According to the program's web site, Music Rules is "a free educational program designed to encourage respect for intellectual property and responsible use of the Internet among students in grades 3-8."
At Ars Technica, Nate Anderson takes a look at the curriculum, which happens to be sponsored by the RIAA, Back to school with RIAA-funded copyright curriculum: "If this sounds more like 'propaganda' than 'education,' that's probably because Big Content funds such educational initiatives to decrease what it variously refers to in these curricula as 'songlifting,' 'bootlegging,' and 'piracy."
I tend to think that copyright basics are part of the discussion about information literacy, plagarism and general internet skills that should be taught as part of teaching in the digital age, as copyright is not just recordings, but also text, images and movies.
"As final editing was being done on a concert DVD of the tour, which included footage from the video projected on stage, Lego declined to grant permission to use its figures, which are protected by copyright.
"'We love that our fans are so passionate and so creative with our products,' said Julie Stern, a spokeswoman for Lego Systems, the United States division of the Lego Group, a Danish company founded in the 1930s. 'But it had some inappropriate language, and the tone wasn't appropriate for our target audience of kids 6 to 12.'"
The Times quotes Tap's attorney, Kia Kamran, saying that the band would have likely prevailed in a copyright infringement suit, because Hickey’s video "does not show the brand's logo and is satirical," but the band "did not deem the fight worth the expense."
Spinal Tap, Lego and copyright infringement together in one story, what could be better?
Variety reports that Warner Brothers and Lego are in talks to move ahead with a Lego film, Warner builds pic with Lego, "
WB is toying with plans to develop a movie around Lego and its popular building blocks. Scribes Dan and Kevin Hageman are penning the script for the family comedy that will mix live action and animation. Warners is keeping the plot tightly under wraps, but it's described as an action adventure set in a Lego world."
The NYT City Room blog reports that J.D. Salinger won a preliminary injunction in his lawsuit against the writer of , Judge Rules for Salinger in Copyright Suit: "In a 37-page ruling filed on Wednesday, Judge Batts issued a preliminary injunction — indefinitely barring the publication, advertising or distribution of the book in this country — after considering the merits of the case."
Without reading 60 Years Later: Coming Through the Rye or the ruling, it's difficult to see what features made the book an infringing derivative work rather than transformative fair use parody.
Here is the order granting the preliminary injunction, Salinger v. Colting (09-Civ-5095, July 1, 2009)
Consumerist, Movies: Dumbed Down Subtitles Ruin US Release Of 'Let The Right One In': "What if you started to watch Let The Right One In, a highly acclaimed foreign film from last year, and you discovered the US release had been renamed Open Up!? That's sort of the experience consumers are having when watching the new release of the movie on DVD and Blu-ray. At some point between the theatrical release and the DVD release, the distributor replaced the original, nuanced English subtitles with dumbed-down ones."
What was the situation that led up to replacing the original subtitles with second-rate subtities? A licensing issue? Does the filmmaker have a claim against the distributor for mangling the original intent of the film with bad subtitles? Does the structure of film distribution contracts leave the filmmaker with any recourse? Is there a moral rights concern?
The NY Public Library event Remix: Making Art and Commerce Thrive in the Hybrid Economy with Lawrence Lessig, Shepard Fairey, Steven Johnson was well-attended and lively discussion, even if the panel was comprised entirely of copyright moderates with no mainstream maximalists or crazy abolitionists.
Here are some rough notes, transcribed and re-ordered from what I wrote down at the panel:
On the continuum of copyright use, the panel talked about a few different uses that can be classified in the following ways:
Incidental and de minimis use. This is where a copyrighted work may appear in another work, either as part of the background. Because of the pervasiveness of copyrighted works all around us, perhaps a more generous threshold than the 6th Circuit's Bridgeport sampling standard (where any use is an infringing use, no matter how small) is the sensible standard.
Transformative use for commentary, criticism
Here is, obviously, the heart of the panel. If a work is transformative and used for non-commercial or substitutionary purposes, it should be classified-- more often than not-- as a fair use.
Is mashup creative? Does it shed a light on the works it builds from? Is the law able to judge the merit of the creativity? If a mashup derives its impact from borrowing the hook, core, or the entire narrative structure, shouldn't there be some level of use that deserves compensation? Where do we draw the line?
But non-commercial transformative uses of copyrighted works online are often lumped in for enforcement purposes with infringing distributions or performances.
How often do we see iconic images in a public space that aren't commercial images?
Commercial substitution.
Siknce Grokster, P2P usage is up substantially. And what percentage of those uses are simply straight-up infringing uses that substitute for purchases of copies? How much P2P usage is simply plain old piracy of current, popular, copyrighted works? That P2P usage is up since Grokster isn't necessarily something to celebrate and RIAA lawsuits aren't necessarily something to ridicule. Widescale piracy does need to be deterred. Whether these lawsuits are
Miscellany
At its best, grassroots activism is actually from the roots, not from above. And it's going to be messy.
Institutions are made out of people. They're PEOPLE! PEOPLE!
The NY Times' Jennifer Schuessler attended and wrote up a succinct summary of the discussion, Steal This Blog Post! "The event felt a little like Burning Man for the so-called Copy Left, with body art to match. Shortly before the talking started, two big guys with big cameras ushered a woman with a cool shoulder tattoo of Fairey’s Obama poster out of her seat. Enforcers from the Associated Press, which claims Fairey violated its copyright, perhaps?"
Here's the complaint in Fairey's lawsuit against the AP seeking a declaratory judgment that "Hope" is not an infringing derivative work, Fairey v. AP
Yesterday, Fresh Air broadcast an interview with Fairey, Shepard Fairey: Inspiration Or Infringement?, "He joins Fresh Air to talk about the image, the dispute, and why he thinks his poster qualifies as a protected work under Fair Use provisions."
Fairey has inspired a whole genre of Hope-inspired images and parodies, such as a Watchmen-inspired image
This week, Amazon announced the details of its second generation Kindle e-book reader. One of the new features is text-to-speech software that can read aloud the text of a document stored on the Kindle.
The Wall Street Journal reports that the Authors Guild is not happy with the feature, "They don't have the right to read a book out loud," said Paul Aiken, executive director of the Authors Guild. "That's an audio right, which is derivative under copyright law." New Kindle Audio Feature Causes a Stir
Typically, audio books are derivative works of the original work and are fixed in a recorded medium. The reader adds his or her own interpretation to the text. The work can stand alone as an artistic creation. (See e.g. the accolades that Jim Dale has received for his readings of the Harry Potter books). However, a Kindle 2 owner could foreseeably forego buying the more expensive audiobook to choose to read aloud the e-book.
But is the Kindle text-to-speech reading a derivative work? With the Kindle 2, the computer is generating a reading of the original work dynamically for the portion of that work the Kindle user chooses to have read aloud. Is it ever considered fixed in a tangible medium? If the text-to-speech reading isn't fixed, then it can not be a derivative work, since a work must be fixed in a tangible medium in order to be copyrightable.
If publishers worry about text-to-speech affecting the market for audiobook rights, perhaps e-book rights (and thus e-books themselves) will become more expensive.
Engadget's Nilay Patel analyzes, Know Your Rights: Does the Kindle 2's text-to-speech infringe authors' copyrights?: "This is actually pretty tough stuff -- as far as edge cases go, this one pushes right up against the boundaries of the current law. On one hand, you definitely have the right to read books that you own out loud using whatever tools you want, and on the other, authors definitely have the right to prevent others from selling audio versions of their works. The Kindle's text-to-speech feature blurs the lines between books and recordings, and that means those two rights are in conflict with each other."
See also John Siracusa's take on the past, present and future of the e-book market, The once and future e-book: on reading in the digital age - Ars Technica: "A veteran of a former turning of the e-book wheel looks at the past, present, and future of reading books on things that are not books."
Tangentially related, Apple's text-to-speech software, MacInTalk, has a major film credit in its resume. In Pixar's Wall-E, MacInTalk voiced the character Otto.
Update (2/12). Neil Gaiman weighs in with a Quick argument summary, "When you buy a book, you're also buying the right to read it aloud, have it read to you by anyone, read it to your children on long car trips, record yourself reading it and send that to your girlfriend etc. This is the same kind of thing, only without the ability to do the voices properly, and no-one's going to confuse it with an audiobook. And that any authors' societies or publishers who are thinking of spending money on fighting a fundamentally pointless legal case would be much better off taking that money and advertising and promoting what audio books are and what's good about them with it."
Evan Brown, Does the Kindle 2’s text-to-speech feature violate copyright law? "Does Aiken have a legitimate gripe? I say it depends on the technology. And the fact that there could be a difference based merely on a technological setup underscores how digital technology has sent some aspects of copyright fumbling towards absurdity."
Is the Isle of Man, which eschews many of the taxes found in other European states, set to become a leader in levying a compulsory tax on internet use to compensate copyright holders for P2P file sharing?
The New York Times reports, Music Industry Imitates Digital Pirates to Turn a Profit, "The government of the Isle of Man announced plans for a system under which consumers with broadband subscriptions would be required to pay a nominal monthly license fee. They could then legally download music from any source, even peer-to-peer services that are outlawed currently."
MusicAlly live blogged the session at MidemNet where Rob Berry, from the Isle of Man's government, announced that the Isle of Man would be launching a porposal for a blanket fee for ISP-based music licensing. MidemNet 2009 Liveblog: Music and ISPs debate
Ars Technica's Nate Anderson reports, Isle of Man gets unlimited music downloads with blanket fee"Few details are available beyond the news that a single blanket fee will cover unlimited download activity for all 80,000 or so Manx residents, with money to then be shared with the music industry. This raises all the obvious questions that compulsory licenses generate, including the fairness of forcing everyone to pay, whether they want to download files or not."
Update, Jan. 20. Coolfer analyzes the BPI response, Isle of Man Proposes Blanket License for Unlimited Downloading. Not What Industry Wants: "What the BPI wants are label-sanctioned services to be bundled with ISP services and hardware. That means more control on the part of the major copyright owners. The Isle of Man's proposal, I imagine, is too 'wild west' for much of the industry."
Google announces that it settled with the Association of American Publishers, who sued the search engine company in 2005 over its plan to scan and index books that are still protected by copyright. Official Google Blog: New chapter for Google Book Search: "This agreement is truly groundbreaking in three ways. First, it will give readers digital access to millions of in-copyright books; second, it will create a new market for authors and publishers to sell their works; and third, it will further the efforts of our library partners to preserve and maintain their collections while making books more accessible to students, readers and academic researchers.
And here are some collected reactions from around the web.
Professors and Practitioners:
Larry Lessig, On the Google Book Search agreement: "This is a good deal that could be the basis for something really fantastic. The Authors Guild and the American Association of Publishers have settled for terms that will assure greater access to these materials than would have been the case had Google prevailed."
James Grimmelmann, The Laboratorium: Author's Guild Settlement Insta-Blogging: "The result of the settlement will be to give Google a license to keep on doing what it’s doing, while allowing the authors to use their now-sharpened knives to sue anyone else who tries to do the same. At that point, of course, Google would be delighted for the authors to succeed, since it keeps the competition at bay."
Neil Netanel, Balkinization , Google Book Search Settlement: "So in many ways the proposed settlement is a win-win-win-win (for Google, the copyright holders, the libraries, and the public). But there are some causes for concern as well. Perhaps most importantly, the settlement leaves undecided the issue of whether Google's scanning of the entire books and display of snippets is a fair use. Many observers, including me, believed that the courts would ultimately hold that it is a fair use, and thus set important precedent establishing that such 'transformative uses' of copyrighted works -- uses that serve the shared goals of copyright and the First Amendment -- do not infringe copyright."
Mike Madison, On Google Book Search: " The proposal offers a new and larger set of questions, questions that have surrounded Google generally for some time but that the proposal puts into more concrete focus: Are we seeing the early stages of the beginning of the end of copyright law as we know it?"
Susan Crawford, Google settlement: Changing Defaults: "Yesterday’s settlement agreement is remarkable in many ways. It’s a proposed settlement of a civil, private lawsuit, but the agreement feels public. It affects an entire industry, not just the parties concerned. It sets up a new kind of special-purpose collective rights association (h.t. James Grimmelmann), like ASCAP or BMI. Instead of Google acting to create access to a great library of books, it seems to point to the creation of a tremendous bookstore. Perhaps that’s the same thing, but it’s worth thinking about the changed default settings that this arrangement creates."
Siva Vaidhyanathan, The Googlization of Everything, My initial take on the Google-publishers settlement: "this settlement, if it goes through, dodges that great copyright meltdown that I had feared. I did not want to see Google lose this suit in court. And I was confident it would. Google lawyers assured me that they were even more confident they would prevail. And they are smarter than I am. But clearly both sides saw real risk in continuing toward a courtroom showdown."
C.E. Petit, Scrivener's Error: "On balance, I think this settlement is not in anybody's best interests... but, as usual, the actual creators of content will be screwed most thoroughly."
Lobbying Groups:
Arts+Labs (Current members include AT&T, Viacom, NBC Universal, Cisco, Microsoft and the Songwriters Guild of America), Arts+Labs Statement on the Google Settlement with American Association of Publishers, "This settlement shows that creators' rights and consumer benefit can go hand-in-hand in the Internet age. It is a victory for consumers and creators alike. The agreement demonstrates that collaboration between the technology community and the creative community can give consumers access to a wealth of resources while also preserving copyright owners' right to control how their work is distributed online and to earn fair compensation for their creativity."
Patrick Ross, The Copyright Alliance, A Good Day for Authors: "It is refreshing to see we are finally where we should have been several years ago, developing a marketplace solution that allows copyright owners to grant access in return for compensation and allows those seeking access to written works to obtain it. I should also note that the libraries above participated in the talks and thus are presumably satisfied at the access this agreement gives to their patrons and others interested in access to works both copyrighted and public domain."
Reporters:
New York Times, Google Settles Suit Over Book-Scanning: "Google plans to take 37 percent of the revenue, leaving 63 percent for publishers and authors. If Google sells ads on pages where previews of scanned books appear, it will split the revenue on the same basis."
Chris Snyder, Wired, Google Settles Book-Scan Lawsuit, Everybody Wins: "Google's settlement of a three-year old lawsuit challenging its Book Search program, which scans books and make portions available online, creates a new revenue stream for authors and publishers (and itself) — but the financial benefits are dwarfed by the clear field the company now has to complete an ambitious program to create a global digital library."
Jessica Guynn, LA Times, Google settles copyright dispute with publishers and authors: "If approved by a Manhattan federal court judge next summer, the settlement has the potential to revolutionize the publishing industry by creating a giant online marketplace that would dramatically increase the volume of literature available to readers and researchers -- while compensating authors and publishers."
Rob Hof, Business Week, Google Settles Book Search Lawsuits with Authors, Publishers: "As a book lover, what I find the coolest thing about the deal is that eventually, I’ll be able to visit most any library and, using at least one terminal that will be set up at each library, view digital versions of these books for free (though I’ll have to pay to print out pages). It’s nice that all the sides managed to agree on something that is demonstrably a good thing for all of us."
NewTeeVee reports: Super Bowl Ads of Yore Revamped for '08 Election: "Now, with the election just a week away, we've come full circle with two more ads from Super Bowls past revamped for online political purposes. Office Linebacker 'Terrible' Terry Tate has returned to put the hurt on fools who don’t vote, while the 'Wassup' guys guys have suffered every great malady our nation has gone through over the last eight years."
Wall Street Journal, 'Whassup' Comes Out for Obama - WSJ.com: "The parody is raising eyebrows in ad circles, partly because Budweiser's maker, Anheuser-Busch, can't do much to stop it. In a departure from normal industry practice, neither Anheuser nor its ad firm, Omnicom Group's DDB Chicago, own the Whassup slogan or concept. Instead, the brewer paid Mr. Stone roughly $37,000 to license the idea for five years. That deal expired three years ago, says Mr. Stone, who appeared with his buddies in several of the Budweiser Whassup ads."
In what is likely to be the most magical copyright case to come to the Southern District of New York this year, US District Judge Robert Patterson ruled in favor of Warner Brothers and J.K Rowling against RDR Books, finding that the publisher of the Harry Potter Lexicon infringed on the plaintiffs' copyrighted expression in the collected Harry Potter works. Warner Bros. Entertainment, Inc. v. RDR Books
While a victory for the original author, this case does provide useful guidance for future reference guides to fictional works on how to create a guide that will be considered fair use.
The key issue that the court has with the Lexicon is the extent to which it borrows language directly from the original Harry Potter novels and companion books. The court writes, "Although it is difficult to quantify how much of the language in the Lexicon is directly lifted from the Harry Potter novels and companion books, the Lexicon indeed contains at least a troubling amount of direct quotation or close paraphrasing of Rowling's original language. The Lexicon occasionally uses quotation marks to indicate Rowling's language, but more often the original language is copied without quotation marks, often making it difficult to know which words are Rowling's and which are Vander Ark's. … Although hundreds pages (sic) or thousands of fictional facts may amount to only a fraction of the seven-book series, this quantum of copying is sufficient to support a finding of substantial similarity where the copied expression is entirely the product of the original author's imagination and creation."
Invented facts-- such as the properties of a boggart-- constitute creative expression protected by copyright. Each "fact" reported by the Lexicon is actually expression invented by Rowling. Reproducing original expression in fragments or in a different order, however, does not preclude a finding of substantial similarity. However, the Lexicon's rearrangement of Rowling's fictional facts does not alter the protected expression in a way that the Lexicon ceases to be substantially similar to the original works.
The court finds that the Lexicon is not an infringing derivative work because it is not sufficiently creative to be a derivative work. "By condensing, synthesizing, and reorganizing the preexisting material in an A-to-Z reference guide, the Lexicon does not recast the material in another medium to retell the story of Harry Potter, but instead gives the copyrighted material another purpose." In a footnote, the court goes on to note that this is the key difference between derivative works which are infringing and works of fair use, which are permissible.
The defendants raise the defense that the Lexicon is a fair use of material from the Harry Potter books, but the court rules that the Lexicon is insufficiently transformative to be a fair use. "The purpose of the Lexicon's use of the Harry Potter series is transformative. Presumably, Rowling created the Harry Potter series for the expressive purpose of telling and entertaining and thought provoking story centered on the character Harry Potter and set in a magical world. The Lexicon, on the other hand, uses material from the series for the practical purpose of making information about the intricate world of Harry Potter readily accessible to readers in a reference guide. … Because it serves these reference purposes, rather than the entertainment or aesthetic purposes of the original works, the Lexicon's use is transformative and does not supplant the objects of the Harry Potter works." The Lexicon's use of material from the companion books, which started life off in encyclopedic form, does add value by "adding a productive purpose to the original material," it is transformative "to a much lesser extent" since it largely supplants "the informational purpose of the original works."
"While not its primary purpose, the Lexicon does add some new insight, of whatever value, as to the Harry Potter works."
"The transformative character of the Lexicon is diminished, however, because the Lexicon's use of the original Harry Potter works is not consistently transformative. … Perhaps because Vander Ark is such a Harry Potter enthusiast, the Lexicon often lacks restraint in using Rowling's original expression for its inherent entertainment and aesthetic value." The inconsistent use of diligent citations by the Lexicon contributes to a lack of transformative character in those instances where its value as a reference guide lapses.
Weighing most heavily against Defendant on the third factor is the Lexicon's verbatim copying and close parahprasing of language form the Harry Potter works. In many instances, the copied language is a colorful literary device or distinctive description.… The Lexicon's verbatim copying of such highly aesthetic expression raises a significant question as to whether it was reasonably necessary for the purpose of creating a useful and complete reference guide.
"Additionally, the fourth factor favors Plaintiffs if publication of the Lexicon would impair the market for derivative works that Rowling is entitled or likely to license. Although there is no supporting testimony, one potential derivative market that would reasonably be developed or licensed by Plaintiffs is use of the songs and poems in the Harry Potter novels. Because Plaintifs would reasonably license the musical production or print publication of those songs and poems, Defendant unfairly harms this derivative market by reproducing verbatim the songs and poems without a license."
The court confirms that it should be possible to write a guide to a series of novels that does qualify as a fair use, by lifting less of the language directly.
"Notwithstanding Rowling's public statements of her intention to publish her own encyclopedia, the market for reference guides to the Harry Potter works is not exclusively hers to exploit or license, no matter the commercial success attributable to the popularity of the original works. The market for reference guides does not become derivative simply because the copyright holder seeks to produce or license one.… Furthermore, there is no plausible basis to conclude that publication of the Lexicon would impair sales of the Harry Potter novels… reading the Lexicon cannot serve as a substitute for reading the original novels; they are enjoyed for different purposes. The Lexicon is thus unlikely to serve as a market substitute for the Harry Potter series and cause market harm.…
"In striking the balance between the property rights of original authors and the freedom of expression of secondary authors, reference guides to works of literature should generally be encouraged by copyright law as they provide a benefit readers and students; but to borrow from Rowling's overstated views, they should not be permitted to 'plunder' the works of original authors 'without paying the customary price,' lest original authors lose incentive to create new works that will also benefit the public interest."
Other links and commentary:
Michael Madison, madisonian.net Eyes on the Fair Use Prize: "The interesting half of the opinion, from my point of view, is the treatment of the fair use argument. In effect, and without belaboring a critique of the full opinion, the court decided that the Lexicon, while alleged to be a work of scholarship, wasn’t scholarly enough."
Derek Bambauer, Info/Law, Rowling 1, Lexicon 0: "This case tees up hard copyright questions. What is the boundary of the term of art ‘derivative work’? How broad should an author’s control be over secondary, non-scholarly works treating her expression? How should courts deal with inventorying of ‘fictional facts’? This opinion resolves some of these questions in the Lexicon case, but I feel less certain it answers them for future plaintiffs."
Scrivener's Error, Harry Potter and the Copyright Infringement: "Contrary to the whingeing (and outright screaming) that you're going to hear, this is not a rejection of fair use as a concept. It is, instead, limited to the particular facts that were presented to Judge Patterson for this matter."
David Ardia, Citizen Media Law Project, Judge Rejects Fair Use Defense in Harry Potter Lexicon Case, J.K. Rowling Recovers Her Plums: "So what are we to make of the court's lengthy exposition on fair use? As I already noted, Judge Patterson's framing of the facts seems to have dictated how his fair use analysis would come out. Nevertheless, there is some good news in the opinion for fair use advocates."
NY Times, Rowling Wins Lawsuit
Against Potter Lexicon: "For seven years, a Harry Potter fanatic worked on a guidebook to J. K. Rowling's best-selling series, but in the end, a federal judge ruled on Monday, his book was too close to the work he admired."
I was too busy playing Scrabulous last week to blog about the complaint filed by Hasbro against the creators of Scrabulous, the online word game that happens to share the board layout and rules of play of Scrabble.
Complaint in Hasbro v. RJ Softwares (08cv06567, NYSD filed Jul. 24) for copyright infringement, trademark infringement, trademark dilution and common law unfair competition.
Facebook forwarded the takedown notice to the Scrabulous developers who prevented access to the application for addicts users in the US and Canada.
In the NY Times Bits Blog, Brad Stone reports Hasbro Notches Triple-Word Score Against Scrabulous With ‘Lawsuit': "'Hasbro has an obligation to act appropriately against infringement of our intellectual properties,' said Barry Nagler, Hasbro’s general counsel, in a statement. "We view the Scrabulous application as clear and blatant infringement of our Scrabble intellectual property, and we are pursuing this legal action in accordance with the interests of our shareholders, and the integrity of the Scrabble brand.'"
Wendy Seltzer argues that a game like Scrabble is not a sufficiently creative form of expression to be copyrightable. Scrabbling for Legal Rationalism: No Copyright for Games: "So the 'methods of operation' — the rules of the game, should be uncopyrightable no matter how intricate. Their particular expression in an elegantly written manual may be protected, but another is free to extract the underlying ideas and rewrite the manual to describe an identically played game."
At Madisonian, Frank Pasquale also wonders about whether copyright protects the Scrabble board, but that the similarity between the marks seems like to lead to a likelihood of confusion, Absolutely Scrabulous: "But that still leaves the elephant in the room%u2013the substantial similarity between Scrabulous and the mark Scrabble. But in keeping with the theme of this post (of pushing defenses here to the breaking point)%u2013could Scrabble be generic? I know that%u2019s doubtful, but I also have a sense that there is no other way that people refer to the %u201Cgame that involves seven lettered tiles played for points on a board that includes double and triple letter and word scores.%u201D On the other hand, if you asked the %u201Cman on the street%u201D if Scrabble is the name of a word game or the name of trademark for a company%u2019s (version of a) word game, it seems like the latter interpretation is at least as likely as the former for someone with an elementary knowledge of the law."
More than anything in the short term, the takedown will be the best promotion for Hasbro to drive traffic to the licensed Scrabble application (which, surprisingly, is dreadfully slow and ugly compared with the simple and relatively elegant Scrabulous application.)
Here are some more links to pieces discussing the orphan works problem in general along with specific criticisms of the Orphan Works Act of 2008.
Gigi Sohn, Public Knowledge, The Orphan Works Act of 2008: Copyright Reform Takes Its First Steps: "Why do we have all of these orphan works in the first place? We have them because starting in 1978, copyrighted works no longer needed to be registered to get the full protection of copyright law. The consequence of this automatic copyright has been that it has become very difficult to find who owns the rights to a particular work. Even when works are registered, sometimes the owner is a company that goes out of business, or an individual who dies, or sometimes the registration is never updated. If you are a person or institution that wants to use a work under copyright but cannot find the owner, even after a thorough search, you are out of luck — current copyright law provides the same onerous damages whether you are a good faith actor or a pirate. And these damages can range anywhere from $750 to $150,000 per infringement. So nobody takes the risk that the copyright owner will show up and drag him to court. As a result, orphan works are relegated to the dustbin of our culture."
Nancy Prager, Fundamentals of Copyright and the Problem with Lost Owners: unintended consequences: "Unfortunately, the proposed bill fails to offer the original creators of a work any protections related to: 1) the right to make decisions about whether their work can be used; 2) payment; and 3) attribution. In fact, the legislation — which doesn’t even mention creators — could override contract terms that have been spelled out between a creator and a record label."
Carolyn Wright, Photo Attorney, They Still Don't Get It: "While it is true that OW does not make registration with the private registries mandatory, registration will be required if photographers want the same protection for their works as they have now. Specifically, for those photographers who register their photos with the Copyright Office, they also would have to register with the private registeries to rebuff a potential OW defense and thus be eligible for statutory damages, the primary weapon that creatives have to fight infringements."
Donn Zaretsky, The Art Law Blog, On Not Getting It: "There are reasonable grounds for opposing the legislation, and I've discussed some of them here before. But it seems pretty clear to me that the creation of a new private registry that would make it easier to find authors who want to be found is simply not one of them."
Susan Scafidi, Counterfeit Chic, Orphan Works and the Adoption Process: "While many agree that the basic idea has merit, the reality is somewhat more complicated. After almost two decades of telling creators that they don't have to do anything to receive protection, is it fair to penalize them for not showing up in the Copyright Office's searchable records? What's a 'diligent effort' to find a copyright holder? What's 'reasonable compensation' if the copyright holder turns up later? And -- perhaps most relevant to the apparel industry -- what about the difference between the kinds of works on which it's easy to display copyright notice (a book, for example) and the kinds of works that often don't bear the author's name (like a printed textile that's been cut and sewn into a garment)?"
Dan Lewis suggests going even further and that online publishers should have bear the burden of taking an action to maintain copyright in abandoned works, Copyright and the Duty to Maintain "In the digital age, with content available over the Web, why put all the burden on the subsequent user of the content? Instead, let’s shift the burden on the rights-holder to, in the very least, maintain his content and/or contact information"
Here's an Ask Metafilter post looking for assistance with a real-life example of an orphan work issue-- a willing licensee unable to find the copyright owner in order to obtain a license, I can has copyright permission?: "I am now in the position where I would like to obtain permission to reuse an image, but am having a hell of a time tracking down the copyright owner."
