Orphan Works in the Era of Obama

Many people just assume that when a politician running for office speaks, they're saying whatever will appeal to that audience, and that is why you have to look closely at their track record of casting actual votes (or in the case of judges, their actual case history).

As CNET News reported earlier this week (Obama picks RIAA's favorite lawyer for a top Justice post, 1/6/09), Obama's choice for a top position in the US Justice Department is a very pro-IP lawyer, having served as counsel for the Recording Industry Association of America (RIAA).

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In this case, with an initial read of the tea leaves, a signal is being sent that Larry Lessig's "free culture" efforts - that is, a lessening of the strength of copyright laws and punishments, have been dealt a hard blow. Lessig had endorsed Obama, and Google - seen as one of the big proponents of Orphan Works by many - endorsed Obama as well (in the form of their CEO endorsing Obama.) That, however, was when Obama was a candidate. Now, as the President-Elect he is taking a more pro-IP stance.

The CNET piece goes into some great deal about what we can expect from the Obama Administration, and it's well worth a read. As we evolve into the Era of Obama, it seems that the rights of creatives, and other intellectual property rights-holders will gain some traction and re-establish the respect that it once had. We can see this with the sucess of Apple's iTunes store, places like Hulu.com, NetFlix and others for video, bodes well for a proper re-alignment of protections or copyright holders and their assets.

Don't get me wrong - while it looks like the tide is ever-so-slightly pulling back, it could be, as with India's Tsunami, this is the calm before the storm.

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Copyright Infringement?

We regularily read the gadget blog Gizmodo, along with EnGadget, Consumerist, and countless others. About two years ago, we wrote about how Consumerist just published a Getty Images photo with the watermark - (Getty Infringement, 2/27/07) which, to me, is a sure sign that you didn't download the image with permission. Now, we find that Gizmodo has taken a generic shot of the Las Vegas Convention Center, as a part of their CES coverage, and co-opted one of Jill Greenberg's crying babies images to make an editorial comment about CES -(Gizmodo's Guide to CES, 1/7/09). Note that the comment isn't about Greenberg, so this is highly likely to be an infringement.

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Note that we did a bit of research and couldn't locate a place where Greenburg's crying baby images were being licensed as stock, and they surely are not a part of a subscription model at any stock agency, so Gizmodo would have had to specifically license the image either through Greenberg, or through wherever they might be individually licensed as stock.

Further, it is reasonable to assume that Greenberg would require photo credit, and further, she would require sign-off on a montage of her images with others, and I am not making a major leap here to believe she wouldn't sign off on the above montage.

This would be where a service like TinEye, PicScout, or others would be of great service in locating infringements of your work, or atleast places where your work appears so you can confirm it's authorized, or not. We showed you how TinEye found one of my images within a montage of others last July (TinEye - Oh My!, 7/18/08). Becoming aware of and comfortable with, image search/recognition technologies will be important, and likely something you should do once a day (if you're doing it manually), or set up a solution to search for your images and report all appearances of your images via e-mails.

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111th Congress - Orphan Works Futurecast

With the end of the 110th Congress, all the formal legislative activity that was done regarding Orphan Works is now dead, and a new bill, with new hearings, and new negotiations, with new players, must begin anew. Yes, you can expect the language in the bills on both the House and Senate sides of the process to be the basis for the new legislation, but both have far more pressing issues to contend with.

Every cabinet official and other congressionally confirmed administrative official must make it through the Senate Judiciary Committee, then, all of the appointed judges that were delayed in anticipation of a democratic President must go through the process, so you can expect a very busy Senate schedule as eight years of delayed and lost efforts begin anew for the Democratic Party.

What of the House?

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In the past session, the Subcommittee on Courts, the Internet, and Intellectual Property, headed up by Chairman Berman of California, handled Orphan Works. It was thought by some that Virginia Congressman Rick Boucher would take over the Chairmanship of the Committee, and by others, that it would be Congressman Jerrold Nadler of New York. Instead, the Chaiman, John Conyers, of Michigan, has done away with that subcommittee, and it has been decided that all intellectual property issues will be heard before the full committee, according to a conversation I had today with a Committee staffer, and which was reported by the Washington Post - House Judiciary Chair Conyers Takes Control Of Intellectual Property Issues, 11/13/08.

This means that the issue of Orphan Works must now be fit into the very very busy schedule of the House Judiciary Committee, (including a continued look into the mortgage banking crisis) and all of the needs and wants of those members, as well as the procedural work of all of the other committees. According to GovTrack, "John Conyers has sponsored 191 bills since Jan 5, 1993. of which 159 haven't made it out of committee and 9 were successfully enacted."

The Washington Post article, in discerning how this will affect the owners of intellectual property rights, notes " this one is seen as a win for Hollywood over the consumer electronics industry given that Rep. Rick Boucher (D-Va) is perceived as an ally of the latter and might be more sympathetic towards fair use arguments."

So, what's good for protecting the IP of Hollywood suggests a similar slant towards the IP of the music industry and, yes, that of creatives.

Further, in trying to discern Conyers' stance on IP, we can turn to what Ars Technica reported back in April - Controversial Pro-IP Act sails through Judiciary Committee (4/30/08), when they wrote:

"The House Judiciary Committee has unanimously approved the Pro-IP Act, a legislative proposal which aims to impose stronger penalties for copyright infringement. The approval is no surprise, since the bill's chief sponsor is committee chairman Rep. John Conyers."

Further, it was Conyers' bill that created the new position of Copyright Czar (New Intellectual Property Czar Authorized, 10/13/08), and the Pro-IP Act was signed into law on 10/13 by President Bush. The Michigan Telecommunications and Technology Law Review has an interesting series of insights into how this law changes things in a big way - The PRO-IP Act, 11/10/08.

It was believed that the Pro-IP Act and the Orphan Works Act were to be somewhat of a pair of dove-tailed acts cum laws, enhancing significantly IP rights and enforcement options, while freeing up orphaned works in other areas, and that there was a form of a quid-pro-quo amongst the players. The fact that the Pro-IP Act passed, while the Orphan Works Act died in the House, while the House squashed the IP sub-committee that created the Orphan Works House Bill does not sit well with the pro-OW crowd. You can bet that those who were pushing for the OW bill and accepted the Pro-IP bill as a quid-pro quo but who ended up with nothing are none-too-happy about losing the OW battle, and I suspect some feel tricked into allowing the Pro-IP to pass and then not getting their OW bill, so they feel betrayed and will be loaded for bear in the new Congress.

So, a Pro-IP Chairman will be the gate-keeper of Orphan Works in the 111th Congress - certainly much more Pro-IP than Rep. Berman, who was the Orphan Works champion on the committee in the 110th. Things are looking better, but don't count your chickens just yet.

Stay tuned.

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Pete Souza - Official White House Photographer

As a Washington DC photographer, knowing who the official photographer for the President is (or will be), is a big deal. It's even a bigger deal when the photographer chosen was one of the official photographers for President Reagan. Such is the case as Pete Souza, a friend and colleague, has accepted the offer as White House Photographer for President Obama.

The NPPA's article reporting this cites a very important point - Souza "said he accepted the offer today after...reaching an agreement that the primary function of the White House photography office will be to document Obama's presidency for the sake of history." This point - while nuanced to those who are not photographers, is critical and key from a historical standpoint.

What is being said here, is that the function of the photographer is to document history in the making, and not serve as an arm of the press office. That's not to say that the press office needs won't be exceptionally well fulfilled, but rather, Souza will have the accessibility he needs to record history for generations to come. Following in a long line of photographers who had this approach - David Hume Kennerly, David Valdez, Bob McNeely, and others, making images for the ages, and not the days' news cycle is a remarkable opportunity, and a huge responsibility.

With that, congratulations go out to Pete as we welcome him back to Washington.

(Comments, if any, after the Jump)

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