Copyright reform in the U.S. is an issue fraught with complications and frequently brought to a standstill by the desires of competing interest groups.  Still, there are a few areas of the law where reform seems relatively simple, desirable, and advantageous for all involved.  Near the top of this pile is the so-called “orphan works” problem.

An orphan work is a work whose owner cannot be found.  Because damages for infringement can be spectacularly high, even for works whose owners cannot initially be located, few artists or educators will dare to use such works.  Songwriters wishing to write variations on an early 20th century tune, families wishing to have their grandparents’ wedding photos copied professionally, and even filmmakers making documentaries about turn of the century American picture postcards are all confronted by the problem of orphan works.   Perhaps the greatest threat is in the realm of film, where priceless early films are literally disintegrating because their owners cannot be found to grant copying rights.

The problem is relatively recent.  Prior to 1976, copyright holders who wished to maintain their copyright for the full 56 year term had to apply to the Copyright Office for renewal after 28 years.  Copyrighted materials whose owners were no longer interested in using or licensing the material could simply choose not to renew after the first 28 year term, allowing the work to return to the public domain.  Passage of the 1976 Copyright Act and several subsequent amendments greatly expanded the scope of the orphan works problem.  In particular, the 1976 Act made registration with the Copyright Office optional (thus complicating search efforts), while a 1992 amendment instituted “automatic renewal” and removed the requirement to file a renewal application with the office.  Under current law, then, an author could have created a piece of art in 1950, died in 1960, and his work would still be under copyright for years to come – even if a potential user of the work was unable to find out who had created the art or who currently owned the rights.

To combat this problem, two bills (The Orphan Works Act of 2008 in the House and the Shawn Bentley Orphan Works Act of 2008 in the Senate) were recently proposed.  The House proposal stalled, but the Senate proposal passed and was forwarded to the House for deliberation.

The bill is relatively simple: a user of copyrighted material who is unable to locate a work’s owner (after a good faith search) is permitted to use the work.  They are, however, required to attach a special orphan works symbol.  If an owner later emerges, the user must merely pay “reasonable compensation” rather than face litigation and full liability.  The Copyright Office would also create and maintain a database of copyrighted works in order to aid in the search process.

The law is by no means perfect.  The standard used to determine reasonable compensation (“the amount a willing buyer and a willing seller would have agreed to” just before infringing began) is fuzzy at best, and it is unclear exactly what constitutes an appropriate search for a copyright holder.  If the requirements are too strict, such searches could be costly and time consuming, while if the requirements are lax copyrighted works might be unfairly characterized as orphaned.  Many visual artists have also objected to the bill, saying that the text-based registries the Office currently uses will lead to too many photographs and designs being designated as orphan works.

Nonetheless, the Act is a relatively simple solution to a major problem, and it would undoubtedly put many creative works back into circulation while maintaining owners’ rights.  New image recognition technology should allay the concerns of visual artists by making it simpler to track down the owner of the rights to a particular painting or photograph.  Notwithstanding the alarmists writing about the dangers of the Orphan Works Act and insisting that it will strip artists of their ability to hold copyrights, the Act seems reasonable and well tailored to its purpose.  Here’s to hoping that the bill will pass in this session of Congress.

In true Yale/college student form, I sat down on the couch in front of my laptop to write this blog post while snacking on a bag of salty crunchy potato-chip-like veggies.  I attribute this approach to Yalies and the whole collegiate bunch for several reasons.   First, I was lounging on a couch, wearing sweatpants.  Second, I was on a dented, scratched, six-month-old laptop.  Third, I was eating something vaguely resembling junkfood inbetween meals and spilling crumbs all over my keyboard.   Fourth (most important and indicative of the signature Eli style and flair), I was inspired by the chip-clip I had put on the bag.  I had received it at the beginning of the year, at some point between attending an anti-filesharing Harry Potter-themed propaganda movie screening and learning to work a washing machine.  I hadn’t noticed the writing on it until just then, and began to wonder what would happen if I didn’t follow the kind suggestion supplied by my chip-clip.  What if I did share files?  Who’s fault would it be?  I checked out the website, which instructed me to avoid p2p file-sharing.  Apparently Yale is designated as an ISP under the DMCA, so they can take advantage of the legally provided safe harbors.  Looks like I’d be the only one getting into trouble for illegally sharing copyrighted works…but then again, what about the means by which I shared those files?  I’m not the most tech-savvy person out there–I don’t know any programming languages, I didn’t know that Mozilla Firefox had add-ons until last week, and I certainly wouldn’t be able to share files without the help of a user-friendly filesharing program.  After some scouting around, I discovered secondary liability.  Looks like I might be able to implicate an accomplice.

This is my bag of veggie straws (which are pretty good, if you ignore the fact that they’re rectangular tubes of unidentifiable veggie-like substance) and the thought-provoking chip clip in front of a poster in my suite.

Secondary liability is a high-stakes version of the blame game that I played in gradeschool, i.e. “I broke the cookiejar because my brother pushed me into it…but I knew the cookies would fall out if that happened.”  Whichever way you try to parse out the blame, you still have the same end result: a herd of eight year olds scrambling through this open source on the classroom floor to nab a bite of chocolate chip or oatmeal raisin without permission.   Very simply put, programs that allow users to swap files are the siblings of the digital realm.  They provide the means by which millions of individuals worldwide are able to connect to each other over the internet and share what they have.  In this case, the kid-to-kid treat sharing roughly translates into peer-to-peer filesharing.  Continuing the metaphor, secondary liability would be the fifty lines of “I will not push other people or break any other classroom rules” that your teacher assigns to the guilty party who didn’t directly break the jar.  Your teacher, the plaintiff, must then decide which kind of secondary liability she is calling the offense.  There are two kinds of secondary liability as defined by the courts (not the Copyright Act): vicarious liability and contributory liability.  Vicarious liability applies to superiors who take responsibility for the actions of those who they oversee.  This instance would get you and your brother grounded for a week, because your mom would have an assignment for her parent-teacher conference.  In the real world, this kind of liability also applies to employers who are culpable for the wrongdoings of their employees.  Contributory liability lays blame on an individual who is aware of, facilitates, or helps the offensive action occur.  This liability is linked to the larger body of tort law, which addresses how to get compensation for harmful actions that did not involve a contractual agreement.  Contributory liability is commonly linked to the developers of software that can be used for filesharing, and would probably, in the cookiejar application, involve your brother working on his cursive.

The DMCA provides numerous safe havens for ISPs from liability charges, so they’re off the hook, provided that they comply with DMCA requirements.   Software program creators, however, are in a different boat.  They are not (as Viacom is arguing in its current case against YouTube) ISPs, and thus are not protected by the DMCA’s safe harbors.

Are the people responsible for file sharing software programs at risk for secondary liability blame for  infringement when their product’s users share copyrighted files through their creation?  So far, this seems to be a possibility.  However, the recent proceedings in The Pirate Bay trial may set an international precedent.  In this ongoing case, the International Federation of Phonographic Industries (basically the equivalent of a worldwide RIAA) is suing the Pirate Bay (a notorious international BitTorrent tracker based in Sweden) for copyright infringement.  The Wired Threat Level Blog says that, during their courtroom questionings, Gottfrid Svartholm Warg and Fredrik Neij, two of the Pirate Bay defendants,  “stuck to the story that the sole purpose of The Pirate Bay is to let internet users transmit whatever material they want.”  Pirate Bay has a shot at winning (the plaintiffs have already dropped half of the charges), and if they do, it would place the blame on users for swapping files illegally.  Previous cases involving filesharing software, such as Napster and Grokster, have been ruled against the online facilitators.  However, the Pirate Bay is breaking new ground in its magnitude and international scope.  I guess I’ll have to wait and see if I can partake in filesharing without being the only one who gets punished.

I think that it is preposterous to blame software providers for illegal actions taken by users of their software.  There are numerous situations with other products where people can use legal means to achieve illegal ends, yet those means are still available on the market.  For example, cars are readily available to anyone who wants to purchase one (or to anyone who will take one, in the case of mammoth SUVs in this economy), but can be used to illegally smuggle immigrants into the country.  I realize that the example is quite exaggerated, but the point still stands.  If I share files, I am the one sharing files.  My internet service provider is providing internet, my filesharing program is facilitating filesharing, and I am the only one choosing which files to share.  I know that this seems rather obvious and straightforward, but perhaps it’s the point that needs to be made.  In filesharing, the people clicking “download” are the ones who make the conscious decision to violate copyright.  If I choose to share files  against the advice of my chip-clip, I shouldn’t have the software designers behind my computer programs dragged down with me.