This Ain't Right: Fight the Orphan Works Act

Jeffrey Zeldman pointed out the dangerous Orphan Works Acts making their way through Congress. This act has far-reaching implications for everyone, but the impact is even larger for those who work or publish on the ‘Net. Ultimately Congress is attempting to reduce your rights as a creator (whether you write, draw, design Web sites or sing), by allowing the infringer to make the distinction as to whether or not they tried hard enough to find the owner of the work and reducing the rights of the artist, designer or author.

As noted by Mr. Zeldman, so called “orphaned” content “will be made legally available for use by commercial interests, even when the copyright holder is alive, in business, and licensing the work.”

That strikes the very heart of our society. You work hard to create something, you have every right to maintain ownership and be compensated for that work. If someone steals from you, you have recourse.

It’s Easy to Fight this Law

Luckily there is an easy way to contact our representatives in Congress to educate them on the dangers of this law and to inform them that we expect each and every one to oppose the bad legislation: Go to the Legislative Action Center tell them where you live (so they can match you with your representatives) and choose a letter that you want to send – click and go.

Here’s a snippet of the letter I sent to Senators John Cornyn and Kay Bailey Hutchison and Representative Lloyd Doggett:

I am told that the Copyright Office conducted a study of Orphan Works and that these bills are based on that study. I understand that an orphan work is a work whose owner can’t be located. I am alive, working and managing my copyrights. I can be located. My clients locate me all the time. But that does not mean that anyone anywhere can find me. And frankly, why should the failure of any one person to find me be the measure of whether or not I can be found?

What if 10 people can find me but one can’t? Why should that one person get a free pass to use my work? Won’t that give infringers an incentive not to find me? And why should I be obligated to go into court to prove anything about the diligence of the searcher or the value of my work? What if the same work is found an orphan in one legal proceeding and not in another?

Join the list of groups opposing this bill, spend three minutes to protect the basic rights of those who create what you enjoy.


  1. says

    The EFF has a series of articles about this piece of legislation. This one provides nice coverage and includes Larry Lessig’s position against the bill:

    Towards the end of that article, the author writes: “EFF strongly supports the Orphan Works legislation, while suggesting some changes such as requiring that any database of registered works be free to artists and copyright holders.”

    One of the most important (whether good or bad) parts of copyright law is that the author has to do nothing to guarantee protection via copyright; an author simply creates the work and it is now protected. Are you worried that this law removes that protection, or lessens it?

    It seems that even though “so called ‘orphaned’ content ‘will be made legally available for use by commercial interests, even when the copyright holder is alive, in business, and licensing the work…'” this law provides strong recourse for authors to challenge these claims in court — namely, all the copyright precedent that has supported Big Media for decades.

    This seems like a step in the right direction to me in that it puts the burden of “reasonable search” on the consumer of the content; that’s exactly the kind of language that would be of incredible value to an author fighting a content consumer in court to prove a copyright. I’d prefer that libraries and museums have access to content that’s locked up in copyright limbo. It seems like the best solution would be to shorten copyright terms and include legislation that does something like this…

  2. jay says

    I betcha none of Viacom’s or Bertelsmann’s content is ever orphaned. This legislation is so clearly aimed at the consolidation of content by the big players it hilarious.

  3. says

    Yes, this is a great big can of nasty worms here. They are basically reducing our laws into “he said, she said” terms. Very dangerous. There are already licenses in place, and creators should be able to define how their content should be used.

  4. Tom C says

    There is a LOT of FUD circulating about this bill.

    First, please don’t uncritically accept the hype: this bill is not about letting people “steal” copyright material. Material that is copyright today will still be copyright tomorrow.

    Second, please actually read the bill, or a good summary of it, before deciding that someone can just strip the copyright information from a work and then claim that there was no way they could find the copyright owner and thus it was orphaned. The bill SPECIFICALLY states that cases like this are invalid.

    Next, if someone uses your work believing (or claiming) it to be orphaned, and you find them out, *you will still be entitled to royalties*. READ THE BILL! This doesn’t steal your royalties, nor does it steal your content. It just means that if someone really did try to find who owned something, but couldn’t, you can’t sue them for huge damages in court.

    I don’t know about you, but cutting down on the insane court “punitive damages” doesn’t seem like a bad idea to me. You still get your royalties, but you don’t get to get filthy rich just because Joe Blow forgot to search for your copyright notice in the Farsi language. Sounds reasonable to me.

    Now, as to the details and loopholes. Lots of people are freaking out because of numerous uses of the term “reasonable.” The problem is that this reflects a poor understanding of the law; many, many laws are based upon such vague terms as “reasonable” or “common man.” This simply means that the judge has some discretion when sentencing, and appellate courts have some leeway when deciding issues of fact or law. This isn’t some sinister conspiracy to “take your stuff.”

    I am tired of all the FUD on this. The EFF is hardly a shill for the big content companies (Disney, etc.) In fact, the word I’d use for the relationship is “adversarial.” The idea that the EFF would be secretly working to increase Disney’s IP portfolio is simply laughable at best, and yet the EFF has been steadfast in support of this bill.

    The devil is, as always, in the details, and it remains to see how this will pan out. But please, folks, please don’t fall prey to hysteria, especially when you don’t understand all the facts (like, how copyright already works, today, which won’t be changing).

    This reminds me of the infamous “email tax” chain letters that prompted so many people to write and call their congresscritters years ago — for nothing.

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