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

Afterward

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.

1. Small Business Administration Orphan Works Roundtable Webcast Stream, August 13, 2008, Illustrators’ Partnership Orphan Works Blog
   http://ipaorphanworks.blogspot.com/2008/08/sba-roundtable-webcast-stream.html
2. 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
   http://ipaorphanworks.blogspot.com/2008/09/meltdown-on-wall-street-warning-for.html
3. 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
4. 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
5. 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
6. 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.
7. 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
8. 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
9. 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)
10. 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
11. “Jule Sigall Joins Microsoft,” Tech Law Journal Daily E-Mail Alert, December 27, 2006
    http://www.techlawjournal.com/alert/2006/12/27.asp
12. “Orphan Works: Proposals for a Legislative Solution,” United States Senate Committee on the Judiciary, Official Hearing April 6, 2006
    http://www.archive.org/details/senate_hearing_on_orphan_works
13. “Register of Copyrights Announces Appointment of Associate Register for Policy and International Affairs,” News from the Library of Congress, January 29, 2003
    http://www.loc.gov/today/pr/2003/03-017.html
14. http://www.law.berkeley.edu/institutes/bclt/statuteofanne/imgs/Jule-Sigall.pdf
15. 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/
16. “Joe Keeley. Federal Lobbying activities for 2008,” impluCorporation
    http://www.implu.com/lobbyist/49749/2008
17. International Federation of Reproduction Rights Organizations, Information page for Copyright Clearance Center, Inc http://www.ifrro.org/show.aspx?pageid=members/rrodetails&memberid=8

Author

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

The Fair Use/Orphan Works Connection: A Lesson from the UK

We would all do well to observe the intellectual property meltdown occuring in the UK largely as the result of the so-called “Google Review” commissioned by the UK government (officially titles the “Hargreaves Review”).   This is particularly acute given the concurrent “agency capture” of the UK’s Intellectual Property Office (roughly equivalent to a combined version of our Patent & Trademark Office and Copyright Office).

We should expect to see Google and its allies (CCIA, CES, various library associations) go for something similar in the Congress that starts this week in the US.

The Register’s Andrew Orlowski sums it up well:

The threat to the sovereignty of the individual now comes from academics and bureaucrats. Parliamentarians spent much of the year studying the radical, activist department of Whitehall called the IPO, the Intellectual Property Office – formerly the Patent Office, which has been behind a succession of moves to strip the individual of his or her rights. The MPs and Lords stopped short of calling for the IPO to be disbanded, but reminded the bureaucrats that copyright is a property right – not a regulatory impediment to some imaginary digital Utopia.

The IPO responded by placing a permanent extension of its powers onto the Coalition’s Business and Enterprise Regulatory Reform Bill (BERR) and seeking, in effect, to “do a Zuckerberg” by statute. Millions of unidentified works, without metadata, would be swept into schemes where they could be commercially exploited without the knowledge of their owner. It’s the only scheme in the world which proposes to allow third parties to rip off the creator for profit. The UK faces a “firestorm” of litigation from overseas, US creators have warned. And expect to see some real fireworks as the Bill moves into report stage.

(Note that China is beefing up its IP – the winner of the new economic wars will be the nation that can best protect and exploit its inventiveness).

Why has Britain been blessed with such a barmy bureaucratic class? They’re undoubtedly sincere in thinking the public would benefit from removing rights from creators. But we could abolish copyright entirely overnight and have an orgy of consumption – only to wake up from the Remixing Party with a headache, discover the creative industries have upped sticks and moved abroad (easier to do than you might think), at a huge cost to future growth and economic opportunities.

Politicians don’t really understand the potential damage, and won’t really appreciate the dangers, until UK businesses decide they need to move outside the UK to protect their work.

The UK government has been mislead by Google into thinking that somehow “fair use” was a cornerstone to the company’s success–naturally, “fair use” as defined by Google has found its way into the Google Review.

Alison Wenham, OBE, chair and chief executive of the Association of Independent Music, confronted Hargreaves at one of the few (if not the only) public meetings to receive comments about the Google Review before the report was issued.  She said:

“’I don’t believe IP is the problem,’ said Alison Wenham, representing independent music companies. ‘One of reasons Google did not start here is nothing to do with IP, it was to do with funding. The US has a rich culture of high risk investment and unfortunately our banking system does not value this, we have a criminal lack of funding for high risk ventures’….‘There’s no lack of business models, there’s a lack of market traction, because we’re all competing with free,’ she said. ‘What safe harbour and fair use has given US copyright owners is zero. Professor Hargreaves, you must be very careful what you wish for.’ Wenham wondered why Google promoted pirate sites so heavily, and why government agencies advertised the pirate sites.”

To which Hargreaves replied [disregarding the fact that the leader of AIM might actually know something about what’s happening in her own industry]: ’I don’t think the current system (of copyright) is serving you well.’  He added, ‘It is clear that in all sorts of ways that the market place for digital content in the UK is a troubled place in all sorts of ways. The Government having a Review will not be able to calm all of those waters. But what we are looking for are ideas to edge forward the ease with which markets with rights work.’”

Like excluding the enforcement of those rights by means of vauge and expansive “fair use” safe harbors.  A close cousin to the “fair use” safe harbor is “orphan works”.

We take a dim view of the “orphan works” theory–it seems to be yet another way of undermining copyright through a back-door safe harbor. If the last effort at “orphan works” legislation was any guide, it will another excuse for copyright infringement–if the infringer doesn’t quite qualify for a “fair use” defense, then they will say that their use of the infringed work is an “orphan” because they tried really, really hard to find the copyright owner, but couldn’t quite seem to find them. We think that “orphan works” puts the fox squarely in the henhouse, and is another clear example of the law creating another moral hazard to the detriment of artists.

We are expecting another push at so-called “orphan works” legislation in the U.S. Congress during the upcoming legislative session because the U.S. Copyright Office is soliciting comments in a Notice of Inquiry proceeding that closes February 4, 2013 (in a few weeks).

We have a lot of readers in the music business, and people in the music business often think that “orphan works” don’t affect them–we have all these databases after all. That places an awful lot of trust in the infringer. Remember–Google specifically asked the Copyright Office to consider users of “millions” of orphan works and the outside counsel for Google seems to be parking the orphanworks.com domain on the EFF’s servers. Still want to be so trusting? What about Google getting 3 million DMCA notices a week for search alone suggests that artists should trust the system?

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.

Keep this thought in mind as you read the article: If orphan works represent a market failure, how can you have a market failure without a market, and how can you have a market without enforceable property rights?

Part 3: Trojan Horse: Orphan Works and the War on Authors, by Brad Holland

A One Day Symposium

If the Glushko-Samuelson Law Clinic conceived the “legislative blueprint” before the Copyright Office commenced its study, what kind of research did the Law Clinic undertake to inform its proposals? Here, in their own words, is how the authors of the plan described it:

“Since 2001, the Glushko-Samuelson Intellectual Property Law Clinic…has provided student attorneys with the opportunity…to work on important public policy projects related to important issues in the field. Clearly, the problem of ‘orphan works’ is one such issue.

“On April 11, 2003, the Clinic held a symposium with scholars, academics and other interested parties to discuss this issue. Since then, the work of CCI has focused its efforts on devising the blueprint for a legislative solution to the ‘orphan works’ problem (hereafter the CCI proposal) and has been in close contact with various non-profit organizations, intellectual practitioners and academics…”²³

A footnote on page 2 identifies the eight “clinic students” who allegedly conceived this plan. It also names three organizations whose “representatives…made significant contributions to the proposal.” ²⁴ These include two of the groups we’ve already encountered: Public Knowledge, whose president later praised the Copyright Office for proposing the plan; and the College Art Association, which two years later asked its members to flood the Copyright Office with anecdotes about orphan works “difficulties.” Of course, we shouldn’t be surprised that groups which helped draft the amendment would fully support it. But how plausibly can they argue that the “framework” they helped write between 2003 and 2005 was actually conceived by the Copyright Office only in response to a study the Copyright Office didn’t launch until 2005?

There’s nothing in the Glushko-Samuelson proposal that explains how eight law students had gained any knowledge of the dynamic $187 billion dollar licensing markets their recommendations would affect. Nor does it explain how a one day symposium attended by “non-profit organizations, intellectual practitioners and academics” could shed any serious light on the matter.  Yet the Glushko-Samuelson proposal was adopted by the Copyright Office and passed on to Congress with only slight modifications: where the law students had proposed capping infringement fees at $100, the Copyright Office report changed that to the ambiguous and undefined “reasonable fee.”

Based on this evidence it appears that the Orphan Works bill was cobbled together by marrying the “limitation on remedies” proposed by the Glushko-Samuelson Clinic to the Creative Commons proposal that compulsory registration be imposed on rightsholders in such a way as to appear voluntary. As Creative Commons predicted, this would “move works [probably in the millions of works] into the public domain.”

These works would act effectively as start-up capital to benefit two classes of opportunists: Internet businesses, which could harvest newly-created orphans as their own property to license to others; and entrepreneurs who wish to start new commercial rights-clearance registries, clearing the rights to copyrights that have been registered with them and certifying unregistered works as orphans available for legally-sanctioned infringement. Both types of business would operate essentially as stock houses do now, channeling client contact away from creators and into their own hands.

The Myth of Market Failure

Officially, the goal of forcing copyright holders to rely on private registries was expressed benignly on page 106 of the Copyright Office Report:

“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem, as we explain above. It is our view that such registries are better developed in the private sector…” (Italics added.) ²⁵

But subsequently, in defending their proposal from unexpected opposition, the Report’s principal author began stating the case for registration in more coercive terms. Speaking at “Orphan Works: A Search for Solutions,” hosted by the Progress and Freedom Foundation, March 31, 2006, Jule Sigall, the Copyright Office’s Associate Register for Policy & International Affairs, explained why they had proposed stripping artists of the automatic protection afforded under current copyright law. He said it was necessary to “push” us into handing our work over to the private registries the bill would create. Artists, he said, are like cats who can’t be herded, and:

“You can’t herd cats, but you can move their food…It’s really what kind of incentives, what kind of pressure and how you put on the right pressure.” (Italics added.)²⁶

He justified such coercive measures by blaming visual artists for having failed to create such registries themselves:

“I use this line a lot, photographers and illustrators like to say, ‘We haven’t collectivized.’ This is a problem, generally, for their marketplace. It’s hard to have a marketplace where buyers can’t find sellers.” (Italics added.)²⁷

Nothing expresses the looking glass logic of the Copyright Office proposals better than this apparent belief by the bill’s principal author that an amendment legalizing the infringement of millions of commercial copyrights is necessary so that art directors can find artists. Even a quick glance at a newsstand should dispose of that argument. There are thousands of magazines and daily newspapers filled from cover to cover with photographs and art. There are billions of images published in trade publications, medical journals, ads, annual reports, posters, brochures, catalogues, postcards, greeting cards, surface and fabric designs. How can anyone be surrounded by this sea of pictures and seriously argue that the trade in images is being impeded because clients can’t find artists who have failed to collectivize?

Artists were not the only ones to notice that the Copyright Office lacked any substantial supporting evidence for its Orphan Works recommendations. The Association of Independent Music Publishers and the California Copyright Conference made the same observation in a joint paper published July 15, 2008.

“The Copyright Office,” they wrote, “requested orphan works legislation without having conducted a needs assessment study, an independent audit of its registration and copyright history records, an economic impact analysis, or an evaluation of how the public, society and authors would be affected by reduced quantity and quality of art, film, television, music, video games and other copyrighted works in the future.” ²⁸

The Runaway Scope of the Orphan Works Bill

The assertion of market failure, though entirely unsupported by evidence, took on the authority of fact when presented to Congress with the imprimatur of the Copyright Office. By the time Howard Berman, Chairman of the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property, opened his single hearing on the Orphan Works Act of 2008, he simply cited the premise to decree an end to an author’s exclusive right to control the uses of his or her own intellectual property.

“[W]e should correct a misnomer” [he began]. “The works we’re talking about are not orphans…The more accurate description… is probably an unlocatable copyright owner…this situation better describes the orphan works construct, which is to correct the market failure when a potential user can’t find the copyright owner. But for the sake of ease we’ll keep talking about them as if they’re orphans.” (Italics added.) ²⁹

With this breezy introduction, the Chairman casually brushed aside Article 9.2 of the Berne International Copyright Convention, which states that “[m]ember [countries] shall confine limitations and exceptions to [an author’s] exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightsholder.” (Emphasis added.) ³⁰

Clearly, by redefining an “abandoned” work as any work by any author that anybody finds sufficiently hard to find, the Orphan Works bill would not limit exceptions to “certain special cases.” Since everybody can be hard for somebody to find, this definition would void every rightsholder’s exclusive right to his or her own property. It would create the public’s right to use private property as a new default position – and creating a new default position for copyright was exactly the deceptive strategy proposed by Creative Commons for “moving works into the public domain.”

The Subcommittee’s hearing lasted less than an hour and a half. No one asked why a bill that was not about orphaned work should be called an Orphan Works bill, even “for the sake of ease.” There were no further hearings on the Orphan Works Act of 2008. The terms of the bill had been decided over the previous two years during closed-door negotiations with special interest groups; and so, with almost casual indifference to facts (or the lack of them), the Orphan Works Act was introduced in March 2008 and placed on the “Rocket Docket” for swift passage by early summer. Despite its “paucity of data,” lawmakers had accepted the Copyright Office report as “a detailed study” of a crisis in commercial markets. The Trojan Horse had done its job.

Deconstructing Authorship

Peter Jaszi is a distinguished legal scholar at the Washington College of Law at American University. Along with Professor Lawrence Lessig, founder of Creative Commons, Jaszi is one of the most influential of a zealous group of legal scholars who believe that laws respecting intellectual property are based on “outdated” concepts of individualism and should be radically changed to favor common “sharing” by the public. As Director of the Glushko-Samuelson Law Clinic, Professor Jaszi could plausibly be characterized as the true Godfather of the Orphan Works bill.

In 1994, the professor co-edited The Construction of Authorship, a book of essays by various contributors subtitled Textual Appropriation in Law and Literature, in which “Appropriation” is clearly intended to mean unauthorized use. In his introduction, Jaszi spelled out his belief that in the new “information environment” created by the Internet, authors, artists and others “may require some kind of legal security [for the work they create] as an incentive to participate [in the creative process, but] they may not need the long, intense protection afforded by conventional copyright — no matter how much they would like to have it.” (Italics added.)³¹ The punitive tone of the comment is striking.

Copyright, Jaszi argued, is rooted in outdated concepts of “possessive individualism.” ³² He dismisses authorship as a “Romantic paradigm,” ³³ a vestige of the 18th and 19th centuries “in which entrepreneurial publishers…[and] entrepreneurial writers…played out their shared conviction that the ‘individual [is] essentially the proprietor of his own person or capacities’ — and thus of whatever can be made of them.” ³⁴ Most writing today,” he argues, “in business, government, industry, the law, the sciences and social sciences — is collaborative.” Therefore he objects to the fact that authorship is still being taught and treated by the law “as if it were a solitary, originary [sic] activity.”³⁵

The professor has criticized the US for joining the international Berne Copyright Convention, calling it “an international agreement grounded in thoroughly Romantic assumptions about creativity.” ³⁶

“The first Act of this preeminent ‘authors’ rights’ treaty in 1886 represented the culmination of a process which got underway in the mid-nineteenth-century with Victor Hugo’s vigorous campaign for the rights of European writers and artists. Other famous ‘authors’ rallied to the cause: Gerhard Joseph suggests that the manic energy with which Charles Dickens championed international copyright stemmed from the novelist’s private insecurities about his own ‘originality.’”³⁷

Note the disparaging quotes around “authors” and “originality.” Professor Jaszi appears to subscribe to the postmodern cliché that all creativity derives from the “transformative” uses of the work of others, and therefore such concepts as authorship and originality are merely covers for one writer’s “vigor” or another’s “insecurities.” There may or may not be any merit to such an argument, but if you’re a working author you might simply guess that Dickens and Hugo campaigned for copyright laws because they wanted to protect the books they wrote.

In The Construction of Authorship Professor Jaszi cites the “critique of authorship” by postmodern literary critics and complains that their theories have “gone unheard by intellectual property lawyers.”

“However enthusiastically legal scholars may have thrown themselves into “deconstructing” other bodies of legal doctrine, copyright has remained untouched by the implications of the Derridean proposition that the inherent instability of meaning derives not from authorial subjectivity but from intertextuality. Above all, the questions posed by Michel Foucault in ‘What Is an Author?’ about the causes and consequences of the persistent, over-determined power of the author construct — with their immediate significance for law — have gone largely unattended by theorists of copyright law, to say nothing of practitioners or, most critically, judges and legislators.” (Emphasis added.)³⁸

Or to put it into plain English, why hasn’t Congress written some debatable literary theories into US statute law? In a Content Agenda interview entitled “10 Pushy Questions,” the professor offered his own answer to that question:

“This is a society built around protection of private property and they’ve [the content industry] been very effective in persuading people that all property is the same. And if you take someone else’s property, that’s theft.  But all property is not the same; there are differences.” (Emphasis added.)³⁹

These differences, of course, refer to intellectual property, and the concept that theft of intellectual property may not be theft can indeed be traced to the French literary critics Professor Jaszi cites as his source of revealed wisdom. In What is an Author? Michel Foucault asserts that authorship is a false concept of ownership arising from a “privileged moment of individualism,”⁴⁰ a by-product of nineteenth century capitalism. He objectifies creative works as mere “texts,” a pseudo-scientific classification that can include anything from Shakespeare’s plays to “a laundry list;” ⁴¹ then he challenges the right of any legal system to treat these texts as “objects of appropriation” by anyone, including the author. ⁴² Citing the “disappearance of the author function,”⁴³ he predicts a future in which “[a]ll discourses…would then develop in the anonymity of a murmur,” ⁴⁴ and the questions one would ask about any creative work would not be “whose property is it?” but

“What are the modes of existence of this discourse? Where has it been used, how can it circulate, and who can appropriate it for himself?” (Emphasis added.) ⁴⁵

Foucault asserts that authors are no longer any more important to the “texts” they create than are their readers, and less important than the enlightened critic who deconstructs the text by means of post-Marxian analysis. In an interview published in L’Express July 6-12, 1984, just before his death, Foucault explained what he had tried to accomplish in his work:

“What did Marx do when in his analysis of capital he came across the problem of the workers’ misery? He refused the customary explanation, which regarded this misery as the effect of a naturally rare cause of a concerted theft. And he said substantially: given what capitalist production is, in its fundamental laws, it cannot help but cause misery.  Capitalism’s raison d’etre is not to starve the workers but it cannot develop without starving them. Marx replaced the denunciation of theft by the analysis of production. Other things being equal, that is approximately what I wanted to say.” (Emphasis added.)⁴⁶

Jacques Derrida, whose “propositions” Professor Jaszi also suggested should be used to inform US statute law, likewise derived his inspiration from Marx. In his book Specters of Marx, he argued that with the falling-away of state-sponsored Marxism, it’s the duty of modern intellectuals to create a “New [stateless] International” ⁴⁷ to translate Marxist thought into political action:

“Upon rereading the Manifesto and a few other great works of Marx, I said to myself that I know of few texts in the philosophical tradition, perhaps none, whose lesson seemed more urgent today…It will always be a fault not to…go beyond scholarly ‘reading’ or ‘discussion.’ It will be more and more a fault, a failing of theoretical, philosophical political responsibility. When the dogma machine and the ‘Marxist’ ideological apparatuses (States, parties, cells, unions, and other places of doctrinal production) are in the process of disappearing, we no longer have any excuse, only alibis, for turning away from this responsibility. There will be no future without this. Not without Marx, no future without Marx, of his genius, of at least one of his spirits.” (Italics in the original, underlines added.)⁴⁸

Since we now know that the legislative blueprint for the Orphan Works bill was drafted before, not after, the Copyright Office study; and since we know it was drafted by (or under the direction of) Professor Jaszi; and since there’s no reason to doubt the professor’s sincerity in his belief that the laws governing intellectual property should be altered to reflect the opinions of Derrida and Foucault, is there any reason to doubt that the legislative” blueprint” his Law Clinic drafted between 2003 and 2005 reflects this ideological agenda rather than the underwhelming “evidence” of 215 letters submitted in 2005 to the Copyright Office study?

To be continued…

23.  Glushko-Samuelson Intellectual Property Law Clinic, Response to Notice of Inquiry on the Issue of “Orphan Works,” Submitted to the United States Copyright Office, Library of Congress March 24, 2005, Page 2  http://www.copyright.gov/orphan/comments/OW0595-Glushko-Samuelson.pdf

24.  ibid

25.  Report on Orphan Works, A Report of the Register of Copyrights, January 2006 United States Copyright Office, Page 106 http://www.copyright.gov/orphan/orphan-report.pdf

26.  Jule L. Sigall, “Orphan Works: A Search for Solutions,” hosted by the Progress and Freedom Foundation, March 31, 2006. http://www.archive.org/details/PffSeminar-OrphanWorksASearchForSolutions

27.  ibid

28.  Association of Independent Music Publishers (AIMP) and California Copyright Conference (CCC) Joint Position Paper on Orphan Works Legislation, July 15, 2008, Page 2 http://www.brandaideblog.com/pdf/Position_Statement.pdf

29.  Rep. Howard Berman (D-CA), Chairman, Subcommittee on Courts, the Internet, and Intellectual Property; Committee on the Judiciary; United States House of Representatives, Opening Statement: “Orphan Works Problem and Proposed Legislation,” March 13, 2008 http://www.copyright.gov/docs/regstat031308.html Video Testimony of Chairman Berman’s opening comments (requires RealAudio plug-in):
http://www.copyright.gov/video/testimony-3-13-08.html

30.  Article 9.2 Berne Convention for the Protection of Literary and Artistic Works http://www.law.cornell.edu/treaties/berne/9.html

31.  Peter Jaszi, The Construction of Authorship: Textual Appropriation in Law and Literature, Page 12, Edited by Martha Woodmansee and Peter Jaszi, Duke University Press, 1994 http://books.google.com/books?id=dpRKltgJYYwC&printsec=frontcover&dq=Peter+Jaszi,+The+ Construction+of+authorship&hl=en&ei=1UXsS6aJFsH68AaF4NzBCA&sa=X&oi=book_result &ct=result&resnum=1&ved=0CCwQ6AEwAA#v=onepage&q&f=false

32.  Peter Jaszi, The Construction of Authorship: Textual Appropriation in Law and Literature, Page 6 Edited by Martha Woodmansee and Peter Jaszi, Duke University Press, 1994

33.  Peter Jaszi, The Construction of Authorship: Textual Appropriation in Law and Literature, Page 9 Edited by Martha Woodmansee and Peter Jaszi, Duke University Press, 1994

34.  Peter Jaszi, The Construction of Authorship: Textual Appropriation in Law and Literature, Page 6 Edited by Martha Woodmansee and Peter Jaszi, Duke University Press, 1994

35.  Peter Jaszi, The Construction of Authorship: Textual Appropriation in Law and Literature, Page 9 Edited by Martha Woodmansee and Peter Jaszi, Duke University Press, 1994

36.  Peter Jaszi, The Construction of Authorship: Textual Appropriation in Law and Literature, Page 10 Edited by Martha Woodmansee and Peter Jaszi, Duke University Press, 1994

37.  Peter Jaszi, The Construction of Authorship: Textual Appropriation in Law and Literature, Page 9-10 Edited by Martha Woodmansee and Peter Jaszi, Duke University Press, 1994

38.  Peter Jaszi, The Construction of Authorship: Textual Appropriation in Law and Literature, Page 8-9 Edited by Martha Woodmansee and Peter Jaszi, Duke University Press, 1994

39.  Peter Jaszi, “10 Pushy Questions for Peter Jaszi and Patricia Aufderheide” This interview is no longer online, but was once available at http://www.contentagenda.com/info/CA6434467.html (This URL no longer exists)

40.  Michel Foucault, What is an Author? Text of a lecture presented to the Societé Francais de philosophie, February 22, 1969 Translation by Josue V. Harar, Page 1, http://www.scribd.com/doc/11397906/What-is-an-AuthorFoucault

41.  Michel Foucault, What is an Author? Page 3

42.  Michel Foucault, What is an Author? Page 6

43.  Michel Foucault, What is an Author? Page 14

44.  ibid

45.  ibid

46.  Michel Foucault, Interview by Pierre Boncenne, Page 113, Politics, philosophy, culture: interviews and other writings, 1977-1984 by Michel Foucault, Lawrence D. Kritzman, Alan Sheridan, Routledge, Chapman & Hall, Inc. 1988 http://books.google.it/books?id=HfWNHGCw55EC&pg=PA113&lpg=PA113 &dq=michel+foucault+%22+What+did+Marx+do+when+in+his+analysis+of+capital+he+came+across+the+problem +of+the+workers’+misery&source=bl&ots=mQRxyxhm3s&sig=Tnlz6of6aN-V_ak1vosmlpwH-MQ&hl=it&ei= dj_XS8qBE82PsAa84OScAw&sa=X&oi=book_result&ct=result&resnum=1&ved=0CAYQ6AEwAA#v=onepage&q&f=false

47.  Jacques Derrida, Specters of Marx: the State of the Debt, the Work of Mourning, & the New International, Translated by Peggy Kamuf, Routledge 1994, Page 13 http://books.google.it/books?id=sEENbAP5FZsC&dq=derrida++specters+of+marx&printsec=frontcover &source=bn&hl=it&ei=ncXYS6z1OoXdsAbur92FAw&sa=X&oi=book_result&ct=result&resnum=4&ved= 0CBsQ6AEwAw#v=onepage&q&f=false

48.  ibid