Lawrence Lessig’s Take On The Orphaned Works Act: It Sucks.

In News on May 21, 2008 at 3:31 pm

(Pic from littletinyfish)

Or, more appropriately, it’s vague. The issue of the US Congress mulling over a reform in the matters of orphaned works–essentially works whose owners cannot be found–was discussed in the recent TWiT episode, and on the surface of it, it did look like a simple proposition to sort out copyright issues. Say, if there’s a drawing/photograph/composition whose owner can’t be traced down, it’s always a risk for another person to use that piece of copyrighted information for his own.

Lawsuits involving copyright infringements are all a plenty in the States, and this new “Orphan Works” ruling would seem to be an easy way out for other people to use orphaned works without the fear of a lawsuit hanging over them. All they have to do is just show that they’ve made a “diligent” effort in trying to track the owner, was unsuccessful, and hence, can exonerate him/herself from using the owner’s intellectual property.

Lawrence Lessig, the man famous for advocating the Creative Commons license, has spoken out against this in his essay for the New York Times, essentially calling it “unfair and unwise” because of the vagueness of the law’s definition of “diligence”, among other things.

An excerpt from the NYT:

The solution before Congress, however, is both unfair and unwise. The bill would excuse copyright infringers from significant damages if they can prove that they made a “diligent effort” to find the copyright owner. A “diligent effort” is defined as one that is “reasonable and appropriate,” as determined by a set of “best practices” maintained by the government.

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. These experts would encourage copyright infringement by assuring that the costs of infringement are not too great. The bill makes no distinction between old and new works, or between foreign and domestic works. All work, whether old or new, whether created in America or Ukraine, is governed by the same slippery standard.


The change is also unwise, because for all this unfairness, it simply wouldn’t do much good. The uncertain standard of the bill doesn’t offer any efficient opportunity for libraries or archives to make older works available, because the cost of a “diligent effort” is not going to be cheap. The only beneficiaries would be the new class of “diligent effort” searchers who would be a drain on library budgets.


A hired expert shouldn’t be required for an orchestra to know if it can perform a work composed during World War II or for a small museum to know whether it can put a photograph from the New Deal on its Web site. In a digital age, knowing the law should be simple and cheap. Congress should be pushing for rules that encourage clarity, not more work for copyright experts.

It’s another fine example of good intentions gone wrong in keeping copyright law with today’s technology. I can see where Lessig is coming from–there are just too many loopholes that would still leave the owner (be they in the US, or even worse, abroad) open to exploitation. And it would only benefit those middle men, the “researchers” in making more money.

You can dig up the history on the Orphan Works Act here.


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