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Congress Considers Reform On Orphaned Works

kdawson posted more than 5 years ago | from the mashup-with-daring-and-whimsy dept.

The Almighty Buck 153

I Don't Believe in Imaginary Property writes "Bills have been introduced in both the House and the Senate to liberalize copyright law in the case of orphaned works. The almost-identical bills would limit the penalties for infringement in cases where the copyright holder could no longer be identified. The idea is that one could declare their intent to use the work with the Copyright Office and if the copyright holder didn't care to respond, they would only be able to get 'reasonable compensation' instead of excessive statutory penalties. Public Knowledge has more details on the bills."

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153 comments

Reasonable Compensation (5, Insightful)

dreamchaser (49529) | more than 5 years ago | (#23208764)

I did RTFA but I haven't yet read the text of the two bills (I'll get to it, I read a lot of bills...yeah I know, get a life). I would love to know what 'reasonable compensation' is. If the copyright holder cannot be found or doesn't exist, there should be no compensation if suddenly 10 years later someone who was once a member of the company that once held the copyright shows up and says give me money.

Re:Reasonable Compensation (5, Informative)

yroJJory (559141) | more than 5 years ago | (#23208790)

The "reasonable compensation" argument is simply window dressing. What this bill is really about is making copyright registration mandatory if you want to ever get paid for your works. Currently, all creations are copyright the moment they are completed. Registration is optional, but helps in seeking legal actions against infringers.

Re:Reasonable Compensation (1)

phpmysqldev (1224624) | more than 5 years ago | (#23208828)

Basically it seems like its going to hurt the little guy that doesn't know much about copyright law. The big corporations are still going to have their pack of lawyers constantly on this - they'll still get their $ while the little guy will lose.

Re:Reasonable Compensation (1, Interesting)

Anonymous Coward | more than 5 years ago | (#23208942)

Or it might hurt the little guy that makes a shareware program and abandons it (along with its sale). There have been several cases (in the distant past, now) where I've been interested in a shareware program, but the author/store/etc is dead and/or missing.

Re:Reasonable Compensation (1)

KGIII (973947) | more than 5 years ago | (#23208966)

To follow along with your thinking... Who's going to actually (and actively) monitor for this? I guess that, like the trademark, the burden of defending it will lie on the copyright holder who must also be vigilant to find potentially infringing uses.

Re:Reasonable Compensation (1)

tverbeek (457094) | more than 5 years ago | (#23210982)

The burden has always been on the copyright holder to be vigilant for infringment.

Re:Reasonable Compensation (2, Interesting)

STrinity (723872) | more than 5 years ago | (#23209316)

The big corporations are still going to have their pack of lawyers constantly on this - they'll still get their $ while the little guy will lose.
That's generally true, but not universally. Look in the cheapie bin at your preferred DVD retailer and you'll find public domain releases of The Lucy Show, Beverly Hillbillies, Andy Griffith, Charade and His Girl Friday -- all films and TV shows that at some point a lawyer forgot to renew the copyright on.

Re:Reasonable Compensation (1)

Mathinker (909784) | more than 5 years ago | (#23212086)

> ... Charade ... a lawyer forgot to renew the copyright on.

Not exactly. [wikipedia.org] "Charade", and other films, are more likely to be out of copyright (in the US) because they were performed publicly without the copyright notices that were mandatory in the US prior to 1989. "Night of the Living Dead" comes to mind as a second example.

Sorry if you knew this and were intentionally simplifying to make your post more cogent.

Re:Reasonable Compensation (1)

penix1 (722987) | more than 5 years ago | (#23211754)

Basically it seems like its going to hurt the little guy that doesn't know much about copyright law. The big corporations are still going to have their pack of lawyers constantly on this - they'll still get their $ while the little guy will lose.


This argument is pure horse shit and frankly I'm getting sick of the "Think Of The Little Guy" defense. Registration of copyright can be done online for little or no cost IF Congress mandated it with this legislation. All registration is is a big database. No reason it can't be online.

Now if you made the argument that this is a copyright grab by corporations to extend a given work's copyright by re-registering it under a different author, then I would agree with you.

Re:Reasonable Compensation (3, Insightful)

cpt kangarooski (3773) | more than 5 years ago | (#23209088)

That's basically right, and it's a good thing. Registration is traditional in the American copyright system, and we have not been without it for very long; just long enough to see how awful automatic copyright grants are. So long as copyright registration is but the most minor of hurdles (contact information for the applicant, a couple of copies of the work for the Library of Congress, a token fee), it will serve to make the copyright system available to help those who want it, while letting the public benefit from the works of authors who don't care about copyrights in the first place. There's no down side.

That having been said, I'm not a fan of this particular bill. Shorter terms, non-automatic renewals, and timely registration as a prerequisite for copyright are much better, even though they'll take more work to achieve. I'd rather pursue that directly, rather than waste time on these mediocre reforms.

Re:Reasonable Compensation (5, Insightful)

shmlco (594907) | more than 5 years ago | (#23209694)

Putting on my tinfoil hat, why do I suspect that the big media companies have more to gain from this than anyone else? "Well, your Honor, we made a reasonable effort to find the author, couldn't do so... and then we made the movie."

Re:Reasonable Compensation (1)

Kjella (173770) | more than 5 years ago | (#23210424)

So long as copyright registration is but the most minor of hurdles (contact information for the applicant, a couple of copies of the work for the Library of Congress, a token fee)
...times 163, presumably all different and most in foreign languages if you want the same copyright protection as today. Big corporations will have legal departments to handle all that, the little guy won't. Or was it just so American companies can scavenge everyone elses work while the rest of the world grants automatic copyright protection? I dobut the other signatories of the Berne convention will recognize the US copyright anymore unless the US recognize theirs... Sorry, but I think it's a good thing that you can't just grab anything I write for your own benefit.

Re:Reasonable Compensation (3, Interesting)

cpt kangarooski (3773) | more than 5 years ago | (#23210776)

...times 163, presumably all different and most in foreign languages if you want the same copyright protection as today.

Yes, that's right. Copyrights exist to cause authors to create and publish their works so that the public domain can be more enriched than it otherwise might be. However, if an author in country A simply doesn't care about -- i.e. wasn't incentivized by -- a copyright in country B, then why would it make sense for country B to give him the copyright? If it was important to the author, he would pursue it. If it is not important to him, he'll ignore it.

If the author apparently doesn't care, why should I? And since the author seems to have been sufficiently incentivized by something else (possibly country A's copyrights, possibly something else altogether unrelated to copyright), it would be pointless to give him a copyright. It would be liking paying for something that's being given away for free!

I am in the US, and I am really only interested in the US reforming its copyright laws. Since the US is a large market for many works, I have no doubt that very, very many foreign authors will register for copyrights, just as our domestic authors will. And if they're uninterested, then why give them what they are unwilling to get themselves? Maybe it will result in the work being made more popular here than it would be by an author who ignores the US market. That's a plus. And if nothing comes of it, then there's really no harm, and there is still the slight benefit of the work being available if that changes, which is unlikely.

I would like to point out that I'm not playing favorites here; I think that the US should unilaterally offer national treatment. That is, we should permit foreign authors to get copyrights on exactly the same basis as US authors, with completely identical treatment. Further, that we should do so, regardless of how foreign countries behave toward us. After all, the mission of copyright is to spur the creation and publication of works in order to get them, unencumbered, into the hands of the public. The nationality of the author is quite irrelevant. Ditto for the language of the form; let there be Spanish and French and Arabic and Chinese forms as well, with enough translators at the Copyright Office to process them.

I would hope, of course, that other countries would follow our example and also unilaterally grant national treatment to foreign authors. I'm not too worried about it, though. Remember, the US did perfectly well with not being a member of the Berne Convention (which sucks, btw) until 1989. In fact, joining it (and the ramp-up involved) is the source of many of the ills we currently suffer!

Meanwhile, I'd like to point out that, AFAIK (I'm not a patent attorney), there is no reciprocity in the patent system. An inventor has to file for a patent in the US, if he wants rights there, in Japan, if he wants rights there, etc. having to deal with the local rules, which can vary wildly, retaining local experts, etc. A registration formality for copyrights would be a piece of cake, by comparison! I can't imagine the paperwork being difficult (name of author, title of work, etc.), and the various national post offices seem to have international mail under control, so deposit would be no problem. Unlike with patents, authors wouldn't need to hire local lawyers to handle the registration (though I wouldn't mind if they did, being a copyright lawyer myself!), and with the falling US dollar, what is a token fee here is likely even less of a hurdle for many foreigners.

How is this bad? It means that if someone from Pottsylvania writes a book for local consumption, and never bothers to register it with the US, that it is in the American public domain, but does that harm him? No, not really; he was ignoring the US anyway. And if someone else does use the book, say, as the basis for a movie, well then at least something productive happened, instead of the author allowing it to rot on the vine. The author isn't being forced, he isn't being robbed, he's just not being given rewards that he doesn't ask for. Even a bum on the street will at least put out a cup or make a sign if he's looking for donations. If an author is going to be lazy, and is going to neglect the US, then why should the US give him a monopoly? I don't expect other countries to behave any differently toward us. Was 'Star Wars' never released in Moldavia? Then they can have it; we weren't doing anything with it there, anyway.

Sorry, but I think it's a good thing that you can't just grab anything I write for your own benefit.

I think it's the worst thing. The whole point of copyright is to encourage exactly that behavior. The public doesn't empower the government to grant copyrights on their behalf for no benefit! We do it because we want a benefit; a greater benefit than if we failed to, and in fact, the greatest benefit we can produce for ourselves through carefully rigging the system to that end. This means that we 'farm' authors, so to speak. We use copyrights to stimulate them to produce what they otherwise would not have, and if we're not as stupid as we have been lately, we try not to give them copyrights when they do things that they would have done regardless. We don't do this because we care about authors. We do this because we want the works for our own benefit. Copyright -- when implemented properly -- seems to be the best way to serve our own self-interest.

GPL? (1)

xbytor (215790) | more than 5 years ago | (#23210672)

How does this impact GPL-based work?

This bill doesn't necessarily sound like a "good thing" WRT to the GPL.

Re:Reasonable Compensation (1)

portnux (630256) | more than 5 years ago | (#23210528)

Nothing wrong with this, a lot of copyright problems would disappear if holders were required to renew every year after the first 7 years, with escalating fees with each renewal. Maybe that would reduce the number of works that are simply hoarded for decades without end. And while I'm ranting, "intellectual property" holders should be assessed property taxes on them properties.

Re:Reasonable Compensation (2, Insightful)

dgatwood (11270) | more than 5 years ago | (#23210664)

I would agree with such a seven year scheme, with one minor condition: the initial seven year copyright period should begin on the date of first authorized publication in a fixed form. Until published with the authorization of the creator, any material should be the property of the creator, period, with no right of anyone to publish it during the life of the creator. This protects against a certain class of abuses of works that otherwise would not be protected at all for lack of registration (someone publishing an unfinished manuscript that the author loaned them to proofread 7 years earlier, unauthorized publication of personal letters, etc.). For non-corporate creations, it is not at all uncommon for a creation to take much more than 7 years to complete.

BTW, intellectual property is already taxed based on the income from that property. Outside of that income, copyrights have no inherent value, so I can't see how taxing them would make sense. That could also put an unfortunate burden on individuals who actually own the copyrights for their own creations, depending on how the value is calculated, thus forcing the licensing of copyright to works that the author may not yet be ready to license. Thus, IMHO taxing copyrights is probably not a good idea.

Patents, however, do have some value in the form of binding your competitors' hands. I'm not sure how measurable that is, though, so assessing its value for taxation purposes could be difficult....

Re:Reasonable Compensation (1)

Insanity Defense (1232008) | more than 5 years ago | (#23210730)

Are you willing to pay property taxes on your car? Your clothes? Your furniture? Property tax is based on land and structures and always has been. Expand it like you wish and everything becomes taxable.

Re:Reasonable Compensation (1)

penix1 (722987) | more than 5 years ago | (#23211718)

Are you willing to pay property taxes on your car? Your clothes? Your furniture? Property tax is based on land and structures and always has been. Expand it like you wish and everything becomes taxable.


I don't know about where you live but in my state of WV it already is. It is called personal property tax. Cars, luxury items, even pet dogs are taxed. Don't pay your PP Tax and don't expect to get your license or registration renewed until you do.

Re:Reasonable Compensation (1)

icedevil (450212) | more than 5 years ago | (#23211622)

No this is horrible, if I create something it should be copyrighted immediately, I should not need a lawyer for my creative process. Copyright is not the problem, the problems exist in patent law and penalties for violating copyright. Not in the copyright itself. Although I do think that the length of copyright is a bit too long.

I sincerely hope that someone will fix the system before we have to move to the 3rd "box" of the political system.

Er... read the bill. (1)

yar (170650) | more than 5 years ago | (#23212112)

The only people who are required to register are the people who want to use orphan works. Creators only have to register if they're suing... same as before.

Re:Reasonable Compensation (0)

Anonymous Coward | more than 5 years ago | (#23212224)

I believe what this bill is really about is making it so it will seem okay for Congress to once again extend copyright terms (an act usually considered for Mickey Mouse's benefit). Orphaned works is a load of bollocks. No copyright should extend past 40 years. Then it becomes a simple and reasonable matter to have an author or artist's creation pass into the public domain at an appropriate time.

Hah (-1, Troll)

26199 (577806) | more than 5 years ago | (#23208768)

And "reasonable compensation" is not reasonable enough in normal circumstances because...

(I know, I know, -1 Troll).

Just making it easier for big corps... (4, Insightful)

yroJJory (559141) | more than 5 years ago | (#23208770)

This one's been lurking through congress lately. Basically, it's so big media conglomerates can use things they find on the web and places like YouTube without having to pay for them. It's all about protections for them and none for artists and creators.

More to read here. [awn.com]

Re:Just making it easier for big corps... (2, Insightful)

thezig2 (1102967) | more than 5 years ago | (#23208832)

I agree. Instead of having lighter penalties when the copyright holder can't be identified, make it based on the availability of the work. If the rights holder is making the work available (by putting it in a store, or for free on Youtube, etc.), then anybody else who wants to use the work has to pony up the existing penalties. If the work is no longer available new (like a book out of print), then the penalties should be lighter.

Re:Just making it easier for big corps... (3, Interesting)

dgatwood (11270) | more than 5 years ago | (#23210726)

More than that, the penalties should be nonexistent provided that the person making it available does not make a profit doing so. Otherwise, it should be a flat rate statutory amount depending on the nature of the work.

Particularly with music publishers, depending on the publisher, it can be a pain to (legally) perform out-of-print works if you don't have enough copies and can't buy more. I think that I should automatically have the right to make as many copies as needed to perform any out-of-print work under the condition that I agree to destroy the additional copies and purchase real copies if/when I find out that the work is in print again. It shouldn't be the end user's problem that the company is too lazy to do print-on-demand.... :-)

Re:Just making it easier for big corps... (4, Interesting)

bigskank (748551) | more than 5 years ago | (#23208872)

While it may be true that this is pushed by big media, I hardly see how this is failing to accord appropriate protections to so-called "amateur" creators. Amateurs, like anyone else, can fairly easily register any work which they create with the copyright office. Further, you can do something like stick an email address or other contact information on the video/image/webpage/etc... so that there is some way for anyone wanting to use your copyrighted work to contact you (this has the dual function of also identifying that the work has an active "owner" who needs to be contacted). Neither of those approaches is overly burdensome, even for amateurs.

It seems that everyone favors liberalization of copyright laws only if it helps out the "little guy." Copyright needs to be a balance, allowing both large media holders and individual content creators to play fairly under the same set of rules. This bill would help achieve that.

Re:Just making it easier for big corps... (1)

BlueParrot (965239) | more than 5 years ago | (#23210996)

Amateurs, like anyone else, can fairly easily register any work which they create with the copyright office.


Even if you live in Sweden? Just think about it for 3 seconds, what if ALL countries did this? Should you have to register in all of them? America != the world.

Re:Just making it easier for big corps... (3, Insightful)

Adambomb (118938) | more than 5 years ago | (#23208896)

I do not understand how anyone can read these details and not see exactly what you're seeing.

To expand on one of the why's for those that may question this, Corporations will have a department or at least a set of dedicated employees who do nothing but verify and respond to contested copyrights that they own. Individuals or small businesses may not be able to afford the manpower needed to manage such overhead. This means that corporations can keep a tight leash on their IP, while making use of material where the creator is identified as "not likely to keep up". Effectively, this increases the base "cost" of maintaining a stable of copyrights so that the riffraff will be right out (5mil$ at the door please).

This is but one of the things such legislation is likely to be used for, and i'm sure others out there can point out more.

Re:Just making it easier for big corps... (4, Interesting)

smartaleckkill (1161259) | more than 5 years ago | (#23209076)

since 'copyleft' depends on copyright for any actual *legal weight* i'd guess there are potentially serious implications for FOSS, pretty much as a whole

Re:Just making it easier for big corps... (0)

Anonymous Coward | more than 5 years ago | (#23210154)

> To expand on one of the why's for those that may question this, Corporations will have a department or at least a set of dedicated employees who do nothing but verify and respond to contested copyrights that they own. Individuals or small businesses may not be able to afford the manpower needed to manage such overhead.

ALL you need to do is register with the Registrar of Copyrights and keep them informed of up-to-date contact information for any changes. OR you can put some contact information with the copyrighted work (this being Slashdot, add your email to your code file).

This would help folks who want to print out of print books where the author has vanished more than anyone. I don't think there are big corps just waiting to gobble up your copyrights, and if there are, they aren't pushing for this bill.

Re:Just making it easier for big corps... (1, Interesting)

Anonymous Coward | more than 5 years ago | (#23209532)

Indeed, how does this affect works by people who publish things on their blog or who are from abroad? If I, as a foreigner, write something in English (such as this text right here) and someone else comes along, likes it and wants to use it commercially, but they can't contact me because -obviously- I'm not going to bother to register everything that I write online, as over here I automatically hold copyright the moment I write something, would they be able to infringe on my copyright, without me being able to get compensation?

Not that I would want to screw people out of money, but if I ever post a story online and people use it without my permission, I'm going to be pissed off mightily!

Also, if a book is published, it says: reproduction of this work is not permitted without written approval by the copyright holder or somesuch. Do claims like that now get invalidated and are you screwed if the copyright office can't find you in time?

Re:Just making it easier for big corps... (2, Funny)

ejecta (1167015) | more than 5 years ago | (#23210572)

Yep, and then it will be a case of;

LAWYER: Well your honour we made a good faith effort to find the copyright holder, but as we couldn't contact the holder we released an exact copy of all their work in a box set for $59.99 as it was no longer covered by copyright.

JUDGE: What efforts did you undertake?

LAWYER: Well, *cough* we looked for the most obscure and most likely to be out of date address and mailed in alleged copyright owner in the plainest and blandest envelope we could possibly find with a covering letter sounding as much like a 419 scam as possible.... and they just didn't get back to us!

Then why are Creative Commons and Public Knowledge (1)

yar (170650) | more than 5 years ago | (#23212138)

supporting it? Along with libraries, archives, museums, etc.

Both versions have protections for creators (in particular the House version, which might even go a bit overboard). At any rate, all the FUD being spread about the bill is disturbing (like requiring registration by creators, which is simply not true, or that it was written by big media, which is also not true).

Risk? (0)

Anonymous Coward | more than 5 years ago | (#23208802)

Cool! hopefully it can't be exploited to hijack orphaned works and put it back in the hands of greedy corporations.
Of course if it can't be exploited now it can be patched later for the above strategy.

Unacceptable (1)

iminplaya (723125) | more than 5 years ago | (#23208820)

Orphaned works should go into public domain.

Re:Unacceptable (2, Insightful)

corsec67 (627446) | more than 5 years ago | (#23208936)

How about anything goes into the public domain?

A copyright term of infinity+ years isn't "limited".

Re:Unacceptable (1)

fyoder (857358) | more than 5 years ago | (#23209980)

// Term of copyright is limited, and can be expressed as a conditional run annually:

if ( about2expire(mickey_mouse) ) {
    copyright_term++;
}

// Once Micky Mouse ceases to be profitable, we will have established what the limit is.
// I expect it may wind up being something like a thousand years.

Why limit penalties? (4, Insightful)

Reality Master 201 (578873) | more than 5 years ago | (#23208824)

If the copyright holder can't be found or identified, why bother with limiting the penalties? Why not just make the work public domain?

Re:Why limit penalties? (1)

malinha (1273344) | more than 5 years ago | (#23208878)

And if de holder can't be found, to who is the "penaltie" going to ? Who's getting the cash ?
RI** ?? MP** ??

Re:Why limit penalties? (1)

Creepy Crawler (680178) | more than 5 years ago | (#23208956)

Nobody, until (if) theres a lawsuit. Only when theres a lawsuit will damages be limited.

Re:Why limit penalties? (2, Insightful)

hedwards (940851) | more than 5 years ago | (#23209028)

Quite so, but it would be nice to have some sort of cost associated, such as the retail price for the work, adjusted for inflation. A limit of $100 or no more than double the original retail price adjusted for inflation, would do wonders even. That's probably a bit on the generous side to the owners of the materials, but it's better than what we have.

The biggest problem with this sort of legislation is that the attorney fees are a part of what makes this kind of suit so expensive for the losing side. If the legislation limits the cost to just an easy to calculate amount without having to involve attorneys it's far more useful. It's not going to help much if a person can't calculate an estimate of the eventual cost without first being sued.

Putting things into the public domain willy nilly like this, isn't necessarily a good solution either. It favors the corporations which can afford to have somebody answering requests. While much of what ends up in the public domain will be from smaller businesses and individuals.

We really don't need additional rewards for producing mass market media, what we need is more rewards for producing the more artistically challenging works. The ones that require real risk and sacrifice to create. The ones which drive the majority of the innovations in the art world. The same largely goes for software as well.

Abandoned really ought to be based more upon availability of the works for purchase than the ability of somebody to answer the phone or an email in a timely fashion.

Re:Why limit penalties? (1)

Jah-Wren Ryel (80510) | more than 5 years ago | (#23211190)

what we need is more rewards for producing the more artistically challenging works. The ones that require real risk and sacrifice to create.
If the product requires real risk and sacrifice to create, copyright registration should only be a very minor obstacle.

We might even see a few low cost 'registrars' whom the creator can just send an electronic copy of the work and for, say $30, will take care of all the work. We might even see places willing to do the filing pro-bono, in exchange for a nice cut of any awards fees from violations down the line. Just one win against Disney could pay for tens of thousands of filings.

Re:Why limit penalties? (2, Insightful)

TubeSteak (669689) | more than 5 years ago | (#23209030)

If the copyright holder can't be found or identified, why bother with limiting the penalties? Why not just make the work public domain?
Maybe the copyright holder died and his/her children don't dig up the copyrighted work or documentation about the work for a decade or two.

The work is still under copyright and the children of the now deceased copyright holder can still make claims on the work.

Making it public domain opens up a whole new can of worms.

Re:Why limit penalties? (4, Insightful)

Reality Master 201 (578873) | more than 5 years ago | (#23209052)

Actually, making it public domain makes sure a whole can of worms doesn't get opened.

Re:Why limit penalties? (0)

Anonymous Coward | more than 5 years ago | (#23209802)

Out of curiosity, where did one get these tinned worms i hear about so much.

Re:Why limit penalties? (0)

Anonymous Coward | more than 5 years ago | (#23210022)

On ebay, of course: http://search.ebay.com/can-of-worms

Just the opposite! (1)

celtic_hackr (579828) | more than 5 years ago | (#23211758)

A whole can of worms. I could see this being used to strip plenty of small time authors of rightful copyright protection.
I haven't read the bills, but your idea is like a Louis Black joke,"Hey Congress has got a really sh***y idea, let's make it even worse!". If the bill doesn't allow for the age of a copyrighted material to be considered, then anyone who writes anything on the internet or self-publishes, could see all of their copyrights disappear in days from publishing. Whereas things that are old (say 10-20 years) and no author can be found, I'm all for PDing them, so long as a certain definitive bar is met in searching for the author.

R**A: "Well, your honor, we didn't know where to write to to contact the author, it was posted on Youtube, and we didn't receive a response from Google with the poster's address."
Judge: "Did you try contacting the poster directly?"
R**A: "We didn't have his/her contact information from Youtube."
Judge: "Did you try to send an email?"
R**A: "It is a company policy to block internet traffic to or from Google and youtube, so no one in the company can send an email to a Youtube or Google account." ...

Re:Why limit penalties? (1)

quantaman (517394) | more than 5 years ago | (#23209540)

If the copyright holder can't be found or identified, why bother with limiting the penalties? Why not just make the work public domain?
Identified by who?

Not all copyrights are registered and there's no sure way to tell if a work is truly abandoned or if you you just haven't found the holder.

Re:Why limit penalties? (1)

ArbitraryDescriptor (1257752) | more than 5 years ago | (#23209810)

I think they are leaving room for error in their methods of locating the copyright holder. Just because they could not be found (or do not respond to the request), does not mean they do not exist. Whatever method and timetable they intend to employ here with regard to seeking permission of the copyright holder; it can be assumed that it will be insufficient from time to time. In these cases it could be unfair to simply strip them of their copyright if they were unable to respond.

But, my optimistic interpretation of that feature aside, I am concerned that this is going to be used to by the various copyright cartels to steal works by casual content creators and avoid any real financial penalties when the rightful owners "cannot be found" in a timely fashion.

Re:Why limit penalties? (1)

gronofer (838299) | more than 5 years ago | (#23211024)

If the copyright holder can't be found or identified, why bother with limiting the penalties? Why not just make the work public domain?

Because it may turn out to be a foreign copyright holder? What then for all those international treaties the USA is always boosting?

The USA seems like an unlikely country to be promoting copyright reform.

Too much of a burden (1)

The_Wilschon (782534) | more than 5 years ago | (#23208850)

It seems as though, unless it is done somewhat carefully, this could place too much of a burden on copyright holders. Suppose I want to freely copy some popular song. I register ten thousand intents to do so with the copyright office. (or ten thousand people register one such intent) If the copyright holder fails to respond to even one such request, they lose some of the rights they previously had to control the use of their work.

That said, I expect that it is not too difficult to close this spamming loophole.

Perhaps this could apply to abandonware (1)

voss (52565) | more than 5 years ago | (#23208864)

One thing they would need to do is put a time
limit for making a compensation claim

What about criminal penalties? (0)

Anonymous Coward | more than 5 years ago | (#23208934)

If this bill doesn't eliminate the risk of criminal penalties, it doesn't do any good. Today, someone can get a Federal felony conviction for copying a work which has no commercial value and hasn't been published in 50 years. I hope they put that in, otherwise, this reform is not a reform.

Orphaned work you say ? (1)

alexhs (877055) | more than 5 years ago | (#23208944)

would limit the penalties for infringement in cases where the copyright holder could no longer be identified.
Aren't RIAA, MPAA and BSA members The Copyright Holders of Everything (R) ?

Does that mean, "when the members can't decide which of them will get the propriety of that piece of work" ?

Re:Orphaned work you say ? (5, Insightful)

quanticle (843097) | more than 5 years ago | (#23209044)

No. This means that when the members of the RIAA/MPAA/BSA want to use someone else's work, they only have to show that they "couldn't identify" the copyright holder, and so can use work while paying only a token penalty. Basically, now a small copyright holder has to undertake the same sort of monitoring as a large record studio. Otherwise they risk having their work appropriated by larger corporation.

Not true. (1)

yar (170650) | more than 5 years ago | (#23212156)

No to you as well. :P

Under both bills, if a copyright holder identifies their work being used, the user of the orphan work has to compensate them.

Furthermore, the proposed definitions of what constitutes a "reasonable" search are pretty heinous. It seems like they were expecting this "big corporations" scenario rather than the people who legitimately need to use orphan works.

Re:Orphaned work you say ? (1)

stinerman (812158) | more than 5 years ago | (#23212568)

And maybe if the small copyright holder cared one iota about their work, they'd register it.

a time limit (1)

suck_burners_rice (1258684) | more than 5 years ago | (#23208974)

There should be something additional in the proposed bill: A time limit for the copyright holder to respond, say, 90 days. In other words, if it is believed that the copyright holder no longer exists (the person is dead or the company went out of business), the request is filed at the copyright office. The party filing the request could choose to use the material immediately, and pay the reasonable fee if the copyright holder comes forward. However, since you have no idea what "reasonable fee" the copyright holder might demand, and since it really isn't the business of a court to decide how much something should cost, this could still put the party at risk of huge expenses. Therefore, upon filing the request, they could choose to simply wait the 90 days. If the copyright holder didn't come forward in that time, the requesting party gains the ability to use that copyrighted material as though they received from the copyright holder a free non-exclusive license to use that material. Remember, chances are that there is no copyright holder at all, since one cannot be found or identified, and the request is on file at the copyright office for 90 days before this happens.

Re:a time limit (1)

Gutboy (587531) | more than 5 years ago | (#23209262)

So the copyright holder has to constantly check with the copyright office to make sure no one has requested the use of any of their copyrights? Since this is a government endevor, what will happen is that the copyright holder will be given a long list of all the copyright requests and be required to sift through to make sure that none of their copyrights are in there. They will not be able to say "hey, I have copyright on X, is anyone requesting to use it?" as that would make the government employees have to do work.

hmmm (1)

Larryish (1215510) | more than 5 years ago | (#23208982)

seems like it would then be possible to claim copyright on the works of another as long as you file before they do

tag: whatcouldpossiblygowrong ?

Re:hmmm (1)

vidarh (309115) | more than 5 years ago | (#23209046)

The possibility of registering your copyright has "always" existed. In fact, it used to be mandatory to do so to get copyright protection. This doesn't alter the risk of someone fraudulently registering for copyright in a work they didn't create. Neither does it change the fact that doing so is clearly illegal.

The flaw is internet anonymization. (5, Insightful)

davolfman (1245316) | more than 5 years ago | (#23209026)

This has been discussed many places and the consensus is that it severely weakens private copyright. With this an artist who shows work low-res online could be anonymized by someone else grabbing the work to post on a forum or the like. This breaks the chain and makes the artist impossible to track. This isn't a problem if you're the RIAA or other MAFIAA as your spy network will catch it for you, but for the little guy, such as ever private artist and photographer out there this is total murder.

When you think about it this has mostly just been produced as a bandaid to allow things like archiving to occur in the absence of a strong public domain and working fair use.

Re:The flaw is internet anonymization. (2, Interesting)

Anonymous Coward | more than 5 years ago | (#23209128)

Think about it. This will effectively eliminate copyright on the internet, at least for anything that can't be automatically identified with 100% accuracy.

If this becomes law, Napster will reappear. Every time someone offers a song, the new napster will not know who owns the copyright. So they will send it off to the copyright office to be identified. After the first few billion, the copyright office will be so far behind that effectively nothing will ever get processed and now all the record companies will get will be a small percentage of whatever the new napster gets.

Re:The flaw is internet anonymization. (2, Funny)

Hatta (162192) | more than 5 years ago | (#23209414)

Want to ruin some bureaucrat's day? Let's find out if goatse is copyrighted.

Re:The flaw is internet anonymization. (2, Informative)

innocent_white_lamb (151825) | more than 5 years ago | (#23209804)

So they will send it off to the copyright office to be identified.
 
Nice thought, but that's not how it will work.
 
TFA says that private outfits of some kind will have certified databases to identify works, and you send your stuff to them for identification along with an as-yet unspecified fee. So the New Napster would require tens of billions of dollars to send out for identification fees for those billions of songs....

Re:The flaw is internet anonymization. (0)

Anonymous Coward | more than 5 years ago | (#23211752)

fuck the record companies. get a new line of work or don't. fuck off and die.

Re:The flaw is internet anonymization. (1)

manwithmanyquestions (1235714) | more than 5 years ago | (#23211408)

give me a break - the damage will be proportional to the ability and skill of the artist and or their work - obviously if there is some amateur ansel adams and he starts snapping some real beauty shots that everyone starts picking up and using anonymously it wont take long for him to find it at what point he is covered by the law.

Re:The flaw is internet anonymization. (1)

yar (170650) | more than 5 years ago | (#23212174)

Consensus? Really? :P

A great deal of the discussion that has taken place in the 'net is FUD, spread initially by certain individuals in an illustrator's group. Those particular discussions, in fact, took place BEFORE the text of the bills was released to the public, and pretty much panicked the readers.

At any rate, if the person's work is identified, that person will be compensated.

Wonder if Google sponsored this legislation? (0)

Anonymous Coward | more than 5 years ago | (#23209118)

Weren't they getting into trouble with Librarians for this earlier this year?

Personally ... (1)

ScrewMaster (602015) | more than 5 years ago | (#23209162)

Congress Considers Reform On Orphaned Works

I think that We the People are long overdue to consider reform on Congress itself. After all ... they're the reason we're in need of copyright and patent reform in the first place!

Re:Personally ... (1)

meatmanek (1062562) | more than 5 years ago | (#23209736)

Reform on Congress happens every 2 years. It's called "election."

Re:Personally ... (1)

CSMatt (1175471) | more than 5 years ago | (#23210036)

Not as long as there are no term limits for Congressional seats.

It's even worse in the Senate than the House. Some members of the Senate have served for over 30 years.

Day Late & a Dollar Short (2, Informative)

Alan R Light (1277886) | more than 5 years ago | (#23209252)

This reform should have been done years ago, but this still doesn't go far enough.

I suppose it's meaningful that some folks in Congress are just now beginning to see that copyright is a very important issue in the information age.

Now, if they would just undo the copyright laws they've passed since 1995, that would be a good start. And then they can undo some more, until the copyright period is reasonable - somewhere between 10 and 30 years. Once they get THAT done, THEN they can address trickier issues like accidental infringement.

Get rid of registration, first (1)

eric434 (161022) | more than 5 years ago | (#23209328)

As a content creator, having to register my work with the Copyright Office is the bane of my existence. Why should I have to spend hours sitting in an office sifting through my work to sort out published from unpublished, declaring each published work (where there might be 600 such works in a registration) as a separate line-item on a form, then pay $45 per registration just for the privilege of being able to claim my rights?!

And then if I ever decide to sue Disney or whomever because they used something of mine without asking, I'll spend years and thousands of dollars in court as they try to find the most minor errors in my record-keeping or registration procedure. Blah!

It's time to strike one for the little guy, for the creatives that don't have a whole corporate infrastructure dedicated to making sure someone gets paid for their art. Enough with this "artists should be starving or cogs in a machine" crap. Get rid of registration and even the playing field so your average Joe with an artistic side can stand up to corporations that would otherwise happily run roughshod over everyone else's rights.

Re:Get rid of registration, first (1)

Kalriath (849904) | more than 5 years ago | (#23209632)

$45? Woah. Our country doesn't even HAVE a registration system here, so I don't feel your pain in the slightest.

Flip side though, our trademarks and patents have exponentially increasing rates. A trademark costs $112 to register, but $281 every 10 years to renew. Patents are even more vicious: 4th year renewal is $191. 7th year renewal is $382. 10th year renewal is $607. 13th (and final) year renewal is $1125.

Though for some reason, we can register the physical appearance of an object (e.g. we can't copyright forks, but we can register the design of a particular fork and sue anyone who makes one looking like ours. Weird).

Re:Get rid of registration, first (1)

compro01 (777531) | more than 5 years ago | (#23210718)

Though for some reason, we can register the physical appearance of an object (e.g. we can't copyright forks, but we can register the design of a particular fork and sue anyone who makes one looking like ours. Weird).
i believe that's called a design patent. the US has the same thing.

Re:Get rid of registration, first (0)

Anonymous Coward | more than 5 years ago | (#23209738)

Actually, it does seem like it would be reasonable to push the registration cost from the person creating the work to the person looking for permission to use it...

EVEN BETTER... (1)

Jane Q. Public (1010737) | more than 5 years ago | (#23209764)

They could set up a system -- gee, a lot like the old one, it turns out -- in which for most cases a person has to CLAIM a copyright, rather than copyrights just sort of happening automatically. If we went back to that system, a large number of the copyright "issues" we see today would simply disappear back into the dark hole they came from when copyright law was "improved".

The good faith effort (2, Insightful)

westlake (615356) | more than 5 years ago | (#23209824)

one day, you come across a vintage graphic from the 1960s at a yard sale; it would be perfect for your next video, you know exactly how you want to use it, but it contains no copyright information. New Orphaned Works Act would limit copyright liability [arstechnica.com]

I know that forty years sounds like eternity to the eternally adolescent Geek - but your treasure trove will almost certainly turn out to be an instantly recognizable icon of commercial art and illustration.

The page clipped from Life magazine, the poster that was taped to a dorm room wall.

What looks like a "good faith effort" to you may may look pathetically inadequate and self-serving to a judge. It is altogether too easy not to find what you don't want to find.

Right Problem, Wrong Solution (1, Informative)

Anonymous Coward | more than 5 years ago | (#23209956)

The orphaned works problem was arguably created by grossly excessive copyright extensions. The simple solution is a return to reasonable copyright terms, say, 20 years with an optional 20 year extension for registered copyrights.

These bills would create privately owned and operated copyright registration databases. How much will it cost me to register my copyrights? As a photographer, I create thousands of copyrighted works every year. Even if the price is less than $1.00 per work, I can't afford it. Once again, Congress is screwing over the little guy in favor of big business interests.

Apropos captcha: nonsense

Anyone see who introduced this bill? (1)

CSMatt (1175471) | more than 5 years ago | (#23210068)

From the article:

Congress is now taking a stab at solving the problem with two new bills just introduced by Howard Berman (D-CA) in the House and by Patrick Leahy (D-VT) in the Senate
Call me paranoid, but if Berman introduced this bill than there must be some angle.

Simpler solution... (0)

Anonymous Coward | more than 5 years ago | (#23210276)

Wouldn't it be better to simply limit the length of copyright of new works to 14 years, with no extensions? This way everybody will know when a work will enter the public domain simply by its copyright date.

This is just a power grab for large media companies who, if this passes, will have paid their lobbyists well.

fa6Orz (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#23210650)

can really ask of BEING GAY NIGGERS. approximately 90% I don't wuant to Distro is done Here To download the and, after initial Against vigorous

I'm not from the US... (1)

gnud (934243) | more than 5 years ago | (#23210696)

Here in Norway we have automatic copyright, with no registration nessescary. So anything I produce would basically be up for grabs by any U.S. legal entity?

FUD (0)

Anonymous Coward | more than 5 years ago | (#23210722)

More FUD from the "big corporations are evil" crowd. People have been spamming this orphan works stuff to every art journal, forum and otherwise art related site.

Just relax okay. If anything, this furthers abandonware's cause because there really is a lot of software out there that was written by ?? that can't be contacted for whatever reason. This works both ways, people can also claim to be unable to locate the author for whatever content. It is a two way street, not a oneway-omg-the-corperations-are-going-to-steal-my-cruddy-webcomic paranoia that people are touting it to be.

Perhaps I missed something, but... GPL? (1)

Animaether (411575) | more than 5 years ago | (#23210898)

...seeing as most Slashdot users think every 'artist's works should never be copyrighted anyway - that any image, sound file, movie clip, etc. on the web is fair game for taking and using however they see fit, including verbatim, and that 'artist's should just find some other line of work if they want fair appropriation or - daresay - compensation for their work...

The GPL License is based largely on copyright. You violate the license, you enter the domain of copyright. You violate copyright, you can be sued up the wazoo - or something.

So for those GPL projects where original authors of pieces of code can no longer be found (the same that hold back, say, Linux from going to some other license, or newer GPL license), no copyright can be established. Ergo, the code can be included in, and released with, locked down software. The GPL may be violated, but that in itself just brings things to the copyright table - and since no copyright can be ascertained over the code involved, the company walks.

I could be mistaken, though.. I hope I am.

I also hope that this doesn't get pushed through - as mentioned before, it just screws over the little guy... again.

WTF (1)

BlueParrot (965239) | more than 5 years ago | (#23210964)

How the fuck is this supposed to work internationally ? Oh , sorry the copyright holder isn't American so the US copyright office doesn't know him, his work is now free for all ? So let me see if I get this right, US media companies can put threaten our ministers, bribe our police force, and launch DDOS attacks against our web-pages, then ignore the copyright of Swedish artists without consequences, and apparently we are supposed to feel bad about file-sharing because we ought to respect international treaties? Perhaps they care to explain why we shouldn't just declare all US media "free for all" until Washington starts recognizing that there are other sovereign countries in the world?

more like Legislation TO orphan works (1)

freesword (229791) | more than 5 years ago | (#23210968)

The end result of this type of legislation is infinite copyright for some and no copyright for the rest.

While I understand that many see this as a way to stop the infinity + years copyright duration, it does nothing to the corporations who exploit the extended duration for their own benefit. It does not put corporately shackled works back into the public domain. These corporations have legal departments on retainer to maintain their claims in perpetuity. These works will NEVER become orphan.

This will just create a legal way for content corporations to poach the work of individuals not actively defending their copyright. US copyright registration cost $45 per individual work. How many photographs have you taken? Have you filed for copyright on all of them? If they find their way to the internet and someone uses them after "reasonable effort" to contact you they are an "orphan work" under this legislation. Remember that story you posted to a forum back in college? It's about to be a major motion picture. The forum shut down 2 years ago, and you don't use that isp any more so there was no way to contact you.

Sure, you can make a claim and take the infringer to court, but if they can make the orphan work defense stick, they are only liable for a token sum instead of statutory penalties. That is if you can prove they are infringing your work. If they have deep enough pockets, they could tie things up in court so that you end up losing money. Or you could take their offer to sell them all rights to the work for $100. Either way they would still get the work at less than the market rate from a professional. If you don't make a claim, they file copyright on their use and defend it in perpetuity. No public domain. This is what big content providers want. Cheap work for hire content that they own instead of the creators.

Everything you write, photograph, draw, video, everything you create is protected by copyright now so that other cannot profit from your work without you getting anything. This would force everyone who creates anything to pay registration fees per work and make sure that their records are up to date. Professionals who do this will be undercut by corporations poaching the work of amateurs who don't.

Re:more like Legislation TO orphan works (1)

yar (170650) | more than 5 years ago | (#23212194)

It does allow legitimate users to use orphan works, which is the point. The great majority of copyrighted content in existence is orphaned.

Did you read the text of the legislation? First, it doesn't require registration by creators any more than existing copyright law does. Second, if a person is identified as the copyright holder, that person is compensated and/or the user faces the full penalties of copyright law (particularly if they acted in bad faith).

The "token sum" you're speaking of is "reasonable compensation." It doesn't really change the balance of power between big companies and individuals. That's still an issue.

It does allow people who legitimately need to use orphan works- like educators, librarians, curators, and archivists, as well as others- use orphan works without the fear of getting sued for $150,000 an alleged infringement.

Far More Than Overdue (1)

Nom du Keyboard (633989) | more than 5 years ago | (#23211240)

This is an idea that's far more than overdue. "Submarine Copyright Infringement" claims should have been outlawed long ago - especially with statutory damages to unreasonably high now. This doesn't hurt the author of the work at all since s/he will still get the compensation they would have gotten from the beginning if they had been found. I am just so sick and tired of copyright suits - the latest on the movie Charlie Wilson's War - that start out by demanding that all distribution of the infringing work be halted, and millions of dollars awarded for something that's so brief in the movie that you can barely even tell that it's there. And there are just too many truly stupid juries in this country that uphold that kind of garbage. This type of reform will only make society richer if it can pass in its relatively present form!

And the US expects international cooperation? (1)

lavalyn (649886) | more than 5 years ago | (#23211370)

Making these changes to copyright law, regardless of whether they're net beneficial to multinational corporations or individuals, means little with the international agreements on copyright. An American multinational corporation may do their "owner search" and find nothing, but still be on the hook when the true owner is outside the United States. United States limitations don't matter to a copyright holder suing from Canada to a Canadian operation.

Oh. HELL. No. (1)

Rachel Lucid (964267) | more than 5 years ago | (#23211624)

Are we trying to put the entire creative sector out of business here?

If I had to put a copyright claim out for every single piece of work I had, it would quickly engulf any profits I had made on those works. Hell, DeviantArt alone has over 56 MILLION images in its repositories - are we supposed to believe that everyone is going to rush out and get those images copyrighted immediately?

If you're looking to crush small businesses, this is the way to do it.

(Hell, the art communities threw their arms up in the air about this TWO WEEKS AGO -- To put it bluntly, this is how you piss off the internet.)

Re:Oh. HELL. No. (1)

yar (170650) | more than 5 years ago | (#23212204)

Funny, the art communities only received the text of the bill TWO DAYS AGO. The people who were spreading the FUD about the bill were mostly people who had no idea what they were talking about. And even some of the people who did see the bill still had no idea what they were talking about. :P

The bill in no way requires you or anyone else to register your works any more than existing copyright law does.

To reply bluntly, this is how the Internet pisses me off. :P

Re: (1)

clint999 (1277046) | more than 5 years ago | (#23211760)

Yep, and then it will be a case of; LAWYER: Well your honour we made a good faith effort to find the copyright holder, but as we couldn't contact the holder we released an exact copy of all their work in a box set for $59.99 as it was no longer covered by c

The Road To Hell... (1)

SoulReaverDan (1054258) | more than 5 years ago | (#23212314)

This bill does have the best of intentions behind it. Unfortunately, when put into practice, it would be viciously abused at one point or another. Again, the problem comes of internet anonymity, as mentioned. The problem then becomes, for small artists, personal artists, or writers or photographers, who frequent websites such as, say, deviantART, that post many many works, even a token fee stacks. A $5 fee might not seem like much, but if you have 100 works... well, that speaks for itself. Think of the little guys, congress. C'mon, stop being fxcktards for ten seconds and think of us.

right idea, wrong implementation (1)

nguy (1207026) | more than 5 years ago | (#23212582)

It's good that Congress recognizes the importance of reforming law on orphaned works, but this is the wrong way.

Congress should simply require copyright registration for all works every 10 years, for $1/registration, with submission of an electronic copy (or approximation thereof when that's not feasible). Once you don't renew, your work falls in the public domain. The list of all currently registered works should be published.

It's simple, reduces bureaucracy, is self-funding, and it creates legal certainty.
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