The tenth rule of the ethics of rules and means is that you do what you can with what you have and clothe [“reform”] in moral arguments. …the essence of Lenin’s speeches during this period was “They have the guns and therefore we are for peace and for reformation through the ballot. When we have the guns then it will be through the bullet.” And it was. — Rules for Radicals, pp.36-37
Two events this week told the story that will unfold in the new Congress–Google’s complete gelding of the FTC and the panel of “copyright reformers” at CES moderated by a Google spouse and including several prominent members of the Google Shill List After watching this display of raw corporate power that might even have given pause to the robber barons of the industrial age, Alinsky’s advice rang truer than ever. Except now the bullets could be made in a 3D printer for assembly according to instructions on the Pirate Bay. Let’s be clear–the revolution will be anonymized.
The Pinkertons are back, but this time they have PhDs.
We are pleased to be able to serialize an excellent article about the recent history of one campaign in the war on authors–the “orphan works” movement in the U.S. written by the distinguished illustrator, Brad Holland. This concluding installment leads us to the barricades on an effort to counteract a lobbying effort that will be quite different in 2013. Google now has a standing army of lobbyists that’s the largest the world has ever seen–not just in the US but also in most countries around the world. Make no mistake–they are out for your property and they mean to take it.
The article demonstrates what a small group of independent artists are able to accomplish in the face of the lobbying might of Big Tech, especially Google. They got organized, believed in their cause and never gave up. We suggest that you pay particular attention to the role played by Google Shill Lister Public Knowledge–they never left and will be back. Expect them. During the time the orphan works bills were being worked in Washington, we have heard from artist advocates that they suspected that Google was pulling the strings despite the continual denials. Now we have the benefit of the disclosures in the Oracle v. Google case (also known as the “Google shill list“) we know that Google has acknowledged contributing to Public Knowledge “for years”.
This is what the Illustrators Partnership was up against–as we have seen demonstrated as recently as last week at the FTC, a well-oiled lobbying machine with an essentially limitless budget dedicated to victory at all costs for a major media company, including destroying the rights of individual artists. And they are proud of themselves. This takes the “creepy line” to a whole new level way beyond anything the worst record company would have tried.
We encourage our music and film industry 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. Because orphan works or something worse will be coming in the new Congress–the money won’t just be from Google this time, it will include Facebook and other members of the Big Tech oligarchy (or what Eric Schmidt calls the “Gang of Four”). Take for example, the Facebook Structured Stories class action settlement that is about to pay millions to some of these same Google Shill Listers. To what end?
If you missed Part 1 of this important article, you can read it here. You can read Part 2 here, part 3 here and part 4 here. The article first appeared in the Journal of Biocommunication in 2010 and is used by permission of the author.
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.
Conclusion: Trojan Horse: Orphan Works and the War on Authors, by Brad Holland
The War on Authors
The first – indeed the only – effort to assess the economic impact the Orphan Works bill would have on real-life business affairs came August 8, 2008 when the Office of Advocacy of the US Small Business Administration conducted an Orphan Works Roundtable at the Salmagundi Club in New York City. 77 The participants included artists, writers, photographers, songwriters, musicians, performers, and small business owners. All of us stressed that the Orphan Works Act would harm our businesses in two major ways: first, by acting as a compulsory license on business transactions that properly should be conducted as voluntary agreements; and second, by acting as an unfunded mandate requiring small business owners to bear a cost in time and money that would make compliance virtually impossible, while at the same time forcing us to subsidize the business models of large Internet enterprises. As David Rhodes, President of the School of Visual Arts said:
“[S]ince the expense of registering works [with commercial databases] will be born by the creative community, the expense of copyright protection will be socialized while the profit of creative endeavors will be privatized.”78
The individuals who participated in this Roundtable represented hundreds of years of professional experience in all aspects of the creative arts. Yet to Public Knowledge, we were simply a fringe group motivated by irrational fears. In her May 29 speech, PK’s President had condemned visual artists for the “FUD – fear, uncertainty and doubt,” that she said we were spreading about the bill. Portraying us as feckless demagogues, perversely determined to keep our work from the public, even at the expense of being paid “reasonable” fees for its use, she suggested our real goal was to lurk under the bridge of copyright law like trolls and pounce on hapless infringers to extract the maximum financial penalties from them in infringement lawsuits:
“By preferring to lock down culture, even if it means getting paid, these small copyright holders are no less copyright maximalists than the large corporate copyright holders that Public Knowledge has been battling for the past six years.” 79
The acknowledgement that advocates of the Orphan Works bill had been trying to defeat “small copyright holders” was – at long last – at least a breakthrough in transparency.
The “populist reformers” of the Copy Left (their own name for themselves) have long tried to brand themselves champions of the People bravely battling the copyright Goliaths of Big Business to unlock the treasury of the Commons and usher in a New Age of collective creativity among the masses. Having established this as their premise, it was no doubt inconvenient to be seen waging a public war against an entire class of small rights holders whose work they had hoped to present as a generous gift to the public. Yet the fact that they did begs the key question of the Orphan Works story: Who exactly are the “large corporate copyright holders” Ms. Sohn says they’ve had to fight?
• Not Publishers; they supported the Orphan Works bill;80 in fact some have acknowledged that its passage would justify their demands that authors sign all-rights contracts.81
• Not large stock houses; they supported the bill too; it would allow them to harvest “orphans,” “transform” them into “derivative works” and copyright the “derivatives” as their own commercial product.
• Not Google and Microsoft; they too supported the bill and Google said it planned to use millions of the works the bill would orphan.
• And not corporations such as the Copyright Clearance Center; it lobbied for the House version of the bill and was promoted [by the Graphic Artists Guild] as the commercial “Dark Archive” with which infringers could register their intent to infringe work.82
So if it wasn’t large corporate interests that opposed the bill, who is it that the “reformers” were actually battling? The evidence of the Orphan Works fight has made that clear: authors.
A Seismic Shift
The War on Authors isn’t new. Dickens, Victor Hugo and others were vilified for promoting copyright law more than a hundred years ago. What’s new is a technology that tips the scales against authors. As attorney Bruce Lehman, former Commissioner of the US Patent Office told the Association of Medical Illustrators at the Mayo Clinic in 2000:
“[W]e are on the verge of a seismic shift – comparable to radio in the 1920’s – that is the Internet. The Internet has the capacity to seize images and send them around the world in digital form so they can be produced with original quality. Now, that is a scary thing if you can’t control your rights. But if you can, it may be an opportunity.”83
Visual artists opposed the Orphan Works Act because it would impose a radically new business model on the licensing of our property. It would let giant image banks access our commercial inventory and metadata and enter our commercial markets as clearinghouses to compete with us for our own clients. I can think of no other field where small business owners can be pressured by the government to supply potential competitors with their content, business data and client contact information – all at their own expense.
Google and other large database, advertising and search engine companies clearly have a major financial stake in the weakening of copyright law through new legislation. The Orphan Works Act, if it should ever be enacted, would solve the problem that has vexed so many start-up Internet companies: how to make money by giving away free content. By opening the door to potentially billions of “permitted” infringements of protected copyrights, this legislation would allow big Internet companies to create entirely new business models by licensing content they don’t have to pay for — through the digitizing, archiving and monetizing of the intellectual property of ordinary citizens. If this legislation were to pass, its consequences would be far-reaching, long lasting, perhaps irreversible, and would strike at the heart of art itself.
Legislation By Misdirection
Reviewing the evidence, it seems compelling to conclude that the orphan works legislation presented to Congress was not what it was purported to be, but was intended rather to deliver commercial opportunities to large Internet interests while furthering the ideological agenda of legal scholars committed to expanding the public domain by stripping creators, small businesses and ordinary citizens of their intellectual property rights.
This raises fundamental questions not only about this legislation, but also about the process that spawned it and saw it nearly passed by misdirection and backroom deals. In light of the world’s ongoing financial crisis, is it wise for Congress to concentrate our nation’s copyright wealth in the hands of a few corporate databases? The contents of these databases would be more valuable than secure banking information; so why should small business owners and ordinary citizens be compelled to subsidize their start-ups? Why should we place our own assets at risk in the event of corporate failure, mismanagement or corruption? Under copyright law, no author can be compelled to publish his or her work; so by what right of eminent domain can Congress give strangers the right to publish our work without our knowledge, consent or payment? By what mandate do legal scholars, lobbyists, and civil servants presume the right to require small business owners to change their business models? Last but not least: why should Congress pass legislation that has been presented to it as something other than what it is?
“The Plural of Anecdote is Not Data”
From the beginning of the Orphan Works crusade, lawyers, lobbyists and big Internet firms have all sought to justify the rights grab that would follow by asserting that creative work has little or no meaningful value to its owners. Yet what’s striking about these assertions is that they’ve never been backed up by evidence.
The legal case for Orphan Works “reform” has been based solely on anecdotal assertions by lawyers, CEOs and legal scholars, the very people whose disciplines ordinarily require them to substantiate claims with evidence. Yet rather than document their own assertions, they’ve tried instead to burden rightsholders with the task of proving that our work isn’t worthless.
In 2006, for example, Rebecca Tushnet, a lawyer and professor of law at Georgetown University Law Center, denigrated our testimony that the work in an artist’s inventory has residual value. She called such claims “anecdotal,” and commented “the plural of anecdote is not data.” 84 Indeed it’s not, as we’ve pointed out about the self-serving statements of orphan works advocates.
But in fact artists do have data to document the value of our work: tax returns, contracts, invoices to clients. All these prove that our work is an ongoing source of income for us. Under current copyright law, we’re not required to document the day-to-day value of each and every picture in our inventory – nor should we ever have to. This is just common sense. As we all know, the value of any particular work of art is never static. Like gold, John Lennon’s guitars or Teddy Bears once owned by Elvis, the value of any property, especially non-essential property, fluctuates. One day a drawing may be worth nothing because there’s no client who wants to use it. The next it may be worth thousands of dollars to a client who does.
Contrary to the claim that “[t]he vast majority of copyrighted works have little or no economic value soon after their creation or publication,” some works may in fact have little or no value until years after their creation. Just ask the estate of Vincent Van Gogh.
Against a Culture of Appropriation
On March 24, 2005 Cynthia Turner and I authored a four-page paper to the Copyright Office’s Orphan Works study. In it, we argued that artists’ work once published retains residual value and may even increase in value with the rise of an artists’ reputation. We explained why “free speech is not restricted by protecting orphaned works,” why “archival preservation is not hampered by copyright protections,” and why stripping “orphaned” works of protection would both threaten an author’s integrity and favor the business interests of corporate giants over that of individual creators.
Our paper, submitted on behalf of the Illustrators’ Partnership, was endorsed by 42 national and international arts organizations and signed by nearly 2,000 individual working artists from across the spectrum of the graphic arts. Yet despite this testament from working artists, speaking with one voice about their own business experience and the value of their work, our statement was never once referenced in the 127 pages of the Orphan Works study. Instead the authors of the study, citing their 215 letters, asserted that our business models had to be changed because there was no way for users to find us.
Our letter can still be read on the Copyright Office website 85 In our summation, we cited our reasons for opposing this particular vision of copyright “reform.”
“The ‘Free Culture’ argument is at odds with the principle of tangible expression, which is the only aspect of the creative process protected by copyright law. By arguing that creative work is only a ‘remix’ of the work of others, the critics of copyright ignore the factors of experience, personal development and individual vision that are embodied in any author’s tangible expression of an idea. The computer and internet, as well as Photoshop, stock and royalty-free content have all made it possible for many people to become content providers by ‘sampling’ the work of others. But the demands of this ‘new modality’ for free and easy access to usable work should not induce lawmakers to legislate as if creativity can be adequately defined by the ‘remix’ model. There is a difference between the alchemy of new creation and the assembling of ‘found work.’ Legal protections for this difference have been built up over centuries and once eroded, would be painful and costly to recover.
“The Internet has created a culture of appropriation; and immediate global access to artistic works has facilitated piracy, unintentional infringement and plagiary. But instant and unrestricted access to work should not be construed as a necessity just because technology has made it a possibility. That an artist’s work now can be instantly transmitted around the world without the artist’s permission or control does not justify a user’s ‘right’ to take the work. And if inability to trace a work to its author becomes the justification for creating such a ‘right,’ who and what will define the inability to trace the work?
“The ‘orphaned’ works currently under consideration by the Copyright Office include the work of many artists now in the prime of their careers. To remove copyright protection from this work has the potential to undermine the important public policy behind copyright: To promote the creation and dissemination of culture by rewarding incentive. Rescinding guaranteed protection from copyrighted works will do more harm than good to the creative community and by extension, to the public good.”86
Following the failure of the first Orphan Works bill to pass in 2006, but at a time when experts still predicted its swift passage in the 110th Congress, two of the bill’s key authors left public service to enter the employ of corporations that had supported the bill or which hoped to profit from its passage.
In January 2007, Jule L. Sigall, principal author of the Copyright Office’s Report on Orphan Works – who later stated that artists, like cats, needed to have their food moved – left the Copyright Office to become Associate General Counsel for Copyright in the Legal & Corporate Affairs department of Microsoft.87Nine months earlier, on April 6, 2006 Thomas C. Rubin, Associate General Counsel for Microsoft had testified on his company’s behalf in favor of the Orphan Works Act.88Mr. Sigall had been at the Copyright Office for three years,89and like Professor Peter Jaszi, taught law (in his case as an Adjunct Professor) at the George Washington University Law School.90
Also in 2006, another key player in the Orphan Works story left government service. Since 2005, attorney Joe Keeley had served as Intellectual Property Counsel to the House Subcommittee that wrote the bill. In his own words, he “was the lead staffer on the orphan works issue responsible for drafting the language and arranging the hearings.”91At the end of 2006, he left that position and after a year in the Office of General Counsel of the US Copyright Office, he joined the law firm of Arent Fox, where he became a registered lobbyist for the Copyright Clearance Center.92The Copyright Clearance Center (CCC) is the organization which in 2008 the Graphic Artists Guild recommended as a trusted entity to serve as the Dark Archive at which infringers could register their intent to infringe copyrighted work. CCC is a Salem, Massachusetts-based corporation that issues licenses for the reprographic republication of books and articles in print. In 2009, CCC’s revenues exceeded $200 million.93 CCC is unique among the world’s Reprographic Rights Organizations in that it has consistently failed or refused to recognize visual artists as authors who deserve to be paid for the republication of their contributions to the collective works CCC licenses.
- Small Business Administration Orphan Works Roundtable Webcast Stream, August 13, 2008, Illustrators’ Partnership Orphan Works Blog
- David Rhodes, Quoted at “Orphan Works: Risking our Nation’s Copyright Wealth,” by Brad Holland and Cynthia Turner, September 23, 2008, Illustrators’ Partnership Orphan Works Blog
- Gigi B. Sohn: “The Orphan Works Act of 2008: Copyright Reform Takes Its First Steps,” Presented to the Center for Intellectual Property 8th Annual Intellectual Property Symposium, University of Maryland University College, May 29, 2008 http://www.publicknowledge.org/node/1594
- The Illustrators’ Partnership Orphan Works Blog, March 29, 2006: “Allan R. Adler, a lawyer and lobbyist for the Association of American Publishers, said the copyright office’s recommendation regarding compensation to copyright owners is precisely what his group wanted.” Quoted from the Chronicle of Higher Education, February 2, 2006 http://ipaorphanworks.blogspot.com/2006_03_01_archive.html
- Paul Sleven, Holtzbrinck Publishers, U.S. Copyright Office Transcript of Orphan Works Roundtable, July 27, 2005 at page 88: “I think whatever else the harm that may come to artists from inequitable bargaining power with large publishers, if the artist has signed the rights away to a Conde Nast or a Time-Warner…it is much, much less likely to be an orphaned work…because everyone knows where to find Conde Nast and Time.” http://www.copyright.gov/orphan/transcript/0727LOC.PDF
- Unpublished letter from Graphic Artist Guild lobbyist Megan E. Gray to Shanna Winters, Chief Counsel, Office of Representative Howard Berman, Chairman, Subcommittee on Courts, the Internet, and Intellectual Property; Committee on the Judiciary; United States House of Representatives May 21, 2008: In the letter, Ms. Gray proposes (page 3) that the Copyright Clearance Center would be an appropriate repository for “Notice of Use” filings by infringers, noting that such filings need not be burdensome on infringers, requiring them to submit merely their names and addresses and allowing them to attach multiple visual works of art to a single notice of intent to infringe.
- Bruce Lehman, Esq. “Protecting Your Rights Collectively,” July 2000, Excerpted from a speech given to the Association of Medical Illustrators, Mayo Clinic, Rochester, Minnesota http://illustratorspartnership.org/01_topics/article.php?searchterm=00027
- Rebecca Tushnet’s 43(B)log, March 7, 2006 “Orphan Works, Panel 2, part 1: Brad Holland, Illustrators’ Partnership” http://tushnet.blogspot.com/2006/03/orphan-works-panel-2-part-1.html
- Brad Holland and Cynthia Turner, Comments on Orphan Works Notice of Inquiry http://www.copyright.gov/orphan/comments/OW0660-Holland-Turner.pdf (Note: 126 pages)
- The Holland-Turner paper was cited as a source in one of the most authoritative scholarly articles published on this subject. On August 30, 2008, just days before Congress reconvened for its final legislative session, prominent legal scholar Jane Ginsburg of the Columbia Law School published Recent Developments in US Copyright Law: Part I – “Orphan” Works.In her paper, Professor Ginsburg raised many critical questions about the merits of the Orphan Works Act. Among these, she noted that certain provisions might violate Article 9.2 of the Berne Convention, which prohibits prejudicial exceptions to an author’s exclusive right of copyright. She also stated that the preclusion of injunctive relief with respect to derivative works would appear to force authors to tolerate “even derivative uses they find offensive or that distort their works.” She added that this “has economic consequences as well,” depriving the author of the right “to grant exclusive derivative work rights to a third party. The bill thus potentially devalues the derivative work right.” (Page 10)On page 5, Professor Ginsburg noted: “The ‘progress of knowledge’ to which US copyright aspires is achieved not only by putting works into circulation, but also by fostering conditions conducive to creativity.” http://lsr.nellco.org/cgi/viewcontent.cgi?article=1044&context=columbia_pllt
- “Jule Sigall Joins Microsoft,” Tech Law Journal Daily E-Mail Alert, December 27, 2006
- “Orphan Works: Proposals for a Legislative Solution,” United States Senate Committee on the Judiciary, Official Hearing April 6, 2006
- “Register of Copyrights Announces Appointment of Associate Register for Policy and International Affairs,” News from the Library of Congress, January 29, 2003
- Orphan Works.net “Following the Progress of Orphan Works Legislation” This is a website started by Mr. Keeley following his departure from government service. http://www.orphanworks.net/
- “Joe Keeley. Federal Lobbying activities for 2008,” impluCorporation
- International Federation of Reproduction Rights Organizations, Information page for Copyright Clearance Center, Inc http://www.ifrro.org/show.aspx?pageid=members/rrodetails&memberid=8
Brad Holland is a self taught artist and writer whose work has appeared in Time, Vanity Fair, The New Yorker, Playboy, Rolling Stone, the New York Times and many other national and international publications. His paintings have been exhibited in museums around the world, including one-man exhibitions at the Musée des Beaux-Arts, Clermont-Ferrand, France; the Museum of American Illustration, New York City and the Torino Atrium, Turin, Italy. His satire of the art business, “Express Yourself, It’s Later Than You Think,” first published in The Atlantic Monthly, has been widely republished, both in print and on the Internet. In 2005 he was elected to the Society of Illustrators Hall of Fame.
“During a career that has stretched over three decades,” wrote Steven Heller in Print Magazine, October 2002, “Brad Holland has changed the way illustration is perceived and practiced. By the late ’60s he had helped transform a profession of renderers into one of conceivers, challenging editors and art directors to let him create images that complemented rather than mimicked texts.” In 2000, the editors of the artists’ directory RSVP voted Holland “the one artist, who in our opinion, has had the single greatest impact on the illustration field during the last twenty five years.” Holland has won more awards presented by the New York Society of Illustrators than any other artist in its long history. The American illustrator Mark English has called him “the most important illustrator in America today.”
In the last decade, Holland has become an outspoken advocate for artists’ rights and is a founder of the Illustrators’ Partnership of America. In 2005, he represented artists at the Orphan Works Roundtables held by the US Copyright Office; in 2006, he testified before the Intellectual Property Subcommittees of both the US House and Senate, and in 2008 he and medical illustrator Cynthia Turner led the opposition to the Orphan Works Act of 2008. It was through their lobbying efforts that the US Small Business Administration acted to conduct its own Orphan Works Roundtable at the Salmagundi Club in New York City, August 8, 2008.
Holland is featured in the documentary, “Citizen 3.0 Copyright, Creativity and Contemporary Culture,” available at www.kinobserver.com and his article, “First Things About Secondary Rights,” published by The Columbia Journal of Law and the Arts is available at weblog.ipcentral.info/holland_ColumbiaLaw.pdf
Holland’s blog, Poor Bradford’s Almanac, can be accessed at http://www.drawger.com/holland/?article_id=9022
© 2010 Brad Holland