rolanni | Why writers drink, Part Whoknows

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Why writers drink, Part Whoknows

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.

Threaded | Top-Level Comments Only

Are these the same people who snub "genre writing" in favor of "real literature?"

"Genre" books depend upon being bought. "Literature" seems to be a means for professors to get noticed and possibly hold jobs longer.

To be fair; it's not about literature vs. genre. It's a war of ideologies -- the core Information Ought to be Free crowd doesn't give a pixel about genre fiction; it's not even on their radar -- they're fighting a Whole 'Nother War.

It's just that working genre and other non-academic writers are getting caught in the squeeze.

That's what I mean - thanks :) They're caught up in the idea that Books Are Thought Incarnate and as such should be set free! and don't realize they're trampling on Books Are My Livelihood.

I've been following this particular iteration of 'publish orphan works' since U Mich announced it. Some things that the tech-dirt article left out

- Works that are candidates for this program of scanning were published in the US 1923-1963. These are not current works, though they still may be relevant to some fields.

- The University of Michigan has flow charts (http://www.lib.umich.edu/orphan-works/documentation) documenting the process they are going through to determine if items are 'orphaned,' including how they are searching for rightsholders.

- Works scanned for this program are available to those with the rights and privileges of check-out at the library. They are not available to the wider public.

I don't agree with what Google Books is doing, though it's made some scholarship much easier, now that I'm no longer an attached academic. But making books already in the collection available for electronic check-out, by authorized patrons of their library? All for it. Hell, if I could have searched through texts of a third of the books that I checked out while writing my thesis, I wouldn't have made nearly so many trips across town for that one more promising book, or racked up so many late fees because I hadn't gotten to that part of the pile yet. Scanning and making available works that, due to damage of time or use, are no longer on the shelves though still in the collection? Yes, please. Making more than a token effort to see if the academic who wrote the book is still alive? Even better.

As you know, having been involved with academia recently, university libraries are entirely different animals from public libraries. Heck, it was a big deal when the two major libraries on my campus each added a standard particle board bookshelf of fiction (the first year, the two libraries had 100 'fiction or pop-sci/pop non-fic' titles between them, for a student body of 20,000. 4 years later, there are 250 titles between them, and two! bookshelves in each library cafe). As an academic, I never expect to 'earn out'. My predecessors of 50-70 years ago didn't expect their works to still be *in* copyright at this point, given what copyright meant when they created the works, and few of them would ever hope that anyone outside the university system would care to read what they had written, much less purchase said work. And given the state of most disciplines and their advancements over the last 50 years, about the only people who are going to want to work with many of these texts are those who do 'history of ___.' And I agree, it's not that there are tons of great works out there, inaccessible due to being orphans. It's a small list. But by and large, *this* iteration is about scholarly works, not fiction. And again, by and large, not taking Actual Food from anyone's mouth, since they are digitizing works already purchased and offering works in the collection to their patrons.

What I want to know is why the Author's Guild, who, afaik, do not represent academic authors (though some of their members might well be in the 70+ age range required to be effected by this program), are getting themselves involved in this kerfluffle.

I'm not inclined to give UMich (or Google or the profs, either) a pass on this, personally. Yes, they have the physical books. No, they don't have the right to scan them just because they want to. Congress is still debating the question and taking the law into your own hands is wrong. Even if you are a university.

I'm also going to stick by the taking food out of mouths. "We digitized it because we wanted to, and because we can, and because you can't stop us," is what pirates say, too, when they rip off current books and post them to torrent sites. So, yanno.

What I want to know is why the Author's Guild, who, afaik, do not represent academic authors (though some of their members might well be in the 70+ age range required to be effected by this program), are getting themselves involved in this kerfluffle.

The Authors Guild claims, in its side of the story: (http://blog.authorsguild.org/2011/09/12/authors-guild-australian-society-of-authors-quebec-writers-union-sue-five-u-s-universities/?utm_source=twitterfeed&utm_medium=twitter) that its cause is just.

Puzzled by mention of Google books -- the only readable books I've found there have been well out of copyright, searching for ones in copyright only offers links to where one can buy the books. Which I should think would be helping the writers? For myself, I'm perfectly happy to use google books to identify half-remembered titles, then buying them properly. Would have been less money going authors way from me, at least, without the possibility of googling. I've also bought books after reading them for free in the Baen free library, to give another example that making people aware of the existence of books isn't necessarily bad.

Some While Back, Google decided that All Your Books Belong to Us, and undertook to digitize the world, with the stated intent of making all books everywhere available to anyone, for free, or for a fee to Google. They were stunned and dismayed when authors and their reps rose up and said, Hell, no! We own those rights, and those books are still earning!

Google said Fine, if you don't want us to digitize your book, it's your responsibility to tell us not to. The whole thing got very ugly and went to court, and Judge Chin ultimately rejected Google's arguments. Here's an article: http://www.nytimes.com/2011/03/23/technology/23google.html

Some of these works (many of the earlier ones, probably) were, by default at the time of their publication, in the public domain - until the Copyright Act of 76, which took copyright law from 'it's only copyrighted if there is a notice of copyright' to 'if it's written down, it's copyrighted' and the term of copyright from 28 (+op28) years to life+50. Heck, for the works involved in this project written before 1948, I'd be surprised if many academic authors had extended their copyright beyond the initial 28 yrs., letting the text lapse into Public Domain (there's a study in that, probably for someone working in the history of copyright or law or publishing. There probably was a study on it in the 70s, but I don't have access to JSTOR to dig it up). From what I recall, there's a serious period of uncertainty regarding how to determine if a specific work actually passed into the PD or not, or, because of the copyright act and extension, should be considered as covered even if it probably was PD and thus exempt. Things get really really murky at some points.

Calling Google a pirate because of their activities, I'll accept, given that they really did say 'who cares about copyright? You can't stop us, we're Google!' UMich is at least a) digitizing works that are not obviously under copyright or without easy-to-find copyright holders b) only making them available to patrons c) explicitly stating that these books are still under copyright and so any use of this version of the text had better respect that. From what I can tell, they're looking at it as a type of 'rebinding' into a more accessible form. While Congress may or may not eventually agree with them, that particular argument has merit.

Also, the Author's Guild is squawking because 27 works in various languages, all written before 1963, are about to be slightly more available to students and faculty as before, except now you can try to use a translator to try and figure out the tricky bits, and don't have to go to campus? What the heck is that press release doing citing the books from 2001 as part of their objection? Unless they're actually suing the HathiTrust and not just the universities involved in *this particular project* (and since HathiTrust is 50-some institutions and everything I've seen said 'five institutions', it doesn't look like they are actually suing HathiTrust). It's as much spin as the tech-crunch piece.

UMich's argument may have merit, but at this point in time, what they've done does not have the force of law behind it.

Just personally, I don't want to have a "precedent" for stealing my stuff out there, and letting UMich get away with this action, without at least a discussion (a lawsuit of this sort being a discussion) if whether what they've done is perfectly OK or stealing, or Something Else, is only opening the door to let others do the same.

UMich says that it's too hard to find the copyright holders. Do we have a definition for "too hard" that will control a follow-on attempt by an entity, um, less honorable than UMich? Such a definition is needed and can come out of the discussion the AG is forcing.

Is there a uniform methodology for tracking down rights holders? There needs to be, and that can be hammered out in the discussion about to happen, too.

So, let the AG bring suit and UMich defend itself and let's see who is the more persuasive, and what good can be gleaned.

So, I could just take something that UofM held the patent for and claim it was mine because it was too much work to get permission?

They have a pretty good law school there. Maybe they should have tried asking someone about this, because when I was in school the words "due diligence" meant you actually had to try to do something. Like contact the rights holder.

If the Hathi Trust (or anyone else) wishes to digitize and promulgate "orphaned" works, they need to have a clear definition of "orphaned" that includes what a "reasonable search" entails and keep a record of their due diligence in identifying the rights holder for every work individually. For example, they could attempt to contact the last know rights holder, search court records for wills, check real estate titles for known addresses, newspaper obits, contact the publisher for any other anecdotal information that might provide a lead. This is very expensive, of course. Maybe it's just easier to not publish "orphaned" works.

So, I could just take something that UofM held the patent for and claim it was mine because it was too much work to get permission?

I'm guessing.

And! The next time you're in a restaurant and you pass a table that has a bunch of dirty dishes on it and a couple of bills? You can pick up the money, because clearly it doesn't belong to anyone, or it wouldn't just be sitting on the table like that. And if a waitress or waiter protests, tell them it's their responsibility to provide proof in writing that the money was their tip.

Such a wild issue. Not something I think most people saw coming.

Of course, it's even more complicated when one remembers that the evil!copyright!holders are often not the authors at all, but the publishers. Talk about getting doubly screwed. -_-

it's even more complicated when one remembers that the evil!copyright!holders are often not the authors at all, but the publishers.

For a good many of the academic works, and whatever other work-for-hires may be in the mix, yeah. I'm a little surprised that the President and Board of Directors of Harvard University (for instance) aren't raising a a hue and cry. I mean, they went to all the trouble of separating a professor from hisorher copyright in the first place because they thought there was value there, right?

Well.

*makes popcorn*

I mean, they went to all the trouble of separating a professor from hisorher copyright in the first place because they thought there was value there, right?

Oh, SO well-said.

I'll join you on the pop-corn.

politely, and i hope, cogently:

the whole issue of copyright only worked as long as it was hard to make copies of the copyrighted work. (by "hard", I mean, cost a significant fraction of the purchase price to copy, or took a long time to copy, or took up lots of disk space/required specialized software to copy and use thereafter.)

when cheap, easy digitization usable by the general public became possible due to technology advances, the old way of "protecting" copyrighted material became the moral equivalent of the emperor's new clothes. and the publishing houses and music/movie industry did the moral equivalent of sticking their fingers in their ears and yelling "LALALA I can't hear you!" over and over again as a defense of their (now-broken) system.

and when that didn't work, they (mostly the RIAA/MPAA then) hired legions of high-priced lawyers and started suing everyone they could lay hands on. this, instead of hiring legions of high-priced researchers to *come up with a new way of making money using the IP they had rights to*.

meanwhile, they *did* hire lots of high-priced technologists to shut the barn door after the horse had vanished over the horizon, i mean, encumber digital versions with DRM that msotly just got in people's way rather than actually protected anyone's rights.

in short, i am very sorry that you are entangled in this asinine system and dependent upon it for your livelihood. i, personally, have no intention of pirating your work; indeed, I have paid good coin for digital versions of many of your novels. BUT, i have a choice in how to spend my money, and i choose to spend it on less-restrictive digital works rather than more-restrictive ones, because I know how fast technology advances, and i'd rather not tie my sizeable library to any one technological solution. i have no intention of re-buying my electronic library when Kindle/Nook/whatever finally folds, the way i'm having to update my movie library to DVD by re-buying everything i have in VHS format. i know where this road leads.

my considered advice to you is: you have a sizeable fan base -- they will gladly buy your works with no middleman involved. *I* will gladly buy your works with no middleman involved. get some distribution channels that don't depend on publishing houses and media blitzes. you're already interacting directly with your fan base -- you'll make far more if you simply write/edit/sell than if you go through a publisher. they're dinosaurs, just waiting to be pressed into oil. they just don't know it yet.

Take a look at Pinbeam Books http://www.pinbeambooks.com/ or the first link under ebooks over on the left.

thank you! i'm contemplating growing my digital library and this is a great place to start. :)

Hmm.

I think you may be conflating "copyright" with "traditional publishing."

I own the copyright to every story I've ever written, with the exception of Sword of Orion which was a work for hire -- i.e. the publisher owns the copyright.

Whether I publish a story direct to the web or grant (for a fee) a publisher the right to publish a story, the copyright remains mine, for I am the creator.

Because a copyright is Actual Property, I can, given financial straits that I can't easily imagine, sell my copyright. I can, but chose not to, give my copyright away. I can lease my copyright -- that's the normal transaction between an author and a publisher.

My copyright in a particular work is mine, whether I decide to publish, or whether I write the story and stick it in a drawer.

Regarding "traditional publishing" -- not dead yet. The best model for a working writer at the moment, and granting that all things change, is a combination of traditional publishing (because paper distribution Still Counts. A lot.) and direct-tothe-fan-base publishing. If you don't have a fan-base, you can't make any money publishing direct; and if you don't grow your fan-base, you stagnate.

Be it stated that
a) I completely agree with the main thrust of this post; and
b) as a librarian, I consider copyright protection among my core responsibilities;

nonetheless, I would enter a plea that the author re-consider her repeated jabs at "well-paid professors."

Because I am married to a professor and most of my friends are professors. I assure you, the vast majority of them are extremely poorly paid -- worse than the local high school teachers, in fact -- and without the pension, health care, and other benefits public school teachers and I receive as union members.

I don't want to pit teachers against professors against authors as "You have it worse than I." But even if you have the pay stub of the particular professor who has torqued you off, you may wish to consider that zie may well be the equivalent of Nora Roberts as a representative of the income from zir profession.

Sigh.

There is, as I know, a Great Disparity in what Professors are Paid. The Traveling Scholars, in particular, have my sincere pity, as an overworked and cruelly underpaid class. Certainly, lots of professors are paid much less than the professors at my place of late employment.

That Said.

The particular professors in question, above, are highly-paid Star Professors (Lawrence Lessig, I'm looking at you, sir). You know, the ones who can actually afford to proselytize because they have grad students to teach their classes and mark their papers. And those folks, who make a game out of playing with my ability to make a living -- those folks have every single bit of my scorn.

I hope that clears up any misunderstanding.

Thank you for the clarification. I assumed that you had particular "professors" in mind, but I couldn't suss out whom from the original post.

Dear Sharon,

I wanted first to say, I love your books and have several copies of all the Liaden books (to include e-books). I am also a huge fan of you making money selling books because then you might just keep writing them! I'm ignorant on the subject of "orphans" in general, but I did want to mention that I have expended a moderate amount of effort trying to find one book from my yout. The book was Star Ship on Saddle Mountain by Atlantis Hallam, and I can't find any indication he left heirs with any knowledge of the book. A couple of copies ranging $250-$750 are floating around, but that's it. From an author's perspective having singletons out there like this may be considered the price the public pays for having a system that in general works, but I did want to mention there are some (if not heartbreaking, then) sad exceptions.

Regards and Thank You!

Rob Conley (rob.conley@q.com)

To my horror one commenter pointed out that the Kindle, the Nook and all those will eventually and inevitably be obsolete. Makes sense just like records, then little tapes then big tapes then CDs VHS to DVD Each time we're asked to buy everything again in the newest format....From that point of view I'd ask you to publish your short stories in books on paper. I have two Liaden Companion volumes like that from Lee and Miller. In the meantime Splinter Universe is good. Books on paper presumably published by a book publishing company also prevent Steve from having to carry around big boxes of items that need to be mailed.

Sorry, didn't understand the whole controversy involving Google, famous professors, U mich, orphaned books and so on. I hope whoever are not poaching on Lee and Miller who have gone to unbelievable lengths to make a living....Anyone listening can e-mail me to explain. But please no complicated sentences or I'm not going to understand.

Happy Late Birthday wishes.
C.

They learn from the politicians, the "it's easier to beg forgiveness than to ask and be told NO" idea. The politicians get away with it ("we'll just 'forget' to pay taxes, and the most we'll do is pay them back if we get caught") so Google and other places think they can do the same.

As far as I'm concerned they should be charged with intentional theft and fraud when they get caught. They haven't done their research (and what a thing to say about academics!), and more they are skipping it knowingly, and they are passing off something as "public domain" which they know isn't (if it's withing the copyright period then it's in copyright, that you don't know who owns it is irrelevant).

(I have other views on things like the length of copyright term, the lack of "fair use" and "parody" rights in most countries, and DRM. But they are not relevant to the way Google and those institutions are breaking the law as currently formulated. Hint: if you don't like the law, get it changed, if you break it in the meantime you take your lumps...)

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...

Yep, I've got some books I can't find at any (rational) price and that haven't been reprinted. The Trouble With Jenny's Ear comes to mind. It's very sad for me, personally, that I can't buy another copy, now.

But.

Whether or not I'm sad, or can find a copy of a book I want for a reasonable price has no bearing on what the copyright holder has chosen to do with their rights.

It may be that Oliver Butterworth (or his heirs and estate) doesn't wish to exploit his right (that means, lease the copyright to a publishing house so that the book can be reprinted/digitized). That's his(their) prerogative, as the rights holder.

It may be that the heirs wish to suppress the book for whatever reason, and that may be deplorable, but that's their prerogative, as the rights holder.

It may, indeed, be that the The Last Butterworth inherited the copyright to Jenny, it's just so much paper, they not only have no idea what it is, they've forgotten that they have it.

That's a sad situation, but the copyright holds. To scan and publish an old copy without the rights holder's permission, just because I Really, Really REALLY want a copy, would, yes, still be stealing.

Just go to the copyright office and do a search if there is no record or it is wrong and the copyright holder can't be reached because of it, than the problem is not with the ones doing something but with the copyright holder that didn't even care to keep his records updated with the government.

That is how hard it should be to find the copyright holder.

You're ignoring a couple of very important points:

1. The law. If the copyright is still in force, it doesn't matter if you (general "you") "can't find" the rights holder. The work is still in copyright, and one may not violate that; it's stealing.

2. Common law copyright. When I write a story, I put a copyright notice on it. That means I claim my copyright -- my maker's rights -- for that story. It is copyright and if you (general "you") take it for your own use, it's stealing.

3. Incompleteness of records. The Copyright Office is pretty dern efficient, but...records do sometimes get lost even in the best of filing systems.

4. Duplicity. We had a contract with a publisher that specifically stated that the publisher would file our works with the Copyright Office. They didn't do that. When we discovered this, we did, indeed, make the matter right, but in the meantime, we were protected by Common Law Copyright because each of the novels in question bore a copyright notice.

Just by the way, I deleted your second, almost-identical post downstream, to keep the conversation focused.

And! The next time you post here, please sign your name, or I will delete your post, whether it's substantive or not.

Thank you.

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.

What I have heard called "three year old morality"... it's not wrong unless you get caught. A lot of that going around these days. Jen from CO

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.

Also traditional publishing includes things like editors, proofreaders, etc. Unless you happen to have friends who will do that for free these things cost, and the lack of them shows. Sorry, but it does show even in your self-published works, odd typos, incorrect/missing/extra words, strange formatting (line breaks for instance), etc. The author is usually not a good person to do that job, because they know what they meant to write and tend to 'see' that (and I know I'm the same). With traditional publishing that gets added into the general costs, with self-publishing the author has to bear that cost (or bear the cost of not doing it).

With things like chapbooks and on a web page most readers will put up with a few mistakes because they know they are getting something which they probably wouldn't get through a traditional publisher (or not for a long time), but in hardcopy print not as much.

I've heard it called "the 13th commandment", "Thou shalt not get caught". It's something most parents inadvertently teach their children, how many times do you hear things like "Don't let me catch you doing that again!" What they mean, of course, is "Don't do that again", but what come over is "don't get caught".

Yes, it's not just politicians, it's everywhere. But if anyone claims to make laws for other people and then avoids or flauts those laws, they are the ones proclaiming "this law is not worth obeying".

The Copyright line is not what confers copyright to you – it is the fact that you wrote the thing down. The Copyright line is merely informative. Also, there's no such thing as a common law copyright – copyright in the US is statutory (explicitly within Congress's authority under the US constitution) in all its forms. What registration gives you is certain kinds of extra benefits.

Also, it's not just professors talking about orphan works. It was a major argument in Eric Flint's copyright columns some years ago. Of course, Flint wasn't advocating copyright violation as a remedy.

(Also, there's no stealing involved. But that's a different argument altogether.)

The Copyright line is not what confers copyright to you – it is the fact that you wrote the thing down.

The fact that you wrote down "Copyright 2011 by YOUR NAME"? Yes, that's right.

Also, there's no such thing as a common law copyright

Actually, there is -- it is the act of writing down "Copyright 2011 by YOUR NAME", which is your (universal "your") intent to copyright, and serves as fair warning that the work so copyrighted is not Free Candy. No, the act of placing a copyright notice on one's work is not Formally Named "common law copyright".

Also, it's not just professors talking about orphan works.

You're right. A fair number of people talking about "orphan works" are people who think I don't have a right to make a living from my work, and who refuse to inform themselves of the facts of the matter before expressing an (usually loud, often overlong, and nearly always condescending) opinion. The foregoing is not aimed at present company, but at the number of Loudmouths who flock to online discussions about Teh Evil Copyright.

It was a major argument in Eric Flint's copyright columns some years ago

I'd be surprised to learn that Eric was claiming that there were Uncounted! Numbers! of "orphaned" works that had to be saved by any means, up to and including theft. Which is what the professors and their hangers-ons offer up as an argument: Their ends justify their means, since their hearts are pure.

The Copyright line is not what confers copyright to you – it is the fact that you wrote the thing down.

The fact that you wrote down "Copyright 2011 by YOUR NAME"? Yes, that's right.

Wrong. Under US copyright law, and the international Berne convention that almost all countries implement, copyright starts the moment you write the actual story down. The technical term is "fixed in a tangible medium of expression" (as opposed to merely being in your head, not yet written down).

The Copyright line used to have an actual legal effect. The lesser copyright treaty, the Universal Copyright Convention, allows member countries to require the copyright line for copyright protection. The Berne convention, which the US is party to, forbids any such requirement (it also forbids making registration a prerequisite for the basic copyright protections). There may be countries that are not in the Berne convention, but they don't matter much anymore since the USA joined in 1989. (Did you know that the US copyright system used to be much weaker than what the rest of the world had?)

Thus, the Copyright line has no relevance in determining whether copyright exists. It does have an informational use, reminding people of copyright, and providing evidence as to the identity of the copyright holder(s).

Also, there's no such thing as a common law copyright

Actually, there is -- it is the act of writing down "Copyright 2011 by YOUR NAME", which is your (universal "your") intent to copyright, and serves as fair warning that the work so copyrighted is not Free Candy. No, the act of placing a copyright notice on one's work is not Formally Named "common law copyright".

Whether you intend it or not, you have the copyright until you explicitly relinquish it. The fair warning point is, of course, valid.

I am actually amazed that you insist on the magic of the copyright line. As an author, it is in your best interest to make people aware of how copyright actually works (no magic lines required).

In the US legal system, common law refers to judge-made law. Copyright is Congress-made (and before the US independence, Parliament-made).

It was a major argument in Eric Flint's copyright columns some years ago

I'd be surprised to learn that Eric was claiming that there were Uncounted! Numbers! of "orphaned" works that had to be saved by any means, up to and including theft. Which is what the professors and their hangers-ons offer up as an argument: Their ends justify their means, since their hearts are pure.

And I am even more amazed that you deliberately misrepresent my point. The next sentence, which you did not quote, made clear that I did not claim 'Eric was claiming that there were Uncounted! Numbers! of "orphaned" works that had to be saved by any means'.

The Flint columns I referred to have been republished at
http://www.ericflint.net/index.php/2011/09/26/salvos-against-big-brother/ (originally published in Jim Baen's Universe).
At least one part of the argument can be found by searching for the words "Heinlein story".

I am actually amazed that you insist on the magic of the copyright line. As an author, it is in your best interest to make people aware of how copyright actually works (no magic lines required).

I'm getting lost here. Does adding the "magic line" do harm? Does it make my copyright somehow vulnerable? Or is it simply a waste of ink, and reveals me as a country bumpkin because ownership is implicit in the act of creation (a point that I happen to agree with, but with which so very many people do not)?

Now, if you like, you may make a crusade out of telling the Opinionated, Pure, and Correct(tm)that the Very Act of Writing confers ownership, that no further claim needs to be made, and nothing needs to be placed upon the document that says "don't steal this" for it to be wrong (or even illegal) for it to be stolen -- and see how that works out for you. I'll wait here.

In the meantime, there are a whole lot of people out there to whom a copyright registered with the Library of Congress means nothing, if they don't already have the author's contact information in their cellphone (i.e., the author "cannot be found"). If it is, in the sole judgment of the person intending to steal the piece, in danger of being "lost" or "orphaned" their theft is justified by the Logic of the Greater Good.

I resent and oppose this. And in light of such a widespread and willful philosophy of justified theft, I don't think that telling writers to put a "magic line" in their work to make their implicit right explicit is a Bad Thing.

And I am even more amazed that you deliberately misrepresent my point. The next sentence, which you did not quote, made clear that I did not claim 'Eric was claiming that there were Uncounted! Numbers! of "orphaned" works that had to be saved by any means'.

Well, I would be shocked to find that Eric was claiming such a thing, which is what the professors claim, and which is one of a number of things I'm specifically complaining about.

The copyright line certainly is useful in that it reminds the reader of the copyright, and it creates a (rebuttable) presumption as to the identity of the copyright holder. I myself do add it to a lot (but not all) of my copyrighted work.

Maybe I misread you, and if so I apologize, but I thought you were saying that the copyright line is required for copyright to exist. It isn't (except perhaps in a couple of minor countries not party to the Berne convention), and telling people such things hurts you and me, both copyright holders. We don't want people to think that anything that lacks a copyright notice is fair game.

As to stealing, I strongly believe it is an inappropriate characterization of copyright infringement (which is illegal and often criminal, regardless of whether it is called stealing). But as I wrote earlier, that's a whole another debate.

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