I’m the Senior Editor for http://www.myartspace.com. I oppose the Orphan Works bill in its current form. I invited Brad Holland to respond to an interview I had with Alex Curtis of Public Knowledge. Feel free to post excerpts if you wish. It is a very long post– but is worth the read.

http://www.myartspace.com/blog/2009/01/brad-holland-responds-to-public.html

Warm regards,

Brian Sherwin
Senior Editor
http://www.myartspace.com

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.

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…