Wednesday, August 20, 2008

No such thing as "Orphaned Works."

(Please scroll down to read my reply)

From the Office of Senator Evan Bayh
Monday, August 18, 2008 11:56 AM
From: ""
To: johndstanton

Dear Mr. Stanton :

Thank you for contacting me regarding S. 2913, the Shawn Bentley Orphan Works Act of 2008 . I appreciate your thoughts and concerns on this issue.

Innovation, creativity and hard work have fueled the growth of our economy and created countless jobs. I believe that our country's success in a globalized world depends largely on its ability to protect its innovations and breakthrough designs. Yet today, American businesses lose an estimated $250 billion a year to intellectual property theft. One of the most important steps Congress can take on behalf of our content creators is to ensure that adequate protections are in place so that they will be compensated for their work. That is why I authored the Intellectual Property Rights Enforcement Act, a bold new strategy for protecting Americans from criminals bent on pirating or counterfeiting their products. My bill would improve enforcement by elevating the government's response to IP offenses to the same level as money laundering and other black-market crimes. This legislation would also enhance cooperation between the myriad federal agencies responsible for carrying out the protection of intellectual property rights. We need this reform to establish a focused, aggressive coordination plan for our domestic and international efforts to protect our best and last competitive advantage in the global economy: American ingenuity.

I am pleased that nearly all of the ideas embodied in my legislation have been incorporated in a new bill introduced by leaders of the Senate Committee on the Judiciary and myself on July 24, 2008. The Enforcement of Intellectual Property Rights Act of 2008 will protect American innovation by addressing the shortcomings of our current enforcement regime. This bipartisan, measured compromise represents the best components of a number of intellectual property proposals introduced in Congress. Key among the legislation's provisions are: authorization for the Attorney General to enforce civil copyright laws; enhancements to civil intellectual property laws; enhancements to criminal intellectual property laws; coordination and strategic planning of federal efforts against counterfeiting and piracy; and increased resources for key programs within the Department of Justice to combat intellectual property theft. I am proud to cosponsor this comprehensive approach, which will equip our Government with the tools it needs to investigate and prosecute those who violate the intellectual property rights of American citizens. I look forward to working with my colleagues on the Judiciary Committee to move this bill towards enactment into law.

As you may know, S. 2913 was introduced in the Senate on April 24, 2008. This legislation would limit liability for the use of "orphan works"-copyrighted works whose owners may be impossible to identify and locate. The bill would provide a means for anyone to make use of copyrighted material whose owners cannot be identified. Opponents of S. 2913 are concerned that the bill does not contain protections such as requirements that a user file a notice of use with the Copyright Office in order to claim orphan works status with respect to a work and that an archive of the notices be maintained by the Copyright Office.

S. 2913 was reported out of the Senate Committee on the Judiciary on May 15, 2008, and placed on the Senate Legislative Calendar. Please be assured that as it makes its way to the Senate floor, I will keep your views in mind.

Again, thank you for contacting me. I hope the information I have provided is helpful. My website, , can provide additional details about legislation and state projects, and you can also sign up to receive my monthly e-newsletter, The Bayh Bulletin, by clicking on the link at the top of my homepage. I value your input and hope you will continue to keep me informed of the issues important to you.

Office of Senator Evan Bayh
(202) 224-5623
Russell 463
Washington, D.C. 20510

My Reply:

Dear Senator Bayh,

Thank you for your reply, and your concern. I did sign the online-petition opposing S. 2913, but I would like to take this opportunity to express my vigorous opposition, not merely in regards to the fear that “protections such as requirements that a user file a notice of use with the Copyright Office in order to claim orphan works status with respect to a work and that an archive of the notices be maintained by the Copyright Office,” aren’t provided, but to the entire concept of “Orphaned Works.”

First off, the very concept of “orphaned works” is in violent conflict with both the letter and the spirit of the international copyright convention of 1977, in which it was asserted that your creations belong to you the moment they exist.

To give you an example: I was commissioned to produce an illustration for a short story that was published online. My work, as well as the author’s, were credited there. The author subsequently copied and posted my illustration on his web site, promoting his story – however, he failed to credit my illustration. I contacted him – he lives in New Zealand – simply asking he add my credit to his page. As of the last time I checked, he had not complied. Now – if someone else comes to his site, notices my illustration and captures it, he has no idea of who originated it and owns the rights.

You cannot presume this is an “orphan” work simply because a third party overlooked crediting me. NOR should I have to pay some bureaucracy more than I earned for creating it, just to keep someone else from stealing it.

The very concept of “orphaned works” is thievery, and equates the finding of it on the Internet to garbage left at the curb – finders, keepers. An easier concept? If it doesn’t wear a sign saying it’s free, it is NOT. Would you eat an apple in a grocery store, assuming it was free, because it lacked a price tag?

The problem here is that dishonest concerns are trying to railroad through legislation that legalizes the theft of intellectual property, simply because of easy access, due to the openness of the Internet.

It would be like passing legislation that makes it legal for me to walk off with your lawnmower, simply because it was “abandoned” in your front yard while you went into your home for a drink of water.

The law is very clear. What I create is MINE from the moment I create it, until I sell or license it otherwise. There is public domain work, there is free work. In the software world, there is even what they call “post card ware,” meaning you can have this for free, but I’d just like to get a post card from you. Not too much to ask, right?

But WHO so desperately needs my art, my writing, my music so much that he has the RIGHT to claim it as his own and PROFIT from reselling it, that the law should support this thievery? Can’t the individual create it himself? Can’t he afford to commission the work from someone who has the skill? The law is clear – if it isn’t yours, HANDS OFF.

There is NO SUCH THING as “ORPHAN WORK.” If there is, then everything we create is simply garbage on the great cyber curb.

Please, do not in any way support such a vulgar concept. Once such a law is passed and entrenched, it is nearly impossible to undo the damage.

Thank you for your consideration,

John Stanton