muskrat_john ([info]muskrat_john) wrote,
@ 2008-05-15 09:41:00
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Current location:Muskrat Central
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Entry tags:orphan works

An open letter to the U.S. House on the Orphan Works Bill
May 12, 2008
An open letter to the U.S. House Subcommittee on the Courts, the Internet and Intellectual Property

The Association of American Editorial Cartoonists (AAEC) and The National Cartoonists Society (NCS) are profoundly concerned with the current Orphan Works legislation now being considered by both houses of Congress. Our two groups are comprised of the creators of nearly every major newspaper comic strip and editorial cartoon, as well as many of the nation's magazine, book, greeting card and comic book illustrators.

The legislation imposes new and onerous burdens on the current holders of copyrights to protect their work, while severely curtailing their ability to collect damages. It devalues their work in the marketplace and will open up a Pandora's box of potential infringement scenarios, all while placing the burden for policing the marketplace on artists and authors.

We support the narrow goal of making truly orphaned works (that is, ones by deceased authors) available for use by museums and archivists. But proposed legislation is written so broadly that it will almost certainly unleash a torrent of mischief by unscrupulous infringers, with little to fear in the way of legal consequences.

Both the AAEC and NCS hope your committee will reconsider this dramatic erosion of current copyright protections.

Sincerely,

Nick Anderson
President
The Association of American Editorial Cartoonists

and

Jeff Keane
President
The National Cartoonists Society




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[info]daemionfox
2008-05-15 02:59 pm UTC (link)
I still don't get all the panic from the professional groups. The bills going through Congress and the Senate only serve to further define current copyright. Not make things harder than they are.

Law in plain english -> http://daemionfox.livejournal.com/317932.html

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[info]muskrat_john
2008-05-15 03:16 pm UTC (link)
The fact that it's widely expected to "open up a Pandora's box of potential infringement scenarios, all while placing the burden for policing the marketplace on artists and authors" is enough for me.

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[info]ah_graylensman
2008-05-15 04:37 pm UTC (link)
I wish they'd be more specific about what they mean by "open up a Pandora's box of potential infringement scenarios". I've read the House version of the bill, and I just don't see it.

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[info]drharper
2008-05-15 03:09 pm UTC (link)
Wait a second.

I thought we went through all of this a couple of months ago. And it was shown that there WASN'T any bills in the Congressional queue about this and the one everyone was using to set off the panic was one from several years ago that died in committee.

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[info]kensan_oni
2008-05-15 03:11 pm UTC (link)
Personally, I've been thinking this has been an elaborates plot to bring it back to the table by some weirdo... but I admit sometimes I play Illuminati...

I just haven't figured out the why yet.

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[info]muskrat_john
2008-05-15 03:15 pm UTC (link)
H.R. 5889 - The Orphan Works Act of 2008 and S. 2913 - The Shawn Bentley
Orphan Works Act of 2008 - vote expected on the Senate Floor tomorrow – 5/16/08

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[info]captaingeek
2008-05-15 04:04 pm UTC (link)
I completely support any efforts to protect the creative efforts of all those who would be affected by this legislation.

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[info]fuzzface00
2008-05-15 04:26 pm UTC (link)
Sounds good overall, but I haven't read the bills yet...

My only concern here is that I would like to see "orphaned" defined a bit more broadly. If a copyright holder has clearly abandoned a piece of material, and a potential publisher makes a concerted effort to locate the holder (and is unable to succeed) then the publisher should be allowed to use the work. Assuming such a system exists, there is a clear need for protecting the holder (escrow of profits or some such) if they turn up later.

Yup, I know it is murky. Let me give an example of why I think this would be a good idea. There are games out there which are no longer in print, the companies no longer exist, and the owners have disappeared. It would be cool to bring those games back into the market for new people to enjoy. However, as I understand it, the current copyright law says I would have to wait until the holder's death (how do you determine this if they do not want to be found?) plus 70 years. Those limits are so long that there is no legal recourse to go forward. Maybe a couple of generations from now will reprint them, if they even know about them.

It isn't easy. I'm not the cleanest guy when it comes to such issues. I wish I had a good answer.

PS: John, listen to your office voice mail.

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[info]midwest1112
2008-05-15 04:37 pm UTC (link)
If anyone wants to read about exactly how this legislation will negatively impact creatives by allowing pretty much anyone (especially large production companies)to steal creative works, here are two excellent links explaining it all in layman's terms:

http://mag.awn.com/index.php?ltype=pageone&article_no=3631

http://capwiz.com/illustratorspartnership/issues/bills/?billid=11320236

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[info]kanousal
2008-05-16 03:46 pm UTC (link)
Except, for the most part, both of those pieces are attempting to scare readers by putting forward some wildly exaggerated interpretations of both of the proposed bills. Mr. Simon's hunch that the proposed registries will be used to orphan works is plainly incorrect. Nothing in either bill mandates that copyright holders register their works in such registries and the Senate explicitly states that a qualifying search must look beyond such registries. And in both bills, the failure to engage in a qualifying search removes the limitations on remedies and exposes the infringer to the full brunt of a copyright infringement action.

So what are these limited remedies? Simply that an infringer who engaged in a diligent search must compensate a subsequently identified copyright holder for the use of their copyrighted work at a reasonable rate - a rate which both bills defines as the amount the two parties would have agreed upon regarding the work before the infringement began. So, ultimately, flagrant piracy is no more enabled by these bills. And the argument that these bills will require artists to police their work is a straw man; our current copyright system already requires artists to police their work. For better or worse, nobody will bring a copyright infringement action on behalf of an unaware artist.

And the references being tossed about to how big corporations are going to benefit from these bills in their ability to forcefully take from the little guy is just fear-mongering of the highest order. Big corporations are just as much copyright holders as an individual artist (I'm sure the argument could be made that they in fact collectively possess more copyrights) and they are no more in favor of enabling infringement than the individual artist.

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[info]georgmi
2008-05-15 05:55 pm UTC (link)
IANAL. But I have been exposed to a (very) little copyright law as part of my photography business (blatant plug: http://www.gmimages.com ) My understanding of the law as it currently stands is that in order to have any chance at all of successfully defending a copyright, an artist must have first registered the work with the US Patent Office, before any infringement occurs. Then it is a (relatively) simple matter to show the work being infringed, show the registration of copyright, and thus demonstrate infringement. If you can further show that the infringement was intentional, damages are tripled. In any case, the burden of proof is on the copyright holder, as it should be in a land where innocence is presumed.

It looks to me like the new bill would make "but we didn't mean to" an effective defense against copyright infringement, and that large corporations, with their access to expert legal representation, would gain an even greater disparity of power against individual artists than they already possess.

It also seems to me that, if someone *is* interested in doing due diligence to find the owner of a work's copyright, then if they fail to do so and are later contacted by the owner, they will also be interested in compensating the owner for their use of the work, and the issue will never come to a trial in the first place. If they think they can mount a "we tried" defense, they are more likely to let the court action proceed, with the commensurate expense to the copyright holder and additional burden on our already oversubscribed legal system. And if the work really *is* orphaned, then the copyright holder won't ever bring any action in the first place.

I don't see how lowering the bar for the defense in this case represents a win for anyone except those who infringe on copyrights (intentionally or not).

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[info]alan_de_smet
2008-05-15 06:35 pm UTC (link)
My understanding of the law as it currently stands is that in order to have any chance at all of successfully defending a copyright, an artist must have first registered the work with the US Patent Office, before any infringement occurs.

Not strictly necessary. However, if you don't have the copyright registered, damages aren't tripled, and you'll need to provide some evidence that you are indeed the creator. Public display, especially a display captured by the Internet Archive, or backed up with WebCite would be very good evidence.

It also seems to me that, if someone *is* interested in doing due diligence to find the owner of a work's copyright, then if they fail to do so and are later contacted by the owner, they will also be interested in compensating the owner for their use of the work, and the issue will never come to a trial in the first place.

Excepting of course, if they modeled their business on the presumption that no such owner existed. Maybe they were doing the research because they honestly believed the work was in the public domain, and discovering an owner would have lead to abandonment of the project. Maybe upon believing that no such copyright holder existed, they lowered the price on their work, since they didn't have to pay another person. Either way, they can find themselves with little or no profits and suddenly have the copyright owner demanding money that doesn't exist. The money will come out of pocket, turning all that research and production into a loss. End result: massive disincentive to try and rescue old works whose copyright you can't be absolutely certain about.

I don't see how lowering the bar for the defense in this case represents a win for anyone except those who infringe on copyrights (intentionally or not).

That's the point. Someone who genuinely does not wish to infringe copyright, engages in due diligence to not do so, but accidentally does, should have some defense to avoid bankrupting themselves because of a mistake.

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[info]georgmi
2008-05-15 06:49 pm UTC (link)
discovering an owner would have lead to abandonment of the project

I submit that if your business model depends on not having to compensate the artist, you'd better make damn sure you're right before you take that risk. I also submit that this is an edge case, and the vast majority of copyright infringement cases are not and will not be of the form "fair compensation for the artist equals failure of the business".

Someone who genuinely does not wish to infringe copyright, engages in due diligence to not do so, but accidentally does, should have some defense to avoid bankrupting themselves because of a mistake.

And this can be accomplished under the current law by settling with the infringed artist before a trial has to occur. I still say it seems to me that the net result of the proposed changes will be an increased disincentive to the infringing party to settle, and a commensurate increased cost to the artist and reduced probability of successfully defending the copyright.

The preponderance of the burden imposed by this legislation appears to me to be on the artist, who is least likely to be able to afford that cost.

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[info]alan_de_smet
2008-05-15 07:13 pm UTC (link)
I submit that if your business model depends on not having to compensate the artist, you'd better make damn sure you're right before you take that risk.

Agreed. And at the moment "damn sure" means, "nothing after 1923." If you tell a lawyer, "I've spent thousands of dollars researching this, and as best I call, there is no one who is claiming to own it, is it safe to reprint it?" the lawyer will tell you no. If you look for an insurance company to insure you against the risk, they'll laugh at you. So republication of such works stagnates.

I also submit that this is an edge case, and the vast majority of copyright infringement cases are not and will not be of the form "fair compensation for the artist equals failure of the business".

Agreed. I agree so much that I'm baffled why you brought it up. We're talking about an edge case: works that appear to be orphaned, but aren't. The guy selling bootleg copies of Star Wars is not going to use an orphaned use defense. The court will laugh at Joe Blow claiming he did a diligent search and determined that last week's Daily Show was orphaned when he uploaded it to YouTube.

And this can be accomplished under the current law by settling with the infringed artist before a trial has to occur.

That puts all of the power in the copyright holders hands. They can demand an unreasonable settlement. If everyone involved was reasonable and friendly we could gut a hell of a lot of the existing copyright law.

The preponderance of the burden imposed by this legislation appears to me to be on the artist, who is least likely to be able to afford that cost.

This is part of why I'm not real sold on this exact implementation. It creates private registries to suck off a percentage of profit while creating negligable value. And it does as lots of fiddly details for artists to fret about. I don't believe it will be as terrible as many people claim; the courts aren't quite as insane as people believe.

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[info]georgmi
2008-05-15 07:26 pm UTC (link)
I agree so much that I'm baffled why you brought it up. We're talking about an edge case

I bring it up because when I evaluate things, I tend to want to balance the costs against the benefits, and with the proposed legislation, when you look at the likely distribution of cases, the benefits to the guy who *is* duly diligent are far outweighed by the costs to the infringed artists who will newly be defeated in gaining fair recompense by the guys who think they can prove due diligence to a jury, or at least prevent the artist from proving a lack thereof.

I submit that there is a massive middle ground between Star Wars and Hamlet, that this middle ground is where most cases under the proposed legislation will fall, and that the artist's rights are more damaged than the diligent infringer's rights are protected.

It is possible that *something* needs to be done to protect those who are sincerely trying to protect disappearing culture; I do not believe, however, that this legislation is what should be done to accomplish that.

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[info]georgmi
2008-05-15 07:30 pm UTC (link)
Sorry, missed a point--

That puts all of the power in the copyright holders hands.

That's where the power *should be, in my opinion.

They can demand an unreasonable settlement.

No, they really can't. In practice, all they can demand is the maximum they would be awarded by taking the case to court, modulo the legal costs. (Whether triple damages represents an unreasonable amount is different argument. :) )

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[info]alan_de_smet
2008-05-15 06:27 pm UTC (link)

As copyright gets longer and longer*, more and more works are entering copyright limbo. They might be under copyright. No one knows who holds the copyright, if anyone. Our culture rots and disappears as a result, all to protect a minutely small number of works which are still profitable. At the turn of the century, when Mickey Mouse was created, someone could go back 56 years into the common culture to find works to revisit.† Now you need to go back 70 years, minimum. If you can't identify the creator, you'll have to guess when they died, then add 70. Of course, with easily people living to 70 in the US, it means you can't touch anything newer than 140 years old if you can't identify the creator. (In reality anything before 1923 is safe, but that's it and all that will be for some time. In 1998 only works before 1923 were safe. Today, only works before 1923 are safe. In 2018, only works before 1923 will be safe.)

We need an orphan works clause to protect our culture!

The current law sounds flawed to me. But I'm not getting a sense that the opposition is really interested in improving it; they just want to kill even the slightest threat to infinitely powerful copyright. Take, for example, Anderson and Keane here. They think it's good enough to limit orphaned works to deceased creators, and to limit access to libraries and archivists. Complete and utter crap. What if the creator cannot be identified, how will we know if they're deceased? And why should one's lifespan impact when a work becomes orphaned? What if the work's copyright is held by another party, as in a work-for-hire arrangement? Ultimately, if no one is willing to step forward to say, "I hold this copyright," why shouldn't others be allowed to step up to spread and preserve the culture?

* Under copyright laws of the era, Mickey Mouse's first short should have entered the public domain in 1984, 56 years after creation. Several years earlier copyright was extended to 75 years for works for hire, so Mickey should have been free in 2003. A few years before that, sure enough, another extension to 90 years, and Plane Crazy remains off limits until 2018.

† But if you're looking to old works, you're obviously just a thief who can't create anything new yourself, right? At least you're in the good company of Disney, who pinched The Jungle Book just a few years after its copyright expired.. Or see Snow White and the Seven Dwarfs, Cinderella, Pinocchio, The Hunchback of Notre Dame, Alice in Wonderland, and more. You'd also be in the good company of Alan Moore (League of Extraordinary Gentlemen), Leonard Bernstein and Stephen Sondheim (West Side Story), and Shakespeare (Romeo and Juliet).

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[info]georgmi
2008-05-15 06:57 pm UTC (link)
It seems to me that the older the work, the less likely that the copyright holder is around to defend their title, and that the business risks of using an old work when you can't find the owner can be fairly readily calculated, provided your search has been diligent enough. And by "diligent enough", I mean "diligent enough to sufficiently diminish the probability of having made a mistake", not "diligent enough to satisfy a jury of non-experts".

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[info]daffodil_aura
2008-05-16 01:13 am UTC (link)
We need an orphan works clause to protect our culture!

I disagree.

What we need is a rollback of copyright duration to something that makes sense. A copyright is so the creator can get profit out of their creations, and determine how or how not they are to be used. It's not supposed to be so great-great-grandkids get to make these decision, or corporations get to hold onto things forever. "Live Plus Seventy" is way too long. Anything beyond life, for that matter, is way too long.

Dead men tell no tales. And thus have no need for copyrights.

What we do not need, however, is something that essentially mandates registration of works (every single little sketch, blog entry, story idea, screenplay-in-development, photograph, etc) in order to be safe.

Orphaned Works, as attempted to be defined, gives a license to steal to big corporations everywhere. "Thou shalt not steal" has become "Thou shalt steal everything that isn't nailed down."

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[info]tabbyfoo
2008-05-15 08:37 pm UTC (link)
This totally has nothing to do with anything, really, but it occurred to me as I was driving down the road obsessing about scrabulous on facebook that it would be a phenomenally awesome thing if there were an online 4-player version of apples to apples.

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[info]nanagukris
2008-05-16 05:15 pm UTC (link)
Isn't "life plus 70" going to be extended again next time Snow White is in danger of running out of copyright...?

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[info]mishalak
2008-05-18 04:37 pm UTC (link)
I do not agree and I am disappointed you have been taken in by the hysteria.

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