exhaustive search, and use a work anyway, you risk the possibility that the owner will later come forward, sue you, and claim statutory damages up to $150,000 per infringing use.
Both bills are largely based on the Copyright Office’s recommendations and not the unworkable Lessig proposal that had been previously introduced as the Public Domain Enhancement Act by Rep. Zoe Lofgren. The bills limit the remedies available to a copyright owner if an infringing party can show that they diligently searched for the owner before they used the work. (What constitutes a diligent search is specifically defined, which should address the concerns about the Smith bill expressed by visual and stock artists.)
Rather than statutory damages, the owner would simply be owed the reasonable compensation for the infringing use—that is, what the infringer would have paid for the use if they had been able to negotiate. I think this is a fine solution because it gives all copyright holders an incentive to keep their registrations current and their works marked to the best of their abilities (i.e. what old-time formalities used to accomplish). I’m also happy to see that injunction is also limited.
Like the Smith bill, both of these new bills direct the Copyright Office to complete a study and produce a report on copyright small claims. There are many instances of copyright infringement that are too small to be litigated in federal district court—like a website that uses my copyrighted photo they got off flickr. Professional photographers and other visual artists face this all the time and there should be a way to address their concerns. One idea is to create a copyright small claims court and it’s something I’d love to research and contribute to a Copyright Office proceeding. So if Congress has been thinking about this for a few years, what’s stopping the Copyright Office from taking on the project sua sponte?
Anyhow, stay tuned as these bills wind their way through committee and the IP maximalists are engaged.
What congress can do about interoperability
Yesterday I explained that in my view first responders don’t need more spectrum to address their interoperability problem, but instead a different approach to using the spectrum they already have. So if Congress shouldn’t allocate more spectrum for public safety, what should it do to address the problem?Cyren Call is absolutely right about a lot of things: That we should opt for national networks, rather than 50,000 individual and incompatible radio systems for each locality or agency. That everyone benefits when public safety spectrum is shared with commercial users (as long as first responders have priority). That given the opportunity, the private sector will build public safety networks that first responders can subscribe to. Where Cyren Call goes wrong is in insisting that we need new spectrum to achieve this.
What Congress can do is very simple. Open up spectrum already allocated for public safety and allow private companies to build networks on that spectrum. Allow the FCC to assign spectrum allocated for public safety to commercial carriers (like Verizon or Cyren Call or whoever) directly. Require in the licenses1 that the carrier build a network up to public safety specs. Allow the carriers to sell excess capacity to commercial users, but ensure that first responders have priority. Voila, commercial provision of public safety communications. Don’t want to stop there? There’s more Congress can do. Continue reading this post »
Blog influence on Capitol Hill
Here is the senior honors thesis (PDF) from GWU student T. Neil Sroka on blog readership on Capitol Hill. The bottom line is that blogs really aren’t that regularly read by members or their staffs. Nevertheless, it’s a very interesting read. I would be interested in a similar survey of federal agencies, where I think single-issue blogs might have more influence.Smoke-filled rooms
Awesome. Needs no comment. From the WaPo: “When the District goes smoke-free Jan. 2, at least one nicotine haven will remain: the U.S. Capitol. Lawmakers, several of whom enjoy a good cigar, have exempted themselves from the city’s smoking ban, not to mention rules that forbid lighting up in federal buildings across the country. … Smoking is permitted in lawmakers’ offices, in two cafeterias in the House and Senate buildings and in an unmarked, cramped room in the basement of the U.S. Capitol.” Smoking is also permitted in the Speaker’s Lobby, which sounds like a club room to me, but Nancy Pelosi might be changing the rules. Hat tip Kathleen.On franchising, who needs Congress?
It looks as if now that national cable franchise reform is dead in Congress, the FCC is moving forward with its proceeding on the issue. According to USA Today, “Federal Communications Commission Chairman Kevin Martin has proposed rules to make it easier for phone companies and others to jump into the video business.” According to the newspaper’s sources, the new rule would require localities to rule within 90 days on competitive franchise applications by phone companies and others with existing access to public rights-of-way. In a new article in the Journal on Telecommunications & High Technology Law (and a public interest comment), Jerry Ellig and I tell the FCC not only that they should preempt unreasonable local franchise practices, but how they can do so. One of the points we make is that while requiring localities to act expeditiously in making franchise rulings, that’s just a start. The FCC also has the power to curb unreasonable denials of franchises.In our paper we calculate the cost of franchising to consumers, and it looks like the FCC has such costs in mind. According to the USAT article, “Martin is using the FCC’s upcoming annual report on cable TV prices as ammunition. FCC officials say the report shows that satellite TV and cable TV operators have settled into a cozy duopoly, keeping prices in a steady, upward climb. It shows the average price of cable TV in 2005 was $43.33 a month. Where satellite TV also was available, the average was $43.34. But in markets with another “wired” video provider, the price was dramatically less: $35.94. The upshot: Absent credible land-based rivals, cable TV prices will keep going up.”
Cross-posted at TLF. You can leave and read comments there. →
Alcee’s letter
Alcee Hastings’ 5-page letter to the Dem caucus is rich. “I was impeached and removed after I was acquitted by a jury in a nearly one month federal trial. It is amazing how little importance is given to this fact.” Alcee, an impeachment is a political affair. So is a committee assignment.IP Chairman Boucher?
WIlliam Patry writes today about what the election could mean for copyright. Bottom line, either Howard Berman or Rick Boucher will take over the IP subcommittee in the House, and Patry thinks there’s a good chance it will be Boucher. Boucher is no friend of the DMCA and seems to understand fair use.Mr. Boucher is viewed by content owners as generally less sympathetic to their interests, although I would phrase the matter quite differently. Mr. Berman will always play an important role in the House on IP matters even if he is not chair of the subcommittee. In the past, he has taken great interest in international issues, and that may be the way he goes. The idea that he would pass on a different chairmanship solely at the urging of content owners is an idea that doesn’t reflect Mr. Berman’s overall interests or his role as a member of Congress. This isn’t to say he won’t take the IP subcommittee, it is only to say that I doubt the matter is as settled as some think.
Cross-posted at TLF. You can leave and read comments there. →
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This is the personal site of Jerry Brito, a lawyer and writer in Washington, D.C. He’s an academic researcher and the creator of Unclutterer and several other blogs. More »
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