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Copyright and Orphan Works Take Four: Lawrence Lessig is at it again! - Walking on the Edge
I don't really have a plan...
Copyright and Orphan Works Take Four: Lawrence Lessig is at it again!
Via a heads-up by sonnyliew:

Lawrence Lessig has an opinion piece in yesterday's New York Times. An interesting read, but unless I'm confused and he's referring to a more recent report and/or bill than the 2006 report and bill (not likely, since I know...someone...who is currently working on the next bill, ergo it's not out there yet), he's off-base again.

Particularly with this statement:

But precisely what must be done by either the “infringer” or the copyright owner seeking to avoid infringement is not specified upfront. The bill instead would have us rely on a class of copyright experts who would advise or be employed by libraries.

I have...no idea where he's getting that. Maybe he just feels like talking without reading the information available, I don't know, but as far as I recall (and I've refreshed my memory lately with that series of 3 posts that I did recently), there's absolutely no mention of copyright owners and/or potential users being subject to anyone who's going to advise or be employed by libraries. (WHUT?) That Copyright Report and bill refers to encouraging the various creative fields and/or their organizations to create or maintain voluntary databases to make it easier to protect works and/or for potential users to search for works. The idea there is that the databases would be one step in a "diligent effort" to find the owner of a work, though that doesn't mean the search would stop there - it'd usually be the first in a series of search steps, which would all be considered. In the 2006 Report, at least, in cases where whether a user searched diligently for a copyright owner before using the work is disputed, the dispute would be settled by a court. Not a library, for goodness sakes.

I'd really love some citations to the Report or bill on his part, because my mind, it is boggled by these statements.

Also, as I mentioned to sonnyliew:

Once again Lessig is proposing a solution that would cause the U.S. to have to violate several international conventions/agreements (Berne, TRIPS) that we've signed on to. It's not going to happen - Congress wouldn't pull out of international agreements if there's any other solution to be had. I don't know why Lessig keeps proposing this, because he's a lawyer and should realize that this would violate the international agreements. But it keeps cropping up.

Also, bear in mind that Lessig is one of the proponents for making as much creative work as possible free for secondary users to use in as risk-free a way as possible. This means he generally puts the "needs" of the public to use creative work for derivative works over the original copyright owner's right and desire to protect their work with little hassle. I'm not saying that being able to use unprotected works isn't important to the growth of culture and the public good; I'm just saying he has a clear bias, and anything he's writing is as an advocate, not an impartial scholar.

ETA: Lessig is apparently talking about the bill that is being worked on right now. However, rivian notes that his conclusions are still a bit of a reach or jump from what the bill is actually saying or aiming towards. Here's a link to the bill, dated April 24, 2008. I haven't had time to read it yet.

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Trixie feels: annoyed annoyed

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foresthouse From: foresthouse Date: May 22nd, 2008 01:32 am (UTC) (current file)
I'll check it out on Thomas.

The best practices thing, if I'm thinking of the right thing, was discussed in the 2006 Report - it's not suggested (in the Report) that the best practices will be the only guideline for determining whether the searcher was diligent.

Personally I think if this is the path the bill will follow (i.e. the "diligent search" thing) then perhaps one good way of doing it would be to have threshold search requirements, which must be met or the user automatically loses the case (i.e. did the user check the Copyright Office, any standard databases in that industry, and do a Google search to try to find info on the work, or things like that). Then, if the user can show he did that, it wouldn't mean he'd win. It would mean he'd then get to move to the next step in the inquiry, as to what additional steps were taken and whether that qualified as a diligent search. Also, a copyright owner could be allowed to rebut the user's argument by showing what searches could have been used to find the work (and then a judge could decide whether those were things the user should have done).
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