People. Really. When are you going to learn?

The Illustrators' Partnership is at it again, claiming that they've been sent a draft of the Orphan Works Act of 2008. (No THOMAS link provided, because guess what -- there's not one.) "They haven’t officially released it yet," they claim, "but we’ve been told the Senate will do so this week."

O RLY? Time to do a little digging.

See, the thing to understand about Congress -- indeed, any legislature -- is that it's full of rumors. The entire U.S. legislative branch, from the Speaker of the House down to the lowest congressional page, is as gossipy as a high school lunchroom. Legislators like to know what their fellow legislators are up to, and if you want to substantiate a rumor, the best thing to do is to talk to someone on the right committee.

I picked up my trusty mobile phone and looked up the Senate Subcommittee on Intellectual Property. Why, look at that -- one of my Senators, Dianne Feinstein (D-CA), sits on it. I figured I'd start with her office, since I bug them pretty frequently about issues I care about -- they might even know my voice by now. A cheerful staffer picked up on the second ring, and I introduced myself and explained what I was looking for. She couldn't find anything in their database (not surprising, since neither could I), and just to make sure we were on the same page, I pointed out that I was looking for a bill that hadn't been introduced yet, but which I'd heard was likely to be introduced this week, and asked whether anyone on Sen. Feinstein's staff had heard anything about it. She put me on hold, and came back a few minutes later to apologise; no one in the office knew anything about it. I thanked her for her time, and hung up.

Strike one.

Next step: the head of the Subcommittee on Intellectual Property, Sen. Orrin Hatch (R-UT). Unfortunately, no one in Sen. Hatch's office was around. (This happens when you call close to 5pm Eastern time.) I tried one of his state offices, but they said I'd need the Washington office to help me. Oh well. I'll try them tomorrow.

Ball one.

Next step: the ranking Democrat on the Subcommittee on Intellectual Property, Sen. Patrick Leahy (D-VT). (He's also the head of the Committee on the Judiciary, to which the Subcommittee on Intellectual Property belongs, which makes him a good bet for information.) This time, I got a guy who searched through the records, again couldn't find anything, and suggested I talk to somebody in the office of the Committee on the Judiciary. I thanked him and let him route the call.

Strike two.

The staffer for the Committee on the Judiciary searched through everything they had, still couldn't find anything, and said I could talk to their press secretary if I thought that would help. I said sure, it was worth a try, so he tried to raise her on the phone, but only got her voicemail. I left her a message explaining the situation (bill hasn't been introduced yet, heard it was going to be introduced this week, any information on it would be awesome, thanks), left my phone number, and hung up.

Half an hour later, the press secretary for the Senate Judiciary Committee called me back. (Now that's service!) She said that the bill was probably going to be introduced tomorrow, and she'd be happy to send me a press kit about it. I gave her my email address, and inquired as to who will be sponsoring it. As it so happens, the sponsors will be Sen. Leahy and Sen Hatch. I expressed my surprise, since the person I'd talked to at Sen. Leahy's office hadn't known about it, and she said it was probably because the other guy wasn't a Judiciary Committee staffer; she only knew about it because she was. Ok, no big deal then.

Saved by the bell! As I said before, a phone call to someone on the right committee will substantiate (or disprove) any rumor. Your legislators have their phone numbers on the Internet for a reason -- when you have questions, call them.

Still, no points to the Illustrators Partnership for saying "OMG THERE'S A BILL" but failing to disclose the sponsors or how people can get information about it for themselves. As I've said here and elsewhere, my only dog in this fight is making sure that people can get the information to make informed decisions. I'm not a fan of organisations who say "trust us, we have the data, we've interpreted it, no need for you to worry your pretty little heads over what it actually says, just listen to what we say and repeat our take on it to all your friends." A responsible organisation will give you the source material so that you can make your own decisions.

And now I'll do just that. For starters, here's all the contact information for the Senate Committee on the Judiciary. I spoke with Erica Chabot, Judiciary Press Secretary for Sen. Leahy. Give her a call at (202) 224-2154 and she can hook you up with the press materials. (I haven't received them yet; I expect them some time tomorrow.)

You can also contact the offices of Senator Patrick Leahy (D-VT) and Senator Orrin Hatch (R-UT), who are co-sponsoring the Senate bill. Note that I got farther with the Judiciary Committee itself than with Sen. Leahy's office, but once the bill's actually introduced, you'll want to contact its sponsors and the members of the Subcommittee on Intellectual Property to give them your opinion.

If the bill is introduced in the Senate tomorrow, then it should be in THOMAS by Thursday morning. I'll be keeping an eye out for it, and will post at length about it once I've had a chance to read through it. (I also owe the Illustrators' Partnership a response to their response to "Six Misconceptions About Orphaned Works", but I have this thing called a "day job" that keeps me a little busy.)

More later.

My friends list today has been swept by a storm of fear, uncertainty and doubt surrounding this article by Mark Simon on Animation World Network about the issue of orphaned works. "Orphaned works" are creations likely still under copyright -- photographs, illustrations, written works, music, &c. -- for which the original creator cannot be found, and thus their copyright status cannot be determined. Orphaned works present a thorny problem in today's litigious society, because when the question of "who owns X?" can't be answered, very few people are willing to do anything with X if they fear that they'll be sued for it.

For instance, suppose that you have your parents' wedding album, and the photos in it are starting to fade. You go to a photo shop to get the pictures scanned and digitally retouched, so that you can save them on DVD to show your kids in ten years. However, the copyright on those photos belongs to the photographer, not you or your parents. The photo shop tells you that unless you can get permission from the copyright holder, they can't do anything with the photos. Do you know who your parents' wedding photographer was? Do they remember? What if the company the photographer worked for has since gone out of business, and nobody can track down the individual person who took the photos? The pictures are "orphaned works", and no one knows who owns the rights on them.

Or what if you're cleaning out your great-aunt's attic, and you find a box full of pictures of your town as it was 100 years ago? The local history museum would love to add them to its collection -- but it can't, unless you, your great-aunt, or somebody can track down the original photographer and secure his or her permission (or the photographer's estate's permission, if the photographer's dead) to donate the photos. (Copyright in the United States lasts for life of the creator plus 75 (EDIT: 70, for works created today, older works are weird, see here for details; thanks for the correction, internets) years, so chances are, even 100-year-old photos are still under copyright. Thank Disney for that one, guys.)

But Mark Simon apparently believes that enacting legislation to handle orphaned works in a way that protects people who legitimately try to find the original copyright holder, but can't, will lead to the effective invalidation of copyright on ALL UNREGISTERED ART EVERYWHERE OMGZ CALL OUT THE CAVALRY. His article, which I linked above, is miserably poorly researched, jumps to completely illogical conclusions, and, most retardedly of all, implores artists to letterbomb Congress in protest of proposed legislation which does not actually exist. Someone please tell me where this guy is getting the crack he's smoking, because I want to avoid that streetcorner and everything in a six-block radius, kthx.

So, here are six misconceptions that are making the rounds about orphaned works, and a short explanation of why each one is a misinterpretation or just a flat-out lie. I also give links to useful supporting material, and resources you can use to keep track of this issue as it evolves.

(  1. "There’s legislation before Congress right now that will enact major changes in US copyright law regarding orphaned works! We have to act immediately!" )

( 2. "If I want the copyright on my art to be recognised, I’ll have to pay to register each piece!" )

( 3. "If I don’t pay to register my copyright, anyone in the entire world will be able to use it for free!"  )

( 4. "Someone else could register the copyright on my work, and use that against me!"  )

( 5. "If I don’t track down people who are illegally using my copyrighted works, I’m SOL!"  )

( 6. "Displaying my artwork anywhere means that it automatically becomes orphaned, and anyone will be able to use it!"  )

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I hope this addresses any fears you might have about orphaned works and the sort of legislation that might come up regarding them. If you have any questions, please feel free to comment and I'll do my best to answer them. Likewise, please feel free to link this article or reproduce it in full or in part; I am placing it under the Creative Commons Attribution-Noncommercial-ShareAlike 3.0 United States license.

kynn also has some cogent observations about orphaned works, Mark Simon, his sources, and some follow-the-money fun here.