New Orphan Works Legislation: From Each According to What is Not Nailed Down, To Each According to How Little We Can Get Away With

The House and Senate both introduced new versions of the “orphan works” legislation (the “Shawn Bentley Orphan Works Act” named after the late AOL lobbyist). Why, you may ask? What is so important about “orphan works”? Do the songwriters, artists, photographers, illustrators, screenwriters, actors, directors you know come up to you in the street, strike a scream pose (a la Munch) and say “How can I live without orphan works?”

I doubt it. But you know who does. Three guesses.

As Google’s attorney, digital sophisticate and Lessig acolyte Alexander MacGilivrey put it in his testimony at the Copyright Office:

“I would encourage the Copyright Office to consider not just the very, very small scale, the one user who wants to make use of the work, but also the very, very large scale and talking in the millions of works.”

That statement was made on July 22, 2005—almost 4 months to the day before the Library of Congress announced a $3 million gift from Google for the Librarian’s World Digital Library pet project.

This is not new ground for readers of this blog–see “Unhand That Orphan, Professor“–but here’s essentially what the new law says that somebody—I’m not quite sure who, but I think their name is Google–is very interested in passing in this session of Congress (and during an election cycle at that). If some random person—or, oh, say Google–“finds” a work that they would like to use in the “remix culture” as Lessig calls it according to the editorial board of a leading financial newspaper (, they can more or less do it without permission if they can’t find the owner. Or as Google tells us on the record—use it millions of times.

Of course, they have to try to find the owner. Honest. Cross my heart and hope to die. They will really try hard. No one checks to see if they did, but they promise. Isn’t Google’s promise good enough for every creator in the history of mankind? Because this law applies to EVERYTHING.

There are some nuances to how little permission they need to get, but if we have learned one thing from Google it’s that they intend to push the rules to 150% of what the law allows, just like they do with YouTube and the “notice and shakedown” provisions of the DMCA.

Realize that Lessig has referred to out of print books as being “orphans” and you get the idea. Absurd, you say? True. And Google will probably agree—when you get a final non-appealable judgment against the Leviathan of Mountain View you silly little artist.

You have to also realize that Google and Lessig have been chomping at the bit for years to get this bill through the Congress. That means that they are poised like a dog on a scent for it to pass, and then it’s off to the races.

Google’s “No Reply” Standard: “I tried to telephone, they said you were not home, that’s a lie…”

(No Reply, written by John Winston Lennon and Paul McCartney, Administered by Sony/ATV Tunes LLC)

As Google’s General Counsel has said publicly: “These works include those for which the author or assignee of a work – the work’s “parent” – can no longer be determined, usually because the contact information included on the copyright registration is out of date.”

Now as anyone knows who has ever done chain of title research on a book, this is a truly pathetically ignorant statement. If the “address changed” standard were applied, then many, many motion pictures would never be made. There are companies that offer reasonably priced searches to give you good chain of title and have been providing those reports for DECADES. Now granted it takes 24 hours minimum, so everyone has to hold it for a bit, but these searches are the industry standard for songs, records and movies, so I don’t quite see how someone as important and all-knowing as the GC for the Big G missed it.

But wait, it gets better. “They may also include works that have been, for all intents and purposes, ‘disowned,’ either because any potential monetary value of the works has expired or because their authors simply are not interested in enforcing the copyrights on their works.”

What does “any potential monetary value of the works has expired” mean? This in the same statement in which Google’s General Counsel tells us “[o]rphan works represent an untapped wealth of information that can and should be made accessible to the public.” How can these two statements both be true?

Easily—the “orphan work” may have insufficient economic value to the copyright owner to keep a book in print or a record in the catalog, but it has plenty of value to Google who wants to free ride on the efforts of the writer, publisher, artist, songwriter, record company and music publisher–EVERYONE. A title can get taken out of release in the music industry when it still has many years of useful life left in it for licensing and other purposes–such as the uses that the orphan works bill wants to make subject to Google’s “good faith”–kind of like the good faith they’ve shown in their treatment of artists on YouTube, failure to account, snotty comments from Eric Schmidt, rude treatment of entertainment industry executives at the Googleplex, and on and on and on. But Google promises to conduct a search, kind of like they promised to have a robust filtering technology on YouTube. Cross my heart and hope to die.

And then I love this line: “…their authors simply are not interested in enforcing the copyrights on their works.” How about this little rephrasing: “…their authors simply are not interested in enforcing the copyrights on their works enough to take on a copyright infringement lawsuit against one of the largest corporations in America known for delaying tactics in its business, or–and MUCH more likely–the original work has been remixed so much that it’s impossible to discern in the derivative work.”

Anyone who has ever cleared samples on a hip hop record understands that “remix” problem, and this is particularly true with visual images that can be manipulated beyond recognition. This is not a secret–this is exactly why Lessig encourages the “remix culture” and Google’s “catch me if you can” spin on the copyright law. They KNOW it’s hard or impossible to catch anyone who has done an effective job of remixing. They aren’t all like Danger Mouse. And again–for visual images, it’s almost impossible to catch.

So Google wants a clear shot at being able—once again—to take everything that’s not nailed down and pay as little of their billions for it as humanly possible.

Who loses? Songwriters, artists, musicians, vocalists, producers, illustrators, photographers, copyright owners—everyone. Because you’re going to have to be constantly on the lookout for infringing uses of your works, just like you have to be now with Google’s interpretation of the “notice and shakedown” rules of the DMCA. And no artist can afford to do that in an environment where private property rights are very expensive to enforce.

The Man 2.0 strikes again. At least they used to just loathe and hassle us, now they rob us blind.

Just remember–the song doesn’t go “we built this city on semiconductors”. If you try hard enough, the music will eventually go away. Cross my heart and hope to die, and may the cat spit in your transformative eye.

More about this later as we have time to analyze the bills.