Comments on: Orphan Works (again)

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By: larry jewett

larry jewett — Mon, 19 May 2008 15:54:06 +0000

Wow. they don not even define even define what they claim to deal with ( “Orphan works’). The definition is effectively left up to the potential infringer! — defined by whether the “good faith” search for the copyright holder turned up anything! (and nowhere in the bill is “good faith” defined” either)

That is a recipe for trouble, in my opinion.

If the user can show that they

“performed and documented a qualifying search, in good faith, for the owner of the infringed copyright; and

`(II) was unable to locate the owner of the infringed copyright;

then they can not be held accountable for the regular 150,000 infringement fee though they might still be responsible to pay the copyright holder a “reasonable compensation” for use of the work.

but even that is not clearcut:

MONETARY RELIEF-

`(A) GENERAL RULE- Subject to subparagraph (B), an award for monetary relief (including actual damages, statutory damages, costs, and attorney’s fees) may not be made other than an order requiring the infringer to pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright for the use of the infringed work.

`(B) FURTHER LIMITATIONS- An order requiring the infringer to pay reasonable compensation for the use of the infringed work may not be made under subparagraph (A) if the infringer is a nonprofit educational institution, library, or archives, or a public broadcasting entity (as defined in subsection (f) of section 118) and the infringer proves by a preponderance of the evidence that–

`(i) the infringement was performed without any purpose of direct or indirect commercial advantage,

`(ii) the infringement was primarily educational, religious, or charitable in nature, and

`(iii) after receiving notice of the claim for infringement, and after conducting an expeditious good faith investigation of the claim, the infringer promptly ceased the infringement,

except that if the legal or beneficial owner of the exclusive right under the infringed copyright proves, and the court finds, that the infringer has earned proceeds directly attributable to the infringement, the portion of such proceeds so attributable may be awarded to such owner.

is that what they meant by “good faith search”?

Apparently if someone can show that they used the work for a Church (of White Supremicists for Jesus?), they are off the hook fas far as infringement is concerned. Actually, as far as i am concerned, if some church or “charitable organization” wants to use a work of mine, they need to get my written permission — period.

This bill is very poorly written in my opinion and leaves a lot open to “interpretation” - -and to potential abuse.

It is a can of worms, IMHO.

http://www.govtrack.us/congress/billtext.xpd?bill=h110-5889