It's been a while since the Shawn Bentley Orphaned Works Act died on Congress's floor. But with the like's of Google, and Time Warner drooling over the value of the images that reside on their servers we were sure it wouldn't stay 'dead' for long. And we were right. The Economist is already tainting public opinion, spreading fear that Fair Use is being destroyed and only then taking their poll.
Fair Use is alive and well, it's put to use everyday in every research paper ever done for a college course. It requires you to use only a small portion or small version of the original work and accurately credit the source. For online media this means you include the artist's name and a link to his/her site. Without this attribution it's just stealing.
If you share your family photos and video online as so many of us do, the proposed changes to current copyright laws should send chills down your spine!
How many parents ever register the photos and videos they share online with the Copyright Office?
As it is currently being used, the term 'Orphaned Work' is defined not in terms of historical significance, not in terms of the need for restoration, but instead as any work that doesn't have the creator's information clearly attached and who's owner can not be found by searching the Copyright office. Think about that for a moment in terms of your online photos. How many of them are 'signed' by you and registered with the copyright office?
As with all 'politically correct' languge the term 'orphan work' was chosen to play on public sympathy. Most people don't realize that today's Copyright laws already allow for the aging, deteriorated works to be properly preserved, saved and maintained without adverse consequences to the good simaritan performing such deeds.
But that's not what the Google's and the Time Warner's of the world are worried about. Their concern is that you will not properly monetize or commercialize these photos and works of art. And frankly, they don't see why they shouldn't be legally able to do it in your stead. Which is why they have repeatedly asked congress to clear all paths for them, meaning: your right to protect your own photos could be taken away by the government.
In their last attempt the wording of the proposed bill was such that any photo not clearly signed by the creator and not searchable in the copyright office, could be deemed 'Orphaned' by law and could therefore be used by any non-profit (remember this is an accounting term) in any campaign without fear of legal ramifications.
Current privacy laws only provide protection from the unauthorized 'advertising, commercial or trade' use of any individual's image or likeness. The Orphan Works Act specifically allows for the non-commercial, so called non-profit use. Think: public awareness ads.
Senator Leahy, the sponsor of the bill, believes personal photos and videos will be safe simply because the website will identify the proper owner.
Apparently Senator Leahy has ever heard of image scraping software. Does anyone remember the original Google image search that returned thousands of full size images in just seconds? All of them conveniently and quickly separated from their identifying web sites?
Imagine how many family photos can be scraped from the web in a single day!
Well never fear, thanks to the Orphaned Works Act no matter how horribly, embarrassing the use of your photos gets, you won't be able to sue for even one penny more than the cost of a stock photo!
That's right, regardless of the damages done by having your family photos used in a public awareness campaign, no matter how humiliating that campaign is, this bill limits the total court ordered award to a 'reasonable licensing fee'. And to top it all off, the guilty party will be allowed to continue to use your photo!
