Artists Rights Watch – Sunday Jan 6, 2013

Happy New Year! Grab the coffee!

Recent posts from The Trichordist:
* First USC-Annenberg Brand Supported Piracy Report and Google Response
* Trojan Horse: Orphan Works and the War on Authors by Brad Holland, Part 2
* Trojan Horse: Orphan Works and the War on Authors by Brad Holland, Part 3
* Trojan Horse: Orphan Works and the War on Authors by Brad Holland, Part 4
* What the FTC Should Know About Brand Sponsored Piracy and Google’s “Pinto Problem”

FROM AROUND THE WEB:

THE SMITHSONIAN :
* What Turned Jaron Lanier Against the Web?

“I’d had a career as a professional musician and what I started to see is that once we made information free, it wasn’t that we consigned all the big stars to the bread lines.” (They still had mega-concert tour profits.)

“Instead, it was the middle-class people who were consigned to the bread lines. And that was a very large body of people. And all of a sudden there was this weekly ritual, sometimes even daily: ‘Oh, we need to organize a benefit because so and so who’d been a manager of this big studio that closed its doors has cancer and doesn’t have insurance. We need to raise money so he can have his operation.’

“And I realized this was a hopeless, stupid design of society and that it was our fault. It really hit on a personal level—this isn’t working. And I think you can draw an analogy to what happened with communism, where at some point you just have to say there’s too much wrong with these experiments.”

THE NEW YORK TIMES:
* Copyright Rules and the Art They Inspire

PITCHFORK:
* The Year in News 2012

THE REGISTER UK:
* The ‘Digital Economy’ in 2012: A big noisy hole where money should be

“Privacy and copyright are two things nobody cares about,” Mark Bide told us, “unless it’s their own privacy, and their own copyright.” How true.”

THE LOS ANGELES TIMES:
* Report links Google, Yahoo to Internet piracy sites

COPYRIGHT ALLIANCE:
* Instagram Still Has the Right to Commercialize Your Work (or Why You Should Read Terms of Service Carefully)

CNET:
* Google, Yahoo accused of funding piracy

TECHCRUNCH:
* Keen On… Piracy: How Online Ad Networks Are Supporting The Major Pirate Movie And Music Sites [TCTV]

Annenberg’s Advertising Transparency Report should be seen as a wake-up call to brands to invest their advertising dollars in legal networks like Spotify or YouTube rather than pirate sites. Pretty simple, eh? Let’s hope that Madison Avenue wakes up to the troubling implications of Taplin’s report and shifts all its online advertising dollars to movie and music sites which actually pay artists for their content.

VOX INDIE:
* More Evidence Ad Dollars Fuel Web Piracy

HUFFINGTON POST:
* Towards a Bill of Rights for Online Advertisers

THE MUSICAL DISCONNECT:
* The Takedown-Why the DMCA has failed

AD LAND:
* David Lowery makes list of people who changed the music industry.
* Collateral Damage: How Free Culture destroys advertising.

STOP FILE LOCKERS:
* Crocko.com lose Paypal. Resellers to follow.
* UltraMegaBit: A Crime Committed on American Soil
* Avangate forced to drop file sharing sites. More sites poised to lose Avangate payment processing.

DIGITAL MUSIC NEWS:
* Abject Looting Continues at Pandora…
* In France, 92% of Pirates Never Receive a Second Warning Letter…
* Growth of Paid Downloads vs. Streaming, 2012 vs. 2011…

TORRENT FREAK:
* Top 10 Most Popular Torrent Sites of 2013
* Music Biz Wants To Block Pirate Bay….Plus 260 Additional Sites
* IMAGiNE BitTorrent Group Leader Sentenced To Five Years in Prison
* Identifying Pirates Now Easier Following Swedish Supreme Court Decisions

COPYHYPE:
* A look ahead to 2013

BARRY SOOKMAN:
* Most popular intellectual property and technology law blogs

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

The Return of Orphan Works: Trojan Horse: Orphan Works and the War on Authors by Brad Holland, Part 2

Artists have taken note of the recent legislative activity in the European Union regarding “orphan works”.  The European Union defines these works as “works like books, newspaper and magazine articles and films that are still protected by copyright but whose authors or other rightholders are not known or cannot be located or contacted to obtain copyright permissions. Orphan works are part of the collections held by European libraries that might remain untouched without common rules to make their digitisation and online display legally possible.”

Of course, these libraries–the real ones, like the British Museum, not the Google Books Project–have a legitimate interest in digitizing their holdings and making them available online.  However, just as we saw with the Google Books project, Big Tech uses orphan works as a dodge (note that the lobbyist for the “Library Copyright Alliance” also is the lobbyist for the Computer & Communication Industry Association and the Net Coalition–and has been going around the country bashing collecting societies who want payments from his clients.  What’s common to all these things?  Google.

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 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 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? 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?

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.

Part 2: Trojan Horse: Orphan Works and the War on Authors, by Brad Holland

Claims Without Evidence

While academics, college professors, and students may have submitted anecdotes to the Copyright Office study, the weightiest contributions appear to have come from big Internet concerns whose business models depend on providing free or cheap access to other people’s intellectual property. These groups invariably submitted statements claiming that creative works once published have virtually no commercial value. A typical example is the joint statement submitted by NetCoalition.com, whose members “include Bloomberg, CNET, Google and Yahoo, as well as a number of smaller state and local ISP associations.” The coalition congratulated the Copyright Office for identifying “a significant issue that requires expeditious resolution.” Then it stated:

“The vast majority of copyrighted works have little or no economic value soon after their creation or publication.”9

This blatant assertion was offered with no evidence of any kind, nor was it even propped up by argument. Indeed, the letter went further (again without evidence) to state that “[a]uthors of such works typically are willing to permit others to reproduce, distribute, perform, or display their works at no charge because the authors still benefit in tangible and intangible ways from their uses.” (Italics added. ) 10

It should be self-evident that such unsupported conclusions are self-serving. Many Internet content providers are dependent on business practices that have invited major lawsuits for infringement. In March 2007, for example, Google filed a mandatory 10-Q Filing with the US Securities and Exchange Commission in which it acknowledged “copyright claims filed against us [by copyright owners] alleging that features of certain of our products and services, including Google Web Search, Google News, Google Video, Google Image Search, Google Book Search and YouTube, infringe their rights.” Google admitted that “[a]dverse results in these lawsuits may include awards of substantial monetary damages, costly royalty or licensing agreements or orders preventing us from offering certain functionalities, and may also result in a change in our business practices, which could result in a loss of revenue for us or otherwise harm our business.” [Italics added.] 11

Having acknowledged their exposure to costly infringement litigation, one can easily understand why such companies might seek to denigrate the value of the work they’ve been charged with infringing. What’s not clear, however, is why the US Copyright Office should urge Congress to undermine the intellectual property rights of citizens based on such claims.

Google Sees Value in Orphan Works

Despite having joined its NetCoalition partners in asserting that orphaned works “have little or no economic value,” Google sang a different tune at the Orphan Works Roundtables on July 26, 2005 in Washington. There, the company’s attorney, Alexander MacGillivray, made it clear that his firm actually believed the work under consideration was worthless only when it still belonged to the people who created it:

“The thing that I would encourage the Copyright Office to consider is not just the very, very small scale – the one user who wants to make use of the [orphaned] work – but also the very, very large scale – and talking in the millions of works.” 12

“Google strongly believes that these orphan works are both worthwhile, useful, and extremely valuable. In fact, I think that’s why most of us are here. We do think there is a lot of value in these works.” 13

“[W]e expect that [Google’s] use of these orphan works will likely be in the 1 million works range…we know that many of them will be in the public domain, that most of their authors won’t care. But there are a few that really will care and they will come forward [to ask for payment] and it will be extremely inefficient for us [to have to pay them].” (All italics added.)14

Four months later, in November 2005, at the same time as the Copyright Office was concluding its Orphan Works study and preparing its final report to Congress, Google made a surprising $3 million contribution to the Library of Congress for its “World Digital Library” project. The Library of Congress oversees Copyright Office activities. While the Library of Congress acknowledged that the World Digital Library project would be supported by public and private partnerships, it appears that Google was the project’s first, largest, and perhaps only private sector contributor. 15

Turning a Legal Fiction into Reality

It’s not a compelling argument for a large global corporation to say it should be allowed to infringe your intellectual property based on its own assurance that your property is worthless. But while Internet powerhouses such as Google can only make such assertions, a more devious strategy has emerged from the small but dedicated core of copyright “reform” attorneys smitten by the romance of mass digitization. Their idea was not simply to claim that small rightsholders’ work is worthless, but to propose a legal metamorphosis that would make it so.

Of particular interest is the 106 page paper “Reform(alizing) Copyright” submitted to the Copyright Office by the advocacy group Creative Commons. In it, attorney Christopher Sprigman proposed a scheme that would effectively roll back the 1976 Copyright Act by requiring artists, writers and others to mark and register every single work they create or find the work deemed (page 491) “commercially valueless”: 16

“[T]his Article proposes a system of formalities that, although nominally voluntary, are de facto mandatory for any rightsholder whose work may have commercial value. Non-compliance with the newstyle formalities would subject works to a perpetual and irrevocable ‘default license’ with royalties set at a very low level, thus effectively moving works into the public domain.” (Emphasis added.) (Pages 490-491)17

The logic behind this proposal is as cynical as it is clearly stated. Since authors, particularly visual artists, would lack the time and resources to mark and register every drawing, painting, photograph or sketch they create, then track and renew these tens of thousands of registrations over a period of decades, billions of copyrighted works by working authors would inevitably fall through the cracks and into the public domain. This would happen not because the authors have actually abandoned their works (which would be the legal presumption), but merely because the law had swamped them with paperwork. In effect, this proposal would turn a legal fiction – that “most copyrighted work has little or no value soon after its creation or publication” – into reality.

The problem with this proposal is that any government that required rightsholders to register their work as a condition of its protection would violate international copyright law. Article 5.2 of the Berne Convention is explicit: “The enjoyment and the exercise of these rights shall not be subject to any formality.”18

So, the question for advocates of registration became how to skirt the letter of the law in pursuit of its violation. The answer turned out to be simple: amend existing copyright law to “limit” the remedies for infringement wherever an infringer can successfully assert an orphan works defense; then promise rights holders that they can sill protect their exposed work, but only by registering it with for-profit databases to be created in the private sector. Then let the marketplace take care of the rest. Once infringers came to rely on these databases as one-stop shopping centers for rights clearance, any work not available from the databases would become a de facto orphan. This would avoid an explicit violation of international copyright law because it would not legally require you to register your work. It would merely redefine your work as an orphan if you didn’t.

According to the official account, this proposal was the result of the Copyright Office’s year-long study. The facts, however, don’t bear this out.

“The Legislative Blueprint”

The essential language of the Orphan Works legislation was written at least a year before the release of the 2006 Copyright Office Report. It was drafted, ostensibly by law students, as a classroom project at the Glushko-Samuelson Intellectual Property Law Clinic under the guidance of its Director, Peter Jaszi and was submitted to the Copyright Office March 24, 2005. In a few simple words, the Glushko-Samuelson Copyright Clearance Initiative (CCI) spelled out the operative feature of the Copyright Office recommendations that were released nearly one year later. From the CCI, Section III (page 5):

“Remedies and Liability “Under no circumstances will Sec. 504 statutory damages, attorneys fees, damages based on the user’s profits or injunctive relief relating to the challenged use be available against a qualified user.

•  If infringement by a qualified user is proved, damages would be limited to the lesser of •  Actual damages or •  An award of $100 per work used, up to a maximum of $500 for any group of works claimed by a single owner and subject to a single use.”19

This “limitation on remedies” was rationalized (page 6) as necessary to guarantee “certainty” to good faith infringers. Supposedly this would protect the “innocent” infringer from ruinous fees or penalties in the event the owner of an infringed orphan “came forward.” It was said this would encourage worthy users to make older works of cultural or historical significance available to the public. If so, it was never explained why the bill would throw the doors wide open to infringement by commercial users. Since the emasculation of penalties would apply throughout the entire world of publishing, it would create a haystack of “legal” infringements in which bad faith infringers could hide like needles.

To pass such a law would pull the only teeth that current copyright law possesses. There’s no other mechanism for copyright enforcement; no Copyright Bureau of Investigation, no Copyright Office Police Force. All copyright owners are responsible for policing their own copyrights, and the existing penalties for infringement are the only mechanism the law gives us to do it with. Provide infringers with certainty and you create massive uncertainty in commercial markets as well as in the lives of all small copyright owners.

This was one of the key objections to the Glushko-Samuelson proposal that medical illustrator Cynthia Turner and I raised on May 9, 2005, when we submitted a critique of the Glushko-Samuelson proposal to the Copyright Office study. 20We faulted it for granting benefits to scholars, consumers, the public – and infringers – at the expense of authors’ rights:

“The Glushko-Samuelson plan proposes a ‘minimalist approach’ to amending Title 17 USC. But what it actually portends is an expansion of fair use by weakening authors’ rights. It would empower users to annul copyrights based on the user’s own definition of due diligence.

“Glushko-Samuelson defines an orphan work (p. 3) ‘as a work for which the copyright owner cannot be reasonably located.’ But it allows the would-be user to define what constitutes a reasonable effort, then it defines ‘reasonable effort’ as ‘a flexible definition that applies to a variety of situations . . .’ It adds: ‘In the rare instances where there is disagreement about whether a search was adequate, the courts are open to make the required determination.”21

“But while sending authors to court to seek relief from abuses,” we concluded (page 5) that the plan “would restrict an author’s ability to seek redress.” In effect this would undermine copyright protections for all but large corporations, which in most cases would have the resources to staff up and register work, then hire sophisticated search technology to police and protect the copyrights they acquire. 22

The full text of our critique can be read on the Copyright Office website, where it’s been sitting [since 2005]. These excerpts should be enough to demonstrate that it reads like an analysis of the final Orphan Works bill; yet we wrote it 10 months before the Copyright Office report was released and more than a year before the House Judiciary Subcommittee unveiled its first legislative draft. Clearly we could not have condemned the Orphan Works plan a year before it was written if the plan itself had not been written sometime before we condemned it.

To be continued..

10.  ibid

11.  United States Securities and Exchange Commission Form 10-Q/A, Amendment No. 1, Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the quarterly period ended March 31, 2007, Page 36  http://investor.google.com/documents/20070331_10-Q.html

12.  United States Copyright Office Transcript of Orphan Works Roundtable, July 26, 2005, Page 21   http://www.copyright.gov/orphan/transcript/0726LOC.PDF

15.  United States Copyright Office Transcript of Orphan Works Roundtable, July 26, 2005, Page 119 http://www.copyright.gov/orphan/transcript/0726LOC.PDF

13. United States Copyright Office Transcript of Orphan Works Roundtable, July 26, 2005, Page 166 http://www.copyright.gov/orphan/transcript/0726LOC.PDF

14. “Library of Congress Launches Effort to Create World Digital Library,” News From the Library of Congress, November 22, 2005 http://www.loc.gov/today/pr/2005/05-250.html

15. Christopher Sprigman, “Reform(alizing) Copyright,” Stanford Law Review Vol. 57: 485 November 2004, Comment to Copyright Office Orphan Works Study, Page 491 http://www.copyright.gov/orphan/comments/OW0643-STM-CreativeCommons.pdf

16. Christopher Sprigman, “Reform(alizing) Copyright,” Stanford Law Review Vol. 57: 485 November 2004, Pages 490-491, Comment to Copyright Office Orphan Works Study http://www.copyright.gov/orphan/comments/OW0643-STM-CreativeCommons.pdf

17. Article 5.2 Berne Convention for the Protection of Literary and Artistic Works http://www.law.cornell.edu/treaties/berne/5.html

18. 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 5 http://www.copyright.gov/orphan/comments/OW0595-Glushko-Samuelson.pdf

19. Brad Holland and Cynthia Turner, Reply Comment to Copyright Office Orphan Works Study (70FR3739) May 9, 2005 http://www.copyright.gov/orphan/comments/reply/OWR0139-IPA.pdf

20. Brad Holland and Cynthia Turner, Reply Comment to Copyright Office Orphan Works Study (70FR3739) May 9, 2005, Page 3http://www.copyright.gov/orphan/comments/reply/OWR0139-IPA.pdf

21. Brad Holland and Cynthia Turner, Reply Comment to Copyright Office Orphan Works Study (70FR3739) May 9, 2005, Page 5 http://www.copyright.gov/orphan/comments/reply/OWR0139-IPA.pdf

Final Recap, News and Last Links of 2012…

Grab the coffee!

Recent Posts:
* What Can Songwriters Do: Copyright Office Comment Period Ends Today for Mechanical Royalty Statements of Account
* The Return of Orphan Works: A Review of the 2008 Shawn Bentley Orphan Works Act Part 1
* Ending Decade Old Arguments : How the Promise of the Internet has Failed Artists and Musicians…
* Billy Corgan Exploited By… Citi Bank, AT&T, Target, Virgin Atlantic, Mazda, Neiman Marcus, Musicians Friend, Hertz, BMW, Audi, Boston Market, Urban Outfitters, Williams Sonoma
* Songwriter comments on Section 115 Rulemaking
* FTC Treats Google With Kid Gloves and No Transparency
* Fair Pay for Air Play, Terrestrial Radio Performance Royalties for Musicians
* The Piracy-Pandora Connection: Can the Super Bowl, Oscars and Grammys Move the Needle on Brand Supported Piracy?
* The Return of Orphan Works: Trojan Horse: Orphan Works and the War on Authors by Brad Holland

FROM AROUND THE WEB

Seattle Weekly:
* It’s Time for Artists to Fight Piracy as Vigorously as They’ve Challenged Pandora

“…it’s time for artists to band together to set the story straight. Don’t leave it to the few brave enough to speak strongly on the matter. There needs to be a large, coordinated effort by bands big and small to tell their story–to sign a letter to fans explaining how devastating piracy is to their ability to make music for a living (or at all).”

Vox Indie:
* IP and Instagram–a Teaching Moment Perhaps?
* Should More Artists Speak Out Against Piracy?
* Creative Commons Celebrates 10 Years

CNN Money:
* Instagram can now sell your photos for ads
* Instagram says it won’t sell your photos to advertisers

Copyhype:
* Freeloading: How Our Insatiable Hunger for Free Content Starves Creativity, by Chris Ruen

The Guardian UK:
* Intellectual property crime unit to be set up by City police

Torrent Freak:
* U.S. and Russia Announce Online Piracy Crackdown Agreement
* Anti-Piracy Chief Patents “Pay Up or Disconnect” Scheme

Mashable:
* “T-Shirts and Touring” as Revenue for Artists just took a left Turn (YOLO)

Brian Pickings:
* The Best Music Books of 2012

Digital Music News:
* 10 People That Totally Changed the Industry In 2012…

(11) Oh, there’s one more guy…In one fiery and insanely-viral post, performer and professor David Lowery somehow managed to reframe the entire debate over technology, piracy, and the plight of the artist. And, draw attention from seemingly every corner of both the tech and creative communities. It was the biggest post of the year for the music industry, and potentially, the start of a very different type of discussion in 2013.

* Major Label Lobbying vs. Google Lobbying, 2012…
* The State of Music Subscription, December, 2012…
* USC Is Now Researching the Amount of Advertising Flowing Into Pirate Sites…
* Google Exec: If You Really Want to Kill Piracy, Then Kill the Advertisers Who Support It…

Ad Land:
* Senate passes a resolution asking Backpage.com to drop adult classifieds
* Adland booted from Google Adsense due to PETA’s misogynist ads

Copyright Alliance:
* Capitalist Copyrights: A Republican Reply to “Three Myths about Copyright”
* MUSIC Act introduced
* YouTube Moves for Safe Harbor Against Viacom

Daily Dot:
* YouTube strips Universal and Sony of 2 billion fake views

The Cynical Musician:
* Copyright and Scarcity

The Trichordist Random Reader Weekly News & Links Sun Jul 15th

Grab the coffee!

This past (two) weeks posts on The Trichordist:
* Declaration Of Free Milk and Cookies
* CopyLike.Org – It’s Not Stealing, Are You Sure?
* Musician’s POV: Five Things Spotify (and others) Could Do Today to Level the Playing Field for Independent Artists
* Second Nyan Cat Award Goes To The Fake Thomas Jefferson And His Copyleft Creators
* PETm : People For The Ethical Treatment Of Musicians
* The Return of Orphan Works: A Review of the 2008 Shawn Bentley Orphan Works Act Part 1

The attempt for another land grab of creators rights is brewing again, this time in the UK. The video below is an introduction and explanation to get you up to speed. More in depth reporting from Music Tech Policy at the link below: http://musictechpolicy.wordpress.com/2012/07/15/history-of-orphan-works-legislation-corporate-theft-video/

DEADLINE FOR COMMENTS : Wednesday July 25 @ 5PM EST
Artists, Musicians, Creators – U.S. Intellectual Property Enforcement Coordinator Victoria Espinel is asking for you to “Help Us Shape Our Strategy for Intellectual Property Enforcement.” You can comment directly at this link:
http://www.regulations.gov/#!submitComment;D=OMB-2012-0004-0002

We’re very encouraged to see ethical practices by some corporate citizens. PayPal puts on the white hat in support of artist and creators right, denies payments to “File Hosting” site operators, Torrent Freak Reports:
http://torrentfreak.com/paypal-bans-major-file-hosting-services-over-piracy-concerns-120710/
Related from Torrent Freak:
http://torrentfreak.com/paypal-bans-bittorrent-friendly-vpn-provider-120622/
Could these policy changes be the result of one man? Torrent Freak Reports:
http://torrentfreak.com/one-man-army-on-a-mission-to-destroy-the-cyberlocker-market-120705/

Uh Oh… CNET Is Now Facing Hundreds of Millions In Piracy Infringement Penalties… Digital Music News Reports:
http://www.digitalmusicnews.com/permalink/2012/120714cnet

Why copyright matters. Beginning in 2013 individual artists become illegible to regain ownership of their masters via termination of transfer of copyrights. This issue alone illustrates the value of copyright to all musicians.
http://www.forbes.com/sites/richardbusch/2012/06/12/the-battle-over-copyright-termination-and-the-first-round-goes-to/

Forbes reports on Google’s Piracy Liability. Essential Reading:
http://www.forbes.com/sites/scottcleland/2011/11/09/googles-piracy-liability/

Google misled consumers about their privacy, the FTC’s investigation shows. Google may have to pay $22m fine, Ars Technica Reports:
http://arstechnica.com/tech-policy/2012/07/google-may-pay-22-5-million-penalty-for-ignoring-safari-do-not-track/

Fascinating post from 1709 Blog challenges the ISP “Dumb Pipe” and DMCA qualification as such. Contextual Advertising is based on informed knowledge of user behavior, hardly “dumb pipe.” Read more at 1709 Blog (which should be on your blogroll as well!):
http://the1709blog.blogspot.com/2012/07/mere-conduits-dumb-pipes-think-again.html

David Lowery interviewed by Andrew Orlowski in the UK’s Register, “Lowery: The blue-collar musician at the eye of the copyright storm.”
http://www.theregister.co.uk/2012/07/08/david_lowery_interview/

Copyright Alliance reports on the artists appearing and supporting the Trans Pacific Partnership which protects IP and Artists Rights:
http://blog.copyrightalliance.org/2012/07/no-two-artists-are-alike-2/