Hey again, I'm updating the journal because I've been reading up a bit more on the bill and on arguments made and wanna correct some pretty alarmist assumptions I got caught up with.

There is no Orphan works bill before congress. It hasn't been introduced yet! I had stated at the bottom that letters and such will be ignored if you send them before the bill is actually introduced to congress. Yet a lot of these comments I'm reading here and elsewhere seem to indicate that many people are already getting on with it. Slow down a bit, will ya? We can't be 100% that it is just like the previous bill until we can actually read it.

There are also some people who seem to believe this will be an end to creativity. Come on, that is just silly. If the bill is very similar to what it was in the 2006 congress then yes, it'll have a negative impact on creative professionals and to a lesser extent creative individuals in general. This does not mean there will be no new art.

I also ignorantly stated that the bill would strip creators of passive copyrights. Well, I can only say 'my bad' to that, it was careless of me. However, I've found that the danger is not that copyrights will be stripped but rather it will allow them to be ignored legally. I think it's important to understand why this is a concern and why everyone claiming that passive copyright protection will still protect you may be mistaken.

People can only ignore a copyright illegally under current law, and they do so at the risk of a very damaging lawsuit (with the exception being 'fair use', I believe?). I think it is generally agreed upon, correct me if I'm wrong, that the majority of our current copyright protection comes from the ability to file these lawsuits. If you ask why this is, it's because there is no one in the government who is responsible for finding and investigating copyright infringements. It is up to the rights holder to find the violators of their copyright, and it is also up the the rights holder to make sure they don't get away with it. If the new bill takes into account the suggestions given by the U.S. Copyright Offices report back in 2006 ([link]) then the ability to bring an infringer to court would be made several times more difficult. The copyright office has suggested that severely limited compensation be given in lawsuits that assert the orphan works defense. They call it 'reasonable compensation' and have considered capping it at a few hundred dollars. They also have advised denying the payment of attorney's fees by an infringer to the creator, even if the creator wins the case. This means that the creator who pursues a lawsuit against an infringer would expend massive amounts of time and energy to be left in debt that s/he may never recover from. And for what? It will only mean that the infringer stops using your one (or more) piece(s) of work. Filing a lawsuit will become such a financial risk for the creator that an infringer will be encouraged to believe they will not be brought to court. If these terms are included in the upcoming bill, then the only protection copyrights actually afford us will be taken away. This is, personally, my biggest concern. Sorry for the long read.

As to those who think Orphan works is a great cause: yes! it is! It would be awesome to have all that old work that is truly orphaned out in public. It is a serious problem for academic institutions like schools, libraries, museums, etc. It is a good cause... but if the loopholes in this bill are still there, are still wide open to legally allow exploitation of work that is not truly orphaned, then we need to make sure it is not allowed to go through without change. What this bill needs to do is make true orphan works available without allowing potential abuse of contemporary artist's work.

As to how I think the bill should be changed, I will direct you to asmp's report made last month. The report outlines the dangers to photographers and other visual artists, and I agree with their proposals to exclude commercial usage. I hope the bills sponsors have taken them into account:
[link]
[link]

I'll also give you these links, which include viewpoints that do not exclusively defend the artists. Please take the time to go through them

[link] <--- short video by Lawrence Lessig. Argues that the 'diligent search' requirement may hurt the institutions it is meant to help.

[link] <---The Illustrator's Partnership Orphan Works resource page, mostly from the last time the bill was introduced (careful, there's a lot)

[link] <---livejournal that mostly criticizes Mark Simon's article. Lots of informative links found at the bottom. not sure if I should post them here or not.

[link] <---Recording of an interview between Mark Simon and Brad Holland, has some interesting info about the bill's creation near the middle-end

[link] <--blog following orphan works

I was alarmist before, and I can't apologize enough for that, but it is still extremely important that creators watch out for when this bill is introduced. It should be soon, and again, I'll be updating when it does.