Ever since my policy blog and Huffington Post responses to Larry Lessig’s New York Times op-ed on orphan works last week, I have received a large number of fairly unfriendly comments and emails. I won’t quote them here for fear of being sued for copyright infringement (I wish I was kidding). Rather than respond to each one individually, I address the vast majority of the arguments raised in this speech, which I will be giving today at a conference at the University of Maryland University College. I look forward to a new barrage of comments.
I agree with Larry Lessig
I agree with Larry Lessig that those who want to use copyrighted works should not be required to search for copyright holders. “Diligent search” can mean everything from hiring a skip-trace missing-person search specialist to performing a Henry Stanley “How I Found Livingstone” type of search (“Dr. Livingstone, er, I mean, the copyright holder — I presume?”).
IMO the solution is to establish a searchable, publicly accessible registry where notices of intent to use copyrighted works may be posted. This is the same as the idea of posting legal notices in newspapers and the Federal Register. It would then be the responsibility of the copyright holders to either (1) frequently check the registry for notices of intent to use their works or (2) sign up for automatic notification of intent to use their works. If no copyright holder responds to a notice within a reasonable time, then the intended use would be automatically allowed. A copyright holder’s failure to respond to a notice would not result in forfeiture of copyright protection for other uses. Fair use principles would continue to apply.
Gigi, You say that you have
Gigi,
You say that you have been receiving unfriendly posts about this issue and I hope with sincerity that mine are not among these. Just in case, I want you to know that none of my comments were ever intended to be spiteful.
I do want to express that I am not so directly in opposition to this bill as long as the language can be arranged to protect rights-holders to a fair degree. As it is now, I don’t see this happening. I do, however have some thoughts that might help.
First, though, I would like to say that I like the idea of constructing the search database according to the DNS system as has been discussed here on public knowledge. I hope this idea is being seriously considered.
Having a single database to search eliminates the possibility that registered work will not be found simply because it was registered with a different database than the one that was searched. Whereas having multiple registries to access this single database assures that pricing for registering and for searching will be competitive.
I also like the idea that a user cannot be counted in good faith just because they made a good faith search. They also have to show good faith in negotiations should the rights holder show up or they can still be sued for damages and legal costs.
There is an issue here I have addressed before, and it was never answered. I would like to address it again because I think I have a possible solution.
Reasonably, if a user fails to conduct a good faith search and the rights-holder demands payment, the user would be subject to all the penalties they would be under current copyright law.
To avoid these penalties, the bad-faith user could bluff their way out of it by using the orphaned works act to discourage the right’s holder from taking them to court. This defense, as you discussed, would not hold up in court, but that’s not the point.
We know that in most cases, it’s not worth a rights-holder’s time and expenses to take someone to court to get fair market value for their work. So, if a bad-faith infringer can convince a rights holder that they have acted in good faith, and mock up a crafty “good faith” negotiation, they could effectively weasel out of their situation.
It is worth their efforts to do so, too. They risk nothing by bluffing the rights holder because they are already facing the full penalty of copyright law if the case goes to court. If he/she can convince the rights holder that he/she performed a proper search, the rights holder will not think it worth going to court over and will settle to cut losses.
If the rights holder asks to see the details of the search the user made to evaluate whether or not it will hold up in court, the infringer could simply refuse to show the documentation out-of-court. If the whole plan fails and the case goes to court anyway, the infringer will be exposed, but is no worse off than they were before. this is unacceptable.
My solution is that if the rights holder shows up and demands to see details of the search that was made, the user should be required to produce the information requested in order for the negotiations to be ruled “in good faith.”
A truly good-faith user has no legitimate reason to refuse such a request, but if the law doesn’t require compliance, the rights holder won’t have a way to know if the user is in earnest or not.
With this provision, if the user refuses to give the information, the rights holder knows he/she has a case worth taking to court.
I’ve got a blog up about
I’ve got a blog up about this issue now and I want to invite anyone to come and leave comments there. I’ve gotten tired of leaving comments at blog after blog and not getting any response, so hopefully this will go further.
You can find it at www.designershaveissues.blogspot.com