Blog Claiming something about Copyright Reform eroding our rights. Wanting a fact check

[anon63581570]

ILLUSTRATORS' PARTNERSHIP ORPHAN WORKS BLOG

The comment on the latest post is mine. I… think there’s something Important there, but for the life of me I can’t figure out if this is something good or bad. The writer makes it sound like Bad, but if Orphaned Works are going to go into public domain that’s good, right?

I tried being polite on blog since that’s effectivly their back porch but the tone and rhetoric used comes off hostile, snappish, alarmist, and reminds me too much of the drumhead beating about Obama’s being a socialist kenyan antichrist.

I want people smarter than me to pick this one through. Please?

[LDoBe]

I’ve been following copyright since I was first able to get on the web.

There is no excuse for copyright enforcement of orphaned works. The term itself is very accurate. An orphaned work is one where there’s no longer anyone who has legal ownership of the work even though its copyright term hasn’t yet expired. There’s nobody to pay royalties to, and there’s nobody who can claim control of the work.

In these situations, such works need to revert back to the public domain. Complying with C&D requests regarding an orphan work is actually copyright theft, as in the control of the work is being wrested from the public.

Some choice bullshit from the article:

It would “privilege” the public’s right to use our work.

No, it wouldn’t. It would privilege the public’s right to a work over random, acquisitive lawyer’s desires to control a work they have no right to.

It would allow others to alter your work and copyright these “derivative works” in their own names.

Just like it’s always been. It’s called transformative fair use, and has always been legal (if allowed less and less).

The demand for copyright "reform" has come from large Internet firms and the legal scholars allied with them. Their business models involve supplying the public with access to other people's copyrighted work. Their problem has been how to do this legally and without paying artists.

Actually, for the most part, the demand for copyright reform is actually coming from artists themselves. Most of them have been negatively impacted by the DMCA, and its bullshit, unconstitutional safe harbor provisions which allow people to legally censor each other *without proving any legal standing*. Hundreds of millions of pieces of art have been taken down, and sometimes lost thanks to *the media corporations they're allies with* fraudulently claiming ownership of art that isn't theirs. This is why registration *should be mandatory*. Otherwise, we get what we have now, ie a system where anyone can claim copyright on anything and have it removed from the control of the actual creator.

[anon63581570]

The thing is a buddy linked me to this and while I want to frame a rebuttle because this entire blog feels astro turf I can’t properly articulate and it not be ‘fat internet guy flailing’.

I mena copyright as is has been very broken and lopsided. I mean is there anything worthwhile once you get past the flame and pitchfork rhetoric framing it as ‘big internet is trying to push for reform that will inherently hurt us little people.’

I’m… confused and I know what ‘debate’ turns into with me and I don’t want to be shouty, shovy, and such. It doesn’t end well.

[LDoBe]

I’d have to read the bill. But seeing as there hasn’t been any stories about it here…

After perusing the US copyright office’s website, the blog post appears to be in response not to any legislation currently in congress, but rather a report the USCO released June 4th this year with its recommendations for reforms to the law with regard to orphan works.

I’ve skimmed the document (which you can find here, warning 200+ page PDF) and the USCO is pretty much just saying orphaned works are a huge nuicance, they put content creators and the public at liability, there are ways to non-legislatively ameliorate this problem, and that there are legal reforms that work even better.

One of the solutions is “collective licensing” which basically means, if there’s a work and we can’t determine the rightful owner of it, then the government would become the licensing custodian. This is ridiculous, in my opinion, because it’d better serve the public good (and it hurts literally nobody) to just say the work’s no longer in copyright and belongs to the public domain. No licensing required at all.

I guess there’s a point to be made though that just because nobody can show that they’re the rightful owner doesn’t mean that the rightful owner might not step up in the future and claim the work. And once something has been put in the public domain it’s irreversible. So maybe the idea is that we call the government the custodian, it hangs onto and controls the copyright, and if someone proves their ownership in the future, then the copyright can be transferred back to them.

But seriously, that’s just convoluted. If you can’t be arsed to protect your interest in a work, even just by writing an email or making a phonecall to the USCO, then you ought not to have control of the work anyway as long as it’s valuable to the public. The government knocks down abandoned buildings far sooner than it public-domains works with no copyright owners. That is absurd. A physical building gets less consideration and shorter mercy time than the intangible rights to a piece of art.

[LDoBe]

As far as I can tell, the blog is 100% astro turf. They say copyright registration forces creators to give up rights, which is bull shit. If anything, it will protect the real owner’s rights much, much better because the government will have official knowledge of who owns what. So, say I make a song register it with the USCO, upload it to youtube, and it gets taken down with a DMCA C&D, I can prove without a doubt that I own it and try to convince youtube to ignore all further C&D requests. But if it’s not registered, at best youtube will just have to take my word for it, and probably would never put the song back up.

Because whiners and fraudulent copyright lawyer fucks are currently allowed to claim ownership of anything they want, consequence free, even for public domain works.

Repeal the DMCA now. Orphaned works belong in the public domain! Free Tibet!

[fuzzyfungus]

This one looks like a ‘devil in the details’ matter.

In principle, dealing with the orphan works problem would be a good idea. Currently, nobody wins. Whoever owns the copyright isn’t gettting paid; because nobody knows who to offer money to; and the public cannot safely use these works because of the potential cost if an owner were to pop up. An arrangement were works either have someone you can at least ask(they don’t have to say yes), or are safe to use if no such owner is available would be a good thing.

The question, though, is how the real-world implementation of ‘determining the author of a work’ will work; what will suffice as a ‘good faith’ search for an owner, and so on.

It’s not hard to see why the artists might be concerned: the history of ‘Performance Rights Organizations’(ASCAP, BMI, SESAC; others outside the US) is not exactly glorious; those are notorious for aggressively shaking down the public and various venues; but being…less efficient…at disbursing their collections to the artists they allegedly represent. In some cases, if you are a little to ‘indie’, you may end up getting nothing.

If an orphan-works ‘solution’ ends up along similar lines(Hey artists, if you aren’t in Getty Images, I can just place an ad in the Podunk Daily News and declare your work orphaned if you don’t respond within a week!) then it’s hard to argue that the artists haven’t been screwed over. I don’t know enough about the legislative players to know how close to this exciting dystopia we are; but it’s hardly wildly implausible. The music PROs are a known trainwreck; and given the somewhat…sluggish…state of the USPTO, LoC, etc. I can easily imagine a “Hey, let’s do this with the awesomesauce of private enterprise and make a small cartel of data brokers the authoritative source!” ‘solution’ being proposed.

So, that’s the thing: A well-implemented orphan-works provision is something that I’d wholly support, and I’d view anyone who doesn’t support it as either confused, or actively looking to keep the public domain impoverished to ensure a continued supply of commisions for new work(not irrational behavior if your stock in trade is stock photos or the like; but wholly self-interested and not in accord with the purpose of copyright).

However, a badly-implemented orphan works provision could well be a total screwjob; and speculating that the one we actually get might well be badly implemented is hardly tinfoil hat stuff. We’d need more and better data about the proposals on the table.

[LDoBe]

Yeah. Currently, there’s hundreds of thousands of works, if not millions of works that are orphaned. Originally created by people about a hundred or so years ago, who don’t have estates to inherit their stuff. These works belong in the public domain, pure and simple. But nobody’s allowed to use them at all. Or these works ended up just getting claimed by places like getty even though they have no right to them. And this is how corporate media eats the public’s lunch.

I agree there’s a lot that can go wrong implementing the solution. But what we have now needs to be fixed yesterday.