The Return of Orphan Works: Trojan Horse: Orphan Works and the War on Authors by Brad Holland, Part 4

Nothing says “Internet Freedom” like getting away with it, and in case you missed it, Google got away with it again at the Federal Trade Commission yesterday.  According to press reports (see “Google Pressed Hard Behind the Scenes to Convince Regulators” in the New York Times, Did Google Buy Its Way Out of Trouble with the Feds? in The Atlantic Wire, and “How Google Beat the Feds” in Politico), Google appears to have effectively captured the U.S. Federal Trade Commission the old fashioned way–they bought it.  And given how well Google controls the press, if the press is writing a story about Google’s crony capitalism, it’s because Google wants that story told and we can assume that they want that story told because they are proud of it.

According to Politico’s Tony Romm, “[Google] even consulted with [which usually means ‘paid’] the late Robert Bork and The Heritage Foundation  and met with senators like John Kerry to make its case. In other words, these  traditional outsiders worked the system from the inside.”  The Heritage Foundation, eh?  We wonder if the Heritage Foundation also got a signed copy of William Patry’s book? (Patry is one of the senior copyright lawyers at Google.)  One of Patry’s punters proudly posted this pretty picture of an autographed copy of the book apparently received as a gift from Mr. Patry:

So what can we expect in the coming legislative session in the Googleplex By The Potomac?  What is happening in the UK right now may well be a guide.

Andy Heath, the Chairman of UK Music, testified a few weeks ago before the powerful Culture Media and Sport Committee of the UK Parliament and had this to say:

From my perspective, I think one of the biggest problems for the music industry and the cultural industries generally is the bewildering attitude that we seem to be getting from the Government about its ambivalence towards the benefit of copyright. It seems to me that Governments for some time, but especially this Government, have bought the line that intellectual property is a barrier to growth, and that simply is a lie. It is not true. That line has been bought by some very important and influential politicians in this country and I do not understand it. We have an asset that is very valid, that has been built up over 100 years-the theatre, the music, the films, the TV. It would be madness to create an atmosphere where that is at risk-absolute craziness.

I work with various businesses, I am involved with fundraising to license various forms of entertainment generally and I am also involved with start-ups from my own business and help them. The business community and the finance community always say to me, “Yes, but Government hates copyright. They are going to bring in all sorts of laws that are going to make it easier for Google to steal your music that they already steal, so why should we invest?” and that is a story I get every month of every year. It is this bewildering ambivalence, if not outright hostility, towards copyright that comes from the powers that be in this country and it is very, very damaging.

Oh, and one thing that Mr. Heath was too polite to mention is that Rachel Whetstone, Google’s global head of communications and public policy is married to Tory political consultant Steve Hilton, and the power couple were godparents to the late son of David Cameron.  That would be Prime Minister David Cameron.  The UK Prime Minister.  A Tory–actually, the Tory–for whom Steve Hilton was employed.  (See “Power Couple Behind the New Tory Throne“.)  This fact (that we suppose was known so very well to all present at Mr. Heath’s panel that it need not be mentioned) may help to explain the “bewildering attitude” of the UK Government (by which he means the “Government”, i.e., the Parliamentary coalition that Mr. Cameron leads).

This pattern should sound familiar to Americans.

Orphan works legislation is just one of those ways that it will make it easier for Google to steal our life’s work, whether you are a songwriter, photographer, illustrator, artist, musician, singer, director, actor, screenwriter, or best boy.

We are pleased to be able to serialize an excellent article about the history of the “orphan works” movement in the U.S. written by the distinguished illustrator, Brad Holland. We encourage readers to make common cause with the illustrators and photographers who will likely be most harmed by this specious legislation backed by Google the last two times it appeared in the Congress. The article first appeared in the Journal of Biocommunication in 2010 and is used by permission of the author.

If you missed Part 1 of this important article, you can read it here along with Brad’s bio.  You can read Part 2 here and part 3 here.

One reason we are serializing Brad’s article is to help you develop awareness of the situation, so that if we are right and legislation is introduced (whether it is orphan works, “fair use” Google style, or other legislation that undermines creators), you’ll be able to take action quickly.  Given what we know of Google’s cozy relationship with the FTC, we may well be entirely on our own.

Part 4: Trojan Horse: Orphan Works and the War on Authors, by Brad Holland

The Gospel of the Commons

The premise that intellectual property should not be treated as real property is the gospel of the anti-copyright movement. Its chief apostle has been Lawrence Lessig, currently a Harvard Law School professor, formerly of Stanford and founder of Stanford’s Center for Internet and Society. Lessig also co-founded Creative Commons. Gigi Sohn of Public Knowledge has called Lessig “the first populist copyright reformer,” adding he “made the existence of organizations like Public Knowledge possible.”49

In books such as Free Culture and Remix, Lessig has argued that copyright law is a tool of the corporate power structure, enabling large media corporations to “lock down culture” and thwart the creativity of ordinary citizens by suspending the sword of infringement litigation over the heads of anyone who wants to “incorporate existing material” into their own creations. Creative Commons routinely celebrates music remixers, collage makers, and film and print publishers who seek to profit by republishing with impunity the copyrighted works of others. Implying that all creativity is a remix of the work of others, Lessig argues that the principle of ownership embodied in current copyright law compels ordinary citizens to create only at their own peril: “Under the existing system of copyright law,” he writes, “there’s no easy way to be a legal creator.”50 Contributors to Lessig’s wiki have spelled out why they believe the unauthorized use of others’ intellectual property should not necessarily be regarded as theft:

“The owner of physical property can clearly be deprived of the use of their [sic] property by the act of confiscation. But no such deprivation occurs when a work enters the public domain. The previous copyright holder can still publish their [sic] works, or market them more effectively…”51

This of course is nonsense. One can hardly market one’s work effectively – or perhaps even market it at all – if potential clients can access the same work for nothing from the public domain. Lessig has said he wants to create a culture of “[u]ser-generated content, spreading in businesses in extraordinarily valuable ways…celebrating amateur culture. By which I don’t mean amateurish culture, I mean culture where people produce for the love of what they’re doing and not for the money.”52

Money, however, appears to come in handy when you’re a “populist copyright reformer” crusading for a change in the law. In November 2006, for example, Lessig was pleased to accept a pledge of $2 million from Google to his Center for Internet and Society at Stanford University. According to the Online Wall Street Journal, “[t]he money will help fund a project at the center dedicated to help preserve the public’s legal right to ‘fair use’ of copyrighted material. It also intends to pursue legal cases relating to the topic.”53

“Aine Donovan, executive director of the Ethics Institute at Dartmouth College, says Stanford shouldn’t have accepted the Google gift because it is too narrowly tailored to benefit Google’s corporate interests. ‘It might as well be the Google Center,’ she says.”54

Lessig, of course, assured the Journal that the gift wouldn’t affect his scholarship, adding that his views on copyright “don’t always agree with Google’s,” and anyway, “there was no ‘quid pro quo.’”55

Lessig’s Gospel of the Commons is merely the fin that breaks the surface of the Free Culture/Orphan Works debate. Beneath the waterline lurks a gathering body of hostile dogma that copyrights are a “public resource” given as “subsidies” or “bribes” to feckless artists in order for work “to be gotten out of them.” Contributors to Lessig’s blog have routinely called copyrights restrictive “monopolies,” impositions on the freedom of others to create, and “a burden which the public ends up shouldering.” One acolyte writes that “[a]uthors should simply not have that much control over their published works,” while another says “the majority of [authors] would probably be better off with the welfare checks.”56

It would be hard to call such expressions scholarly opinions. Prejudice would be a better word. Yet these are merely examples of the reckless bias Lessig has ginned up throughout the world with his evangelical insistence that all creativity comes from the “Commons” and is everywhere being “strangled” by the outdated concept that individual creators have proprietary rights to the work they create. 57

In 2008, Lessig demurred from endorsing the Orphan Works bill, arguing instead that the length of copyright should be reduced to 14 years across the board. 58 This was a proposal he had spelled out two years earlier, March 6, 2006 in a nine-page letter to Congresswoman Zoe Lofgren of the House Judiciary Subcommittee. His logic was yet another undocumented assertion that works of art are generally of no lasting value to their creators:

“A presumptive 14 year term far exceeds the time during which the vast majority of work earns any commercial return at all…Thus, under this rule, any work less than 15 years old would be governed by the existing copyright rules…In the fifteenth year after a domestic work has been published and for every ten years afterwards, the copyright owner must take steps to maintain the copyright.” (Emphasis added.)59

Those steps would include the re-registering, every ten years, of each and every individual work with privately managed registries. All other works would fall automatically into the public domain, just as Creative Commons had recommended to the Copyright Office in its proposal “Reform(alizing) Copyright.”

Orphan Works: “Half a Loaf”

It’s hard to imagine how a panel of legal scholars could successfully convince lawmakers to re-write copyright law by lecturing them on “Derridean propositions” of “intertextuality” and “the inherent instability of meaning.” It’s even less likely they’d succeed by insisting that US law be re-written to reflect a post-Marxist analysis of private property. In Supreme Court cases such as Eldred v. Ashcroft, 60 Lessig and others have failed to bring about a judicial reinterpretation of existing law. Presumably this is why the authors of the Orphan Works Act chose to concoct and promote the myth of a market failure so pervasive that only the transfer of the world’s copyright wealth into the hands of a few corporate databases could correct it. In May of 2008, it looked as if that strategy would soon pan out for them.

Anticipating the imminent passage of the Orphan Works Act, Free Culture advocates had already begun to celebrate their achievement when as James V. DeLong of the Convergence Law Institute reminded them, there was still much work to be done. Calling the Orphan Works bill just “half a loaf,” he hinted at the new legislation the “Copy Left” would have to tackle next:

“These possibly-orphan, sort-of-orphan, and gray literature works simply cannot be made available if the digitizers are required to make one-by-one judgments and seek permission before copying. If they are to be retrieved in useful form, then sooner or later Google, Amazon, Microsoft, and some others must be permitted to digitize on a massive scale.”61

While Mr. DeLong acknowledged that the new reverse copyright law should not deprive intellectual property owners of their “legitimate rights,” 62 he reaffirmed the Copy Left’s fundamental premise that intellectual property owners should not be allowed to have legitimate rights except in situations where they’ve registered their works with commercial databases:

“At some point, some kind of grand grandfathering proceeding will probably be required, a window in which holders of existing rights must reaffirm them or lose them.” (Emphasis added.) 63

These admonitions however, like predictions of the bill’s imminent passage, were premature.

A Public Knowledge Postmortem

“Orphan works relief was vigorously opposed by visual artists…And while we have thought some of their concerns misguided, they did a fine job of organizing and getting their voices heard.”64

That was the rueful analysis from Gigi Sohn of Public Knowledge October 6, 2008, as she conducted a postmortem on her blog to explain how the Orphan Works bill had ultimately failed to pass. Throughout the summer of 2008 the bill, which in the spring had appeared to be a slam dunk, had become one of the 10 most controversial pieces of legislation facing Congress. Congressional observers still predicted that its passage was inevitable. Yet by September, with only a month left to go before adjournment, the Senate was reduced to passing its version of the bill only by using the controversial practice of “hotlining” it. 65Hotlining is a legislative end-run that allows a bill’s sponsors to pass it without subjecting it to testimony, debate or a vote.66This inspired Public Knowledge to lobby for similar tactics to be used in the House:

“The best option [Sohn wrote] was to put it on the ‘suspension calendar,’ which is the place largely non-controversial legislation gets put so that it will get passed quickly. There can be no amendments to bills placed on the suspension calendar.”67

Until the very last minute, Sohn acknowledged, she and others “were on the phone imploring the [House leadership] to move the bill” in this underhanded fashion. Yet in the end, “it was to no avail.” On October 3, 2008 Congress adjourned without passing the Orphan Works Act. “Time had run out.”68 Surveying the wreckage, Sohn nonetheless found a bright spot. Some “positive things,” she said, had “come out of the process.” 69 Ignoring the fact that 85 creators organizations had joined the Illustrators’ Partnership in opposing the bill; 70ignoring the more than 167,000 opposition letters that had been sent to lawmakers from the Illustrators’ Partnership website; 71and ignoring the adverse testimony of freelance creators at a Small Business Administration Roundtable two months earlier (see below), Ms. Sohn chose instead to praise the one graphic arts group72 that had supported the House version of the bill and had spent $200,000 lobbying for its passage.73

Calling officers of the Graphic Artists Guild “enlightened,” Sohn vowed that the Orphan Works Act would be back “next year,” and inexplicably, she tried to portray GAG’s support for it as proof that the world’s artists had finally learned their lesson:

“[V]isual artists, graphic designers and textile manufacturers who opposed orphan works relief now understand that they must change their business models.” (Emphasis added.)74

And with that backhanded praise for GAG, Public Knowledge finally laid its cards on the table.

Beware of Lawyers Bearing Gifts

In the beginning, the sponsors of the Orphan Works Act had all argued that the amendment was merely a minor adjustment to copyright law to let libraries and museums digitize their collections of old works. In 2006, during the bill’s first incarnation, its sponsors were so certain of swift passage that Public Knowledge even argued against imposing a “reasonable fee” on infringers. “That approach,” Ms. Sohn wrote, “keeps the orphans in the orphanage.”75 Yet by May 2008, realizing that artists were waging a persuasive fight to protect their rights, Public Knowledge adopted a different public relations strategy. Casting her new argument in terms that suggested infringement is the normal means by which clients procure work from contributors, Ms. Sohn portrayed the bill as a boon to artists: “The purpose of the legislation [she wrote] is to match users with copyright holders and get the latter paid”:

“If a copyright holder reappears after a user has done a diligent search, then the copyright holder is entitled to reasonable compensation. This is compensation that the copyright holder would likely never have obtained without orphan works relief, because the user would not have risked paying the huge damages provided by copyright law.” (Italics added.) 76

Of course, infringement would only become an everyday means of doing business if this legislation were to pass. Yet watching it fail for the second time in three years, PK’s President dropped the pose of benefactor to artists, admitting petulantly that the real purpose of the law was to force artists to change their business models. In doing so, she merely echoed Professor Jaszi’s 1994 declaration that creators of the future “may not need the long, intense protection afforded by conventional copyright – no matter how much they would like to have it.”

To be concluded in Part 5…

49.  Gigi B. Sohn, “Searching for the Possible in the Orphan Works Debate,” May 20, 2008 http://www.publicknowledge.org/node/1584

50.  Interview with Lawrence Lessig by David Kushner, “Uncommon Law: Lawrence Lessig has pioneered a new approach to copyright,” March 2006, ieee spectrum http://spectrum.ieee.org/at-work/innovation/uncommon-law

51.  Lawrence Lessig’s Wiki, Article: Against perpetual copyright, 6. Deprivation http://wiki.lessig.org/index.php?title=Against_perpetual_copyright

52.  Lawrence Lessig, “Larry Lessig says the law is strangling creativity,” Lecture March 2007, video: http://www.ted.com/talks/larry_lessig_says_the_law_is_strangling_creativity.html transcript: http://dotsub.com/view/d3509948-261f-4fbb-9b7c-c63110f13451/viewTranscript/eng

53.  John Hechinger and Rebecca Buckman, “The Golden Touch of Stanford’s President,” Wall Street Journal February 24, 2007 http://www.signallake.com/innovation/Hennessy022407.pdf

54.  John Hechinger and Rebecca Buckman, “The Golden Touch of Stanford’s President,” Wall Street Journal February 24, 2007

55. ibid

56.  Lawrence Lessig’s Blog http://web.archive.org/web/20080501230937/http://lessig.org/blog/2006/03/orphans.html

57.  Lawrence Lessig, “Larry Lessig says the law is strangling creativity,” Lecture March 2007, video: http://www.ted.com/talks/larry_lessig_says_the_law_is_strangling_creativity.html Transcript: http://dotsub.com/view/d3509948-261f-4fbb-9b7c-c63110f13451/viewTranscript/eng

58.  Lawrence Lessig, “Little Orphan Artworks,” Op-ed, New York Times, May 20, 2008 http://www.nytimes.com/2008/05/20/opinion/20lessig.html

59.  Lawrence Lessig, Letter to Representative Zoe Lofgren (D-CA) March 6, 2006, Page 4, Paragraph 3 http://www.yellowdocuments.com/4998410-march-6-2006-the-honorable-zoe

60.  http://www.oyez.org/cases/2000-2009/2002/2002_01_618

61.  James V. DeLong, “Orphan Works: Half a Loaf,” Coop’s Corner, May 20, 2008. http://news.cnet.com/8301-10787_3-9948731-60.html

62.  ibid

63.  ibid

64.  Gigi B. Sohn, “The Orphan Works Bill: Wait ‘Till Next Year,” October 6, 2008, Public Knowledge http://www.publicknowledge.org/node/1783

65.  Brad Holland and Cynthia Turner, “Orphan Works: The Devil’s Own Day: Never Too Busy to Pass Special Interest Legislation,” September 28, 2008, Illustrators’ Partnership Orphan Works Blog http://ipaorphanworks.blogspot.com/2008/09/orphan-works-devils-own-day.html

66.  Critics of hotlining say “that lawmakers are essentially signing off on legislation neither they nor their staff have ever read.”

“In order for a bill to be hotlined, the Senate Majority Leader and Minority Leader must agree to pass it by unanimous consent, without a roll-call vote. The two leaders then inform Members of this agreement using special hotlines installed in each office and give Members a specified amount of time to object – in some cases as little as 15 minutes. If no objection is registered, the bill is passed.” (Italics added.) – Roll Call, Sept 17, 2007

In other words, a Senate bill can pass by “unanimous consent” even if some Senators don’t know about it. http://tinyurl.com/3p8x2u

67.  Gigi B. Sohn, “The Orphan Works Bill: Wait ‘Till Next Year,” October 6, 2008, Public Knowledge http://www.publicknowledge.org/node/1783

68.  ibid

69.  ibid

70.  85 Creators’ Organizations Opposed the U.S. Orphan Works Bills,” Illustrators’ Partnership CapWiz Website http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00273

71.  Groups Opposing the House and Senate Orphan Works Acts, Illustrators’ Partnership Orphan Works Blog http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00273

72.  Posting by Graphic Artists Guild, October 1, 2008, 4:18 pm: “URGENT: Contact your Representative to oppose [Senate Bill] S. 2913 Either the House version of Orphan Works legislation, H.R. 5889, or the Senate version will become law. There are no other possible outcomes. The Guild continues to support Rep. Berman’s House bill. The Graphic Artists Guild is urging all members and other artists to support H.R. 5889” (Emphasis added.) http://allthingscopyright.com/?p=54 (formerly Orphan Works News – http://orphanworksnews.com/)

Posting by Graphic Artists Guild, September 9th, 2008, 7:40 am: “A Message from the President” “The artistic community just has to get real about this Orphan Works scare… The Guild has promoted the ‘Notice of Use’ provision… and that’s why the Guild can and does support the House version of the Bill…” http://allthingscopyright.com/?p=44#more-44

73.  Mandatory filings with the United States government indicate that the Graphic Artist Guild spent nearly $200,000 in lobbying fees: Office of the Clerk, United States House of Representatives, Public Disclosure Search: Lobbying Disclosure Filing Search: Graphic Artists Guild, Issue Data: Orphan Works 2006 Q4     http://disclosures.house.gov/ld/pdfform.aspx?id=200044500 2007 Q1,2  http://disclosures.house.gov/ld/pdfform.aspx?id=200044508 2007 Q3,4  http://disclosures.house.gov/ld/pdfform.aspx?id=300006705 2008 Q1     http://disclosures.house.gov/ld/pdfform.aspx?id=300052584 2008 Q2     http://disclosures.house.gov/ld/pdfform.aspx?id=300066272 2008 Q3     http://disclosures.house.gov/ld/pdfform.aspx?id=300100998 2008 Q4     http://disclosures.house.gov/ld/pdfform.aspx?id=300117685 2009 Q1     http://disclosures.house.gov/ld/pdfform.aspx?id=300160662 2009 Q3     http://disclosures.house.gov/ld/pdfform.aspx?id=300192823 2009 Q4     http://disclosures.house.gov/ld/pdfform.aspx?id=300216372

74.  Gigi B. Sohn, “The Orphan Works Bill: Wait ‘Till Next Year,” October 6, 2008, Public Knowledge http://www.publicknowledge.org/node/1783

75.  Art Brodsky, “Public Knowledge Praises Orphan Works Report, Wants More Certainty,” Public Knowledge, February 1, 2006, Quoted at “Orphan Works Legislation: Responses to Proposal,” Source Watch, Page last modified July 1, 2008 at 21:04 http://www.sourcewatch.org/index.php?%20title=Orphan_works_legislation

76.  Gigi B. Sohn, “Searching for the Possible in the Orphan Works Debate,” May 20, 2008 http://www.publicknowledge.org/node/1584

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