http://capwiz.com/illustratorspartnership/home/
My understanding of the bill:
Current copyright law provides that the creator of the work enjoys 100% protection the moment the work is created. If an infringer uses the work without permission, the copyright owner can sue for cease and desist, damages, compensation and court cost. If the copyright holders work is infringed, the infringer is responsible to prove that they used the work with permission. A formal copyright registration can be made for $45 at the copyright office at any time, however, no such formality is required*, but expedites court cases. If a copyright is infringed, the copyright owner has a retroactive 90 day period to register the work with the copyright office.
The Orphan works bill would change the consequences of copyright infringement, not copyright itself. Any work that after "a reasonable search" the copyright holder cannot be found, the work is considered an Orphan. Any Orphan work can be used in any way the infringer wants, and should the owner of the copyright discover the infringement, their only recourse is to sue for "cost of fair use". not damages, not even court cost. "fair use" is essentially what the infringer thinks they should pay, and may not even be enough for the copyright holder to pay for the litigation to get their "fair use" fee. Additionally, the responsibility of proof now shifts from the infringer to the copyright holder.
So this is the problem. It is TOO easy to Orphan a work*, and the copyright holder has little legal recourse to resolve the infringement.
If this were physical property law, rather than intellectual property law, this would be struck down in an instant- this is the equivalent of "borrowing" your neighbors car because you knocked on the door and they weren't home. and when you got caught driving to Mexico, all you had to do was pay for gas. There is no recourse for damages- what if your work was used for a cause that you found morally or ethically offensive? you could not sue for cease and desist or damages, just "fair use".
In Senator Pryor's letter back, he mentioned this law was to balance rights of copyright holders with the needs of users. To go back the car analogy, this is the same as saying balancing the rights of the car owner with my desire to drive it to Mexico. This is unacceptable. This is the Information Age- we have recognized that Information, i.e. intellectual property (IP) is more valuable in many cases than physical property. However, this Bill makes it easier for infringers to steal IP, as well as being plain insulting to those who create IP, by saying that what you produce is not as important as what a physical product is. This, in my opinion, is a huge step backward from the so-called "Information age".
*Berne Convention and current Copyright law states that copyright owners enjoy protection without a formal registry. Under the Orphan Works Act, copyright holders would be required to register their work into some sort of registry (the bill suggest commercial registries!) in order to be "searchable". at this time, the technology does not exist to search images except by tags, text labels, and watermarks- all are easily removed. Being required to register your work with one or more commercial registries will drive the cost of doing business up, as well as being a direct violation of the Berne Convention and other International copyright laws.
Sorry for the long email, but I feel strongly that this Bill is Dangerous to anyone who creates IP for a living, and plain insulting to anyone who believes that IP has any real value.
-Cliff
