Monday, March 31, 2008

Nobody's Life, Liberty or Property...

"...Is safe while congress is in session."

Forwarded to me with the request that I pass it on. Which I surely will do.

Subject: "Promoting" Orphan Works
Date: Fri, 14 Mar 2008 18:28:51 -0400


Yesterday ( Thurs. Mar. 13, 08) the House subcommittee on Intellectual
Property held their first hearing on new Orphan Works legislation.
Note the title:

"Hearing on Promoting the Use of Orphan Works: Balancing the Interests
of Copyright Owners and Users"
Balance, however doesn't seem to be part of the Orphan Works
juggernaut. Indeed, after this hearing, we can no longer assume that
the U.S. Copyright Office is an advocate for the protection of
creators' rights. As they wrote on page 14 of their original Orphan
Works Report:

"If our recommendation resolves users' concerns in a satisfactory way,
it will likely be a comprehensive solution to the orphan works
situation." (our emphasis)

But how can any copyright law be "comprehensive" if it makes millions
of copyrights, no matter how valuable, available to users, no matter
how worthy, under a system that would introduce permanent uncertainty
into the business lives of creators?

Private Sector Registries

Since the last bill died in committee in 2006, the advocates of this
legislation have promoted the creation of private commercial
registries. On January 29, 2007, a lead attorney for the Copyright
Office warned us that under their plan any work not registered with a
private sector registry would be a potential orphan from the moment it
was created.

This means you would not only have to register your published work,
but also:

— Every sketch or note on every page of every sketchbook;
— Every sketch you send to every client;
— Every photograph you take anywhere, anytime, including family
photos, home videos, etc.;
— Every letter, email, etc., professional, personal or private.

This Would End Passive Copyright Protection: Under existing law the
total creative output of any "creator" receives passive copyright
protection from the moment you create it. This covers everything from
the published work of professional artists to the unpublished diaries,
letters and family photos of the average citizen.

But under the Orphan Works proposal, none of this material would be
covered unless the creator took active steps to register and maintain
coverage with a commercial registry. Failure to do so would "signal"
to infringers that you have no interest in protecting the work.

The Registration Paradox: By conceding that their proposals would make
potential orphans of any unregistered works, the Copyright Office
proposals would lead to a registration paradox: In order to "protect"
work from exposure to infringement, creators would have to expose it
on a publicly searchable registry. This would:

— Expose creative work to plagiarists and derivative abusers;
— Expose trade secrets and unused sketches to competitors;
— Expose unpublished and private correspondence to the public on the
Orwellian premise that you must expose it to "protect" it.

Yet registries will not be able to monitor infringements nor enforce
copyright compliance. Even after you've shelled out "protection money"
to a commercial registry to register hundreds of thousands of works,
you still won't be protected. A registry would do nothing more than
give you a piece of paper. You would still have to monitor
infringements - which can occur anytime anywhere in the world; then
embark on an uncertain quest to find the infringer, file a case in
Federal court, then prove that the infringer has removed your name or
other identifying information from your work. Meanwhile all the
infringer will have to do is say there was no such information on the
work when he found it and assert an orphan works defense. This will be
the end result of trying to "resolve the users' concerns" at the
expense of time-tested copyright law.

Coerced registration violates the spirit and letter of international
copyright law and copyright-related treaties. And because this bill
would effectively eliminate the passive copyright protection afforded
personal correspondence, family photos, etc. it would tear one more
slender thread of privacy protection from the fabric of fundamental
rights we currently take for granted.

We urge Congress to carefully reconsider the unintended consequences
of this radical copyright proposal.

— Brad Holland and Cynthia Turner, for the Board of the Illustrators'

Please post or forward this email in its entirety to any interested party
For additional information about Orphan Works developments, go to the
IPA Orphan Works Resource Page for Artists
I suggest that you contact your representatives immediately with your concerns about this matter. This is the worst sort of "privatization," where a real and useful service is replaced by a money-making scheme that will do less, cost far more, and bury every individual and small business that has any intellectual property under a snowstorm of probably quite useless paperwork, while giving all the "passive compliance" advantages to potential data thieves.

Under this law, Pepsi could replicate Coke and every single frame from every single film will have to be individually protected - for a fee.

Frankly, I think the very idea is obviously corrupt. Certainly it is practically impossible for individual creators or small businesses to adequately protect their works - since there's no possible way for them to afford to prosecute offenders. Recovery, you see, is capped.

The obvious remedy would be for the US entertainment industry to relocate north or south of the border, where the Berne Copyright Convention would still apply, and US commercial and constitutional law would require it's enforcement. Same for small creators, who could incorporate in Canada, Mexico, or anywhere else with an online application form.

And of course, at that point, well, actual relocation seems probable - given the very portability of the digital arts themselves and the communications capability of the web. For myself, I could live and work anywhere with a high-speed internet connection, and I'm starting to become rather indifferent to patriotic appeals, considering the rising cost of patriotism these days.

I would find it much easier to be patriotic about a homeland in which my home and livelihood were actually secured by my taxes, rather than made available to the highest bidder by people my tax dollars pay for.

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