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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).
The House bill was amended with a number of positive changes. The manager's amendment included a few provisions, proposed by the subcommittee leadership. One addresses injunctive relief and adds language to address the problem of what happens when a user relies on the orphan works exception to create a new one. The next dealt with reasonable compensation and clarified that "reasonable compensation" means an amount agreed to by the owner and user, not just what the owner dictates. The third makes it clear that museums are included in the safe harbor provision. Lastly, the managers amendment adds "place holder" language to address the issue of qualifying search / diligent effort and best practices. Chairman Howard Berman (D-CA) made it clear that this place holder provision would be the topic of discussions and further considerations in meetings held before full Judiciary Committee markup. He committed to work with all interested stakeholders to try to address their issues.
Rep. Zoe Lofgren (D-CA) presented three different amendments on behalf of herself and Rep. Rick Boucher (D-VA). The first dealt with reducing the punishment of users for not negotiating in good faith to attorneys fees. The second would have stripped the bill of the dark archive provision. The third would have expanded the safe harbor provision. The three amendments were proposed as talking points for the hearing, and with Berman's commitment to working with others to address a number of issues before full Judiciary Committee markup, she withdrew her amendments.
Still to be hashed out is the best practices and diligent search issues. Similarly minded parties agree that best practices have to provide certainty to users, but may differ on where that certainty should be placed in the search process. Some would rather very strict guidelines to remove doubt that a court would consider actions to be considered appropriate for a qualifying search, while others would prefer to give a court more deference to decide whether a search was reasonable, even if certain guidelines were not followed because they were not reasonable. These details will hopefully be addressed by the next markups of the bills.
More coming soon, including Orphan Works FUD reports.