Policy Blog Entries by Alex Curtis

This morning the Senate Judiciary Committee marked up their version of the orphan works bill, S. 2319, The Shawn Bentley Orphan Works Act of 2008. I live twittered the markup, but in the off chance you weren’t following my tweets, the markup was fairly uneventful.

The line was quite long for a markup. The usual characters (read: those who probably had line-standers) were at the front of the line nearest the entrance to the Judiciary Committee Hearing room. That didn’t include us. The room filled up so we were directed to the overflow room to watch the happenings on closed-circuit tv.

There’s a lot of Fear, Uncertainty, and Doubt (FUD) being spread by some who are opposed to orphan works legislation. This is our second Myths and Facts report about orphan works:

MYTH: The bills would take away copyright protection from every work a visual artist ever created!

FACT: The bills do not take away artists’ rights. The bills set a limit on damages for users of a copyrighted work where the copyright owner could not be found, despite a search conducted in accordance with detailed guidelines that the bills lays out. Under these guidelines, lack of identifying information on a work would not be an excuse to use a work. After such a diligent search, in the unlikely event that an owner came forward after the use had started, the user would have to pay him a “reasonable compensation” for the use. The owner would also be entitled to an injunction in situations where the work was not incorporated into a new work. The bottom line is that good faith users are shielded from liability, and owners are paid if they surface.

If you haven’t seen our previous FUD reports, check them out here.

There’s a lot of Fear, Uncertainty, and Doubt (FUD) being spread by some who are opposed to orphan works legislation. Here’s a quick Myth and Fact about orphan works:

MYTH: The bills would mandate registration of all visual arts in expensive, private registries.

FACT: Neither bill contains such a mandate. Owners’ failure to register would not absolve users of their search obligations. The purpose behind the “visual registries” provisions is to help artists keep ownership information associated with their works and to help users find owners. In order to achieve this purpose, the bills contemplate the development of electronic databases of visual works in the market place. However, these registries do not have to be expensive. The bills do not require artists to use these services, nor do they require the services to charge a registration fee. Services that operate in the current marketplace, and provide services free of cost, could easily evolve into the visual registries contemplated by the bills. The bottom line is that the bills aim to encourage the market to solve a problem to help owners be found, but the bills do not require owners to register with these services.

In case you missed it, you can write your Congressional representatives and ask for their support of orphan works here. You can stay up to date on the Facebook Cause: Rescue Orphan Works as well. We need your support for this important legislation.

So, in the past week we’ve had a House Subcommittee markup of the House bill and the Senate was to mark up the bill on Thursday but they held the bill over until the following week. A markup hearing is a hearing without witnesses where the members propose amendments to the bill they’re considering. Those amendments are voted on by the committee or subcommittee members, and then the amended bill is voted on as a whole to be moved out of the subcommittee to the full committee and then the full committee to the full body for further consideration (House or Senate).

If you haven’t read about it, the New York Times reported yesterday that: Microsoft May Build a Copyright Cop Into Every Zune. Essentially, the large content provider would withhold their content from a distributor unless the distributor put in effective measures to prevent against piracy. We’re not talking about DRM here, we’re talking about filtering software, whether it resides on the playback device like a Zune or iPod, or in the software on a syncing computer that stores the consumers’ library of music and movies like the Zune or iTunes software. This software would troll your library checking for content that was somehow infringing or unauthorized. It may even be spyware that could report back to someone about the contents of your media library.

Two orphan works bills were introduced to begin to bring balance back to copyright law—to help find owners and encourage new and creative uses of unexploited copyrighted works. Both the U.S. Senate and House of Representatives have introduced orphan works legislation (S. 2913, the Shawn Bentley Orphan Works Act of 2008, H.R. 5889: The Orphan Works Act of 2008), rooted in the same language based on the previous Smith Bill, which was based on the Copyright Office’s recommendation. It’s been a long time coming and from working with staff, I know they’re very happy to have the bills finally introduced. Reps. Howard Berman (D-CA),Howard Coble (R-NC), John Conyers (D-MI), Lamar Smith (R-TX), (Chairman and Ranking Members of House Judiciary Committee Subcommittee on Courts, the Internet, and Intellectual Property and Full Judiciary Committee Chairman and Ranking Member respectively) and Sens. Patrick Leahy (D-VT) and Orrin Hatch (R-UT), and their incredible staff members are to be congratulated for working to address concerns of both the user and owner communities.

Yesterday, the FCC took a field trip to the campus of Stanford University in Palo Alto, California. There it heard from two panels of experts and policy shapers on the issue of network management and more broadly net neutrality. If you didn’t see it, or listen to the FCC’s stream of it, thankfully, it’s been video recorded and put on the web…

Panel I: Network Management and Consumer Expectations

Professor Lessig presented one of his illustrative keynotes at the start, and apparently he recorded the live audio and dubbed it to the video later:

Mark Simon wrote in Animation World Magazine last week about orphan works. I presume it was meant to be an in depth analysis of current orphan works legislation, but unfortunately he does himself and his readers a disservice because the article was factually shallow and didn’t accurately portray anything ever offered up by this or previous Congresses. I was ready to post all the problems with it, but Meredith L. Patterson over at Radio Free Meredith did all the work for me—it’s worth a read, so go read it first and then come back. Go ahead, I’ll be waiting.

While the market may value someone’s use of a creative work greater than another’s, copyright law makes no value distinction between the two. That may change soon, and creators should be worried.

At the March 13 hearing on orphan works, the textile manufacturer representative, Corinne P. Kevorkian of Schumacher (read her testimony here (PDF)) brought up a new argument related specifically to graphics created for textiles: that orphan works relief should be prohibited from protecting users of ”pictorial or graphic work[s] that w[ere]as initially created for commercial exploitation or w[ere]as at any time commercially exploited.”

PK and a group of film makers told the House Judiciary Committee last week what we would like to see as key elements of orphan works legislation. The testimony was submitted by PK and the following group of independent film maker organizations: Doculink, Film Independent, International Documentary Association, Independent Feature Project, National Alliance for Media Arts and Culture, and Tribeca Film Institute, for the record for the March 13 House Judiciary hearing that Rashmi wrote about here.