Orphan Works... What's the latest? And, why?

[amfoto1]

Hi all, I am starting a new thread on this after seeing it buried inside some other discussions about copyright, in hope we can all get some more info on it.

So, I was wondering if anyone has any new info on the status of the Orphan Works bills?

Also, I'm still very concerned about several things....Although I've studied everything I can find about both the House and Senate versions, have read them both, and looked back at the 2006 versions as well. I've even been in touch with my Senator and Rep about them. (I got pretty non-committal responses from both, one of whom chairs the Senate committee with the legislation before it.)

First of all, it worries me to see who some of the big players pushing so hard behind these bills are: Getty, Corbis/Microsoft, Google, for example. Pretty sure they don't have our best interests at heart. So, exactly what prize do you think these corporations have their eye on, that's got them all excited about Orphan Works? I don't for a minute kid myself that there aren't some big gains in it for them, or they wouldn't bother.

Another thing I really can't sort out is why Orphan Works is even needed? I've read the Copyright Office's analysis and comments, and a lot of separate commentary by some people in favor of it. I still just don't get it.

Example... paraphrasing one that's cited in some of the documents... A museum has a huge collection of photos from WWII (some 60,000 images, if memory serves) of prison camps and the holocaust. They'd like to do an exhibit, rightfully feeling that this is important historical information that the public should have access to... But they are afraid to do so because it's impossible to track down all the copyright holders and they're concerned some might pop up and sue them if they just go ahead and display the images.

I'm afraid I don't really buy this. This just sounds to me like the PR spin doctors have been busy searching out heart-tugging arguments in support of this legislation.

For one, there is such a thing as innocent infringment. AFAIK, it's a well-documented defense and one that I think the museum could successfully use should they ever end up in court over using any of the images.

Now, I can understand that even successfully defending themselves in court could be prohibitively expensive. However, I think that's a pretty remote possibility, isn't it? The first steps of any copyright holder are 1. registration of their copyright if it hasn't already been done and 2. a cease and desist letter sent to the infringer... Not court action.

So, couldn't the museum simply remove any infringing images from an exhibit, should a copyright holder be able to prove their ownership and send a letter? Sounds to me like no harm, no foul, no court dates or legal costs involved.

And, if truly need be, wouldn't it be far easier to make minor modifications or additions to existing copyright law, adding some protection for museums and schools, perhaps? (Or is Orphan Works the minor revision?)

Is the real agenda of this to help protect large and very profitable companies from infringement lawsuits and big awards going against them?

Reading the legislation, it appears to me that much of the current clout behind copyright infringement cases will simply disappear. Punitive damages, and possibly reimbursement of legal expenses, might be notably harder to get. This in turn could mean that copyright holders will have a difficult time getting any real legal assistance, since law firms may be far less inclined to offer their services on a contingent basis if there is little or no potential reward.

Add to that, it seems there will be additional new layers of expense and complication registering and protecting one's copyright.

And, even when that's done, the best searches so far are cited at 90% accurate, as if that's anywhere near enough (there are 100s of millions of images made per year, meaning that the 10% the searches overlook could mean literally be millions upon millions of omissions).

A lot of the specific terminology isn't very well defined as yet, or is being left up to determination after the fact. For example, conducting a diligent search might become a recognized defense. But just what constitutes a diligent search is being left up to the Copyright Office to define.

And, how, exactly, is this different from what exists right now?

Is there also a quiet agenda here to privatize much of the work of the Copyright Office and reduce it's burden on government? If so, will privatization be good for, bad for or neutral for the people the copyright system is intended to protect?

And, won't Orphan Works put the U.S. out of lockstep with... hell, perhaps even at odds with all the 130 or so other countries in the world who recognize and follow the Berne Convention and other international law pertaining to intellectual property? The Internet is dragging us all kicking and screaming into a highly global economy, with all the opportunities and problems that brings along with it. To me, Orphan Works seems a bit self-important, separatist and perhaps even a little colonialist in it's essence.

Now, this isn't intended as a rant against Orphan Works. I'm just left with some of these suspicions, concerns and questions (Guess I've watched too many late-nite X-Files reruns). I'd really like to learn that it's not as onerous as it sounds, and that there's nothing to worry about.

So, what have you heard? What are your thoughts about Orphan Works? Hopefully some folks can add some explanations and arguments for it, to set me straight that I'm mis-reading or overreacting to it.

I'm going to add a poll to this, too. Just please be sure to add your comments and thoughts as well.

[breal101]

The ASMP (asmp.org) website has nothing new since the middle of May. I read through the FAQs and listened to the interview with their legal counsel. It did make me feel a little better about the bill. But I still share many of your concerns, registration and associated costs being an unanswered question. I totally agree with what you said about the reasons they give for the need for this bill, really seems like a stretch to me. Violins in the background and a reference to saving the children is the only thing they missed in their BS reasoning.

[bham]

I agree with everything you said amfoto1. I don't see how this legislation will help many (musuems, etc), but with it comes many possibilities of harming many others (copyright owners, photographers, artists, etc).

[sfaust]

I definitely votes that it worries me. I've written to Hatch and Leahy about it more than once. I've written to my Senators and Representatives, more than once. I keep it in the forefront, and do what I can. I mention it on forums, in conversions with other photographers, at my workshops, etc, just to keep getting the word out.

Its very important for us, working professional, hobbyists, amateurs, and mom and pop's family pictures. People need to understand it, and get their own voice out.

If you are reading this and haven't done anything about it at all. Take a moment now to do so. I guarantee that if you don't, you will look back one day and say, ah s*#$, thats that it was about. This sucks! How can they do that. What about my copyright! What gives???

Seriously.

[ilantis]

Definitely an issue for copyright and IP holders to an extent. But I think this is an important point too (taken from this Arstechnica (http://arstechnica.com/news.ars/post/20080425-new-orphaned-works-act-would-limit-copyright-liability.html) article):
If the provisions in the bill are followed and a copyright holder does emerge later, the bill prevents the copyright owner from seeking the normal penalties for infringement. These can include massive statutory damages that need have no relation to any actual losses, and even the threat of such a lawsuit often leads creators to avoid using archival material in documentaries and other such works.
I think this point is significant for the same reason the Patent reform is going on right now too. You have little companies submitting numerous vague applications to the USPTO and sitting on them until they get a chance to litigate. My fave is a company called Technology Patents LLC suing 131 companies for violating a patent that allows SMS messages to be sent through the internet. Link (http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=6,646,542.PN.&OS=PN/6,646,542&RS=PN/6,646,542) This crap clogs the system and stifles innovation; which is why it seems like Congress is interested in the reform.

Back to the Orphan Works bill, the biggest problem for it is that it is so vague like you said. However, I think they are on to something by requiring filing a "Notice of Use" with the Copyright Office prior to using the work in question. I think the bill is a good idea, just off to a less than good start. It doesn't deserve to be signed into law in its current state.

[sfaust]

I also see the reasons why the want to introduce the bill, and the reasons where it is good and beneficial. But it is hastily written and full of traps and burdens on photographers.

If photographs could be positively identified, I think there is a way to make this workable. But since its a visual medium, its very hard to implement a central registration type database where the user and copyright holder can guarantee a connection around a single image. And the burden on the photographer to populate that database with their images should not be overlooked.

I'e, how to I get my huge slide and negative database into the system so they won't get orphaned? And what would that cost me? Even if its a paltry $35 per CD, a huge library could be cost prohibitive. Even at $1 per slide to scan, which is very cheap, a 50K image library would cost $50,000 just for the scanning alone. Add another few bucks to assemble into CD', then $35 per CD, and it adds up.

This sort of stuff needs to really be taken into consideration. My feeling is that it should be a limited application of this bill, and not a widespread global one. Ie, they are trying to fix a situation with art and museums, educational, etc, so why not limit as such and exclude any commercial uses and so forth.

The letters I wrote to the Representatives and Senators basically stated as much. Its a bill that is need, but not as written. The burdens put on small business owners and artists are significant, only to make life easier for those with significant financial resources.

[amfoto1]

My biggest fear is that we'll see it enacted in close to its present form, and relatively soon. Some key industry associations have caved in and "accepted" the inevitable. I think there is a lot of pressure on the House and Senate to get it done this year.

For one thing, I wonder if the "lame duck" status of the Bush administration plays into it or not. Track record would indicate that questionable legislation that's in favor of big business at the cost of small business stands a reasonable chance of being signed into law by the current administration. Who knows what might happen to this sort of legislation after someone else takes office in January 2009. This might be a clue to the time table, if nothing else.

From my view, government has made too many major blunders with important issues like this, causing significant detrimental, "unforeseen consequences" we've had to survive and deal with, only to have to go back to amend their work and correct their mistakes. I'm getting tired of being a legislative lab rat and even feel a bit betrayed by some of the trade associations I pay dues to each year.

And a rush to get it done is all the more likely to create havoc, in my estimation.

I'd really like to hear much more detailed and specific examples of how "the threat of such a lawsuit often leads creators to avoid using archival material in documentaries and other such works".

I still suspect many of the arguments for OW are based on greatly exaggerated examples. Yes, there have been some big awards. But, I'd wager that most were pretty flagrant of copyright ownership. And, even in those cases, early on the infringer probably had the easy option to simply cease and desist, which might have avoided going to court at all.

So, I'd like to see a lot more data on exactly how many major awards for copyright infringement happen, and in specific cases whether or not those big awards (however many there really are) seem reasonably justified.

We're not talking about a cup of coffee bought at the drive-through and spilled in ones own lap, ending up as a million dollar settlement and forcing Starbucks and everyone else to add preemptive, "Caution: contents are hot!" statements of the obvious on their paper cups.

The possible consequences and potential for abuse under the changes Orphan Works proposes seem far broader and deeply costly to us all.

As alternatives, perhaps a more comprehensive, searchable record archiving system that makes better use of modern I'net-based technology (hello Google?) and some tightly defined limitations on courts with cases that involve museums, schools and historians are all that's really needed. Or perhaps these should be put in place and tried for a whle before we consider rewriting large chunks of the basic game plan.