Open Hatch

OR: How the Copyright Office Plans to Aid in Mass Infringements

Update May 16th 2008: I read today that the bill was approved by the Senate Judiciary Committee yesterday. Aaagh! I had meant to write my Senator, Hatch. Now I’ve written him, and Bennett, too. Here’s the letter I sent them via the Illustrator’s Partnership form. I accidentally left the last sentence referring to the House, but I’ve decided that makes a nice negative contrast to the Senate.

Update May 8th 2008: In a page linked from this entry, today it reads: “H.R. 5889 unanimously sailed through the House IP Subcommittee yesterday..” - that should not have happened.

Today I wrote my representative, Chris Cannon, about this bill. It turns out he is on the subcommittee presenting the bill – and my Senator, Orrin Hatch, is on the Senate subcommittee presenting it to the Senate! Two of my representatives! If you are in Utah and Cannon is in your district, your voice has more power opposing this bill. Anyone in Utah has more power writing to Hatch as well. Here is my letter to Cannon (which you may adapt and use; I’ve slightly revised it from what I sent). I pasted it into the form provided by the Illustrator’s Partnership.

But you needn’t be an artist (or for that matter a citizen of Utah ) to oppose this: every voice is valid in a democracy. Here is a link to write to your representatives on behalf of an artist you know. Please use it. Or use this representative finder and simply write about any reason you dislike the bill. You like independent creative work of any kind. The bill will squash that. So squash the bill. Here is someone else’s sample letter. In writing to your representatives in the House, reference H.R. 5889 The Orphan Works Act of 2008. To your representatives in the Senate, reference S 2913 The Shawn Bentley Orphan Works Act of 2008.

If you are on FaceBook, you can join the “Artists Against the Orphaned Work Legislation” group (773 members at the moment – they need thousands upon thousands) as a way of letting others take notice (they’ll see the group you joined).

Also, I’ve got interesting words from an uncle who knew Shawn Bentley:

..how did Shawn Bentley’s name get tacked onto this? Shawn has been dead two and a half years. He was a gospel doctrine teacher in our ward [or congregation]. He in fact left two “orphan” girls – orphans in the historic sense given that their father died, even though Becky (the mother) survived. So maybe this was someone’s clever sympathy ploy.. it’s rather disquieting that this is being packaged with the sainted memory of my friend Shawn, thereby making it sort of like a sacrilege to oppose it.

Update May 7th 2008: The Illustrator’s Partnership has now provided a tool to easily send a letter to your government representatives expressing your opposition to the bill. This is the link:

http://capwiz.com/illustratorspartnership/home/

I urge you to use that link and write your representatives.

Original post; April 30th 2008:

When I first read about this, it sounded too extreme to be real.

But I researched this, and it is true.

There is a bill now before Congress which would reverse the fortunes of independent artists, creative enterprises, etc. in the United States of America. The bill would see the Copyright Office formally aiding infringements of copyright.

Your government representatives apparently take the bill seriously and don’t blink at it. I wonder if they were told any of the negative practical consequences of the bill. Reading statements about the bill from the presenting committee, it is seemingly given to help use already “orphaned” art works (no copyright holder known), but, in practical terms, this bill would enable the change of status of millions of contemporary works clearly connected with their author to “orphan“ works, free for use for any purpose by anyone, without any practical copyright protection afforded the original author if the author even finds out that their work has been infringed.

Your government representatives should be made to blink at this bill. More than blink. It should be tossed out of Congress without even a vote, and that is what I ask you to ask your representatives to do, if I persuade you, and I’ll provide links to contact them.

Here is an outline of the situation the bill would create. I’ll cite all the sources (including the actual bill) at the end of the entry.

It would mandate the creation of a government-certified database for copyright searches, allowing more than one, or many. The databases would not be government owned; they would be private business-owned and operated.* A search of any one of these databases would determine whether an individual or organization that infringes any copyright can claim “limitations” on penalties for violation of copyright, should the author of the work find the infringement and come against them for their copyright violation.

This is how the situation this bill presents would play out in practice:

1. An individual or business finds an artwork (of any kind) that they want to use or incorporate commercially. But it has no author name affixed or associated with it. Under that circumstance or even if this individual knows the name of the author but cannot successfully make contact with them, then
2. The individual may search one of the few, or several, or many privately business-run databases of artworks which this bill will inevitably cause to come into existence (the reason: the databases will require fees to register works in them, and many companies are eager to start up such databases). If the individual doesn’t turn up a connection of the work to its author or is unable to contact the author, then
3. The individual may file a notice with the Copyright Office of their intent to use the work commercially. Many situations would end here: they would use the work without owing the author anything. Now comes what kills art.
4. If the author of the infringed work finds out that it has been infringed, and should he go against the infringer for it, the infringer may claim to the court that he made a “good faith” effort to find the author of the work or make contact with him, but never found them to be in connection with the infringed work, or never made successful contact, and therefore
5. The court will order the infringer to pay the copyright owner only a “reasonable fee” but the infringer may continue use of the work, without limitation, and
6. The infringer cannot be compelled to pay attorney’s fees to the individual whose copyright he has violated. This is the real death blow to the authors of infringed works, as this current protection – where copyright violators must pay the attorney fees in cases of violation – this is what currently protects copyright most effectively. But under this bill, this protection will be removed by “limitation”. What this means in practical terms is that the author of the infringed work could never afford to go to court against anyone who infringed their work, because the most money they could get out of it would be far less than the attorneys fees which they, the author of the infringed work! – would have to pay.

I’ll list some of the bad practical results of this now with capital letters.

• A. Someone else profits from work they did not make, and the author of the work has no means of obtaining any money for it.
• B. The market value of the author’s work is diluted by two thirds, since he can’t guarantee exclusive use to anyone on sale or license.
• C. No author is afforded any copyright “protections” unless they register, and they would have to do this for every work of art they have ever created, paying a fee to each of several or many databases, and if they fail to register with all of the databases, anyone can pick up their work for unlimited use from a database they might have overlooked. Worse, the databases are not perfectly searchable, and many works properly registered will fall through the cracks. Images not in any database – the vast majority of contemporary images, since they cannot capture every living artist’s every work of art – are also unprotected.
• D. With infringing parties filing their intent with the Copyright Office to use a work, the Copyright Office would be keeping a file of individuals they permit to use someone else’s work without any practical limitation; the Copyright Office will aid with infringement.
• E. It’s a reversal of copyright protections. Currently if you register a work you can claim damages whether or not the infringer found you or knew you to be connected with the work, but under this bill, your work would not be protected, if the infringer, uh, managed not to find you. Which would be very easy to do when there are two, three, five, seven databases to search – which database won’t find you? The court will hold that up as a “good faith” search. A simple failed search of any database will be enough.
• F. With the private, business-run registries on whose contents decisions of copyright limitations hinge, the Copyright Office – or part of the United States government – would be handing control of citizen rights (copyright protections) over to private enterprise. Do you like this? Your rights being given to private business without your knowledge or consent? That you, or an artist you know, will have to monitor private enterprises for the governance of your copyright?
• G. Worst, even if an author successfully monitors all of their works of art in all of the databases and pays a fee to each of the many databases for every work of art they have ever created, and ever finds any work to be infringed, the practical protection of their work remains as nonexistent as the above numbered points describe.
• H. It violates the Berne Treaty (Convention) an international copyright treaty to which the United States is signatory. Article 5 of that treaty, regarding copyright protections, that:

• The enjoyment and the exercise of these rights shall not be subject to any formality..

• The Orphan Works Act does not protect copyright unless authors do certain things (and then it doesn’t really protect them anyway). It clearly subjects authors to formalities for the exercise of their copyright. It also contradicts articles 11bis, and 12, and 14, and 36 (which reinforces 5). It expressly violates the Berne Convention.
• But the bill makes no mention of the convention. Instead the title makes us blubber over would-be orphans (more like the kidnapped children of Pirates!) that Big Company, Inc. would otherwise have to pay to use. Or, else, like, create something all by themselves!

Lastly, it must be pointed out that the Copyright Office seems to have, or breed, contempt for the copyright protections of authors. This was the Associate Register for Policy & International Affairs’ reply to Brad Holland (of the Illustrator’s Partnership) in a meeting where Holland questioned the bill:

Holland: If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright Office facilitated the creation of an orphaned work?
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!

This all completely assures those who infringe work that they can expect no trouble, while causing those with otherwise sole use of their work unending and excessively expensive trouble, unless they surrender to the involuntary total government/business control of their copyright, hand in their paintbrushes, and surrender their profit to strangers who deserve zero use or money for the work, and go get the MD degree the family always pressured them to get anyway. This bill would be a death blow to independent creative enterprise, and a serious boon – for all ethical purposes – to pirates.

For extra credit, if you’ve read any arguments favoring this bill which seem reasonable, after I cite my sources I will dismantle some which I have read.

Just a firm reminder, since you picked this up already, I oppose this bill. And I ask you to.

The Illustrator’s Partnership is organizing opposition to this bill. They’ll have an opposition “button” soon. I’ll update this page when they do. I am not affiliated with them, but for updates from them send an email with “Add Name” in the subject to mailto:illustratorspartnership@cnymail.com.

Or, the last link in my sources below in turn links to resources to do the same. In writing to your representatives in the House, reference H.R. 5889 The Orphan Works Act of 2008. To your representatives in the Senate, reference S 2913 The Shawn Bentley Orphan Works Act of 2008.

Feel free to link to this page or copy the text of it wherever you please – get the word out against this bill. If you live in Utah or have strong ties to Utah, register your disappointment to Orrin Hatch for even allowing this bill on the Senate floor. He is on the committee that witnessed the drafting of this bill (first link in this entry).

SOURCES.

1. The very text of the bill itself. Reading that is the real test. I have, and all of the above logically holds – or rather it is all a logical conclusion about how illogical and nasty the bill is.

2. Any of these articles about the bill from the Illustrator’s Partnership. This one in particular got my attention.

3. This article, which as well as corroborating other things, points out the contradiction the bill poses to the Berne Convention the United States is obliged to.

4. This 40-minute interview by Mark Simon, of Brad Holland of the Illustrator’s Partnership, from this page. Mark Simon has stated that he gives this mp3 for free distribution to oppose this bill. Disclaimer: Mr. Simon is drawing conclusions of ill-will and the like against the supporters and drafters of this bill. I make no such conclusions, but I am, frankly, very suspicious of their intentions. This interview occurred some time ago in warning of the legislation, and now (very recently) the legislation has appeared.

(I also don’t like the music in this interview.)

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

*The language of the bill does not specify that the government will create the database(s). Toward the end of the bill it mentions that the Copyright Office “shall” certify a database; toward the start of the bill it allows for the creation of private registries. That means that private businesses will be clamoring for certification, and there will be more than one, and potentially many, databases.

REBUTTALS TO ARGUMENTS.

show

3 Responses to “The Shawn Bentley Orphan Works Act of 2008”