Blown To Bits

Copyright law is a mess.

Tuesday, May 20th, 2008 by Harry Lewis

And, as Lawrence Lessig explains in today’s New York Times, Congress seems bent on making it even worse. An “orphaned” work is something that is copyrighted but whose copyright owner can’t be found. Such works can’t be reproduced, performed, or otherwise used in violation of copyright law, but it’s also difficult or impossible to obtain permission to use them since the copyright owner has died or disappeared. Because everything written, photographed, or drawn has been copyrighted automatically for the past thirty years, there are vast numbers of orphaned works, creations that are effectively lost to human culture until the copyright term, nearly a century, expires.

To “fix” the orphaned work problem, Congress proposes immunity from copyright infringement charges for those who make a “diligent effort,” defined as “reasonable and appropriate,” to locate the copyright holder. But it assigns to a bureaucracy the problem of fleshing out that standard. As Lessig explains, this will do more to foster bureaucracy than it will do to liberate orphaned works.

Lessig describes several other problems with this legislation. We would note one broader troubling aspect. The law follows a pattern seen in the past, for example with the Deleting Online Predators Act discussed in Blown to Bits. Congress has developed a habit of handing off to the executive branch of government the job of defining vague terms on which the full force of its legislation depends. The definitions are hard to get right, and require discussion and compromise over fine points of language. So Congress, in its hurry to show that its heart is in the right place, comes up with some verbiage that sounds good but is so vague as to vest vast power in unelected officials charged with implementing it. The courts may overturn such laws later, but by that time Congress has proclaimed its accomplishments, and can blame the courts for their activism and heartlessness. Rather than going to the trouble of legislating carefully, elected officials have been able to devote the full measure of their attention to the earmarks and sports videotaping investigations on they prefer to spend their time. Politically, if the members of Congress can malign the courts at the end of the process for what is really their own legislative laziness, so much the better.

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