Little orphan asshole

"The law," declared Mr. Bumble in Charles Dickens' Oliver Twist, "is a ass."  He was protesting the legal presumption that he was responsible for the misdeeds of his wife, whom he had just fingered for jewel theft.

That quote is ripe for an update, not least because the very premise is antiquated.  The idea that Paul should be held responsible for anything I do — well, on second thought, I suddenly see certain advantages.  As a matter of fact, Judge Pancreas, I was powerless to resist eating that entire bag of potato chips.  After all, it was my lord and master's Visa card that paid for them, and I can prove it.  I have receipts.  (Gosh, Paul, sorry about that whole jail thing.  As an act of contrition I will bake you a sugar-free flourless low-carb cake and deliver it on visiting day.  Share it with all the nice friends you are sure to make in the exercise yard.)

But I cannot escape the fact that we live in different times.  So I'll amend Bumble's lament slightly: The proposed law is an asshole.  In this case I am referring to H.R. 5889, The Orphan Works Act of 2008 (PDF) and its identical cousin, S. 2913 (PDF).  Rest assured that despite the name, this is not a Twistian bill intended to hound those unhappy workhouse urchins into an early coal-shaft grave.  In fact, it's not related to reproduction or parenthood at all, except in the most tangential sense, so if you are interested mainly in those topics, feel free to click away because I'm about to bore the sooty third-hand rags off you.  But if you blog about your kids, stick around — perhaps this will be of interest.

Now on to the Orphan Works Act.  First let's define our terms.  Currently a copyright is conferred automatically upon the creation of a work.  According to the U.S. Copyright Office, a copyright notice is not required, and registration is not necessary to protect that work.  For blog-related purposes, this means that any original material I post on my site, or you post on yours, is copyrighted, and ours to protect, without any further effort necessary.  An orphan work is a copyrighted work whose creator is difficult or impossible to contact.  Those of us who post through a veil of obscurity — anonymous or pseudonymous bloggers — may well fall into that category by our own design.

As it is relevant, then, to us diminutive-name-for-motherbloggers, the Orphan Works Act proposes the following:

• Just as it is now, no registration will be required for a copyright to be created.  However, if a copyright holder hopes to preserve her right to meaningful damages in the event of infringement, the bill stipulates that she must register that copyright with a certified database, to be created and maintained by unspecified third parties — third parties who would presumably levy some sort of charge for doing so.  The immediate problem with this, as it pertains to bloggers, is obvious: most of us don't make money from our work, and would find registering even a few images, even at a low fee, prohibitively expensive.  So either we stop posting pictures, or we open ourselves to infringement, because...
• If a copyright holder chooses not to register her work with the proposed database, the work could automatically become an orphan and therefore fair game for use by third parties.  (After all, if it's not in the database proposed by the bill, how can "a qualifying search in good faith" find its creator?  And just like that, your work is orphaned.)
• Should the copyright holder somehow become aware of third-party use of that so-called orphan works — a possibility but by no means a certainty — she has the right to bring legal action against the infringer. However, the Orphan Works Act limits the penalties that can be awarded in such cases.  Since the copyright holder is not entitled to any compensation for court costs or legal fees, these costs would likely exceed any award the copyright holder might be given.  So what else could a small-scale blogger do but let an infringer get away with it?
• Current law gives the copyright holder the sole right to derivative works, which is presumably the reason your local independent bookseller isn't awash in titles like Harry Potter and the Black and Decker Cordless Rechargeable Orgasmatron.  But the Orphan Works Act will permit a third party to copyright a derivative work.  Sure, the original work remains mine, but when the American Oven Mitt Consortium decides to use Charlie's naked likeness — modified, natch, by the careful pelvic placement of one of their fine family of products — to flog their wares, I'll be up the creek without a giant floppy heat resistant rubber glove.

The obvious solution to all of these problems is to make sure our personal information is freely displayed and publicly accessible, so that anyone who'd like to use our material can contact us to request permission and — you may say I'm a dreamer — offer appropriate compensation.  But considering the inherent privacy issues, I'd feel a certain sympathy for anyone reluctant to do so, especially anyone who posts about her family.

There are certainly legitimate reasons to be concerned with the problem of elusive copyright holders.  And I have been unable to conect some of the alarming claims made by opponents of the Act with the text of the bill itself.  So I'm not suggesting knee-jerk opposition.  But I am suggesting that if you're concerned about the possible implications of this legislation, or if you have any questions about how you could be affected should it pass, you might contact your Congressional representatives and let them know.  Sure, the law might be an ass, but if you ask me, it's an ass in need of saving.

UPDATE: Several of you have commented saying that if a blogger allows comments or posts an e-mail address, the foregoing won't be a concern.  That's true as far as it goes, with someone finding work on a blogger's site and wishing to use it.  But say, just for the purposes of argument, that the following occurs...

I create something I think is moderately clever and post it on my site.  A reader agrees that it is indeed moderately clever and forwards it to a friend, sans attribution.  They tell two people, and they tell two people, and eventually my work — unattributed — ends up on the desk of, I don't know, the president of American Schlockworks Greeting Cards.

The president likes it and decides to appropriate it for use in his company's forward-thinking new line, "So You Say It Sucks to Be You."  The line is a smash hit and makes a kajillion dollars.

But where's my fraction-of-a-kajillion?  In this case, the good people at American Schlockworks don't have an easy way to find out who created the work.  If I haven't registered my work with the proposed database, under the proposed legislation their liability will be limited: they'll only have to pay me a pittance, and that's if I find out they've used it and if I take the financial risk of bringing suit, a pretty big "if" considering the cost of doing so versus the limited amount I would stand to gain.

Having already seen some of my work passed around the Internet without attribution, it's all too easy for me to see someone's work being ruled an orphan when in truth it is not.  ("Hey, I don't know where this pissy little not-pregnant-yet ticker came from!  I saw it on a message board somewhere.")  It's easy to propose that any creator make sure that her attribution is indivisible from the work itself, but in the case of many works that's impractical — photographs, illustrations, textiles — since it would compromise the visual impact of the original work.

(And I absolutely agree that it's not pitchforks-and-buckets-of-tar time just yet, which is why I calmly suggested contacting your representatives to learn more instead of exhorting you to storm the capitol and simply set the lying bastards on fire.  I realize it is rare indeed that I'm not waving my arms in a panic, so I'm kind of pathetically eager to get credit for it when I manage to refrain.)