Orphan Works: A Lame Duck Countdown, Part V

FROM THE ILLUSTRATORS’ PARTNERSHIP

Orphan Works: A Lame Duck Countdown
Part V. Through the Looking Glass

12.08.08

Orphan Works advocates defend their proposals by saying they’re necessary to put users in touch with copyright owners. They say this isn’t happening now because of a market failure in commercial markets.

Speaking at a Congressional Seminar March 31, 2006, Copyright Office attorney Jule Sigall explained why they believed artists needed Congress to “push” them to register their work with privately owned copyright registries (page 23 of the transcript):

“[A]t this stage, in respect to the legislation…the real question we need to ask and answer is, what kinds of provisions put the right pressure [on photographers and illustrators] to get to that point? Who needs to be pushed there? I mean… I use this line a lot, photographers and illustrators like to say, ‘We haven’t collectivized…’ This is a problem, generally, for their marketplace. It’s hard to have a marketplace where buyers can’t find sellers.” (Emphasis added) http://www.pff.org/events/pastevents/033106orphanworks.asp

Nothing expresses the looking glass logic of the Orphan Works bill better than this statement by the “principal author” of the Copyright Office report that an amendment legalizing the infringement of millions of commercial copyrights is necessary in order for buyers to find sellers.

For the record, there is no evidence in the Copyright Office report that art directors and commercial clients are having any difficulty finding the contributors they want to work with. No evidence whatsoever! Indeed, even a cursory glance at our field refutes that conclusion:

Consider magazines such as Vanity Fair, the New Yorker, Time or Vogue. All of them and countless others are filled from cover to cover with photographs and art - as are newspapers, trade publications, medical journals, ads, annual reports, posters, brochures, catalogues, postcards greeting cards and more. How can anyone be surrounded by this sea of images and seriously argue that in the visual arts “sector,” “buyers can’t find sellers”?

The Copyright Office “evidence” for their conclusion of market failure amounts to no more than 215 relevant letters submitted to their study on the specific subject of orphaned work. Since they didn’t study the workings of commercial markets, there cannot possibly be any valid grounds for deducing a market failure in those markets. You can’t study apples and draw conclusions about oranges.

Orphan Works “For the Sake of Ease”

However unfounded, this Copyright Office factoid of “market failure” is now an orphan works fact to lawmakers. When Chairman Berman of the House IP Subcommittee held the sole public hearing (I hour 27 minutes) on this bill, March 13, 2008, he acknowledged in his opening statement that it was not a true orphan works bill. Yet he insisted it was necessary to correct a “market failure”:

“[W]e should correct a misnomer. The works we’re talking about are not orphans…The more accurate description of the situation is probably an unlocatable copyright owner…this situation better describes the orphan works construct, which is to correct the market failure when a potential user can’t find the copyright owner. But for the sake of ease we’ll keep talking about them as if they’re orphans.”
http://www.copyright.gov/video/testimony-3-13-08.html

But to redefine an orphaned work as “a work by an unlocatable author” is to radically re-define the ownership of private property. Since everybody will be hard for somebody to find, this bill would permit any person to infringe any work by any author at any time for any reason - no matter how commercial or distasteful - so long as the infringer found the author sufficiently hard to find. And this would create the public’s right to use private property as a default position, available to anyone whenever the property owner fails to make himself sufficiently available.

We may presume that the bill’s backers don’t want to be seen as trying to strip citizens of their intellectual property rights without due process. So instead they now argue that they’re only trying to help artists, who in their fecklessness, oppose the bill because we don’t want to be helped.

The Myth of the Feckless Artist

The best example of this mythologizing can be found in statements coming from Public Knowledge, one of the driving forces behind this legislation. On May 29, 2008, Gigi Sohn, President and Co-Founder of PK, explained to listeners at the Center for Intellectual Property why artists perversely oppose these bills:

“Now let me tell you what the main opponents of orphan works legislation really don’t like about it…[they] don’t like the fact that good faith users- those who are willing to pay but can’t figure out who to pay - might be able to use their works without permission and without the maximum financial punishment. They want to control every use of their works, and whether or not they receive fair payment is beside the point.” http://www.publicknowledge.org/node/1594 *

And on August 21, 2008, her colleague at PK, Alex Curtis, reiterated the theme:

“Visual artists say they have a problem, that no one can find their work, or at least match them as the owner of their work.” http://www.publicknowledge.org/node/1717

“Visual artists say they have a problem, that no one can find their work…” Actually we’ve never said any such thing. In fact we’ve explicitly said the opposite. Here’s just one example, from a sample letter we posted on our CapWiz site May 3:

“I am told that the Copyright Office conducted a study of Orphan Works and that these bills are based on that study. I understand that an orphan work is a work whose owner can’t be located. I am alive, working and managing my copyrights. I can be located. My clients locate me all the time. But that does not mean that anyone anywhere can find me. And frankly, why should the failure of any one person to find me be the measure of whether or not I can be found?

“What if 1000 people can find me but one can’t? Why should that one person get a free pass to use my work?” http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11333406

“I can be located. My clients locate me all the time.” I don’t see how we could say it any more clearly.

Far from complaining that we can’t be found, an entire food chain of collateral markets currently exists to facilitate the process by which image buyers successfully find image sellers: Agents, commercial directories, trade shows, ads in trade publications, direct mail, web sites and email solicitations - all attest to the fact that hundreds of thousands of creators are engaged daily in the robust business of making themselves accessible to potential users.

All of these businesses will be hurt by a bill that legalizes the infringement of the work they trade in. None will be helped by placing on them the onerous and costly burden of registering and maintaining tens of thousands - or for photographers, hundreds of thousands - of individual copyright registrations, not to mention the impossible burden of trying to monitor infringements of their work, which can occur anytime, anywhere in the world.

The Orphan Works proposals under consideration would not create new ways for buyers to find sellers. It would merely allow opportunists to co-opt the existing markets of creators and of the collateral businesses that serve them.

As artists we already know this. Our chore is to hold this bill over until the next Congress, then work to counter the false logic of market failure created by the unwarranted conclusions of the Copyright Office’s Orphan Works Report.

- Brad Holland and Cynthia Turner for the Board of the Illustrators’ Partnership

*Presented to the Center for Intellectual Property 8th Annual Intellectual Property Symposium, University of Maryland University College May 29, 2008

Tomorrow: A Bill Too Far

The Orphan Works Act of 2008 (H.R. 5889) has not been passed by the House of Representatives, but could be placed on the Suspensions calendar and passed by the lame duck session of Congress scheduled to re-convene this week. The Illustrators’ Partnership is asking lawmakers to hold the bill over to the next session of Congress, when rightsholders can have an opportunity to have their case heard before the full Judiciary Committee.

For news and information, and an archive of these messages:
Illustrators’ Partnership Orphan Works Blog: http://ipaorphanworks.blogspot.com/

Disappointment...

I've started unsubscribing from blogs this week.
There were several blogs I started watching due to my interest in old school D&D...but after wees of discussion and observation I'm sad to say that all I've found is another batch of extremely opinionated gamers with a fixed view on how things are, and how things were as far as gaming in general and D&D specifically.

I'm not saying that these are bad people or that their opinion is wholly wrong. Their style of play was/is common. That style of play being largely dungeon crawls and gaming with a morally ambiguous L Sprague DeCamp or Robert E Howard kind of Grey Mouser/ Conan kind of mercenary play where PCs are all bastards out for loot.

I seem to be the only guy in the world who very rarely played like that. The groups I was in were more altruistic. Almost heroic. Less mercenary. Influenced more by Tolkien and Lewis than the above listed authors.

That's not true either. We've always had a mix: free to do as we wished. Only rarely in "dungeons" of any kind.

The point here is that the blogs of many "old school" gamers are just as opinionated and static as the Indie narrative guys, or GNS nazis. Sticks in the mud. Firmly believing that THEIR views are the most accurate portrayal of what their subject is...allowing no room for anything outside their view except as some sort of "aberration".

Any way you look at it, it's The One True Faith again.

My beef is that there are lots of ways the game D&D was played and is played today. I really take exception at people who are self-avowed "Gygaxians" because really, E Gary Gygax, while one of the fathers of the game and the industry as a whole...was not an honest man when it comes to the origins and motivations as well as inspirations of D&D and gaming. Not honest at all. While some people look at EGG as a paragon of D&D, I see him as a man who took the ideas of others, as well as some of his own, cobbled them together and sold them. His ambition drove the early days of D&D. His ability to use the ideas of others. That is all.

I have no hatred of EGG, or need to run him down, especially after his passing by elaborating on his past indulgences. Tolkien's influence was likely the single largest lie he perpetuated. Understandably so. With the lawyers baying at his door, he was wise to distance himself creatively.

Really...the point here isn't any of that at all.

The point is that some people who I previously respected and admired have become "just another opinionated asshole" in my eyes. And it's not even that the opinions differ from my own. It's the sweeping generalizations they make on all of this, stating "the way things were" and making them sound absolutely universal, and then delving in to the references they choose to use, from a man who was a well-known liar and cherry-picking evidence to back them up.

MY point is that it's not that simple, and while some people play "that way" others did not and that there IS NO "right" or "true way", "intended way" or "as Gary designed it to be". Why? Because lots of people played they way THEY wanted to, right from the very beginning, and all the "references" they use to prop up their "opinions" with are of dubious validity...and ultimately make no difference as there are just as many "references" to counter them.

For example Tracy Hickman is listed as one of, likely THE main person who altered the face to D&D forever, introducing STORY elements to what these grognards call "Old School" D&D. He's is reviled for this. They sugar-coat it, but in no uncertain terms, they place the change of D&D as a simple rules-light game to what it is today (and what it is today is seen universally as an abomination mind you).

My question is that of the Chicken and the Egg. Which came first? Did Tracy suddenly create an adventure that had plot elements and a bit of "story" to it? This never having existed before? Or was Tracy Hickman responding to a set of existing players who were already doing this, wanting something more than a dungeon crawl and "kill things and take their loot"?

To these (unsubscribed) bloggers, it's all on the head of Tracy Hickman, and he ruined their perfect white box game. Of course it is. To say otherwise would admit that people were already playing with story elements, and ultimately playing outside the nice neat little box of "kill stuff and take their loot"...which of course can never happen. Gary Gygax said that the way he wanted it. Seyla!

I'm disappointed.
I really wanted to believe that some of these folks were more "open" to a wide view of gaming and the way things were and are. I was wrong.

Ultimately all I found are more guys whose nostalgic memories are of a very limited style of play. Very vocal guys who are die hard believers in the "One True Path of Gygax".

Am I the one who's "off" in this?
Has D&D always been just "Kill monsters, take their loot" and being a mercenary bastard interested in gold and loot? Is that the true way? Is everything else just a figment of my imagination and my own personal experiences...and nobody else did that?

*The important note:
I don't want to downplay that pulpy Conan-like mercenary play is out of place or not a big part of what D&D has always been. Not at all.
It's just that it isn't, and has never been "the only way" or "The intended way".

Mission Accomplished!

Biggie image done under deadline. Had some interesting (academic) color issues to sort out. Everything worked out and the client is happy. I win!

The rest of December is booked to capacity (and then some. I'll be pulling some long hours this month) and I had to start turning down work today. Man I hate that.

Orphan Works Part II: The Legislative Blueprint

Orphan Works Part II: The Legislative Blueprint
Excerpted from Todd Lockwood's Blog Behind the Water Heater

FROM THE ILLUSTRATORS’ PARTNERSHIP

Orphan Works: A Lame Duck Countdown:
Part II. The Legislative Blueprint

12.02.08

The “legislative blueprint” for the Orphan Works Act was not drafted by the Copyright Office after their year-long Orphan Works study, but before it, by law students at the Glushko-Samuelson Intellectual Property Law Clinic.

Their Copyright Clearance Initiative (CCI) is the document that first proposed the “limitation on remedies” that would radically change international copyright law. From page 5 of the CCI proposal:

“Under no circumstances will Sec. 504(c) statutory damages, attorney’s fees, damages based on the user’s profits or injunctive relief relating to the challenged use be available against a qualified user.” http://copyright.gov/orphan/comments/OW0595-Glushko-Samuelson.pdf

This is the premise the Copyright Office adopted with only slight modifications: where the law students had proposed capping infringement fees at $100, the Copyright Office proposals changed that to an ambiguous “reasonable fee.”

And how did the student authors describe their study of the orphan works issue?

“On April 11, 2003, the Clinic held a symposium with scholars, academics and other interested parties to discuss this issue. Since then, the work of CCI has focused its efforts on devising the blueprint for a legislative solution to the ‘orphan works’ problem…and has been in close contact with various non-profit organizations, intellectual practitioners and academics…”

A footnote names the eight “clinic students” who contributed to the “legislative solution.” And among the “interested parties,” the authors cite Public Knowledge, a group now actively promoting the Orphan works bill. Copyright holders were apparently not considered interested parties, as none are listed among those invited to participate.

The Clinic authors submitted their blueprint to the Copyright Office March 24, 2005. They cited no effort to survey the potential impact of their legislative solution on commercial markets - nor did the Copyright Office three years later, when they adopted the “limitation on remedies” and proposed it to Congress in their 2006 Report on Orphan Works.

The Director of the Glushko-Samuelson Law Clinic is a long-standing critic of existing copyright protections.

In 1994, legal scholar Peter Jaszi wrote that in the new “information environment” created by the internet, authors, artists and others “may not need the long, intense protection afforded by conventional copyright — no matter how much they would like to have it.”

Copyright, he wrote, is rooted in outdated concepts of “possessive individualism.” The “romantic myth of authorship,” he argued, is a vestige of the 18th and 19th centuries “in which entrepreneurial publishers…[and] entrepreneurial writers…played out their shared conviction that the “individual [is] essentially the proprietor of his own person or capacities — and thus of whatever can be made of them.”

Professor Jaszi has criticized the US for joining the international Berne Copyright Convention, calling it “an international agreement grounded in thoroughly Romantic assumptions about creativity.” And he noted with disapproval:

“The first Act of this preeminent ‘authors’ rights’ treaty in 1886 represented the culmination of a process which got underway in the mid-nineteenth-century with Victor Hugo’s vigorous campaign for the rights of European writers and artists. Other famous ‘authors’ rallied to the cause: Gerhard Joseph suggests that the manic energy with which Charles Dickens championed international copyright stemmed from the novelist’s private insecurities about his own ‘originality.’”*

Note the scare quotes around “authors rights” and “originality.” The Professor appears to subscribe to the postmodern cliché that all art is a form of collage and that authorship and originality are merely covers for one writers “vigor” or another’s “manic energy” and “insecurities.”

Maybe so, but a working author might guess that Dickens and Hugo were merely protecting their copyrights because that’s how they made a living.

Citing the authority of postmodern critics, Professor Jaszi laments that their “critique of authorship” “has gone unheard by intellectual property lawyers.”

“However enthusiastically legal scholars may have thrown themselves into ‘deconstructing’ other bodies of legal doctrine, copyright has remained untouched by the implications of the Derridean proposition that the inherent instability of meaning derives not from authorial subjectivity but from intertextuality. Above all, the questions posed by Michel Foucault in ‘What Is an Author?’ about the causes and consequences of the persistent, overdetermined power of the author construct — with their immediate significance for law — have gone largely unattended by theorists of copyright law, to say nothing of practitioners or, most critically, judges and legislators.” -Page 12 The Construction of Authorship*

Or to put it in plain English: why hasn’t Congress harkened to some collectivist literary critics and written their debatable theories into US copyright law?

With the Orphan Works bill, maybe they will.

Yet if this were one’s goal - to impose a collectivist agenda on US copyright law, wouldn’t forthrightness be the better policy? Shouldn’t you say “we want to change the laws governing a citizen’s ownership of his or her intellectual property” - then present the case frankly and debate it publicly and transparently?

Wouldn’t that serve the public interest better than concealing the agenda behind a claim that you’re only amending the law to “find homes for the poor orphan works” or making the world safe for folks to duplicate pictures of grandma?

Tomorrow: How many letters did it take to trigger the Orphan Works Bill? Would you believe 215?

*Quotes from the Introduction to The Construction of Authorship: Textual Appropriation in Law and Literature by Martha Woodmansee, Peter Jaszi, Editors, Duke University Press, 1994
http://books.google.com/books?id=dpRKltgJYYwC

- Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership

Little Known Facts: Orphaned Works Act

Excerpted from the blog of Todd Lockwood:
http://www.tolo.biz/2008/12/01/liitle-known-facts-about-the-orphaned-works-act-part-i/#

Little Known Facts about the Orphaned Works Act: Part I

These are bullet points worth using in any letter to your representative. It certainly looks like an underhanded attempt to wrest control of a valuable commodity — your copyright and mine — or make us pay to keep it. Please spread word far and wide, not just to artists, but to writers and photographers as well:

FROM THE ILLUSTRATORS’ PARTNERSHIP

Orphan Works: Lame Duck Countdown

12.01.08

Part I. Little Known Facts

Congress will reconvene for a lame duck session next week. That means Orphan Works backers may try again to pass their bill by suspending the rules. We believe this bill is too controversial to be passed by backroom dealing. It would let commercial interests harvest and monetize the personal property of ordinary citizens without their knowledge.

The bill can be improved, and we’ve offered amendments that would improve it. But there’s not enough time to improve it during a lame duck session. The bill should be held over until the next session of Congress, when those whose livelihood it will threaten can have the opportunity to present their case.

Over the next few days, we’ll highlight some little known facts about the way this bill has been conceived, drafted and promoted. We believe these facts raise serious questions about the legislative process that has brought this legislation to the brink of passage:

1. The “legislative blueprint” for the Orphan Works bill was not the result of the Copyright Office’s year-long Orphan Works Study. It was drafted before the study began, by law students who made no apparent effort to survey its potential impact on commercial markets.

2. The blueprint was drafted under the guidance of a legal scholar who opposes current copyright protections. He has written that authors in the internet age “may not need the long, intense protection afforded by conventional copyright — no matter how much they would like to have it.”

3. The Copyright Office received barely 200 relevant letters to their Orphan Works Study. Although they testified to Congress that the number was “over 850,” they failed to acknowledge that more than 600 letters had to be dismissed as irrelevant or too vague to determine their relevance to orphaned work.

4. In their Orphan Works Report, the Copyright Office failed to acknowledge a unified statement submitted by 42 national and international visual arts organizations. This statement called for the maintenance of existing copyright protections and warned that a bill drafted too broadly would spread uncertainty in commercial markets.

5. The Copyright Office studied the specific subject of orphaned work, yet concluded they had discovered a widespread “market failure” in commercial markets. But since they didn’t study commercial markets, there’s no evidence for this conclusion in their report.

6. The principal author of the Orphan Works Report has acknowledged that their true goal was to “pressure” working authors into relying on registries to protect their work. He said this was necessary because artists and photographers have “failed to collectivize.”

7. The first commercial Orphan Works domain name was registered by an anonymous party more than two years before the Copyright Office announced their Study. Did this anonymous party have a crystal ball? How did he know the Copyright Office would ever study orphan works? How did he know they’d open the door to commercial usage? And why did he register anonymously?

8. Two of the key players in the legislative process have already left government service and gone to work for companies that stand to profit from passage of the bill. On the other hand, one of the parties who testified in favor of the bill has already gone to the Copyright Office. She’s now in charge of orphan works.

We think these and other little known facts give lawmakers sufficient reason not to pass this bill without a thorough vetting.