Re: how many? google books

[David Farber <dave () farber net>]

Begin forwarded message:

From: John Levine <johnl () iecc com>
Date: May 22, 2009 8:15:16 PM EDT
To: dave () farber net
Subject: Re: [IP] Re:   how many?  google books

> Dave, maybe someone knows how many orphan works there are?

Having done some informal research, I have to agree that much, perhaps
the majority of stuff published from 1923 (the end of the public
domain) through the 1930s is orphaned, and a fair amount of stuff in
the following decades.

> Also, isnt it on the author to keep up his own work or his family?

Here's the problem with orphaned works: under current US law, works
are born copyrighted, and are only released into the public domain
when the term is up (which no longer happens, since the movie industry
lobbies Congress to extend the term every time that's imminent) or the
author explicitly releases it, which is also very rare.  So if I'm
working on a project, and I'd like to use material from a book
published in the 1930s, I have to find the copyright owner and get
permission.  I try to find the publisher, if they're still in
business, or see if it's possible to track down the author, or more
likely the heirs of the author.  Maybe I find them, more often it
leads to a dead end.  Having made a diligent search, can I then assume
it's safe to use the material?  No!  If I use it, and the owner later
apears, he can sue me for very large statutory damages for
infringement, and the fact that I tried to find him before doing so is
not a defense.

A reasonable solution, which has been proposed in a variety of bills
in Congress, is to say that if I've made a good faith search and the
owner later turns up, his royalties are limited to a reasonable amount
so I know how much to budget.  Some versions of this would have me pay
the royalties into an escrow account, others would just have me pay if
and when the owner appeared.  The Google settlement basically uses
class action law to get the same effect, except that the only user it
applies to is Google, and that's the problem, it makes them the
monopoly provider of access to orphaned works.

The Congress could easily solve this problem by passing an orphan
works law, such as S.2913 which was passed by the Senate in 2008
but died in the House.

Regards,
John Levine, johnl () iecc com, Primary Perpetrator of "The Internet for  
Dummies",
Information Superhighwayman wanna-be, http://www.johnlevine.com, ex- 
Mayor
"More Wiener schnitzel, please", said Tom, revealingly.




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