Online petition against the Orphan Works Act of 2008

Online petition: Against the Orphan Works Act of 2008. This bill is no better than the one that I wrote about the Journal of the Copyright Society this Spring. It even includes a registration database requirement, which is an anathema to the stated purpose of the copyright clause of the Constitution. If you have time, please sign.

Orphan Works Bills

I haven’t gone through both new versions of the Orphan Works bills (House, Senate). However, this month the Journal of the Copyright Society of the USA published my article detailing problems with all previous versions of orphan works legislation. Here is a PDF of the article, Darrin Keith Henning, Copyright’s Deus Ex Machina: Economic Fostering of Orphan Works through Reverse Registration, 55 J. COPYRIGHT SOC’Y U.S.A. 201 (2008).

I will have more on the new bills next week.

S.2913 – Shawn Bentley Orphan Works Act of 2008

110th CONGRESS 
2d Session 
S. 2913

To provide a limitation on judicial remedies in copyright infringement cases involving orphan works.

IN THE SENATE OF THE UNITED STATES 

April 24, 2008

Mr. LEAHY (for himself and Mr. HATCH) introduced the following bill; which was read twice and referred to the Committee on the Judiciary


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H.R. 5889 – Orphan Works Act of 2008

Six months ago, the last version of an Orphan Works bill died in Congressional committee. Now, a new Orphan Works bill has surfaced in two different versions, one in the House and one in the Senate. Here is the House version:


110th CONGRESS 
2d Session 
H. R. 5889  

To provide a limitation on judicial remedies in copyright infringement cases involving orphan works.

IN THE HOUSE OF REPRESENTATIVES 

April 24, 2008

Mr. BERMAN (for himself, Mr. SMITH of Texas, Mr. CONYERS, and Mr. COBLE) introduced the following bill; which was referred to the Committee on the Judiciary


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Pro-IP bill to become law in 2008?

Rep. Berman: Pro-IP bill will become law in 2008

Rep. Howard Berman, who heads a congressional panel in charge of writing copyright legislation, lashed out at Internet pirates this week and defended his effort to add stiffer anticopying penalties to federal law.
Berman, a Democrat who represents the congressional district near Hollywood, said at a technology policy conference here that he was on track to enact the so-called Pro-IP Act by the end of 2008. The bill ratchets up civil penalties for copyright infringement and creates a new federal agency charged with bringing about a national and international copyright crackdown.

“I don’t think there’s a lot of controversy,” Berman said on Wednesday. “This one is not like the patent bill.”

District Court Finds Portion of Copyright Remedy Clarification Act Unconstitutional

This month, in Marketing Information Masters v. The Trustees of the California State University (full PDF of decision here), the US Dist. Ct. for the S. Dist. of Cal. found the Copyright Remedy Clarification Act to be unconstitutional for removing sovereign immunity for state workers working in their official capacity. The court determined that Congress exceeded its power under the 14th Amendment and that state employees retain immunity for copyright infringement.

 See also Dear Professor: “You’ve Been Sued” 

For more history, specifically the Puerto Rico case of De Romero v. Institute of Puerto Rican Culture, 2006 WL 3735352 (D.P.R. Dec. 15, 2006) in which the court also found that Congress exceeded its power under 14th Amendment, read this article by Prof. Patry, and the last paragraph of that case.

H.R. 4137 Passes House with Section 494 attached.

HR 4137, the College Opportunity and Affordability Act, passed the house. It seeks to reduce higher education costs, increases Pell Grants, and . . . seeks to elimitate peer-to-peer file sharing on college campuses. Yes, just what higher ed has been clamboring for, more money for students and an unfunded mandate to police their computer networks.

A late addition to the bill, Section 494, “Campus-based Digital Theft Prevention,” seeks to end the sharing of copyrighted materials by college students. H.R. 4137’s full text can be found here (PDF), with Section 494 reading:

institutional policies and sanctions related to copyright infringement, including—

(i) an annual disclosure that explicitly informs students that unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject the students to civil and criminal liabilities; a summary of the penalties for violation of Federal copyright laws;

(iii) a description of the institution’s policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions that are taken against students who engage in unauthorized distribution of copyrighted materials using the institution’s information technology system; and

(iv) a description of actions that the institution takes to prevent and detect unauthorized distribution of copyrighted material on the institution’s information technology system.

While I understand that copyright holders are looking to put the P2P genie back in the bottle any way possible, making schools monitor and screen/filter all network traffic (which is what “actions . . . to prevent and detect” realistically means) is too onerous and just plain bad policy. The last thing campuses need is the overhead of another dozen servers and administrators just to monitor their traffic. Add to this the cost of purchasing filtering technology and some sort of update service, and the whole of this bill might just be opposite to its stated intent. That is to say, this will ultimately cost schools, and therefore students, more, not less. With this misguided (can I say boneheaded?) amendment, the cost of education will be anything but reduced.

This Democratic Congress has yet to do anything right (Nancy Pelosi screwed all of us when she took impeachment off the table). As much as I love being a member of the party, I am getting sick of the culture of appeasement that the party seems to think is needed to be leaders. Leadership is not rolling over for special interests like last century’s media barons looking to maintain their failing business model. Leadership is recognizing that the companies will succeed or fail on their own, and that this type of back door gift to media companies is the worst type of favoritism. I am still waiting for someone in the party to stand up and lead (and pithy platidudes from Barak is not leadership either). But then, in D.C., nothing ever seems to change.

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