Misunderstood Orphans

Perhaps the pirating world misunderstands "Fair Use", and what constitutes a work that can be freely exploited.  

Or, perhaps EBay is still allowing massive collections of pirated ebooks to be sold in auctions too quick to catch, as "in the public domain".

Orphan works:

"An orphan work is a copyright protected work for which rightsholders are positively indeterminate or uncontactable. Sometimes the names of the originators or rightsholders are known, yet it is impossible to contact them because additional details cannot be found."

Orphan works are a problem for persons who intend to act in good faith. 

https://www.copyright.gov/orphan/

Sometimes, as in the Hathi Trust case, a good faith search for a living author is about as sketchy as Amazon as or Spotify music streaming services' searches for living songwriters (such as Steven Tyler of Aerosmith),
https://musictechpolicy.com/2018/03/28/you-cant-find-what-you-dont-look-for-spotify-google-pandora-cant-find-aerosmiths-steven-tyler-and-joe-perry-but-what-about-martha-stewart/

There is good news for writers of songs, who have been legally baffled by the NOI system http://music3point0.com/2018/02/02/noi-lookup/

And then, there is the question of orphan authors.  What are they? Orphan authors are defined by Library Thing as authors without works. 

https://www.librarything.com/topic/55359  

In other words, orphan authors are authors whose names have been so badly misspelled by whoever added their name to a reading list that they cannot be combined with the proper spelling of their name.

The trick, perhaps, is for authors to make sure they can be located and contacted. That would apply doubly so to authors who were once able to be contacted through a publishing house that is now defunct.

Here is a public Facebook group, newly started, that might be helpful for the purpose.  I hope it is not reinventing the proverbial wheel.
https://www.facebook.com/groups/1712118795542116/about/

All the best,

Rowena Cherry

"Exploit The Work Of Others And Don't Pay Them"

This author does not recommend it... but it is, arguably, why the "P.F.A G.S." companies are making a financial killing... and Wall Street rewards them.

Will politicians continue to reward, encourage, and protect the "permissionless innovators", too?  HR 1695 passed in the House of Representatives, but passage in the Senate may not be easy.

HR 1695 addresses the question, "Should the Librarian of Congress (whose job description does not include a requirement for any kind of sympathy for copyright owners or any experience with copyright law) be the boss of the Register of Copyrights and The Copyright Office?"

Maybe about as much as a bean counter should be in charge of quality... or a proverbial fox should be in charge of the hen house.

Music Tech Policy's Chris Castle opines on the politics of librarians.
https://musictechpolicy.com/2017/04/28/the-politics-of-librarians/

So does The Trichordist, with comments
https://thetrichordist.com/2017/04/28/the-politics-of-librarians/

As the Authors Guild points out in a recent article, the interests of Librarians and Copyright Owners are not the same. Librarians wish to disseminate as much information and entertainment as possible to the maximum audience, at the least possible cost.  OTOH, Copyright owners are enormously encouraged and incentivized if they are paid.

To digress on the topic of being paid, or of being *not paid*, read the Eccentric Eclectic, who quotes Karen Springen's estimate that in 2014, over $80,000,000 per year is lost to ebook piracy (and illegal file sharing)
https://eccentriceclectic.wordpress.com/2015/05/17/e-book-piracy-can-i-make-it-stop/

For a balanced view on *not being paid* check out the vigorous debate in the comments section of:
http://the-digital-reader.com/2017/03/01/new-pirate-site-focuses-audiobooks/

(This author uses "balanced" with tongue in cheek.)

In case you are wondering, "P.F.A.G.S." are Pandora, Facebook, Amazon, Google, Spotify. The order of their initials is dicated entirely by a requirement that the acronym can be pronounced.

Chris Castle explains the abuse of "address unknown" compulsory license filings, what the loophole is, and five ways it could be plugged:  (Initially, I used "scandal" but changed it to "abuse", because something is only a scandal if a lot of people are talking about it.)

https://musictech.solutions/2017/04/27/five-things-congress-can-do-to-stop-tens-of-millions-of-address-unknown-nois/

These companies are allegedly exploiting a loophole in the law (I assume with a nod and a wink if not active collusion from the current Librarian of Congress) to avoid paying musicians and songwriters any royalties at all... for older releases, and also for the newest releases.

According to Tech Music Policy, Congress could put a stop to this rank injustice. One would think that the Librarian of Congress could put a stop to it without waiting for Congress. But, the interests of Librarians are not congruent with the interests of artists and writers and creators.

For authors, this "address unknown" exploitation has echoes of "orphan works" (remember the "Hathi Trust" case, where libraries and a search engine alleged that they could not locate eminently locatable authors of works they wanted to exploit?)

As for compulsory licenses, there are few authors who refuse to create and sell ebook versions of their own print works, but there is an audience that believes that owners of Kindles or computers or smart phones have an absolute right to an ebook version of any work they wish to read.

Finally, for authors newly discovering that they may be pirated, perhaps by online so-called libraries, Robert Stanek provides advice and a good template of a DMCA notice:

http://readindies.blogspot.com/2014/12/what-to-do-if-your-ebook-is-pirated.html

All the best,
Rowena Cherry

Fake News? Fake History! (About Copyright)

My copyright enthusiasm has led me to take a free online course: Constitution 101 offered by Hillsdale College.
https://online.hillsdale.edu/course/con101/part02/lecture

Copyright is mentioned in the Constitution (Article 1, Section 8, Clause 8)  but in my opinion, copyright is also an Intellectual Property right, and the constitution upholds the right to own property. 

Certain opponents of copyright are alleged to have written such statements as: "We Jeffersonians know better. Copyright is not a natural right, entitled to protection at the expense of the public good."
Source:
https://thetrichordist.com/2016/12/08/academic-copyleftists-unintentionally-bolster-constructive-termination-charge-in-firing-of-register-of-copyrights/

The above link is exceptionally interesting. It is about how some academics who are hostile to the rights of musicians and songwriters especially (but, weakening of copyright for one group of creators opens the door to weaking copyright for all creators) rationalize the allegedly so-called retaliatory constructive termination of the recent Register of Copyrights, Maria Pallante.

"The public good" seems to be the excessive profitability of billion-dollar tech giants that stream or otherwise distribute music and other entertainment, and the "right" of members of the public to enjoy creative works as a perquisite that follows the subscription to- or purchase of certain apps or hardware or software.

Concerns have been expressed about the Library of Congress.
https://thetrichordist.com/2016/12/11/dr-haydens-library-of-congress-is-already-helping-big-tech-rip-off-creators-part-1-the-mass-noi-scam/

I would describe the Notice of Intent (NOI) Loophole as a variation on "orphan works". Remember the Hathi Trust project? The trick is that a big tech company that wishes to exploit ebooks or music without paying the author or songwriter simply "pretends" that they cannot locate the copyright owner or author. Therefore, under the "permissionless innovation" theory, they exploit the work and pay no one unless or until the copyright owner finds out about it on their own.

This is not the only problem.  Allegedly, "...some in the anti-copyright crowd...are promoting the Library's recent deal with the Berkman Center's Digital Public Library of America to turn a digitized Library of Congress into a kind of feeder to Kickass Torrents with sovereign immunity..."

Given digitization, and the fact that it is mandatory for every copyright owner to donate 2 copies of the best of the best of their works, to the Library of Congress, that quote about feeding torrents is not so implausible. The Library of Congress appears keen to monetize and distribute what's in their collection, if one can extrapolate from what Maria Pallante was ordered to do.
https://thetrichordist.com/2016/10/25/arrogant-new-librarian-of-congress-told-register-of-copyrights-pallante-go-sell-t-shirts/

I appear to be the only skeptic about the USPTO push to discuss the Digital Marketplace. For those who wish to view videos of the entire day of events at the USPTO conference on on Friday, Dec 9th, 2016, follow this link:
https://livestream.com/uspto/DigitalMarketplace16?origin=digest&mixpanel_id=13d46f86c4b46-0398ebf1b7d5ac8-3d246e3a-1d4c00-13d46f86c4c1de&acc_id=8385860&medium=email

For those who merely want a book-related summary, there were relatively few mentions of books or ebooks during the day. Encouragingly, the focus seemed to be a genuine and positive concern for a system to ensure that "the internet" should know who owns rights to any type of intellectual property.

Speaker Trent McConaghy (of Blockchain) testified that he would like a Kayak-like (travel industry analogy, not watercraft) system presumably for finding the type of digital intellectual property that one desires at the best price.

Speaker Bill Rosenblatt (I think it was he who made this remark) bemoaned the fact that a Federal Judge (Denny Chin, as I recall) threw out the Google Book Settlement that would have established a Book Rights Registry. That Book Rights Registry would have been very helpful to authors and those who wished to exploit authors' books.

What worries me is, who would pay for any eventual registry? We know that it has been alleged that creative-works exploiters like Pandora and Spotify want music creators (songwriters and performers) to pay for their own music registry so the music services don't have to go to the trouble of locating rights owners in order to pay them. Would authors, musicians, photographers, models, etc have to subscribe in order to be in a registry?

And then, once one is in the registry (at least one could be found and paid), would authors be treated like The Turtles? Just as music that was written and originally performed before 1972 has been treated as if it was out of copyright, and is now being awarded lesser royalties than music written and performed since 1972, could something similar happen to book authors?

Here's how royalties could get reduced without copyright owners getting a voice.
https://thetrichordist.com/2016/12/02/good-news-sirius-xm-settles-pre-1972-with-turtles-bad-news-settlement-slashes-sound-recording-royalty-50/

But... the good news is, we can have a voice.  Check out who is on the House Subcommittee on Intellectual Property, and drop them a line. Maybe an anticipatory thank-you note for looking out for authors. :-)

All the best,

Rowena Cherry