Copyright Concerns-new legislation a threat?


Apr 21, 2008
Mpls, Mn
Received this in my in box from indie911. (I've taken it off the Sonoma Riffworks forum)
I know some others have seen this also but others probably haven't. (Hope I'm not double posting this).

Read and decide, but since the majority of people who post here are likely to be indie artists, this will be of concern to you.

Indie 911 has become aware of a new law that is rapidly moving through the Congress called the �Orphan Works Act�. The law is aimed at changing a portion of U.S. copyright law that deals with musical tracks, writings, images, videos or other content whose owners cannot be easily located.

Independent artists need to care about this because you usually own your own copyrights so when the Orphan Works Act talks about �copyright owners� they are talking about YOU!

All that an �infringer� needs to do to avoid the current penalties of the copyright law is show that they made a "reasonably diligent search" to locate the copyright owner, and if they can�t find the copyright owner, they can use the work without permission and without exposure to statutory damages�the infringer only has to pay �reasonable compensation� if they ever get caught.

The chances of their getting caught are slim to none because there is no requirement that the infringer has to publish a public notice letting the world know what they�ve done.

After conducting a �reasonably diligent search� without supervision by an independent person, the infringer can use the track for anything including a political advertisement, pornographic film, or commercial. The infringer can also manipulate the work in a sample or mashup beyond recognition�and the Orphan Works Act allows the infringer to claim a new copyright in the manipulated work!

The Orphan Works Act does not define what a �reasonably diligent search� would be�that is left to copyright owners to recommend in some kind of standard-setting process that is not defined in the bill. Those recommendations will not have the force of law so a court would not be obligated to follow them.

The Orphan Works Act barely defines what �reasonable compensation� will be.

But deciding whether an infringer has conducted a reasonably diligent search and what �reasonable compensation� is to be is not up to you�it�s up to a court. Meaning you have to file a lawsuit to enforce your rights.

The only way that a copyright owner can restore the current copyright infringement penalties (including the big stick of statutory damages) is if they sue the infringer and prove in a court of law that the infringer did not conduct a �reasonably diligent search�. But the Orphan Works Act specifically eliminates the ability for a copyright owner who feels infringed upon to recover legal fees�unless they win their case.

So that means that an independent artist is going to have to find a lawyer to take their case on a contingency that will require that lawyer to win a case in a totally new area of the law for which there is no precedent. And maybe�maybe�get an award of attorneys� fees years later.

Who is behind this bill? We don�t know. We do know that Google�s lawyers have testified to the Copyright Office that they want the bill to consider a user that wants to use �millions� of orphan works. That was right about the time that Google donated $3 million to the Library of Congress (home of the U.S. Copyright Office). The Copyright Office is supporting the Orphan Works Act.

And what is an �orphan work�? It�s a copyright whose author cannot be found after a �reasonably diligent search� in accordance with �best practices�.

The only music industry group that supports the legislation is the RIAA. Other groups are very concerned about the impact of the new bill on independent artists, labels, songwriters and smaller music publishers, and have presented their concerns in a concise manner. The American Association of Independent Music has posted their position paper online at … _1_I_2.pdf

Opponents of the bill in the indie community are concerned that this bill, if enacted, would make it very difficult to stop parties from using your music in ways you don't want or haven't consented to and it puts an even greater burden of finding infringers on the copyright owner rather than putting the burden on the user who wants to use your music.

According to A2IM President Rich Bengloff �The Orphan Works Act certainly would hurt smaller independent labels who are more likely to be harder to find than the majors. Independent labels also have less resources to do searches to find infringements and then, after finding infringements, getting compensation.

ORPHAN WORKS MAY BE PRESENTED FOR VOTE AS SOON AS NEXT MONTH. A2IM and a handful of artists groups are the only music voices we know of working against the passing of this bill as it relates to music. Indie911 is asking for your help in contacting your representatives in the House and Senate to explain to them the harm Orphan Works could mean to your businesses.

We're asking you to contact your representatives in the House and Senate to alert them that a bill is coming up for vote that will be harmful to independent artists, songwriters, labels and musicians.

Contact info for your congressional representatives, if you don't already know, can be found at …

The U.S. Small Business Administration is also watching developments on this issue. You may contact them at

We would like you to take a half hour of your valuable time and write to at least your Congressperson and your Senators, and hopefully the Small Business Administration and tell them what you think!

The following is a sample letter that you can use. It�s more effective if you rewrite it in your own words and give real world examples from your own life.

Dear ____:

I am very concerned about the impact of the Orphan Works Legislation (HR 5889 and S 2913) on my life as an independent artist/songwriter/label. It is very difficult to earn a living from music in the U.S. anyway, and this bill could be very damaging to my work.

Independent artists do not have the means to register in places where we are likely to be found in whatever definition you and your colleagues decide to give to terms like �reasonably diligent search�. I definitely cannot afford to sue everyone who might use my work, even if I knew about it and could find them. Since you and your colleagues do not seem to think that we need to be notified if someone uses our copyright, then I don�t know how we would find that out.

I think that what will happen is that there will be vultures looking for groups of artists who cannot afford to defend their rights�like me�and will be offering those works for uses I would not approve like pornographic films, political advertising, and tasteless animations. I wouldn�t even have this problem if I were signed to a major record company!

This is a bad bill for independent artists/songwriters/labels. Many groups in the music business are against the bill, and so am I.

Please don�t vote for this bill!

All that an infringer needs to do to avoid the current penalties of the copyright law is show that they made a "reasonably diligent search" to locate the copyright owner, and if they can't find the copyright owner, they can use the work without permission and without exposure to statutory damages, the infringer only has to pay reasonable compensation if they ever get caught.

Thank God. It's about time copyright law started getting a bit more sane, and this seems like a step in the right direction to me. Fingers crossed about "reasonable compensation" getting extrapolated to the rest of copyright law, in place of the squillions it currently amounts to.
If you think this is going to make copyright law more 'sane', either you're on crack, you don't know what this exactly entails, or you have a different idea of what copyright should be than everyone else. Getting rid of the benefits of copyrights to those who need them most (small labels and independent artists) is just fucked up.

I think hes refering to payouts when sued. The bottom line is that if this is passed, it allows the works of another (the creator-specifically a small time indie artist) to be exploited rather easily, both by the big leagues and little guys. Its needs to be more specific and fine tuned before it should go anywhere. Hopefully it'll die on the floor and get revisions made upon it.
you know what this means if it gets passed? hip-hoppers will be stealing EVERYTHING and making more shitty no-talent songs that people will spend lots of money on, fucking over everyone that has the talent to make real music.

i say we bomb the riaa. they've never done anything good.
This really only pertains to works that have fallen into public domain, or nearly have. For example, Led Zeppelin mistakenly thought they were adapting a public domain folk song with "Babe, I'm Gonna Leave You" on their first album, but it turns out that the writer was still alive at the time and owned copyright, and that the band didn't find out about this until after their album's release. I'm not sure what terms were settled on there, if any, but this seems to pertain to similar cases.

I fail to see that need to change the law, though. I'm not sure who it would benefit.