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.
Lessig’s orphan works proposal unworkable
Lawrence Lessig has a new half-hour presentation on his blog where he outlines his opposition to the Copyright Office’s recommendations on orphan copyright works that were the basis for the proposed Orphan Works Act of 2006, and which were very similar to the proposal Bridget Dooling and I made. He also proposes his own alternative solution, which is much like the proposed Public Domain Enhancement Act he helped craft and which Bridget and I have critiqued. I find his new articulation to still be completely unworkable. Let me explain.Continue reading this post »
New tech to find orphan works
Just as Bridget and I predicted in our orphan works paper, entrepreneurs are creating systems to track down infringing use of copyrighted works on the web. According to a press release by Infoflows, the company is launching a new software platform to do just that. CEO Steve Stone: “”For the first time in history, a content owner can identify where its content exists anywhere on the web at any time. In one stop the content owner is empowered to protect it and recover revenue if the intellectual property is being illegally used … In an alpha pilot conducted in 2006, one Fedmark crawl returned over 500 instances of unlicensed photographs being pirated by one end user. Needless to say our beta client was thrilled with this outcome and was able to act upon our results to recoup significant revenue.”A cursory reading of the orphan works bill
The L.A. Times publishes a letter to the editor from one Gerald W. Puschel that makes the case that, “H.R. 5439, the Orphan Works Act of 2006, gives competitors [of a copyright holder], customers and anyone else the right to use original designs for profit after only a cursory search for the rightful copyright owner.” I guess that by “cursory search” he means “performed and documented a reasonably diligent search in good faith” because that’s how the bill reads. Don’t believe the hype; the Orphan Works Act is not a get out of jail free card for infringers, and courts won’t stand for “cursory searches.”More new stuff
Here are some links to my recent output. I recently moderated a roundtable discussion on net neutrality with panelists from Heritage, PFF, Public Knowledge, and Free Press. Audio and photos of the event are online. Also, the June edition of AFF Radio, which I host, is also online. The show features James W. Antle on what Democrats can learn from Republican foreign policy, Brooke Oberwetter on the truth about global warming skepticism, and Will Wilkinson on how free labor markets contribute to individual happiness. Finally, if you’d like to subject yourself to an hour of me speaking non-stop, you can download audio (mp3) of my recent lecture to Hill Staffers on the subject of copyright, incentives, and orphan works. The slides (pdf) are also online, but they’ve been converted from Keynote to Powerpoint to PDF and they don’t look to great.New stuff
Here are links to some of my recent output. David Kirby and I penned an article for the State Policy Network about how AFF uses technology to make the most of its limited resources. If you’re interested in nonprofit management, or are curious about how AFF works behind the scenes, check it out. Also, I hosted AFF Radio again this month. It’s a great installment with Adriene Aldredge on the Massachussetts health insurance initiative, Eric Pfeiffer on net neutrality regulation, and Kerry Howley on worker identification. Finally, I put up the study of cable franchising I recently co-authored with Jerry Ellig. It will be published later this year by the Journal on Telecommunications and High Technology Law. And coming up, I’llbe giving a talk on the Hill about orphan works for Mercatus’ Capitol Hill Campus. So, if you’re a congressional staffer, sign up and see me cope with public speaking.Not an urban legend
For a long while I’ve been bemused by the running rivalry over intellectual property issues between some of the writers on this blog and the folks at PFF. While sometimes entertaining, I often shake my head when Tim takes the time to painstakingly refute an argument from Jim DeLong that on the surface was already patently erroneous. Now, as I prepare to take the bait myself, I think I understand the feeling of exasperation that prompts such replies.Yesterday DeLong posted an entry entitled “Another Urban Legend Shot Down.” He wrote that “One of the arguments against extended copyright terms, made in Eldred and other places, has been the charge that there are piles of books, films, etc., moldering away unseen because no one can get permission to look at them and the copyright holders are too oblivious to find and exploit useful items.” He then says that the fact that Amazon sells DVD packs that contain 50 classic movies for just $16.47 refutes the idea (or “urban legend” as he puts it) that there are other movies out there that are being harmed by extended copyright terms. He goes on, “Would such treasures be available if there were no money to be made from making them so? Doubtful.”
FIrst DeLong implies that there are no such works disintegrating out of sight and hints that such an idea is just an “urban legend.” I would point him to the Library of Congress’s report on film preservation. It catalogs precisely the fact that a great number of films are literally disintegrating. It is a fact, not a myth.
He further characterizes the argument he is trying to refute as a charge that works are “moldering away unseen because … the copyright holders are too oblivious to find and exploit useful items.” It’s not just that they are oblivious, but that they are completely unaware of their ownership. It’s called the orphan works problem and I assume he’s familiar with it. You can read more about it here. Film is a fragile medium and to preserve it one must copy it. (The same goes in many respects for photos, too.) Copying without permission, of course, is infringement–even if you can’t find anyone of whom to ask permission. This means that even if I wanted to restore 50 orphan films on the verge of disintegration so that I could make and sell an Amazon DVD pack–a fine motive–the copyright on those films will prevent me from doing so. The longer copyright terms are extended, the longer I can’t restore and sell the movies, and with disintegrating film time is a major factor.
It also does not follow that because there are DVD packs for sale on Amazon that all films will benefit from restoration. As the LOC’s report sates:
If there is a single division that separates most of the preservation issues discussed in this report, it is between two categories of films: those that have evident market value and owners able to exploit that value; and the other films, often labeled “orphans,” that lack either clear copyright holders or commercial potential to pay for their continued preservation. In practice, the former are primarily features from major Hollywood studios; the latter–numerically the majority–include newsreels and documentaries, avant-garde and independent productions, silent films where copyright has expired, even certain Hollywood sound films from now defunct studios. For these films the urgency may be greatest.
DeLong further seems to argue that without extended copyright protection, the Amazon DVD packs would not exist. He asks, “Would such treasures be available if there were no money to be made from making them so? Doubtful.” But I would point him to another series for sale on Amazon called Dover Thrift. It is a series of books, priced at about $2 each, the underlying works of which are all in the public domain. That is, they are being printed–and someone is making money–without copyright.
Therefore, what I argue for is not no copyright, but rather sensible copyright. I argue for taking into consideration the public domain, and not just the interests of creators, when setting copyright terms. What should be the balance is up for debate, but an informed debate requires that we face facts and not simply dismiss those facts as urban legends because they are inconvenient to our position.
Cross-posted at TLF. You can leave and read comments there. →
WSJ: Who’s Your Daddy?
Bridget Dooling and I have an article in this weekend’s Wall Street Journal. It’s the Rule of Law column and, not surprisingly, it’s on orphan works. Here’s a bit:Fiddling with copyright terms and registration, however, would require not only the abrogation of several international intellectual property treaties, but also the political will in Congress to stand up to movie and publishing lobbies. Luckily, a much simpler solution is possible, and an orphan works component can be snapped into the existing copyright system. Congress can create an affirmative defense — along the lines of fair use — for those who copy a work after trying unsuccessfully to locate the copyright owner.
Images of orphans
On their blog, the Stock Artist Alliance continues to post disingenuous entries that suggest that it is impossible to locate the copyright owner of an image found online. They surf the web and grab a few images, then they post them on their site (not the originals, mind you, but a composite image that you can’t use to track back using filename or file size data — they’ve done this here and here), and then they dare anyone to find where they came from. In yesterday’s post they write,We searched the internet and found these eight images from a variety of sources. It was easy enough to find them, but would not be easy to find some of them again. None had file names that were helpful, and none had any metadata at all. So if you cannot locate the source after doing your own “diligent search,” should you feel free to use them anyway?
First, the SAA never reveals where it got the photos. If I found a photo on a website and I wanted to use it and the filename wasn’t helpful and there was no metadata, I would not throw my hands up in the air. I would quite simply contact the owner of the website where I found the picture. This person might be the copyright owner or at least will be able to tell me where they got the picture providing me my first lead in a reasonable search. The SAA seems to ignore that one can take the context of the picture into consideration; uncredited photos are not simply flying around cyberspace.
Context means a lot. For example, without saying which photo and which specific site, the SAA explains that one of their sample photos comes from a U.S. government site and seems to imply that the government owns the copyright. Knowing that context is helpful because U.S. government works are in the public domain by law and anyone is free to copy them.
Second, the fact that works are uncredited is a problem. However, one the causes of that problem is that authors/owners today feel free to release those works without attribution knowing that they will retain their full rights and that they will be able to pop out, sue, and collect heavy damages from an unsuspecting user who couldn’t find them to ask for permission. So, in many cases, authors/owners don’t bother putting attribution on their works. An orphan works law would help remedy this by giving author/owners an incentive to mark their works and to make sure they stay marked.
Lessig on orphan works
Lawrence Lessig has posted his thoughts on the Copyright Office’s orphan works report. He is largely critical of the report’s conclusions and continues to support the proposed Public Domain Enhancement Act (PDEA), which was based on his ideas. In my recent paper with Bridget Dooling, we show why the PDEA solution is unworkable. But I think it’s worth addressing some of the points Lessig makes in this new response.Continue reading this post »
More opposition to orphan works legislation
From Illustrators’ Partnership: “This legislation jeopardizes visual artists’ copyrights and robs artists of income.” I don’t see how this is the case. The whole problem with orphan works is that they go unused if an author/owner can’t be found. If they go unused, authors don’t get a royalty. With this legislation in place, potential users will have to diligently attempt to find the owner. If they find the owner, they must pay for a license. If they don’t find the owner because they didn’t conduct a diligent search and they nonetheless use the work, then authors are no worse off than they are today because they’ll never know of the infringement, or, if they do find out, they will be able to successfully sue in court and recover damages. If the would-be user doesn’t find the owner after conducting a diligent search, under the new proposals, they will be able to use works that they now can’t use without facing severe penalties. In a sense, this is a loss of authors’ rights, but certainly not of income.That works go unused today does not benefit artists because unused works do not generate income. What authors who fail to adequately identify their authorship on their works do lose under these proposals is the right to refuse permission to use the work. But as my co-author Bridget Dooling has pointed out, the Supreme Court has quite rightly held over and over again that “the primary objective of copyright is not to reward the labor of authors but ‘to promote the Progress of Science and the useful Arts.’” Orphan works legislation will give authors an incentive to take steps to assure that their works will be traceable back to them, and this in turn will create new information in the world about copyright ownership that we now lack. That is good for everyone, including copyright owners.
Record Brother
I recently found this great site. The proprietor digitizes and posts MP3s of out-of-print spoken word vinyl records, many orphan works, I’m sure. My favorite LP: “Conversations Regarding The Future Of Architecture” featuring Eero Saarinen, Mies Van Der Rohe, Walter Gropius, and others.Opposition to orphan works legislation
The American Society of Media Photographers is leading a coalition of organizations opposed to orphan works legislation. I never thought there would be much opposition to legislation that aimed to fix the orphan works problem. “Everybody wins if this is properly fixed,” I thought. In retrospect, it was naive of me to think that there is any issue in this town that doesn’t have at least two sides to it. Concentrated benefits, diffused costs, lesson learned.It looks like the photographers’ lobby fears that legislation like that proposed by the Copyright Office will allow anyone to use copyrighted works as long as they carry out some perfunctory search. It’s not that simple. Courts will have to be convinced that you couldn’t possibly find the owner before they’ll let you off the hook for infringement. ASMP argues that because photos are often published without attribution, people will be able to claim that they are orphan works and use them with impunity. But just because Time magazine prints a photo without a credit doesn’t meant that it’s an orphan. Before anyone can use it without permission they would have to exhaust all reasonable ways to find the owner. Contacting Time magazine should be my first step, and that should result in finding an owner in most cases. If it doesn’t they’re still not off the hook, they must take every reasonable step possible.
ASMP states, “The bottom line is that, even if you have done everything right, including registering your photographs immediately at the Copyright Office, every photograph that you publish may be up for grabs if it doesn’t have a published credit.” It’s not that clear cut, but even if it were, that’s the beauty of some orphan works proposals, including the one I’ve worked on. Without enacting a new notice formality (that would violate the Berne Convention), it creates a very strong incentive for photographers to include notice on their works and demand that publishers do so as well. Instead of trying to block salutary legislation, photographers should use their lobby to pressure publishers to always give them attribution, which would make everybody’s life easier.
Cross-posted at TLF. You can leave and read comments there. →
Orphan copyrights hearing scheduled
Subcommittee on Courts, the Internet, and Intellectual Property - Oversight Hearing on “The Report on Orphan Works by the Copyright Office.” Wednesday, March 8, 2006 at 2:00 PM - Room 2141 Rayburn House Office Building. (Note to House: Hire the Senate’s website designer, or at least make it possible to link to individual items on your site.)An orphan works affirmative defense
The article I’ve written with Bridget Dooling on orphan copyrights is finally out from the Michigan Telecommunications and Technology Law Review. You can get it here (PDF). In the article we define the orphan works problem and show how it interferes with the use of creative works. We also describe the causes and costs of the problem, critique four of the leading proposed solutions, and propose a new and practical solution of our own. The Copyright Office came out with its orphan works report earlier this month, and the solution they recommended is very similar to ours. Still, Congress has to act before the problem is solved and we hope our paper will be useful in the debate. We would certainly appreciate any comments you might have.Copyright Office completes orphan works report
The Copyright Office has released a study on orphan works that it has been working on for the last year. The great news is that, on a first glance (it’s 127 pages long), it looks like they have adopted the solution that my co-author B. Dooling and I suggested in a paper that we made available to the Copyright Office last year. Our solution is to provide users of orphan works with an affirmative defense against later liability if they can prove that they’ve conducted a reasonable search in good faith. Our paper will be out in a month or two in the Michigan Technology and Telecom Law Review, but in the meantime you can read a couple of short pieces I’ve written on the subject in Brainwash and Regulation Magazine (pdf).Save the orphans.
A new op-ed I’ve written explaining orphan works. It goes with a law review article I’ve co-written with B. Dooling, which is forthcoming.-
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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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