[License-discuss] Orphan Works: Summary of proposed 17 USC 514

Michael R. Bernstein michael at fandomhome.com
Sat Dec 5 21:20:24 UTC 2015

On Sat, Dec 5, 2015 at 1:33 PM, John Cowan <cowan at mercury.ccil.org> wrote:

> Michael R. Bernstein scripsit:
> >    2. Large holders and producers of copyrighted works will now be
> >    able to 'mine' orphan works for adaptation with little danger,
> >    creating new works that they can aggressively defend, and possibly
> >    will aggressively discourage others from making competing adaptations
> >    that are 'too similar'.
> Even if not, it shifts the rules of consent from "yes means yes" to
> "absence of 'no' means yes".  How safe that will be for small authors
> depends on how the courts interpret what is meant by due diligence.
> If the de facto standard is pretty slack, you could find your own out of
> print books from a few years back being treated as "orphaned" because
> you didn't see the ad in the _East Grong Grong Sheep Ranchers' Weekly_
> asking the author to write to P.O. Box 42 at once.

I would be very surprised if the defacto standard was that slack,
*precisely* because it wouldn't afford large producers of copyrighted works
an advantage. I would instead expect the standard to be one that large
corporations can routinely comply with but that independent
creators/remixers are likely to struggle with, much like the current
situation regarding clearing and licensing audio samples.

- Michael
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