Why writers drink, Part Whoknows

[rolanni]

An alert reader sends me this link to an article at Techdirt, in which the author of the article is lambasting The Authors Guild (the mandate of which is to protect the rights of its author-members; a mandate that it tries to fulfill, with mixed results)of being anti-education and anti-learning because it’s Being Mean to some university libraries who “got tired” of waiting for Congress to figure out copyright (yet again) and decided to take matters into their own hands.

These libraries decided that if a work was, in their sole judgement (using what methodology is unclear), “orphaned” then it belonged to no one, was thus free, and the library could therefore scan it and make it available.

Mind you, I’m a fan of libraries. I have some real issues with the rhetoric of certain professors, who, snug in their well-paying day-jobs like to talk about the Evils of Copyright! and Mean Intellectual Property Holders Keeping Information Hostage! and How an Author Never Made Money from Their Copyrights! …and a whole lot of other arrant nonsense that just makes me want to go lie down in a darkened room with a cool towel on my forehead.

There are a couple of issues regarding this article, and the comments to the article.

One: The whole Orphan Works Issue that we all hear so much about and which is the total justification put forth by universities and Google and proselytizing professors? Is a red herring. There are NOT millions or even hundreds of thousands of Brilliant! Works! Still! In! Copyright! just lying around the place whose authors-or-rights-holders have fallen off the face of the earth and cannot be found, that in-force copyright therefore Robbing! The! Ages! of those gems.

One-Ay: If a work appears to be “orphaned,” i.e. the author is dead, the last publisher of record knows nothing about who might be handling the literary estate? Still doesn’t mean there isn’t a rights-holder, somewhere, who is, either willfully or through ignorance, withholding the use of the work, and the universities, and Google and the proselytizing profs are still stealing from those rights-holders by taking matters into their own hands. “We don’t wanna look for them,” and “it’s too hard!” isn’t the same as “can’t be found.”

One-Bee: Just publishing everything you (see universities, Google and PP, above) can get your hands on and saying that, if a right-holder happens to notice that they’re being stolen from, they can file a DMCA notice is…oh, breathtakingly arrogant. For starters.

Two: Big Biz Education, Google, and Proselytizing Profs really need to get out into the real world, and talk to real writers — not! academic writers; real writers, by whom I mean exactly those Evil! Copyright! Holders! who, um, do and are making money, and sometimes their sole living from those copyrights; from the mouths of whom the universities, Google and the well-paid Proselytizing Professors are taking Actual Food.

Edited to add: Link to the Authors Guild side of the story

Edited again: Link to NYTimes story regarding Judge Chin’s rejection of Google’s Grand Plan to Digitize the Known Galaxy.

And!Judge Chin’s breakout quote, which I couldn’t find yesterday: “A copyright owner’s right to exclude others from using his property is fundamental and beyond dispute.” – Judge Chin, 2011

Originally published at Sharon Lee, Writer. You can comment here or there.

Comments

[keristor.livejournal.com]

Well, as far as I can see if they know who the copyright holder was and it is within the timescale for that copyright to still be in force (death plus 50 or 70 years or whatever it is for that medium) then it doesn't matter if they can't contact the owner, the copyright is still owned and they know it. It's up to them to prove that the work has been 'orphaned' by all possible rights holders having died without leaving it to their estate, or to prove that it was explicitly placed in the Public Domain by the then rights-holder.

Otherwise one could equally claim that the Mercedes in the car park is 'orphaned' and I can take it if I like because I can't see anyone with proof of ownership around. Or your house is 'abandoned' if there's no one in it at the time. Ownership (by someone) is assumed unless there is evidence to the contrary. Wars have been fought over this...

[saruby.livejournal.com]

Yes, yes. But the Hathi Trust is starting with the opposite assumption: that there is no owner. In fact, if you are not computer savvy and know to look, you cannot protect your rights. The exception to this is having a phone number that is still valid. Otherwise you have to have a known email address (this means known to the Hathi Trust) or find your work on their list and assert your right within the stated time period. Given that the authors are likely to be older than 60 (most recent book I found on the current list published in 1963), it is dependent upon their heirs and assigns to know that this is being done. I have family that has published work and since died, and although it is unlikely that I am entitled to anything, I did not even know about this. They are depending on this lack of knowledge to get away with theft.

Please note that this sort of right could potentially be inherited under a standard "balance of the estate" clause found in most wills.

[keristor.livejournal.com]

Yes, I'm disagreeing with their assumption. Yes, they are assuming that if you don't contact them then they can do whatever they like. That's exactly the position of the music 'pirates' as well. It just happens to be incorrect accoring to law -- international as well as US law. By the law, it is the job of the person who wants to use something to prove that it is out of copyright or that the terms placed on it (for instance by using a special licence like Creative Commons) permit that use. And in a number of countries the RIAA and its ilk have pushed breach of copyright from being a civil offense to being a criminal one.

I hope that they get the pants sued off them (it's probably too much to hope for that the people responsible will go to jail or lose their jobs). I notice that Australian authors (http://www.theregister.co.uk/2011/09/14/aust_authors_sue_us_universities/) are now getting involved as well, I believe the equivalent organisations in the UK and other European countries are also looking at the same sort of thing.