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

2d Session 
S. 2913

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


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:

2d Session 
H. R. 5889  

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


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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Kahle v. Gonzales (formerly Kahle v. Ashcroft); Court of Appeals for 9th Cir. Affirms Lower Court Dismissal

Kahle v. Gonzales is an attempt to reverse the change of copyright protection in the United States from an opt-in system to an opt-out system brought by the Copyright Renewal Act (CRA) of 1992 and the Sonny Bono Copyright Term Extension Act (CTEA). Plaintiffs, who were using works that had fallen into public domain, claimed the change triggered a First Amendment free speech claim, and that the extended terms violates the Copyright Clause’s “limited times” provision. This case is couched as an attempt to free orphan works, but more likely, the court pointed out, was an “attempt to tangentially relitigate [Eldred v. Ashcroft].” (the court may have thought from the beginning that this was just Prof. Lessig trying to re-try Elred. While I respect the work that the EFF is trying to do, I wish that they would stop helping. They keep losing cases that they should have won by making outragous arguments, and in the process, set precedent after negative precedent.)

On the first amendment claim, the court said that traditional safeguards on free speech, such as such as fair use and the idea/expression dichotomy, were still intact and protected the public’s free speech interests, and first amendment scrutiny was not triggered.

On the limited times claim, the court said that the Supreme Court weighed in on this a few years ago in Eldred v. Ashcroft, and clearly said that the extended terms and change in renewal requirements was not violative of the “limited times” requirement of the Copyright Clause.

The original suit had four claims, and, as the one regarding the Berne Convention Implementation Act (BCIA) is not mentioned, I assume it was not appealed.

Bravo Ninth Circuit. The main issue here was the fact that Prelinger Associates, Inc. (as well as projects like the “Million Book Project” by The Internet Archive, Carnegie Mellon University, and the National Science Foundation, and “Google Books”) sought to digitize old books and felt that cutting off the stream of material entering the public domain that they had been waiting on was wrong. All such projects would like a free pass to violate the copyrights of others because for “orphan works,” because they feel it is just too hard to track down the rightsholder and get permission. For an unlabelled black and white photograph, I understand the frustration (not the right to trample the rights of others, only the frustration)–but for books that contained all the relevant information in the front cover to begin with, Come on.

My law review article on orphan works, as well as my solution to the entire problem, is being submitted to various journals at the moment. I will point you too it as soon as it goes to print. All of the book scanning projects say the books that they are collecting are commercially unsuccessful, and thus are not available at bookstores. However, they all ignore how the marketplace might solve this dilema on its own, in light of the long-tail effect. Just like music back catalogs that are making a comeback, combine the possible aggregate revenue and print on demand technology, and these books could actually be commercially viable. Actually, there is an argument to be made that an entire collection of books would only have to recoup the cost of storage media (harddrives) to become viable, and that individual books would not have to be viable themselves. Cheap storage + Amazon.com + Print on Demand + Long Tail = A very profitable business.

In its entirety, the Kahle v. Gonzales (has also been cited as Prelinger Associates, Inc. v. Gonzales) decision follows:

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Copyright Modernization Act of 2006

Earlier in the week, the “Copyright Modernization Act of 2006” was introduced in the House. Here is a geocities link to a PDF file of the entire bill that Prof. William Patry put up (and his article). I won’t take up a lot of time parsing the bill, but most of what looks to be included are three familiar items, such as the former H.R. 5552, the “SIRA” bill, which adds a new section on licensing digital music, a new orphan works section (which is the part I am interested in) and a third called Copyright Protection Resources, basically appropriating $12,000,000 to to create a new operational unit at the FBI to work with the the justice department: “for the purpose of investigating or prosecuting intellectual property crimes” including appointing a Federal Prosecutor in Hong Kong and one in Budapest, Hungary, to help enforce IP law in other countries, and to create and interagency task force to “develop and implement a comprehensive, long-range plan to investigate and prosecute international organized crime syndicates engaging in or supporting crimes relating to the theft of intellectual property.”

Plenty of other people have been vocal about parts of this bill up till now.

Public Knowledge  Electronic Frontier Foundation  IPCentral Weblog

According to reports coming from the Illustrators Partnership, the Act was pulled from the schedule for mark-up yesterday for further discussion.

I will outline the Orphaned Works provisions contained in this versions over the next few days.

The Stock Artists Alliance seeks to defeat H.R. 5439

According to the PhotoAttorney blog, “The Stock Artists Alliance (“SAA”) is again requesting help to fight the Orphan Works bill. Now known as House Bill 5439, the Subcommittee has sent it to the House Judiciary Committee for action.”

H.R. 5439 – Orphan Works Act of 2006, introduced

LinkH.R. 5439 – Orphan Works Act of 2006 – introduced 5/22/2006 in the House. To amend title 17, United States Code, to provide for limitation of remedies in cases in which the copyright owner cannot be located, and for other purposes. Mr. SMITH of Texas introduced the following bill; which was referred to the Committee on the Judiciary.


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