Creative Commons Effect on Photo Licensing

Julie Bernstein asked me the following question: "I am curious if your views on Creative Commons have changed since the four articles you published on this topic in '08."

Julie is referring to these articles (part1, p2, p3, p4) where I describe the CC as a great licensing method for almost all media types except photography.

In summary, what the CC has done is create a legally legitimate infrastructure for those who freely share copyrighted works. Before CC, such activity was technically an infringement, because the the publication of creative works requires consent of copyright holders. CC clears up that technicality, which is great. But it has inadvertently given people the impression that it has affected the licensing industry's pricing structures.

CC has not affected the greater licensing market (or prices), largely because of risk: CC has no centralized authority to assure that content is either submitted properly or used properly. Because it's so easy to game the system on either side of the photo (the supplier or the user can sue the other by luring them with a legally misleading scenario), the financial liability for anyone with a lot to lose is simply too high, especially given that traditional license fees are so minimal. So, the majority of image buyers simply stay away from CC.

Now, this is not to suggest there's something wrong with the CC model in principle. I'm a big advocate for it in all other contexts. Indeed, it was born out of the "free software" meme that was popular in the 1980s and 90s, when Gnu Public License (GPL) and other models were the precursors to the "open-source" model we still enjoy today. These are great innovations in licensing because they allow intellectual property to be used for the greater good, while also allowing for commercial use of those innovations.

But CC in the world of engineering is entirely different from photography. Engineering takes a considerable amount of time, resources and (usually) teamwork to produce anything of value that those in the open-source community would use. As such, the kind of content there is proportionally minimal, and each work is substantial and recognizable, making infringements quite easy to spot.

None of this is true in photography -- trillions of images are produced daily, it's impossible to track any given photo, or whether it is "legitimate" (either by the owner or the user).

So, sure, in a world of honest people that want to freely share their content in a peaceful corner of the image licensing market, CC is great. The CC market is growing, but the perception is only as a measurement of itself, not the total licensing market. An article on that topic can be found here:
http://www.danheller.com/blog/posts/total-size-of-licensing-market.html

Lastly, it's natural to ask, "If CC is so easy to game, why haven't we seen it?" The answer is because the market is so negligible. Economists often use crime data as a reality check on the economic activity they think they're aware of. The higher the crime rate, the more economic activity there is, and there's usually parity between that activity and the presumed size of a commodity's market. If there's little crime, the market size isn't big enough to warrant the effort. If CC were to genuinely gain momentum, it would attract those who would game the system for profit, which itself would have a cooling effect, bringing its popularity back down.

For the record, I've proposed that the best way to assuage people's risk concerns about CC is to use the "copyright registration" system. The CC foundation should have a submission system where those who want to submit images for CC licensing would bulk register those images to the copyright office. This gives them the right to file claims on behalf of the copyright owner, which is how major stock agencies like Getty work. Registered images are eligible for higher level of copyright protection, and there are federal penalties for fraudulent use. This means that users of CC images can be protected from invalid claims by those trying to game the system because this is built into the copyright act's provisions. Similarly, authors can be assured of CC compliance because non-compliant users could be subject to an infringement claim. Yes, you can sue someone for copyright infringement, even if the license fee were zero, because the infringement is another form of "breach of contract." Here, the user of a CC image agreed to the terms of CC by (for example) citing copyright ownership. Failing to do so is an infringement of that contract, and is therefore subject to the statutes provided by copyright law.

This would not only allow CC to have actual teeth, but the trust would go up as the risk comes down.

But such an infrastructure would be quite expensive to operate. That'd be a tall order just to create a system that brings the license fee for a commodity down only a few dollars, even if it is only to zero.

Photography and Public Domain: Part 2

Synopsis

The general perception of "Public Domain" is that if something is available unfettered on the internet, it's free and can be used however one chooses. Most people's perceptions of photographs is like that of random scribbles thrown out for fun, amusement, socializing or to communicate simple, generic information. Most people are unaware when others are using their photos. Nor do they care if they find out. In fact, they're often honored. Virtually no common consumer is paid when others use their images in ways that should require their permission. These collective facts give pause to the investment community for participating in a wide-spread infrastructure that would create licensing mechanisms for photos (such as there is for music). (The only such infrastructure is comprised of a small set of stock photo agencies that do not target the broad consumer market.) This then leads to a great volume of photos that are left both unmonitored and unmonetized, yet are still used in ways that should require consent from copyright holders. The lack of understanding of copyright and Public Domain means that a great number of images are infringed, intentionally or otherwise. Given that, the stage is set for malicious players to exploit these conditions by fraudulently misrepresenting the "status" and/or the "owner" of an image. This can be either to entrap infringers (by suing those who publish such works), or to infringe upon works and defending claims of infringement by saying that the works were declared "Public Domain." Fraudulent misrepresentation of copyright status is not only profitable, but it's the type of scheme that can be easily scaled up due to the enormity of images on the internet and the widespread ignorance and apathy the public have to the problem. The economic ramifications have lead to a stealth kleptocracy that few people are aware of, all within a sub-economy that few participate in. This creates a negative economic feedback loop that perpetuates the problem, further distancing any possible interest in solving it. The solution is not a matter of the law, nor awareness of the law, nor understanding of the law. It lies in the underlying mechanisms and incentive programs defined by the government that would encourage public participation, and would stimulate investment in the infrastructure that would allow fair-markets to compete lawfully.

In part one of this two-part series, I discussed how the term, "Public Domain" is finding its way into the mainstream press. But the topic is a bit obtuse, and press coverage is frequently biased and misinformed.

One of the unintended consequences of this is an erosion of people's general understanding of Public Domain, and by extension, copyright itself. This has had important ramifications on economic and legal events affecting all industries related to intellectual property. It might seem like a stretch to connect the dots in such a dramatic way; this article walks through those connections, beginning with an overview of how the public behaves today, and ending with proposed solutions to the problem.

As will be illustrated by examples and reports below, the vernacular use of the term "Public Domain" has become synonymous with "publicly available." Most people think that if they can copy stuff from the internet in an unfettered fashion, there's an implicit "grant of use" permitted by the author. This, unlike music files, which most people know as being illegal to download without payment, even though some do it anyway. The perception of photos is perceived quite differently; most are surprised to learn that images carry the exact same copyright restrictions and protections as music does. After all, how can a snapshot taken by an infant while he dunked his father's expensive digital camera into the fish tank have the same legal protection as a newly released song by The Rolling Stones?

Oddly enough, they have identical protections in the eyes of basic copyright law. Of course, few people know this. In fact, most believe that unless expressly stated otherwise, photos found on the net are free to use in any manner one chooses. An example of this is reflected in this New York Times article called, Flickr as an Interior Decorating Tool. Here, the author discussed how she likes to go to Flickr and print out her favorite photos to decorate her walls. (Hint: this is technically a form of copyright infringement.) The author's act is more than just reflective of the general public's misunderstanding of how copyright applies to photography, but the article perpetuates these misgivings and helps further establish its acceptability--the social norm.

A UK study further illustrates this through empirical research, drawing the same conclusions. This study became itself a topic in the blog, Plagiarism Today, which concluded that if copyright is to be better understood, "it needs to be built on the back of a robust understanding of common law."

That conclusion, however, misses an important and critical truism about societal behaviors: people don't comply with most civil laws because they are aware of them or even understand them. They comply because compliance is often "built into the system" by default. There are a variety of mechanisms built into day-to-day life that make legal behaviors not only easy, but second-nature, which are reinforced by social and economic "reminders."

A current example of this can be found in how people deal with online music. When Napster was first introduced, people infringed on music universally, all but ignoring cries of foul by the recording industry. When the RIAA started suing individuals for downloading music, people's behaviors didn't change; instead, they viewed the music industry with disdain.

It was only when music labels decided a different tack did people's behaviors begin to change: the companies cooperated with device makers to create simple, convenient and automated mechanisms for users to purchase and play music seamlessly and instantly. This was the first event that slowed the upward trend of music piracy, and an increased the revenue generated from online music sales.

The lesson is that copyright compliance it's not about cost, and it's not about legal awareness or education (or even ethics). For consumers, it's about convenience. Once this lesson was learned, the next experiment took place: the removal of copyright protection schemes on songs, allowing people to use their existing purchases on other devices they own. By further assisting users in enhancing the "music ownership experience," the music companies were rewarded by another increase in purchasing trends.

It's very true that law plays a pivotal role here, but it's the larger companies that were driven more by the threats from one another that stimulated the development of those mechanisms that promoted copyright compliance by the masses.

What does any of this have to do with Public Domain? Well, people steal (even inadvertently) when the system doesn't provide mechanisms for easy compliance. The perception that most photography is in the Public Domain is largely because there are no industries--and therefore, no mechanisms--available to the general public of consumers to comply with photo copyrights. With no infrastructure, there's no economy.

At least, not legitimate economy. The reality is that photography is protected, and it does have value, and infringements are lucrative. If no one's there to claim any of these benefits legitimately, it seeds the ground for bad actors to come in.

The Dots that Lead to Trouble: Corporate Infringement

Though the music and movie industry still suffers from stolen works, the proportion of images that are "stolen" (to those that are legitimately licensed) is significantly higher, and is on an upward trend. This, even though the copyright protections for music and photos are identical. But what makes this significantly worse is that, unlike music that's stolen by individuals, photos are stolen by corporations. This type of infringement is a double-whammy because corporate licensing of photos on a per-unit basis can be in the hundreds to the thousands of dollars (compared to a $.99 song); and because the infringement claims against a company can be in the tens of thousands of dollars.

When no one but malicious players are aware of this, trouble is around the corner.

The dots that lead up to all this begins with the fact that photo copyrights are owned by individuals, not a small cooperative of large companies that can collaborate on industry-wide practices (i.e., music) and can exert pressure to preserve copyright compliance. Individuals have legal leverage only in protecting themselves, which they rarely do because of their own misunderstanding of copyright and of Public Domain.

Next is the perceived value of photos: most consumers use them for utilitarian purposes (socializing, personal photo albums, documenting inventory, etc.), and photos are taken by any idiot with a camera, not just professionals, like musicians are with music.

The combined lack of perceived value and lack of preventative action then leads to the application of this understanding from one's personal life to one's professional life. That is, consumers also work at companies, and their behaviors at home translate to their job duties. If they use other people's photos (and allow others to use theirs) in their personal life, they behave similarly when using photos in the documents they produce at work.

By comparison, there are few if any copyright infringement cases against corporate use of music. Obviously. Everyone knows music cannot be used in commercial ways without seeking permission from the record label. You never hear of a low-paid intern downloading a song and embedding it in a car ad that's broadcast on network television. Even a consumer that illegally downloads songs from the internet knows better than to do that.

The same cannot be said of photography--studies consistently show that 5-6% of photos sold by stock photo agencies are infringed upon by corporations for ads in high-profile magazine, newspapers and the web. Since stock photo agencies (who do go after infringers) represent only about 15% of all licensed images, one can assume that the ratio of photos stolen from non-professionals is much higher, if only for the fact that most online photos have no preventative measures to stop infringements like stock agencies have.

Even when stock agencies sue, it's not educating society with massively sweeping information campaigns. By and large, people still infringe photos because it is, at worst, considered a cultural faux pas--a social misdemeanor. Akin to wearing white after Labor Day.

A recent story highlighting this involved a Missouri family whose photo became a billboard ad in the Czech Republic. The family learned about the use of their picture only because of a random coincidence -- a college friend in the Czech Republic happened to see the sign. What makes this story so revealing is that it illustrates just how unusual it is that the family found out.

While it's a nice, gentle piece that ran in the "lifestyle" section of newspapers (because no one filed a copyright infringement claim, or sued for violating publicity laws), this might not have been treated so lightly had it been a stolen song. It'd have been in the business section, and more serious analysts would have been doing math to figure out what the impact might be on record industry. The mild news coverage of the stolen photo had a subtle effect on perpetuating the general perception that there's no serious harm done in using someone's photos found from the net.

The last dot in the sequence is the one that completes the picture: enter the con artist. It doesn't take a genius to connect the dots to see that all such copyright violations really are eligible for hefty damage awards, and no one's there to claim them. Because most people don't think there's value in their photos, and the fact that there are billions of photos on the internet, thieves can causally peruse the web in search of photos, and users of photos. Given that the infringement rates are so high, and given that both users and publishers of photos are so poorly aware of copyright, the cherries are ripe for picking.

Crafting a solution to the problem is not just a matter of erasing the dots, nor applying the law better, or making people more aware or educated. It's about instituting mechanisms that allow the free market to provide methods and incentives for people to participate in the system, both as buyers and sellers of this highly under-monetized (and overly exploited) copyrightable work.

In the Beginning...

We begin with the basics. The Berne Convention for the Protection of Literary and Artistic Works states that a work is automatically copyrighted the moment it is produced in a fixed and tangible form. For photography, it means that, the moment the shutter button is released, the photographer automatically becomes the copyright holder. No other action is required--no registration, nothing.

Some people are aware of "copyright registration", but erroneously believe that such registration is required to get protection. It's not. Registration does provide extra levels of protection by allowing copyright holders to receive higher damage awards -- called "statutory damages" -- but this is entirely separate from basic copyright law and the protection it provides. Yet, what copyright registration does is advance people's understanding that copyright is important and valuable. It'll be important to keep this in mind while crafting solutions.

In any event, all photographs are copyrighted (by definition) the moment the pictures are taken. For a work to not be copyrighted is highly unusual, and, in fact, more difficult to achieve in practicality than one might think.

The most common reason would be that its copyright term has expired. See this article for details; it basically lists dates of expiration for when old photos fall into the Public Domain naturally. These photos are those that were shot long before modern copyright law was enacted.

Another way a work can be in the Public Domain is if the photo was taken by a government employee (or contractor) "as a part of that person's official duties". For example, photos shot by military photographers are in the Public Domain.

For everyone else, there is no clear and precise mechanism defined by law or any other government resource for one to release images into the Public Domain. (Foreshadow: this is the source of all the problems.) Therefore, it is virtually guaranteed that every photo you've ever seen on the internet is copyrighted by someone. If you aren't aware of that, you're not alone, and it therefore suggests that most the photos you see online should be licensed (such that the photographer is compensated in some way).

For a work to genuinely be in the Public Domain--a status where a photo has no copyright holder, and therefore, can be used by anyone for any purpose--is extremely unusual. So unusual, that one can pretty much assume that virtually no photos you come across online are in the PD.

In fact, in the research I've done for this article, I found that almost none of the copyright experts I spoke with could articulate a confident explanation of how you can rescind your copyright ownership to a work. In fact, most questioned why I would ask such a question--as though I were leading to something else. One person even refused to answer the question unless I stated why I would even want to do such a thing.

Ironically, the recommended method is oddly and deceptively simple: A copyright holder simply states that his photo(s) are in the Public Domain. Yes, it's true--that's all that's technically required. In Stephen Fishman's book, The Public Domain, he writes,

There is no prescribed formula for dedicating a work to the Public Domain. The author or other copyright owner simply has to make clear his or her intentions. For example, stating "This work is dedicated to the public domain" on a book or article's title page would be sufficient. It's not even necessary to make the dedication in writing. It could be done orally, but it's always best to write something down to avoid possible misunderstandings.

While this is all that the "law" technically requires--and there are many legal cases supporting this presumption--the reality of today's social and technological environment makes the application of such law and prior precedent inapplicable in many developing trends.

Take the case of Capitol Records, Inc. v. Naxos of America, Inc., 372 F.3d 471 (2d Cir. 2004). In essence, Naxos copied mint condition patters that contained classical music from the 1930s and sold it on CD. The music was, for all intents and purposes, in the Public Domain (having fallen out of copyright). The sales of the music wasn't contested at first, but when Naxos' sales grew just a bit too much, Capitol Records finally sued for copyright infringement (under common law) and won.

The legal assessment of this case suggests that, just because something may appear to be in the Public Domain, it doesn't necessarily mean that a user of that work is entirely protected.

An interesting summary and discussion (though a bit sensationalized) can be found here, which includes a notable analysis from Norman Lebrecht here.

While prior legal rulings may hold legal weight and standing, they aren't going to prevent or slow down bad behaviors. Social behaviors trump the long arm of the law when the population's actions surpasses a certain critical mass and there are no attempts to curtail the actions by others.

This is the very problem with the Public Domain concept: it hasn't been updated to reflect today's society--or rather, people's understanding of the term. PD was defined at a time when there was no internet or electronic media of any sort. It also hasn't been perceived to need revision since few people actually proclaim their works to the Public Domain. There is no financial incentive to do so, and the few who've released works voluntarily are usually well-known artists, collectors or philanthropists. Hence, their "donations" were never questioned, or disputed. The authors were credible and their lack of legal action against users of those works further underscored the legitimacy of the works' copyright status. In short, there's rarely ever been serious risk.

The two key notations above are risk and credibility, which go hand in hand with copyright and safety from litigation. Today, if someone wishes to publish most any kind of work--even those perceived to be in the Public Domain--there's risk because the credibility of the claim or the claimant can be in doubt.

Liability of Publishing Copyrighted Works

Under copyright law, the publisher of a work assumes all responsibility of liability if the work was not properly licensed from the copyright holder. If the work is not in the Public Domain--despite some random person's claim otherwise--the original copyright holder can file an infringement suit against whoever publishes the work. For a publisher to be truly "safe" from liability, he should get direct consent from the copyright holder. (Bookmark that phrase in your brain--you'll see it again soon.)

You may ask, "What's the real-world threat here? How and why would someone falsely claim that some photo that they don't own is in the Public Domain?"

Remember, the online world is full of malicious people looking to siphon money from the naive and vulnerable. People can be both when it comes to online scams, ranging from the Nigerian email schemes to more modern methods of preying on the jobless (as described by this article in the New York Times).

In the case of "The Public Domain", people's naivete plays right into this, and the malicious agent can leverage this misunderstanding on both sides of a copyrighted work. The less malicious example is less common, and isn't used to siphon money so much as to get a free pass to steal: by falsely attributing a Public Domain notation to a photo he wants to publish, his defense is prepared for later if the copyright holder were to challenge him. "Hey! That's my photo! You infringed." To which the response is, "What? You own that image? When we got it, it said it was in the Public Domain. We can't be held liable for that!"

To a judge hearing this, would he believe the claim? Or would he see through it and realize he's trying to use the image for free--robbing the original copyright holder of his license fees?

Or, perhaps the malicious player is setting a trap: luring an unsuspecting publisher into thinking he can use a photo for free, after which, a bogus copyright infringement claim is filed (with the intent of collecting a settlement)? The exact same exchange between parties -- the same dialog -- can take place when the copyright holder (or the person posing as one) is the malicious agent.

In both cases, misrepresentation of the image takes place. The problem facing any court is determining which side -- the plaintiff or the defendant -- is the malicious player.

What makes the crime all the better is that the judge has to consider a third possibility: that neither side making a false claim at all. The false claim of PD could have been made by an entirely unrelated third party which no one can possibly find. Which of these three scenarios will a judge choose? Would his ruling be consistent across all cases? Would it set precedent for future rulings? No matter what, the advantage is in the hands of the bad actor, because he has little, if anything, to lose.

Making matters more attractive to bad actors is the volume of images. There are billions and billions of photos on the internet, millions of which are passed around so much, it's nearly impossible to know where any one of them originated. By the same token, the original copyright holder probably doesn't know either. Therefore, pretending to be the author of an image is almost guaranteed to be believed.

It reminds me of the now-famous New Yorker cartoon, where two dogs are at a computer, and one says to the other, "On the Internet, no one knows you're a dog."

The Microstock Scheme
This scam with photography is not new; it started a few years ago in using a slightly different scheme, one that was also more profitable at the time than it is now.

About five years ago, microstock photo agencies sprang up in larger masses that gave rise to this problem. These companies are like traditional photo agencies, but are much more lax, semi-automated, and deal with micro-valued photo assets. They sell millions of images submitted by photographers, who in return, receive a percentage of sales. Scam artists started submitting stolen images to these agencies and collecting those royalties. What made this possible is that virtually no stock agencies require proof of ownership, or even that photos be registered with the Copyright Office as an extra level of assurance to image buyers. Stock agencies bear no risk; they have photographers indemnify the agency by warranting that they are the photographer. The warranty may or may not be true, but it doesn't negatively impact the agency, and the bad actor doesn't care--only the buyer is harmed here.

There are already documented cases of this (a few of which can be found using a variety of search terms, such as "stolen photos microstock"). Although most stock agencies don't want to publicize numbers, it's no secret that the problem is getting worse, since the systems are largely automated and there's no way to know whether a submitted work is stolen. It takes very little effort to pull this off, and it's very easy for the thief to shield his identity sufficiently. In the meantime, he collects royalties on the images he submits.

And don't think I'm giving anything away here--cyber-criminals are way ahead of all of us. In fact, the above method is now seen as less lucrative than other related schemes. Most legitimate photographers earn only a meager $10,000 or less per year with most stock agencies, and those are the successful ones. (PDN Newswire publishes surveys every year.)

If you're a thief, you're thinking, why bother with stock agencies and collecting license fees from legitimate buyers, when a greater payload is achieved by threatening copyright infringement against publishers of photos that the con artist has claimed.

Though the problem is far from pandemic, let's not forget the phishing schemes were at one time rare anomalies, too. Once an easy way to make money is found, thieves are entrepreneurial in how quickly they perfect and automate the system. And phishing turns out not to be too different in principle than the scheme here: lure a naive user into believing a frightening claim. "Login to your bank site and reset your password now!" Anyone that would believe that would also believe, "You've stolen one of my images; copyright infringement can be quite expensive, but I'll be willing to settle out of court, saving both of us time and money."

The Creative Commons Scheme
In fact, I cited long ago how this can be done using Creative Commons licenses. The CC is a series of license agreements by which copyright holders permit users to publish their works for free, provided that author credit is given as a byline (among other options the CC optionally provides).

By adjusting metadata in the images to proclaim Creative Commons status, and spreading them around photo-sharing websites rather than stock photo agencies, the game is to entrap licensees who seek CC attributed images, and then sue them once they publish them. As before, the claim is "I never attributed those photos with a CC license! You've infringed!"

The Creative Commons' role in contributing to the growing misunderstanding of copyright is complex and unfortunate. The stated objectives and wider ambitions of the CC are worthwhile, admirable, and valuable to society, but unless handled properly (by paying attention to the side effects of its popularity), it can lose favor if its downsides are realized.

The CC's popularity is more directly augmented by social-networking sites who promote it for their own economic interests: They derive revenue on traffic, advertising, and membership fees--not from content. The more end-users share content online, the more traffic the site gets. The Creative Commons license fuels the rate of photo-sharing, which helps the site, but perpetuates the greater misunderstanding about copyright. The complex agreements behind CC are never read by individuals, who also don't understand the opportunities they give up. Nor is it in anyone's financial interests to warn potential users of CC works that they are assuming some liability in the event the CC attribution is not authentic.

The Public Domain Scheme
How does Public Domain factor into this?

Like Creative Commons, the use of PD works is free. But that's not really the critical detail here. What's shared between these forms of content attribution is that they are the only two ways in which publishers would use works without obtaining consent directly from the creator of the work (or authorized assigns).

Remember when I told you to bookmark the statement that licensees are safest when they get direct consent from the author of a work? Now is where that applies. Again, under copyright law, the publisher bears the liability of using works. And when liability is in play, someone has economic incentive to exploit that legal fact for profit. The consequences are so onerous, that even the threat of an infringement causes wallets to open and cash to come flying out, just to make the problem go away.

What both the Creative Commons and Public Domain have inadvertently accomplished is the creation of a huge liability gap, through which a Mack truck can be driven.

I repeat again that both mechanisms were conceived with good intentions. Of course, it's by design that the Public Domain and the Creative Commons are set up to avoid direct, one-on-one contact between the publisher and the author of a work. This would be the best way for people have their works widely and frequently used by others for free. But this very aspect of those copyright vehicles is leading to misuse and abuse.

And therein lies the paradox. There's an old saying, the road to hell is paved with good intentions. And in the case of CC and PD, the pavement materials used for this road consist of photos and fraudulent claims of ownership and copyright status.

I can speak to this from personal experience. Of the 40,000+ images on my website, I often find anywhere from 1500 to 3000 instances of my images on other websites (not counting those who legitimately license from me) at any given time. And though I can't reliably track infringements on a real-time basis, it's very common for me to find my photos on someone else's site, or on a photo-sharing site like Flickr. In such cases, it's almost always an innocent consumer who's just copying and posting photos they like from various websites they've visited (totally unaware that such copying is a form of infringement). In some cases, I find that my photos' metadata records have been altered in various ways, showing different authors, different locations, and yes, different copyright status, including both CC and Public Domain claims.

In most cases, it's unlikely that those changes were made by the person that presents the page. (I can usually tell by gauging the sophistication or naivete of the person I'm emailing.) Rather, my photos were most likely copied from my site by someone else first, who modified them, and then passed them around the net before the unassuming Flickr user found them.

Could those have been the original malicious players? I've no idea, but one can only speculate what other motivations there may be.

On those occasions where I find my work is being infringed commercially, I always hear one of several excuses by the infringing party in their attempt to absolve themselves of responsibility (and liability): "It said it was in the Public Domain (or had a CC license)." "We got it from a CD that has royalty-free images on it." Or, "Our graphic designer got it from another supplier." "We have no idea where we got it."

As the true copyright holder, I have no idea whether they are telling me the truth. All I know is that I'm not getting my license fees for their use of my image. If their excuses are to stand, they just got away with using a photo without paying for it. One of us is about to get screwed. Who should it be?

It turns out, the law is on my side--it's their responsibility to assure they licensed a work properly from the original copyright holder (or his assigns). Which brings me full circle to the problem. The publisher always assumes risk using photos that they didn't obtain directly from the source. And when most people are so massively uninformed about Public Domain, that risk turns into reality from improper licensing practices.

All this leaves the whole purpose and benefit of Public Domain in doubt: What value is there to it if, in practicality, no one can necessarily trust it?

Solutions?

By this point, you may be thinking of The Orphan Works Act (OWA)--a new proposed legislation that gives limited protection to certain kinds of publishers who may inadvertently infringe on a work because they were unable to identify or locate the author of a work. Though the OWA doesn't actually do what most people think it does, it still doesn't apply here because the bad actors are employing a scheme that involves posing as a copyright holder and threatening a publisher with an infringement suit--not actually filing one.

The legal costs in defending any claim (even a bogus one) is always greater than ending the dispute with a settlement of some sort. Even if an infringer would be protected by the OWA, he still doesn't want to spend lots of money in court defending himself. He will settle.

So, OWA doesn't really protect publishers the way copyright holders have thought it does, nor is it going to be a deterrent for bad actors to fraudulently masquerade as copyright holders. (Besides, the reality of the OWA is that its beneficiaries are different types of organizations, for only certain types of uses.)

So, there's nothing in the current legal system that can really be done to avert these kinds of schemes, given how easy they are to perpetrate and to hide from (especially overseas).

However, history has showed that illicit activity like this is ameliorated when there's a legitimate, mainstream infrastructure that engages the general population. When people are more participatory, they become aware when something appears out of place or suspicious.

The problem with Public Domain is that it's so rare and people are so uninformed about it, people can be lured into a moral hazard. This is a term used in economics that describes how people will do risky things if they perceive they are guarded against the consequences. Here, people think Public Domain applies to things that aren't actually in the Public Domain, so they do risky things with those works.

If people were more engaged in the copyright process, both as creators and users of works, they would be more cognizant of their own behaviors, as well as those of bad actors. To get them more engaged, companies need to invest in systems, mechanisms and infrastructure that creates an economy around photo-based copyright. But the reason none of this exists is because no one can build a business case that gets around all of the unique problems that photography presents (as described at the top of this article).

The only entity that can create such conditions is the government. And this is done not through law or education, or even by financial investment, but by changing certain key policies that give incentive to companies to participate in the system. Their participation spreads to consumers who participate as both buyers and sellers of photo assets.

There are two ways to address this problem. I've already addressed one in considerable depth in my article titled, Proposal for Privatizing the Copyright Registration Process. In short, the government would allow private companies to handle the processing of copyright application forms that people submit with their photos. Currently, a tiny percentage of works are submitted for registration, but if private companies were allowed to process those applications as Copyright Registrars, they would have economic incentive to promote their services, which in turn, informs and encourages consumers to engage in copyright registration. This leads to products and services that people would use to protect their rights--which may include licensing services (like that of a stock agency, but on a massive scale).

The byproduct of such a mechanism would be that people would be far more aware of what copyright is, and where its different from Public Domain, leading to far less confusion about both. Social behaviors would also be more copyright-aware -- people would be more aware of their own photos, which translates to behaviors in the workplace: they'd be more aware of using others' photos as well. This isn't because they'd have a sudden burst of ethics or sympathy, but because they'd be familiar with how the system works. Just as they wouldn't illegally use a song for a TV ad, they also would be aware that they'd need to license an image from the original copyright holder (or his assigns) before putting it in a magazine ad or brochure.

The next thing the government could do -- which could also be independent of the Copyright Registrar proposal above -- is to provide a brand new form for formally releasing the copyright to a work into the Public Domain. This process could be similar to the standard copyright registration form that people use to formally declare their ownership of images. (In fact, there could be a form that combines both to save time for those users who wish to release copyright before even owning it.)

The formal process substantiates authenticity. A potential user of a work he thinks is in the Public Domain would have resources available to him to formally verify it. Similarly, an author could monitor whether his works are being wrongly claimed and classified by others.

The credibility is also backed up by the fact that such registration would be underscored by federal laws, which carry hefty fines for fraudulent claims or representations. (Currently, the fine for fraudulent copyright registration filing is $2500.) It is a long-standing observation that most criminals avoid violating federal crimes, not just because penalties are punitive, but the federal aspect ups the stakes considerably... this, especially if there's a past history of criminal activity, which can even lead to jail.

As a side note, it just so happens that the Orphan Works Act mandates the creation of an online database of copyrighted works. It could very well be extended to include works the people release into the Public Domain.

Obviously, this would have no effect on works that have been in the Public Domain due to expiration. Needless to say, they could very well be treated as they are today, on a case-by-case basis through the courts.

As for the Creative Commons, this is a matter that has nothing to do with the government, or Public Domain, unless the government wished to institute a new derivative form of Public Domain that was a hybrid between copyright ownership and free use and distribution--something like what the CC is. But that's an idea for another blog posting another day.

Anyway, the CC's liability is similar to the PD, but the solution is slightly different because of the lack of government participation. I had proposed a particular approach in a blog entry on January 13, 2008. There, I proposed that the Creative Commons create a registry where authors and publishers alike would register their works (and intentions to use them), so as to authenticate and document who's doing what. That plan was intended to be a stop-gap measure, but it doesn't actually stop a bad actor from fraudulently claiming a work to be in the Public Domain. (There's nothing more unique or preventative about a CC registry that carries with it the heavier weight of a federal crime.)

In other words, CC works still suffer from the credibility question, and that can be addressed by merely requiring that works with the CC attribution also be registered with the Copyright Office. This not only reduces risk for all parties because the credibility of copyright registration is substantially higher than that of a CC registration, but the penalties for violating CC terms and conditions escalates to statutory damages because of the copyright registration. This would effectively bolster the overall perception and enforceability of CC works. They would be better perceived as "safe to use."

The natural objection to such a proposal is that, since few people ever register their works with the copyright office, participation in the CC would dry up. The CC could alleviate that concern by integrating its own registration process with that of the copyright office. That is, by registering with the CC, you would automatically register the work with the copyright office as well.

This tie-in could actually encourage more people to use the CC, both as contributors and publishers of such works.

Summary

My long-standing view of copyright, economics and law is that the "system" works when there are checks and balances that give credibility and protection to the intentions of all who touch copyrighted works: authors and users alike will participate in a system that is less subject to unfair exploitation, which yields positive economic benefits and reduces economic risk. This, in turn, fosters investment into mechanisms that help facilitate and expand on such opportunities.

In the end, the free market will find the balance between what's paid for, and what's free. But without such mechanisms, the state of affairs today is like the Old West: the rustlers rule.

An API to the Copyright Office?

I got the following email that I thought I would just post directly here to my blog (with my response).

Have you heard anything further about the USCO possibly switching to a "reseller" system for copyright registrations? I've been hearing a rumor lately that they are about to start beta testing a program.

It was mentioned in this presentation for one:

http://www.c-registry.us/CEPIC/MILE_Orphan_Works_Solution_060309.htm

I can't find any formal announcement on the USCO site nor have I been able to find any other stories on this. I don't subscribe to every single mailing list though. Have you heard anything?

With respect to the c-registry.us site (the link you sent), on slide #4, the "reseller" program they refer to is not the same as the "copyright registrar" proposal I put forward. More on all this in a second. But first, it should be made very clear that "c-registry.us" has absolutely no affiliation with the copyright office. I am constantly getting questions from people about this company and whether they are some sort of commercial "retailer" that has some special relationship with the CO. The danger is that when they say something like what you referred to above, people believe it to be an official statement from the CO.

Officially, you should just call Maria Pallante at the CO. She's extremely accessible and very pleasant to talk to. Alternatively, you could call David Christopher, who sits next to her. He is more up-to-date on the technology stuff. You'll get all your questions answered instantly. Whenever there are rumors floating around, call them to get the scoop.

Now, to the "reseller program": whether this is what c-registry.us is referring to, I'm not sure, but I what I do know is that the CO is creating an API (application programmer's interface) that would enable third-parties to write their own UI (website, applications, etc.) that would allow users to submit new copyright applications to the copyright office for processing. It would NOT provide access to content already there, nor would it expedite the process, nor would it allow third-parties to process those applications or act as resellers or retailers for the copyright office. The API offers nothing more than what is already provided by eCO.

All that said, it does beg the question: Why? The answers may appear obvious, but no one has formally stated "who" gets to use this API, under what terms and conditions, or any other business-related objective. For now, we just know it's in development. (Limiting access of this new API would done through access keys, which is assigned to authorized users. This is identical to APIs used by Yahoo, Flickr, Google, Facebook, etc... There's nothing magic here. Various levels of security are available to keep stuff safe and locked up.)

There are several things to keep in mind about this API:

1) It is very early in the process. They have contracted with a vendor to design the API specifications, and that part is still very new. I asked to review the material, but I was told that it's too early to see anything. I was not given any time frame for when this might be done, or even a time schedule for deliverables. They aren't keeping it "secret" -- clearly, they told me what they were doing -- but they aren't exactly open about it either... which leads to:

2) The API draft specifications or early-developer process is not open to public review. (I have not been informed of a beta program, and I am on the list of people to be notified if/when such a thing is started.) In my opinion, this is a big red flag--the CO should do this entire process in the open, exactly the way the IETF (internet engineering task force) does with all new protocols and other specifications. The CO should have a public forum and developer application list to allow everyone to contribute useful and important feedback on proper design and implementation from the very outset, not *after* specifications and preliminary applications are built. Furthermore, it would be best for the CO to expressly avoid having their OWN implementation, and instead, just publish the specifications and allow third parties to implement their own prototypes, which the CO would then certify if they met certain criteria. (One of which would be for the code to have open-source status.)

3) It should be known that, just because there's a back-end API, it does not solve the problem of back-logged registration applications. In fact, it would flood the registration backlog even worse because more people would be filing applications. That's NOT to suggest this is a bad thing! IMHO, the worse the backlog gets, the quicker the CO will be forced to solve the problem. And the only solution to that is to outsource the processing of applications to third parties. In other words, "copyright registrars" as I've been proposing would do much the same administrative tasks that the CO currently does in-house. They would be trained and certified by the CO, thereby performing exactly the same duties and responsibilities, but can be farmed out to an infinite number of companies. This would alleviate the back-log, improve efficiency, reduce costs (which bring down filing fees) and increase participation in the copyright registration program. Everyone wins.

The API that the CO is doing has nothing to do with my proposal, nor would it affect anything that already exists in the copyright process today. And of course, it has nothing to do with the c-registry.us website.

It does still beg the question: what direction does this suggest that the CO is moving? The API would eventually be necessary for a "copyright registrar" to exist, but that idea has not yet been accepted.

What the API will NOT do is streamline the application process... It doesn't really matter how backlogged the CO may happen to be in order to have your works protected--all you need to do is apply to get the date of registration established. Granted, having the certificate does help considerably in the legal process, and it does avoid potential risk that a given judge might rule inconsistently with precedents. For such conservative applicants who really need to protect their valuable works (such as timely news and/or celebrity material, for example), expedited registrations might be worthwhile. But, for the vast majority of people, the eCO is sufficient to get protection immediately.

In summary, I think the API is a step in the right direction. It isn't perfect for the reasons noted above, but these things tend to work themselves out.

dan

Solving the Copyright Claim Clash

The New York Times recently published an article titled, As Rights Clash on YouTube, Some Music Vanishes. It highlights Juliet Weybret, a 16-year old who recorded a video of herself playing the piano and singing Winter Wonderland, and then posted it on YouTube. Weeks later, the video was removed "as a result of a third-party notification by the Warner Music Group, which owns the copyright to the Christmas carol."

According to the Times article, this happens all the time, and thousands of videos disappear for the same reason. Even common family home videos that happen to include a portion of a song playing in the background are removed with prejudice, along with videos that use music in goofy ways, from montages to mash-ups.

What I find particularly interesting are these facts:

1. No human is involved in the infringement decision. It's an automated system that merely identifies songs; it does not distinguish whether the given use of the song actually constitutes an infringement.
2. No human is involved in policing or overseeing this process, questioning it, objecting to it, challenging it, or even calling anyone's attention to it. (Well, except for the New York Times.)
3. No entity at all—human or corporate—has any financial incentive to defend these claims: to intervene, question, object, or challenge.

It's certainly the case that Juliet's video is not an infringement (it's an unambiguous example of the Fair Use provisions of copyright law). But that doesn't imply that all cases are not infringements. Indeed, it certainly may be that some uses actually infringe. The important point is that no one is actually making that assessment and no one has a financial incentive to challenge them.

The consequences of all of the above have a cascading effect that, over time, has eroded the spirit and intent of copyright. One of the first things that happens is that the common perception of what constitutes a copyright infringement is being obfuscated. This is the exacerbated by additional factors. The complexity of copyright law is such that not a lot of people are aware of it or can interpret it easily without extensive experience. Even copyright lawyers often disagree over what kinds of uses are infringements and what are permitted under Fair Use. In fact, it is this very reason that "claims" of infringement need to be balanced by informed counter parties. The fact that there is an automated mechanism that forces content to be removed without "challenge" runs counter to the spirit of copyright.

Also, the reason why there is no challenge to these claims is that the size and financial wherewithal of the litigants have a disproportionate influence on their business partners. As the Times article sums it up, "Users have the right to dispute a take-down. But few have. People are somewhat intimidated by the possibility of being sued by one of the music companies, even if they have a free lawyer."

No matter how you look at it, it's pretty clear that the copyright system isn't working as it was intended for cases like this. But despite my characterization above, this isn't entirely due to large companies using their financial muscle to exploit the little guy, or the massive amount of copyright infringements that users do. The source is much more basic than that: the internet itself, where massive amounts of content is being created and used in quantities and ways that the original copyright infrastructure was never designed to handle.

Note: I said infrastructure; I did not say "laws." Copyright law is perfectly capable of addressing these cases, of discerning which of these uses actually are infringements, and which aren't, despite the hyperbolic claims of copyright holders. Hypothetically, if both sides of a dispute were properly represented by legal counsel, the court system would make use of existing law and find appropriate interpretations to maintain legal continuity. Granted, not every case is actually judged "fairly", as anyone who's ever lost a case knows. I'm not being naive. However, it's the aggregate net effect of rulings that has maintained consistency and stability in the general perception of the integrity of the courts.

But the reality is that both sides don't have balanced representation. Some have said that free market conditions will correct for such imbalances. The argument goes that the economic quandary for Google is that, on one hand, user-generated videos are important to YouTube's efforts to increase the flow of advertising dollars. On the other hand, their licensing deal with Warner (to display the professionally-made videos) generates significant traffic as well, which also contributes to advertising revenue. Is it the case that Google's competing objectives here would give them incentive to keep Warner Music from going too far? For Google to take a position on the matter would imply a delicate balance of economic interests. Is this a true balance of power?

The real answer is no, because unlike Warner Music, whose sole financial incentive is to represent their own interests, even (or especially) at the expense of Juliet's interests, Juliet has no one representing solely her interests. Google is not a fair arbiter here; it is only trying to determine what's in its own financial interests. Its decision is not based on what's "right", but who has the larger financial club.

It would seem like Google would realize that Warner Music isn't more valuable than the massive amount of user-generated videos like Juliet's. But the economic reality is that 1) end-users won't go away, 2) they won't stop producing and uploading content, and 3) they have no legal recourse. Hence, they have no economic influence, so Google and other social networks don't need to listen to them. By contrast, Warner Music is a single entity that represents a large volume of works, it does have legal recourse, and they could pull all their content. So Google listens to them.

And therein lies the real problem. That's why it's an infrastructure problem, and not about the law. What I mean by "infrastructure" is the set of tools and conditions set up by the government to provide means and mechanisms that give strong incentives for companies to be "good citizens" in the copyright realm. When there are no incentives for anyone to assume the counter-balancing position, the infrastructure is out of balance.

One could say that this provides a great business opportunity: to create a company like Warner Music, but who represents all the individuals who upload their content to social networks. Imagine a hypothetical site called "your-content.com" with a marketing statement that said, "if you upload your content in exchange for letting us represent you legally, we will pay you commissions on anything that is licensed from us, or any damages collected if someone steals your work. You can place your content on any site anywhere on the internet, and if someone licenses it, we'll pay you a commission." While that's well and good, the problem is that none of this is actually possible unless each work is actually registered with the copyright office. And therein lies another major problem with the copyright infrastructure.

Because of how copyright law is set up—and this is for very good reason beyond the scope of this article—only those works registered with the copyright office enjoy an extra level of legal protection, which itself leads to financial incentive for others to comply with their copyright. Warner Music has registered its massive media library with the copyright office, which is what gives them the legal and financial strength to assert their will upon Google or anyone else that wishes to distribute their works. Juliet can't assert her rights in any practical manner because she never registered her video with the copyright office.

The hypothetical your-content.com could never exist today because end-users like Juliet don't register their works. And, at a minimum registration fee of $35 per application, it isn't likely that your-content.com will pay to register all those works either. As a consequence, your-content.com would never able to practically enforce its legal protections, which would prevent them from deriving revenue from potential licensees. User-generated content isn't that valuable on a per-unit basis. It's only valuable in massive quantities, since only a small proportion of it actually sells, and it's impossible to predict which units will perform.

There's another hurdle to the problem: even if the registration fees were zero, the copyright office has no infrastructure at all to handle all those applications. Even today, with only tiny fraction of even professional artists registering their works, applications for copyright still takes 5-7 months to process.

Once again, this illustrates that the current copyright infrastructure did not anticipate the volume or business models that the internet has created. Price, processing capacity, and financial incentives built into the system to encourage the private sector to give representation to individuals. These are what's missing.

To address these failings, I submitted a plan (in 2007) to revise the copyright infrastructure. In my article, Proposal for Privatizing the Copyright Registration Process, I proposed that the copyright office offload only its simple administrative task of processing copyright registrations to the private sector. These new companies would be called "Copyright Registrars," of which there could be an infinite number. Their role is two-fold: First, to process copyright registration applications using a more effective and efficient automated system than what the copyright office does today. Second, they would "legally represent" works that were processed within a defined set of parameters (with oversight) to assure integrity. This is the financial incentive as I just described. By delegating the administrative tasks to a large number of private sector companies who can automate the process en masse, the cost of registration quickly approaches zero, and the capacity to process infinite number of works rises. These remove two major barriers that allow companies to build and justify business models that ultimately lead to equal representation of people's interests.

Note, the proposal is not a transfer of copyright ownership, nor is it consent or permission for the registrar to use the work. It is simply a transfer of administrative tasks. Once a work is registered, there are three events that would involve the Copyright Registrar:

1. If a third party wanted to license the work, the copyright registrar would then negotiate and collect the license fee. (This would largely be an automated process for most common uses.) Because the work could exist in any number of places around the internet, it doesn't matter where the work is found, it only matters that someone wants to use it in a manner that requires licensing. Here, the Copyright Registrar that processed that particular work would have the right to price it and collect fees. These fees would be shared with the copyright holder.
2. If someone has infringed upon the work, the Registrar would pursue those infringers, possibly collecting statutory damage awards or license fees, either of which would be shared with the copyright holder.
3. If a third party claimed the work infringed on another work, then the Registrar would assess the claim and either comply with the demand or challenge it.

This now lays the very incentive models for businesses like the hypothetical your-content.com to exist. So now let's consider a more realistic example: if Google were a Copyright Registrar. They would have YouTube be a site that automated the processing of the end-user's copyright registration application the moment the person uploaded one of their own videos of original content (assuming the work hasn't already been registered). Now, if Warner Music were to claim that Juliet Weybret infringed on its copyright, then Google would challenge it. Why? Because if they didn't, people would stop using YouTube, and move to another video site (that was also a Copyright Registrar) who did a better job of helping to monetize and protect users and their content.

And let's face it, if such conditions were to exist, then Warner Music wouldn't even bring the case in the first place, nor would Google permit the automated robot that sent out the take-down notice. So, already there would be a stabilizing effect by the very nature of there being a balanced weighting of legal representation. There would be less Copyright obfuscation, less exploitation, and a better, more efficient economic model for growth.

The other thing to consider is that Warner Music itself could also be a Copyright Registrar, and Juliet could very well have registered her little video with them, and still put it on YouTube. In this case, the music company would have more incentive to keep it there, since they would be receiving a portion of its ad revenue. With that kind of financial incentive spread across massive amounts of user-generated content, this translates to real money. Now there would be no incentive in falsely demanding that non-infringing works be removed from YouTube or anywhere else.

Predictably, everything stated above needs to stand to scrutiny. So, let's get into that.

Is there really economic value in Juliet Weybret's video? Perhaps not hers, but one needs to consider the aggregate value of massive amounts of user-generated content, especially when its collective weight adds up to substantial negotiating power. This is all part of the latest modern-day financial model called "long-tail economics." This is where money is made not by selling "the best" content available, but to amass as much of it as possible—irrespective of quality—and letting the natural sorting and searching mechanisms of the internet allow things to be "found" and subsequently sold. Given the massive amount of user-generated content on sites like YouTube, Flickr, MySpace, Facebook, and thousands of others, the aggregate value of licensible content is enormous.

This has been the focus of my research for close to ten years, which I have written about on my blog here. The most recent articles that pertains to this can be found here, and here.

Content is king, and everyone from social-networks to search engines knows it. The holy grail has been figuring out a business model that can capitalize on it. Facebook itself tried to change its end-user agreement that gives them rights to use content that people uploaded to their site, but they had to back-off because their "deal" wasn't fair—people weren't going to be compensated for their contributions.

The whole idea of the Copyright Registrar is for this very objective to be more open, transparent, and competitive. As more Copyright Registrars come online in their various forms, critical masses of people gravitate and congregate around those sites that are known to perform well in licensing and protection. There's no risk of monopolies or price/performance shenanigans because the competition would be diverse enough to keep anyone from cornering the market.

As higher quality content (along with higher quantities of it) add more and more to the global media library, all of which now have equal opportunities for licensing, it would be extremely rare for individuals to represent themselves anymore; almost all content online would be represented by someone with far more power and capability than individuals have on their own. Furthermore, licensing terms and disputes regarding infringement would be exchanged between more equally-sized parties, who have more balanced legal weight and economic power. Gone would be the days of individuals stressing over how much to price a photo that someone wanted to license, or how to deal with a company that stole their photo from Flickr for use in a brochure, or having to pout because Warner Music forced her song off of YouTube.

As for licensing fees, again automation comes into play. There's already models built in other industries for auction-based license-pricing systems, very similar to those used by Google to set advertising rates. Applying them to the lion's share of user-generated content would not only be simple, but lucrative. Distribution of commissions to the creators would be part of this business segment.

The last part, which is really where the potential cost and complexity comes into play, is the legal entanglements: assertion and protection of rights. Determining whether the use of a given work is an infringement is the elephant in the middle of the room. Copyright law and its various provisions for Fair Use and issues concerning the First Amendment make for a never-ending set of challenges. But I don't want to overstate the concern either—it's certainly manageable once you're dealing with informed parties of equal weight and economic interests. Deals are struck, middle ground is found, and balance is achieved.

This, combined with the more ubiquitous and nationwide use of the copyright infrastructure, would actually reduce the number of infringements, since it would be too easy to be caught, and you'd be caught by very large and powerful interests. This would increase the rate of legitimately licensed material, which has a multiplier effect on economic activity. Best of all, the people who create the content would be recipients in the system for a change. This itself has a stimulative effect on participation: people have more incentive to participate and to produce better, more competitive content when there is a merit-based compensation model.

The lesson that history teaches is that "economic incentives" is the great equalizer.

This article is by no means a detailed description of my copyright infrastructure proposal. For that see the link to the original proposal I cited above, which can be found here. In it, I also address questions and criticisms that have come up, as well as necessary and detailed policy issues that would have to be considered.

Heckler's Veto: Blog Style

From Wikipedia:

A heckler's veto occurs when an acting party's right to freedom of speech is curtailed or restricted by the government in order to prevent a reacting party's behavior. The common example is that of demonstrators (reacting party) causing a speech (given by the acting party) to be terminated in order to preserve the peace.

While this normally applies to crowds of people at a public gathering, the internet is a similarly public place. And a similar thing is going on for the subject of copyright protection. There are those who oppose the idea of copyright itself--that people should be able to use any kind of work at all without fear of penalties--because creative works should be free. There are even those who feel that the internet itself is a domain where anything that's there should be taken. So, how do these people effect change in copyright enforcement? Heckler's Veto is an excellent strategy.

You start by seeding people with disinformation (about copyright) and holding up as examples those who have been sued for copyright infringement (especially those involving large sums of money). You then instigate crowds of people to submit loud, boisterous posts onto blogs and discussion forums, complaining about how wrong it is to sue someone just because they copied a photo. You then fool people into thinking that the "act" itself is not copyright infringement, and instead, the copyright holder is a "copyright troll". This then has the effect of those misinformed people committing the same act because they think it's ok. As this builds up, the aggregate total number of these actions build, copyright holders are either themselves misinformed about their own rights, or they are "drowned out" by the hecklers. And finally, the government steps in to revise copyright law to reflect what appear to be "social norms."

Sound like a bad TV show? If it were only so. It's been going on for a while, and the patterns of these goings-on is beginning to take shape.

A single case in point is this article from the website, cvillain.com. The article's purpose is to bring to light (and provoke discussion about) a claim of copyright infringement they received, brought by photographer Matt Rosenberg and his lawyer. cvillain.com used one of Matt's photos in a very brief blog article about garage bands. The problem is, the site didn't license the photo—instead, they used it without permission.

cvillain.com claims they did not infringe, and that the photographer and his lawyer are essentially exploiting copyright law to wrench a high settlement payment. They posit that the claim is "predatory," and that the company is now in the position of having to settle the claim, or spend more than $2500 in defending it. They are essentially boxed into a legal and financial corner. Their rationale for defending their case that they did not infringe is as follows (from their website):

1. "...the use of the photos is Fair Use." Here, they included a link to a case involving Fair Use, along with the wikipedia entry explaining what Fair Use is.
   
2. ... "we didn't post any pictures..." instead, "we only posted thumbnails." They also provide a link to legal case that mentions a particular case involving a thumbnail of a photo, and that the court ruled that the qualified as Fair Use.
   
3. "... the use of the photos didn't actually harm the photographer or cause damages."
   

What gets my attention is not who's right and who's wrong. It's the dissection of the political strategy being orchestrated at a much higher level that I find interesting. The 757 comments (to date) posted in response to the incident are from people who sympathize with the defense, but the rhetoric they use is strikingly familiar. It's that familiarity that got me to take a much closer look at this case, and what might be going on underneath.

I use to the term, "Heckler's Veto" here, because a similar activity is going on among all the "hecklers" that wrote in to support the cvillain.com plight. While the term normally refers to government curtailing people's rights of free speech in order to keep the peace, the goal of the "hecklers" in this case is to effect the same outcome: to actually stop the copyright holder from exercising his right under the law to protect the economic value of his property—and to do this by voicing such objection to the practice, that eventually, the government may in fact have to step in to ... keep the peace.

The methodology used to achieve this goal is to employ the collective cries of uninformed readers who have no understanding or appreciation of how the law actually works, and to seed them with disinformation, which they then use to behave in ways consistent with those beliefs. To illustrate, here are the facts about their claims of defense:

1. The claim that the use of the photo was permitted under "Fair Use" provisions of copyright law is baseless.
   In reality, Fair Use permits publication without consent when the purpose is to comment on the work itself. Just because there is a story and commentary, does not itself mean that permission is not required. If that were the case, then no newspaper or other media channel would ever have to buy images from photographers. That clearly isn't the case.
   
2. The claim that "Thumbnails are not photographs" is silly.
   In fact, no one has ever made such a claim till now. But, I don't think that's what they really meant. It's clear their intent was to say that their use qualifies as Fair Use because it was published "as a thumbnail in an editorial context." The link they cite to support this is this article, which mentions a case where a website was sued for infringing on a thumbnail-sized photo of Brad Pitt, Angelina Jolie, and their baby daughter Shiloh. The use of the photo was deemed to be Fair Use, but not because it was a thumbnail. It was because the story was about the photograph itself, not the people. The story was talking about how the photo was sold for $4.1 million to a magazine. Because the story was about the photo, permission to use it is not required to reprint it. The fact that it was a thumbnail, or because it was editorial, is entirely irrelevant to Fair Use in this case.
   

   And that's precisely why cvillain.com is wrong here—they infringed on a photo because they used it for a story about garage bands, not as a story about the photo itself. To prove my point, I'm going to display the photo here, and I didn't ask permission from Matt to do so. (In fact, I don't know him, and I've never contacted him.) I am not culpable for copyright infringement because this story is about that photograph.
   

   Copyright Matt Rosenberg

   
   

   
   As a matter of fact, cvillain.com could now display the very same photo they are being sued about in the blog entry where they talk about being sued for using the photo. That would be a Fair Use of the photo because the blog story is about the photo. (Talk about irony!)
   

3. The claim that the use of the photo did not harm the photographer or cause damages doesn't apply here.
   Determining whether harm was done is not used to determine whether an infringement took place. The only time "harm" or "damages" are used is for assessing the fines that are awarded to the copyright holder, such as lost profits, or harm to a person or company.

While it may appear that $2500 is a steep price for merely using a simple photo without asking, this is specifically by design: The very reason statutory damages exists in copyright law is because certain works (such as photos) may carry very little incidental value on on their own, where "harm" may not necessarily have been done. But unless there are strong financial consequences for stealing, artists have no other form of protection. If people like cvillain.com were to "steal" regularly and without worrying about being sued because there was no "harm", artists would never be able to make a living by selling their works because, well, no one would buy them.

There's no question that copyright law is a very detailed and provisional piece of legislation, and not everyone can necessarily get it. I see my photographs infringed upon fairly often, and when I notify someone of it, it's usually the case that they had no idea there was anything wrong, at which point, we work out an arrangement. Often, photo credit is sufficient; if it's a commercial use, we work out a "prevailing rates" license fee. In the few instances where the infringement is egregious, such as intentional removal of my copyright notice (which is on all my photos), or a blatant denial that they did anything wrong, or—worst of all—if it's a large corporate media company who themselves enforce strict policies for use of their content, then I can get pretty mean. And therein lies the responsibility of being a publisher: you have to know these things. If you don't, own up to it when you're informed.

Now, that's not to say that I'm unaware of or insensitive to the fact that some people can be caught up in a legal conundrum, boxed in a corner because of an unscrupulous copyright holder. But, the opposite can be true too: companies like cvillain.com can steal images and then cry wolf, hoping to get away without legally paying for works that they should. There are bad actors on both sides—anyone that "takes sides" on this issue is probably one that's been disinformed by someone on the other side, pushing an agenda.

And that's what I think is going on here. cvillain.com is so obviously guilty of infringement, that their denial of it begs the supposition that they really are aware of it, but are posturing their innocence for a greater agenda. Each of the websites the blog links to are all run by organizations that have a political belief that copyright itself is antithetical to free speech. Many also believe that damage awards are used to extort money by exploiting subtle and often inconsequential details of copyright law. So, in order to effect public opinion on the matter, they often hold up any and all copyright infringement claims as examples of such "bad behaviors."

The question then becomes whether their strategy is effective. On one hand, just about every untruth about copyright law is expressed in this blog, and such untruths are too easily disproved. It's hard to advocate a position that is so easily knocked down. Another strategy could be to play the "victim card" so as to garner public support: "We admit it! We were wrong! Don't exploit your rights unfairly! Help! Help!" While they may very well be crying crocodile tears, one can't really argue against it. At least, not on legal grounds.

The problem with that strategy, however, is that there is still the law itself to contend with; ultimately, that's what you want to change, and a whole bunch of sympathetic people don't help you. The armies have to mobilized and given a task. Hence, the original strategy of trying to confuse the public through disinformation has the advantage of encouraging certain types of behaviors under the (false) premise that "it's legal." For example, if people believe that thumbnails are not photographs, and that editorial uses of photos are permitted under Fair Use, and that you can publish photos without permission so long as there is "no harm" done, then people will do it.

So now, when it comes time to meet with congress and the copyright office, or to publish editorial opinions in the New York Times about how copyright is getting out of hand, or any other time you have a megaphone in your face where you can present your case to influential legislators, you can point to all those millions of people who are acting in compliance with your views of the world, and say, "See! All these people are doing it, and they're getting sued for copyright infringement." This may get the government to take away the rights that people once had under copyright law.

And then you will have achieved the ultimate Heckler's Veto.

Orphan Works Fallout? History may lend a clue.

Wonder what the fallout will be if the Orphan Works Act passes? History may lend a clue.

Yes, the outrage (among photographers) continues to boil over the Orphan Works Act, the bill congress is considering, which limits the remedies in a civil action brought for infringement of copyright in an orphan work. I've written about it before, but the arguments still seems to be heated. In recent discussions I've had (and that I've read on other blogs and discussion forums), it's pretty clear that what people are worried about are that photographers' rights would be jeopardized, that rampant infringement would take place because it'd be too easy for infringers to establish a work as an "orphan," and that photographers would not be financially able to protect their copyrights.

While these are reasonable concerns, the question is whether they are justified. Is the language of the bill too broad? How can we test or measure what the real ramifications might be? I had an idea that would help people gain a more realistic perspective on this, and I tested it out on a few people who were vehemently against it. I began by tossing a few hypothetical situations their way. I asked, "How would you feel if..."

1. A publisher wants to reproduce your concert photos of a famous band for a book ... without asking you, paying you, or giving you attribution.
   
   
2. The makers of a movie biography of a famous fighter wants to use excerpts of your published footage ... without asking you, paying you, or giving you attribution.
   
   
3. A movie company wants to copy one of your ideas for a photo of a woman, and superimpose the head of an actor on top of it for use on a poster that promotes the movie ... without asking you, paying you, or giving you attribution.
   
   
4. A university wants to download photos on your website to use in an overhead presentation to be used in the classroom for a business course they offer every year ... without asking you, paying you, or giving you attribution.
   
   

Every person to whom I posed these scenarios reacted with outrage. Then I asked, "Do you think the Orphan Works Act would permit this?" Each said yes. Emphatically. In fact, one person said, "And it's because of ridiculous and outrageous scenarios like those that we must stop this bill immediately!"

Do you agree?

Here's what most people don't realize: All of these scenarios are already permitted by the Fair Use provision of the Copyright Act. In fact, not only are these cases permitted, but they've already happened. Moreover, each case (except for one) has been taken to court, and the court has ruled in favor of the user of the work, not the copyright holder.

Another surprise that may shock you: the works in question were not orphaned works; the copyright holders were known in advance, yet were still not contacted by the user. Here are the facts of each of the cases noted above:

1. Regarding the reproduction of concert photos in a book: In the case of Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006), the Second Circuit focused on the fact that the photos that were used had been reduced to thumbnail size and reproduced within the context of a timeline.
   
   
2. Regarding the makers of a movie biography: the movie was of Muhammad Ali, and the filmmakers used 41 seconds from a boxing match film. The court found that the portion of film that was taken was used for informational purposes. (Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F. Supp. 490 (S.D. N.Y. 1996).)
   
   
3. In the case involving the movie poster, a movie company used a photo of a naked pregnant woman and superimposed the head of actor Leslie Nielsen. The photo was a parody using similar lighting and body positioning of a famous photograph taken by Annie Leibovitz of the actress Demi Moore for the cover of Vanity Fair magazine. The court ruled that the movie company's use was transformative because it imitated the photographer's style for comic effect or ridicule. (Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998).)
   
   
4. As for the university that wants to use a photo from your website in an overhead presentation, this kind of "face-to-face" electronic use of a photo in the classroom has been considered (de facto) Fair Use, and has never been challenged in court. (See here.)
   
   

So, what does this have to do with the Orphan Works Act? After all, if things are this bad with existing copyright law, the OWA will only make things worse, right? Well, that's where we need to gain some perspective, and draw upon history to help us forecast what may happen.

When the Copyright Act was under consideration, there was quite a bit of pushback from artists of all sorts, using arguments you hear today: that the Fair Use provisions are too broad, and that artists will lose the strength of their copyrights, and the ability to file claims would be prohibitive because the expense to do so would be too much of a financial burden for most artists. If works could be used for free, without attribution, or even permission, even though it may be clear who the copyright holder is, a court case is but an uphill, expensive battle. Moreover, the Fair Use provision could apply to anyone at all. The list of permitted uses was so broadly defined, that just about anyone would be able to do anything with a copyrighted work and call it "commentary," or "satire/parody," or "news reporting." Any of these are permitted under fair use, and it'd be an uphill battle to refute such claims..

Were those fears realized? Did that actually happen? The scenarios I described above would make it appear so. But, upon closer examination, history tells a very different story. The cases above are extremely rare exceptions, and were ruled under extremely narrow circumstances. Very similar cases come up far more often that not only don't get ruled as Fair Use, but continue to set new precedents all the time in favor of copyright holders, not users. Most infringers who use works and try to hide behind the Fair Use provisions fail in court and end up paying large sums of money to copyright holders, including their legal fees.

Why weren't the fears of the Fair Use Act realized? Simply put, judges know and understand the spirit of what the Fair Use provisions were intended to do: recognize that society can often benefit from the unauthorized use of copyrighted materials when the purpose of the use serves the ends of scholarship, education or an informed public.

Today, I have never read any credible criticism the the Fair Use provision of the Copyright Act, and in the 13 years that I've been a pro photographer, never have I heard anyone complain that their businesses are ruined by Fair Use, that they have lost any financial opportunity, that they have had a hard time enforcing their copyrights, or that there is a rampant misuse of images by those who hide behind Fair Use.

In fact, courts have been so "balanced" in their application of Fair Use provisions, that warnings to users about Fair Use are abundant. From Stanford University's section titled, "Disagreements Over Fair Use", there's this:

"... there is no predictable way to guarantee that your use will actually qualify as a fair use. You may believe that your use qualifies--but, if the copyright owner disagrees, you may have to resolve the dispute in a courtroom. Even if you ultimately persuade the court that your use was in fact a fair use, the expense and time involved in litigation may well outweigh any benefit of using the material in the first place."

Sound familiar? I'll come back to that in my next blog entry, to be announced soon.

My take on The Orphan Works Act of 2008

If you're a pro photographer and haven't been hiding in a cave, you've probably heard about the Orphan Works Act (OWA). Also known as H.R.5889 (the House version of the bill), and S.2913 (the Senate version). Both versions are currently in draft stages, and are similar enough to discuss as a single document.

Even if you do live in a cave, you surely must have heard the screams from protesters about the bill echo throughout your cavernous walls. In fact, a google search yields more web pages advocating protests against the bill than actual content on the bill itself. These perspectives run the gamut from utter hysteria to that of a kinder, gentler kind of hysteria.

An example of the total hysteria -- which is always coupled with loads of misinformation -- is Mark Simon's blog posting, which you can read here. This is the piece that's been passed around to photographers and other artists everywhere, by email, internet forums, faxes, and word-of-mouth. It and other emails like it, are responsible for the dispensing of more untruths and rumors that have only lead to confuse people. Yet, as our culture dictates, if you got it in email, it must be true. (Hint to dumb people: whenever you read something that is peppered with lots of exclamation points, you are reading propaganda, and are also being lied to.)

A far more sound, balanced, and informed retort to Simon's piece can be found on Meredith Patterson's blog. Unfortunately, Meredith's post doesn't really make its rounds in photo circles.

In short, just about every objection I've read about the OWA has been rife with unsubstantiated statements about how photographers will lose their copyright protections, or that people will be able to use their images for free. Yet, at no time does anyone cite text from the bill that even hints at this possibility.

And though Meredeth does a good job at dispensing with the most common misconceptions about the OWA, it doesn't talk about the stuff that really matters to artists. So that's what I'd like to do.

To begin, I'd like to do what no one else that argues about this bill typically does: actually provide a link to the bill itself so that those playing the home game can read along. I'll be citing text from it to illustrate the points that matter, so this reference point might help:

http://www.thomas.gov/cgi-bin/query/z?c110:H.R.5889:

The bill, which is surprisingly short and easy enough to read (if you don't mind long lists of comma-separated items), is broken down into several sections. Only one of which has real substance to the "uses and limitations" that is the source of everyone's consternation. I'll get to that very soon. But first the summary: the OWA intends to provide certain protections for those who use copyrighted works in certain ways, so long as the original author of the work cannot be found. Hence, the work is an "orphan." If you need more background than that, then you should do some independent research. A fantastic summary of what the problem is that is intended to be solved can be found here: http://www.copyright.gov/orphan/

Of all the objections you can find on the internet, if you exclude the unfounded and ridiculous (which is virtually everything), what's really left to discuss is the notion that publishers can potentially use a copyrighted work (like a photograph) "for free", so long as they claim that they couldn't find who the copyright holder is. This has created the fear that major publishers and broadcast television stations will crawl the internet for photos, and just use them carte blanche, and never paying license fees.

This is the part of the code alludes to this very point:

Section 2(c)(1)(B)
An order requiring the infringer to pay ... compensation for the use of the infringed work may not be made ... if the infringer is a nonprofit educational institution, library, or archives, or a public broadcasting entity...

In short, the protesters are worried that non-profits, libraries and TV stations have free reign to steal photos at will. Then the fear mongers take it one step further: that a user of the photo that isn't one of those above entities, may try to use legal maneuvering or other forms of masquerade as one, so as to ultimately steal images for commercial use (a use which normally commands an even higher license fee that the photographer will have missed out on).

Fortunately, it's not so simple. And this is why it's important to read the text of the bill. As mentioned above, the meat of the bill that applies here is Section 2, which has three headings: (a): Definitions, (b): Conditions for Eligibility, and (c), Limitations on Remedies. The quoted excerpt above is from section (c), where it lists the entities that do not have to pay compensation if they use a work that does have a copyright holder who comes forward. But, the mistake people are making is assuming these entities are automatically exempt. No, they're not. First, they must become eligible for exemption by satisfying part (b), which states that the user must have done a "Qualifying Search" to discover who the copyright holder is. And this is a rather arduous process, as you can read for yourself:

(A) REQUIREMENTS FOR QUALIFYING SEARCHES-

(i) IN GENERAL- For purposes of paragraph (1)(A)(i)(I), a search is qualifying if the infringer undertakes a diligent effort to locate the owner of the infringed copyright.

(ii) DETERMINATION OF DILIGENT EFFORT- In determining whether a search is diligent under this subparagraph, a court shall consider whether--

(I) the actions taken in performing that search are reasonable and appropriate under the facts relevant to that search, including whether the infringer took actions based on facts uncovered by the search itself;

(II) the infringer employed the applicable best practices maintained by the Register of Copyrights under subparagraph (B); and

(III) the infringer performed the search before using the work and at a time that was reasonably proximate to the commencement of the infringement.

(iii) LACK OF IDENTIFYING INFORMATION- The fact that a particular copy or phonorecord lacks identifying information pertaining to the owner of the infringed copyright is not sufficient to meet the conditions under paragraph (1)(A)(i)(I).

In other words, before anyone is eligible for limitations on damages, they must have done a search that is compliant with the methodologies listed above, and documented in such a way so as to prove to a court that the user has complied with the Act. This makes the task of "frivolously stealing an image and hiding behind the OWA" less likely of a problem. One would have to carefully weigh the cost of properly documenting a legally defensible "diligent search" against the cost of just licensing the photo in the first place. (Actually, there's more to it than this, and I'll come back to it soon.)

Of course, this also assumes that the photographer is known. And that might not be the case. Hence, the second concern is that because photos are passed around the internet like wind blowing sand in the desert, it's nearly impossible to really know where any given picture might have originated. Even honest publishers don't know whom to go to. So, could they also get away with using the photo for free? Perhaps, but they also have to assume risk: that someone would still come forward and file an infringement claim. Few want to take this risk, as I'll come back to later.

But, it's the requirement to do a "diligent search" that brings me to what I believe to be the best part of the OWA:
Section 3: DATABASE OF PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS
This section states, "The Register of Copyrights shall undertake a certification process for the establishment of an electronic database to facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection." Furthermore, the Copyright Office "shall make available to the public through the Internet a list of all electronic databases that are certified."

Read that closely: a certification process for the establishment of a database. This means that it isn't just the copyright office that has a database, but that many companies could build such a solution and apply for certification. Each would then offer services to the general public for finding copyright holders. For example, a service may provide the user with a form to upload a photo to the site, much like the way you upload photos to a photo-sharing site, and the user gets back a report detailing who the registered copyright owner of that photo is.

Sound like magic? Sound too good to be true? Sound familiar? I publicly proposed such an idea in a blog I wrote on January 21, 2008, in this blog entry, after I had privately proposed it to the Copyright Office the prior year. I make no claims that it was my idea that made its way into the bill. I am only saying that, because of its similarity to my proposal, I am familiar with the ideas and intents that it provides, and feel it does everyone a great deal of good.

My intent at the time had nothing to do with OWA or anything like it, but rather, to provide an infrastructure to verify who owns a photo for a variety of reasons. At the time, the topic du jour was the Creative Commons dilemma. Here, any anonymous person could declare any image to be "free" by placing it under a Creative Commons License, but they can do so with no registration, verification or authentication of any kind. I argued that this aspect of the CC had created a breeding ground (not to mention incentive) on both sides (photographers and licensees alike) to game the system for their own profit. To avoid this problem, Licensees need a way of verifying that a photo hasn't already been copyrighted (at least). My idea of the certification process happened to address that problem, but it can also easily address the OWA as well. (As you can see, it's part of it.).

One of the things I pointed out in my proposal, and which applies directly to why it's so great to see it in the OWA, is that the entire idea can be turned on like a light switch (well, in government time, that is). This could be done nearly the same time the OWA were to be enacted because because both the database, and the image matching/search technology already exist. Several firms, like picscout and IdeeInc, use image recognition algorithms right now: they start with a sample image, determine it's "fingerprint" (that's the algorithm), and then find where else on the internet where the photo exists. They do this by comparing this fingerprint against all the other fingerprints they've collected from the web pages their robots have been crawling for years. If the crawl is far and deep enough into the web, more matches are found. The clients of these companies are large stock agencies who pay to find infringers of their works, and then demand payments or damages.

If the OWA passes, each of these companies would just process the copyright "library" of images (just like it did when it crawled the web), fingerprint them, and then do instant comparison analysis against an input image by any given user. The only thing keeping that from happening today is access to the copyright office's database of images.

Other players in this could be Google, Yahoo and other search engines, because they already do all this as well. In fact, faster and more thoroughly, for obvious reasons. They don't make it available to the public due to certain business and legal concerns that are beyond the scope of this article, but the OWA would alleviate these legal concerns. The doors would open up to a truly public system nearly the same day the certification process would become enabled.

Of course, the one thing this relies on is photographers actually registering their works with the Copyright Office. Not doing so has always been dim-witted, but after the OWA is enacted, there's all the incentive to do so. And now that you can register online, the process is even easier than that one-page form you used to have to fill out.

What's the net effect of all this on the photo licensing industry? As I wrote in my January 2008 blog, Infringements themselves could become a thing of the past. While people could still "steal" images and publish them without the photographer's consent, they'd be taking a huge risk in doing so because if the photographer caught them (a highly likely event, given that media of all sorts is being digitized and indexed, therefore "findable"), the case in court is pretty cut and dried: "Your honor, all one needs to do is simply input the photo in the copyright office database and my name comes right up." How could a judge not find the infringer guilty? Better still, it could determine that the search is so easy, that not doing so would imply a willful infringement. By statute, "willful infringements" increase the ceiling of the damages the judge may award from $30,000 per infringement to $150,000. With that kind of risk and a sure-fire losing case in court, the number of infringements would drop considerably.

Another unexpected benefit of the copyright database: it might even generate sales. If an honest company finds your photo on a website somewhere, or it's been passed around in email, and they want to use it, just use the database to find you and license the image legitimately. Today, they'd never know it was you.

Here's another benefit: it would be harder for someone to claim someone else's images as their own--a phenomenon that's already happened everywhere from major stock photo agencies to social-networking sites like Flickr. So long as the photo's been registered with the copyright office, a simple search will usually yield the correct owner. Though this is obviously not bullet-proof, it's far superior than what's available today.

True, there will always be "orphaned works" out there, much of it not on the internet. But the provisions of the OWA's "diligent search" requirements are onerous enough, that one doesn't want to mess with offline content frivolously as well. After all, they may not be online, but they may still have been registered with the copyright office, and if the promise of the online database holds true, these offline items may end up being found as well.

Once again, this works best when works have been registered. But, what about those that haven't been? Does the OWA have sufficient teeth to address everyday people and their works, whether images or songs, or what-have-you? If the work is not registered, it won't turn up in the database search, thereby making it much hard to legitimately find the copyright holder. There are those who say that this alone makes stealing easy for publishers: because it's easy to claim that there are tens of billions of photos online, and finding the owner is like finding a needle in a haystack. But the court also knows that the OWA isn't there to protect people from litigation just because they didn't find that needle. The court is going to consider whether the publisher was looking in a haystack where every straw probably has a known, current, copyright holder in an environment that's inherently crowded with such. Judges look for "intent" by the parties, and it isn't going to be hard to see what's going on when such cases come before them.

Oh, and let's remember the pragmatic reality of how these things go in real life. If a company were to be dumb enough to try to hide behind the OWA, and they get sued by a copyright holder for infringement, the company's lawyer is going to do what every lawyer does: avoid the litigation by trying to reach a settlement. Though it's sad when innocent companies get sued on baseless claims, they still know it's always better to settle than to go to court. And those are the innocent companies. I'll bet you Bill Gates' next paycheck that a guilty party is even more eager to settle than risk going to court and losing. That would not only make them ineligible for safe harbor (even if they are a nonprofit, library or PBS station), but that the existing statutory damages would apply. This settlement is virtually assured to be a much higher price than what they would have paid had they licensed it legitimately. (A good lawyer will assure that!)

In the end, photographers are really not losing anything at all with the OWA, and I see no real concern for risk in any of the areas that has been getting all the hoopla. Granted, it's not a perfect bill, and I don't doubt there is probably language that needs cleaning up. Nor am I disputing the (currently unknown) possibility that the OWA might exacerbate infringements. But that doesn't mean they will necessarily be "successful" infringements. And, even if there is an increase, it would be a short-term anomaly, quick to subside once people become aware that the OWA doesn't protect them as they thought they would.

In my mind, the true golden nugget is Section 3 of the bill, where the public can access databases of registered works. This will have the greatest effect on providing disincentive for infringers of all types, even those that have nothing to do with the OWA.