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What Makes an Orphan Work an Orphan?

When you have a hammer, everything looks like a nail. — unknown (at least to me!)

A real-life example, from Twitter of all places.

Sarah Perez (of ReadWriteWeb fame) sends a “tweet”, asking:

hmmm. used a pic in a post & have no idea where it came from-downloaded it ages ago,trying to relocate,see if it’s CC,can’t find-what to do?

I replied, claiming it was an orphan work (of course!). Sarah clarified:

I never used it before-just saved it from the net ’cause it looked handy. no idea when,where,etc

So, to recap:

• Sarah downloaded an image from the net. She typically uses freely available images (see here), but can’t be sure this time
• And she has no idea who the author is.

If you re-read the text of the bill floated by Senator Leahy, the image seems like it is on its way to being an orphan work. If Sarah makes a “reasonable and appropriate search” and jumps through some other minor statutory hoops, it sounds like she is safe from statutory damages.

That seems wrong, doesn’t it?  At some point, Sarah found the image online, and we can reasonably assume that there is a good chance that at that time, she was able to identify the author of the work.  But for her decision to not record the author’s name/contact info at that time, the work is now an orphan?  That can’t be right.  And indeed, if you do a blogsearch on “orphan works”, you’ll see that the photo-blog community is up in arms over the legislation, probably because of examples like the above.

If Leahy’s bill were to become law, hopefully the judicial gloss atop the legislation would require that the failure of the user to know the owner’s identity be measured against the “reasonable person” standard as is common in American jurisprudence.  That is, would a “reasonable person” — a misnomer,  typically defined as the most unreasonably careful and polite person on the planet — have acted in such a fashion?  Factors will probably include the amount of time that has passed since the item (or its rights) were originally procured; whether there was some change of ownership, etc.  And if the user were not “reasonable” (again, a loaded word), they do not gain the immunity from statutory damages that Leahy’s bill would provide.

If that does not happen, then the legislation as-written is rather awful.   How could the author protect his or her right to statutory damages?  A few ways, all of which are cumbersome or interfere with the work itself:

• Sign everything. This would probably require a watermark for digital photos
• Register everything with the U.S. Copyright Office
• Or implement some sort of really harsh downstream usage liability in the contract you use when selling rights to photos.

None of those are realistic beyond what makes sense already. In other words, artists should sign their work if they are able, but oftentimes, the publisher does not want the artists name on a photograph (for good reason), so demanding attribution on the artwork itself would hamper the ability to sell right to the work.  Registering with the Copyright Office is a long process and a costly one in volume; the reason that one receives copyright over their works in a fixed, tangible medium automatically was part of the copyright reforms originally due to this cost.  And assigning liability for downstream use of artwork in the rights assignment contract?  Well, if you were the publisher, would you take on that liability?  I’d not.

It’s easy to see why photogs are up in arms over this, and the reason is simple: Congress was intellectually lazy.  Looking to the courts to define “orphan work” is unfortunate, but if the legislation passes, hopefully they will define it correctly.

Tags: copyright, law, orphan works, publishing

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T-Shirt of the Day: Your Drunk Co-Workers

ome of my friends — and now, I — are fascinated with CNN.com’s decision to go into the t-shirt biz.

Yes, the t-shirt business. For select CNN.com headlines, you can purchase a t-shirt replete with the headline emblazoned over your chest.

Today’s winner? “1 in 3 workers hung over at the office“:

There are five people who work out of my office — six starting in next week or so. Which two had a party last night?

Tags: t-shirt of the day

Copyright and the Duty to Maintain

A few months ago, I started work on ArmchairGM’s New York Mets entry. My own knowledge stems back only until about 1983, but as one could imagine, the Web is a treasure trove of information, including stories about the early Mets teams. A quick search yielded this result — an entry from an old Geocities site. “Dave’s Mets Page”, in fact.

It immediately occurred to me that “Dave” would be a great contributor to ArmchairGM. After all, he had written excellent historical sports content to the point where I was able to base my writing almost exclusively off his. Scrolling down on his page, I found his email address, and sent him an email. It bounced.

Dave’s page admits that it was last updated on May 15, 1999. A quick look at his yearly summaries buttresses this fact, as the last summary written is 1998. And there’s one other interesting thing on Dave’s page: a copyright notice.

So here I have:

• Content I want to use
• An author who I can’t (easily) locate
• A clear indicator that the content is unavailable without permission.

That last bullet is, legally, meaningless, but anecdotally important. Web culture wrongly tends to assume that, in absence of a copyright notice or the equivalent, all content is available so long as due attribution is given. In this case, even that assumption is clearly false. Unless I have the author’s permission, I cannot use the content. And getting permission is, at best, difficult, as the author’s email address is inactive. (As it turns out, I probably could track the guy down. But let’s assume he had a more common last name; say, like, “Lewis.”)

The side effect of all this? Even if I were willing to pay for rights, I cannot, because there is no one to which I can write the check. In a very real sense, the content is held captive by an absent rights-owner, and the cost of me either (a) tracking down the rights-owner or (b) ignoring his rights and re-publishing in violation thereof probably exceed the value of the content altogether. Per a press release from Senator Pat Leahy, “Potential users of orphan works often fail to display or use such works out of concern that they may be found liable for statutory damages, amounting to as much as $150,000.”

If you find this silly, rest assured you are not alone. In 2005-06, the U.S. Copyright Office studied the issue — called “orphan works” — and released its report in early 2006. Since then? A whole lot of nothing. A few bills and hearings in Congress, but no final action. Senator Leahy introduced his bill only last months, so there is some hope there, but call me skeptical regarding its odds of passage.

Even if it does pass, it only solves half the problem — that is, it removes liability from those who use “orphan” works and the rights-holder appears, but it does not remove the burdensome cost of seeking out the rights-holder. Indeed, the bill would require the republisher to “perform and document a good faith – but ultimately unsuccessful – search for the owner of the copyright in the work being used prior to such use.” And even then, “[i]f the owner later emerges and provides notice of infringement to the user, the user must negotiate reasonable compensation in good faith and render any such compensation agreed upon in a timely fashion.” Basically:

• I spend time finding some content I want to use
• I can’t locate the author easily, so
• I have to spend time and/or money to locate the author or risk significant statutory damages, and
• If the author emerges, the author has significant negotiating leverage that he’d not have held if he were easily locatable in the first place.

Wow! The words “perverse incentives” pop into mind. So do the words “not really a solution, Senator Leahy.”

A Better Idea: The Duty to Maintain

In the digital age, with content available over the Web, why put all the burden on the subsequent user of the content? Instead, let’s shift the burden on the rights-holder to, in the very least, maintain his content and/or contact information. Here are my givens and, therefore, the rubric for the idea:

• It is unreasonable to require that the author divulge his or her identity or contact information in order to receive copyright in the work

I would be surprised if there is anything controversial about that. Necessarily, the author would need to reveal his or her identity in order to enforce the rights associated with the work, but that’s a distinct question.

The corollary to that given is that a work is not considered an orphan merely because it, in the words of Leahy’s bill, “lacks identifying information pertaining to its owner[.]” That seems self-evident; otherwise, anything anonymous or even accidentally unsigned would be immediately available for republication. In short, without this tenet, copyright is eviscerated to a meaningful degree in many cases where it should not.

• If the author is unknown or unreachable, a certain amount of time must pass before the work is to be considered an orphan.

To a large degree, that is a restatement of the bullet item preceding. Using my Mets history example, though, here’s a distinction — let’s say that today were May 30, 1999, and I sent the same email to the same juno.com email address, and, again, the email bounced. The author is unreachable, sure, but he worked on the content in question (or some related content thereto) just 15 days prior. Would it be acceptable for me to declare the work and orphan and republish it? Hardly.

In the context of blogging, this point is even more meaningful. Imagine an anonymous blogger who posts once every three days. He goes on vacation for two weeks. His last post should, by no means, become succeptible to re-use as an orphan. On the other hand, say he stops blogging for two years. Different result? I think so. Similarly, apply the same logic to a known-but-unreachable blogger — in the case of a two week vacation, it’s unfair to claim that the work is an orphan, but in the case of a two year hiatus, it’s fair game.

That seems right to me. The conclusion, then: If an author is unknown and/or unreachable, and he fails to maintain his work, his works are considered orphans, and thereby are available for use by third parties without prior permission.

And, per the problem that Senator Leahy’s bill aims to address, those works should be available for use by third parties. Maintenance can be something as simple as writing an occasional blog post or, in the case of Dave’s Mets Page, changing the date to say “Last updated January 1, 2008″, or something like that. (In this case, pleas bear in mind that I am really only discussing compilations of Web-based content, such as blogs and other continually growing websites. It’d be more difficult, by leaps and bounds, to continually “maintain” a photograph, for example.) Or even more simply? Make sure you, the author, provide an easy and reliable way for others to contact you. You know, like keeping your email address current.

The question then becomes: How do we effectively put the burden on the rights-holder? My solution: a time-lapse Creative Commons license. For the first n months of unmaintained, anonymous work, the copyright holder would retain all rights. Another n months after that, the content becomes available via a non-commercial, no derivative works (NC-ND) license. And another n months after that, the content becomes available under a pure attribution license — basically, a link back. Perfectly tailored for the Web, as the default way to give attribution is via a hyperlink back to the source of the content. And for our purposes, it meets the initial goal, by shifting the burden onto the original author and not onto the subsequent user.

Could this be done legislatively? Probably, although the details would be murky and, again, I am skeptical that Congress will ever act on Leahy’s proposal, let alone my admittedly more controversial one. I would not consider Congressional action to be a realistic goal here, or, for that matter, in regard to copyright reform in any meaningful sense.

However, this rubric could be achieved socially. Already, many authors choose, of their own accord, to use “copyleft” licenses such as the Creative Commons menu or the GNU Free Documentation License (used by Wikipedia, for famous example). I believe that many authors who do not subscribe to the copyleft dogma would find the time-lapse Creative Commons licensing scheme less controversial, as so long as they maintain either (a) the content itself or (b) their contact information, the copyleft scheme will never come into play. As the risk of losing rights to one’s work only comes from sloth, it would be very hard for an author to socially defend their refusal to adopt this time-lapse license. In short, what appears controversial legislatively should be less so socially — and an effective solution to Web-based orphaned works.

Sure, there are details that need resolution, such as how the hypothetical license would define “maintain,” but those definitions are more for edge cases than the core problem set caused by orphan works. One hopes that the eventual solution for orphan works will include a duty on behalf of the rights-holder to maintain their work — or allow for licensing which permits re-use.

Tags: copyright, creative commons, law, orphan works

Karl Rove Goes Vertical

Earlier today, the New York Times ran this article discussing how Karl Rove, the man responsible for President Bush (II’s) campaigns, has jumped from politico to journalist.  Rove, per the times:

[is] an analyst for Fox News and a contributor to Newsweek and The Wall Street Journal. A book is in the offing, too. (Still no word on a radio show, but there was an NPR appearance late last week.)

Regardless of what you think about the man, it’s a pretty amazing jump.  But what’s more amazing is that Karl Rove is, in a strange way, a format agnostic vertical in and of himself.  Compare Rove to Jayson Blair, the disgraced former Times reporter.   Blair started off as a Times intern, then became an “intermediate reporter”, then bounced from one desk to another, etc.  The entire time, there were two rules that controlled what he’d write about — the topic didn’t matter, but the format (newspaper) did.  Blair, plagiarism and other issues aside, would have been much more likely to leave the Times for the Washington Post or the WSJ than he would for, say, CNN or Forbes.

Rove, on the other hand, is focusing on one thing — political analysis — and is doing that job for any format that will listen — TV, newspapers, magazines, books, maybe radio.   He’s gone vertical.

At the end of the day, who would you rather hire?  The topical expert, or the format one?  Even if it is Karl Rove.

Tags: publishing

Cablevision Expanding into Newspapers: Going Format Agnostic?

This weekend, Cablevision appeared to be the frontrunners in purchasing Newsday, the 11th largest newspaper in the U.S. by circulation. Silicon Alley Insider asks how would Newsday, a Long Island newspaper, fit in the Cablevision empire, with the Knicks, Rangers, Madison Square Garden, and of course, the cable TV business.

It makes some sense for a cable company to own two professional sports teams, given that it therefore controls the broadcast rights to those teams. Cablevision can (and does) bundle Knicks and Rangers games into their MSG television station, which it provides to itself for free (I assume) and to competitors such as Time Warner Cable at some fee.

So again, why Newsday? Perhaps, as Michael Learmonth suggests, it’s simply an advertising aggregation ploy. That’s a simple, sensible answer — so it is probably the right one.

I hope it’s wrong. I hope that instead, Cablevision has designs on creating a format-agnostic “Long Island” vertical. The singular source for all your in information regarding Long Island. They already have the vast majority of your television screens and can easily add a locally-based news station (or expand on their current local news offerings). If so, adding Newsday to the mix would certainly be a step in the right direction, and would be a solid addition.

And this makes sense. As I said earlier today, if an advertiser wants to reach sports fans, a cross-format buy with ESPN would be a no-brainer. If an advertiser wants to get their brand in front of New Yorkers, a Cablevision buy would also be smart — banners at Knicks and Rangers games (and throughout the Garden), spots on any cable channel they can stick it on, and ads in Newsday. That, of course, is pure speculation — but it seems to be the right way to maintain or even increase the value in a newspaper, especially in a climate where the newspaper industry is on the fast track to zero.

Tags: format agnosticism, newspaper industry, publishing

On Format Agnosticism: Print is Alive as a Medium, Dying as an Industry

All the News That’s Fit to Print – slogan, The New York Times

In January, I and a Wikia colleague had the pleasure of meeting with Mike Shatzkin, founder and CEO of The Idea Logical Company, a publishing consulting firm. It was the second time I’d met Mike, although the first time in almost eight years. Almost a decade before, I interviewed for a position at his other company, Baseball Library, and but for attending law school, would probably have ended up working there.

During our conversation, Mike shared with me a theory he had recently discussed in his column on Publisher’s Weekly, which you can read in its entirety here. The key point I want to discuss in this post is right at the top:

There is an overarching theme to the changes already taking place. Consumer media in the 20th century tended to be horizontal and format-specific. The New York Times and Random House define “horizontal”: they publish across all interests and markets. The Internet will drive 21st-century publishing enterprises to be more like what professional publishing has always been: highly vertical and format-agnostic.

To be clear, here’s what Mike is saying. There are basically two types of publishers: “format-specific horizontals” and “format-agnostic verticals.” (Those are his terms, not mine.) The New York Times is the perfect example of a format-specific horizontal, in that (a) they only publish newspapers (basically) — that is, the Times is wed to a particular format; but (b) the Grey Lady will publish a story on just about anything. Crack open a weeks worth of editions and you will see sections on news (both international and local, and occasionally about New Jersey or Connecticut), business, technology, the job market, style, house and home, obituaries, weddings and celebrations, sports, weather, science, health, the arts, travel, real estate, cars, etc. One will even find comics and a crossword puzzle or seven. All the News — that’s the horizontal part — that’s fit to print. That’s the format-specificity aspect. There’s no New York Times branded radio, books, or television, and to a large degree, their website and magazines are barely extensions of the newspaper itself (with apologies to William Safire, Randy Cohen, and the litany of Times bloggers out there).

Mike is predicting that these format-specific horizontals — including the newspaper industry — are going the way of the dodo. That’s a pretty heady observation, and there is a ton of evidence that not only is Mike right, but that the newspaper industry is doomed — yet at the same time, print media is not going to disappear by any meaningful measure.

Why?

Because the format-agnostic vertical publishers will start to enter the print market.

Before I get there, let’s define what a “format-agnostic vertical publisher” is. It is a publisher who specializes in one expertise and publishes content on that topic, in any way, shape, or form. My favorite example is ESPN, the self-proclaimed “Worldwide Leader in Sports.” Note that, right off the bat, ESPN postures itself much differently than does the Times, as ESPN does not limit itself to a format but does limit itself to a topic.

In practice, ESPN’s slogan is as true as the Times‘. ESPN has at least four TV stations (I think six now?). They have ESPN radio, ESPN.com, ESPN 360 (web-based video), podcasts, blogs, ESPN the Magazine, ESPN Books (really), and ESPN Fantasy Games. They company has even dipped their toes into running sporting events with the X-Games. But you could go a month without seeing anything non-sports related, poker and spelling bees aside, on things under the ESPN brand. Case in point: Barack Obama appears on ESPN.com about 800 times, or about half as often as J.J. Henry, a golfer you have probably never heard of.

The salient takeaway is that, even though the print industry is dying, ESPN clearly sees value in having not one but two print-specific products available. And one need not go too far to see similar instances of vertical-specific brands breaking into print — check out this list of books authored by “Food Network” or the Travel Channel Magazine.

Why does this work? Because while the Times postured itself to be expert in newspapers, ESPN postured itself to be expert in sports. And as the amount of media increases and the ease of obtaining that information decreases, consumers are not going to opt for the catch-all solution that the newspaper provides. We are going, instead, to go to the deep, expert information bank. Why? Because even as recently as 25 years ago, that deep information was either hard to find or expensive — and the newspaper provided a good enough solution at a low cost. But now, the deep information is available and inexpensive, and effective branding and marketing can focus the consumer’s attention on those with expertise in the vertical — for example, ESPN’s proffered expertise when it comes to sports.

It will be interesting to see if other publishers figure this out as well.

Tags: format agnosticism, newspaper industry, publishing