
Users to USTR: Don't Sign Away Our Ability to Fix the Orphan Works Problem - walterbell
https://www.eff.org/deeplinks/2015/08/users-ustr-dont-sign-away-our-ability-fix-orphan-works-problem
======
walterbell
David Post has a legal analysis of this topic,
[https://www.washingtonpost.com/news/volokh-
conspiracy/wp/201...](https://www.washingtonpost.com/news/volokh-
conspiracy/wp/2015/09/03/in-a-dark-corner-of-the-trans-pacific-partnership-
lurks-some-pretty-nasty-copyright-law/)

" _The solution is pretty obvious — a true legislative no-brainer: Amend the
Copyright Act to eliminate statutory damages for these orphan works. Surely
even Congress can see how idiotic it is that this class of invisible rights
holders can keep this treasure trove of information out of the public’s hands,
and there has indeed been significant movement recently (including a Copyright
Office proposal to this effect) toward just such a change.

.. A [US] court would (as I read the new statute) NOT be permitted to award
punitive, or exemplary, damages in orphan works cases – but the TPP seems to
require that._"

~~~
mtgx
I wish you had to register to obtain the copyright for you work. It shouldn't
be automatic. If you intend to make money from something, surely registration
+ a small fee every 5 years wouldn't be a huge burden. Fail to do that, and
the work becomes public domain within two years.

~~~
gabemart
Under such a system, a photographer would presumably have to register each
photograph before hosting the image on her website, or risk losing copyright
protection.

This seems extremely onerous for a wide range of creative professions.

~~~
williamcotton
This future photographer will use some specialized computer software that
automatically registers every photograph that ends up on their own personal
website.

BTW, we're working on the underlying technology for this kind of stuff here:

[https://github.com/blockai/openpublish](https://github.com/blockai/openpublish)

~~~
benjaminjackman
Is the idea here that an artist would first register their work on the
blockchain, then publish it publicly?

I've had a very similar idea to use something like that registy with a browser
extension that catalogs every resource visited by a user (by the SHA-2 of it's
content), what site referred / linked them to it. This will create a big list
of consumed content. At the end of the year, the user can view their audit log
(and metadata on it, e.g. how many minutes of a video they watched, how they
rated it etc) and it will let them donate a certain amount of numbers from an
atomically incrementing counter signed with keypair identity to the artists
registered for those works and those that referrer them to the content.

The donater could back keypair with a variety of identities (maybe something
like a twitter account that takes into account how famous the donater is based
on their followers etc or maybe through something like keybase that aggreates
together several social media identities into a unique key). The donater could
also back this counter with a certain amount of money or BTC or whatever
(essentially acting as their own bank).

This allows an referrers/artist to be compensated in both _fame_ (the Sum of
the amounts of count assign to them * the follower-strength of the person
assigning the count at the time of assignment / the total count that person
has assigned) which is useful for parlaying into advertisement backing and
_fortune_ (the total value of the count they were given). The artist/referrers
can hold their count (speculating a rise in the value of that contributors
count), can trade some portion to other's via the blockchain or back to the
original donater in exchange for the backing amount.

Obviously people can parasitically clone works and republish them, with minor
content variations. Hopefully some sort of auditor could set what constitutes
a new vs derived work and how the splits are calculated and to find
duplication and attribute it back to the correct authors, it would be up to
each donater to choose the auditor they want to use when making their
donations. The expectation here is that artists would band together and choose
to promote the auditors that do the best job of being 'fair'. Ultimately
though, the choice on how to give money to the creators of content would be to
the public and so auditors that favor regimes unlimited copyright and very
restricted derivation would be less weighted than ones that pushed for
creative derivative works.

------
cm2187
What I don't understand is why copyright applies for so long (life + 70y so
typically 120y+) and why intellectual property (patents) applies for such a
short period (20y). Fundamentally it is the same thing. And one could argue
that code could be treated either way.

~~~
anon4
Because the Disney corporation doesn't want Mickey Mouse to fall in the public
domain. I've said before that it may behoove us to simply amend copyright in a
way that gives Disney infinite copyright, while everything else gets ten
years. Call them an "irreplaceable cultural giant" or whatever else euphemism
you want for "lots of money". Require a yearly tax that's just below what they
pay in lobby money currently. To make it "fair", you could say "first ten
years copyright is free, then it's X per year per work, then it ramps up until
it reaches what Disney can pay.. I mean Z, which was determined after market
analysis"

~~~
dublinben
Only the original Steamboat Willy cartoon would even _rise_ to the public
domain. The character as we know him today is thoroughly trademarked, which
does not expire.

All anyone would be able to do, is distribute free or paid copies of a
historical cartoon film.

~~~
wyldfire
> All anyone would be able to do, is distribute free or paid copies of a
> historical cartoon film.

But perhaps you could also legitimately create derivative works? If you didn't
offer them for sale, perhaps trademark would not apply (not used in commerce)?
It would be interesting for them to demonstrate injury.

~~~
dublinben
You would only be able to create new derivative works of the character as he
was in Steamboat Willy. Anything that we now recognize as being characteristic
of Mickey Mouse would still be under copyright, because it was developed in
later films.

------
Animats
Has the EFF ever won a copyright battle? Since they lost the big one
(copyright term extension), I can't think of a big win.

~~~
dannyobrien
If you're referring to Eldred v. Ashcroft, that wasn't an EFF case.

You can see some of EFF's legal victories here:
[https://www.eff.org/victories](https://www.eff.org/victories) , although to
be honest we really need to update that list. For example, in the IP space I
don't think it includes the two busted patents from earlier this year, which
were being used to target podcasters and online competitions. See
[https://www.eff.org/press/releases/eff-busts-podcasting-
pate...](https://www.eff.org/press/releases/eff-busts-podcasting-patent-
invalidating-key-claims-patent-office) and
[https://www.eff.org/press/releases/victory-photo-hobbyist-
pr...](https://www.eff.org/press/releases/victory-photo-hobbyist-prevails-
over-junk-patent-bully)

~~~
Animats
Steve Jackson Games wasn't an EFF case, either. I was at the Steve Jackson
trial as a technical expert. The EFF didn't have anybody there.

~~~
dannyobrien
Sorry I'm late to this; at that point, EFF didn't even have lawyers on staff
whold could be there. Instead it was formed to financially fund the Steve
Jackson suit against the Secret Service -- that's the reason why it's has
"foundation" in the name.

[http://www.sjgames.com/SS/](http://www.sjgames.com/SS/)

"The EFF provided the financial backing that made it possible for SJ Games and
four Illuminati users to file suit against the Secret Service."

