Environmentalism has managed to win the battle for clarity—to make its points clearly enough that they ceased to be dismissed as “arcane” or technical, to overcome neglect by the media, to articulate a set of concerns that are those of any educated citizen. The other striking phenomenon of the last ten years is the migration of intellectual property issues off the law reviews or business pages and onto the front pages and the editorial pages. Blogs have been particularly influential. Widely read sites such as Slashdot and Boing-Boing have multiple postings on intellectual property issues each day; some are rants, but others are at a level of sophistication that once would have been confined to academic discussion.18

Scientists passionately debate the importance of open access to scholarly journals. Geographers and climatologists fume over access to geospatial data. The movement has been pronounced enough to generate its own reaction. The popular comics site “xkcd” has strips critical of the Digital Millennium Copyright Act,19 but also a nerdily idyllic picture of a stick figure reclining under a tree and saying, “Sometimes I just can’t get outraged over copyright law.”20 That cartoon now resides on my computer desktop. (It is under a Creative Commons license, ironically enough.)

His last book, more than 10 years ago, Software, Shamans and Spleens, and this book are sharply contrasting on this very point. Shamans is striking in its density and difficulty. I can honestly say that I have not read another book about copyright during my entire career as an attorney that was harder to understand than Software, Shamans and Spleens. It almost seemed deliberately difficult.

This book is striking in its appeal to common sensibilities and understanding, relying on common language rather than legalese or academic vocabulary that excludes the majority of potential readers. The book is anything but a yawn. I had read many of its arguments in earlier works by Boyle and others, but I still found it fascinating to see how he brought these arguments alive, gave them force and the power to ignite. The book moves effortlessly from one piece of his argument to the next, building patiently, referring to earlier points frequently enough to make them an integral part of later chapters.

In another post I wrote as I started to read the book, I indicated that I had given up on the idea that the problems with copyright could be addressed by our legislators, that the force of competition with the mass of free was more likely to move intellectual property practice (if not policy) than legal change, but that I hoped that Boyle could, well, here’s what I said:

Well, I have to say, I love this book. It is really readable, brings together many of his past writings with other authors I’ve read (many thanks to Phil), but focuses on the dire implications of our current trajectory. He is determined that the law has to change. As I’ve said many times, I’ve given up on that. I want to hope, but the underlying process seems so irretrievably lost to money, or so I believe. *** So where does [his] hope come from?

I’m going to keep reading. Maybe he explains his hope as well as he explains history, economics and philosophy.

And indeed, he does! You know, he could be just as discouraged as I am about the prospect for Congressional action, but he is convinced that the costs of inaction are far too high to give up. After reading this book, I can see pretty clearly that I tend to see things too simplistically:

Law is an impediment? Route around it.

Monopoly actually impedes progress and creativity? Competition will win out.

This stuff is way complicated. But, as I’ve tried to make clear, he makes it accessible without oversimplifying it. Most importantly, he makes a very compelling case for not giving up while we route around the law as best we can (for example, Creative Commons), while we wait for competition to prevail (for example, that openness turns profits too). He also makes a compelling case that it is possible to make a compelling case, and that we are on the way there, and that there are particular tools we can use to enhance the communication of the case to the public. The book actually has changed my mind about the futility of it all!

And small wonder. He has been working on these ideas and writing about them and studying them for 15 years (at least) and weaves together a vast quantity of knowledge, insight, perspective and conviction. A genius. And a great keynote speaker!

Ah, but then I think about Disney and the next go at term extension. 2017. Eight years from now. That’s a short time to pull it all together, isn’t it? But it’s possible…

Orphan works are those books, records, images, compositions, manuscripts, movies, screenplays, paintings and drawings — in short, any work protected by copyright — whose owner cannot be determined, located, or who does not respond when contacted. We have always had orphan works, but a number of factors have converged to turn their existence into a significant lost opportunity. In the past, who really cared? Orphan status may have been unfortunate, but for the most part, it was just what happened over time. The need to exercise the rights of the copyright owner, that is, to make copies, create derivative works, display, perform or distribute an older work publicly, beyond the rights authorized in the Copyright Act, typically did not arise. Not so today. Now, because of the drive to digitize library, archive and museum holdings, and offer access to them to as broad an audience as we can, the orphans will suffer a fate equal to death — the obscurity resulting from their inability to be “permissioned,” digitized and displayed.

As has been widely documented and reported, the vast majority of books on our shelves are still protected by copyright, but their copyright owners are unreachable. The cost of misidentifying an orphan is extremely high: a copyright owner who registered her copyright can ask a court to award up to $30,000 per innocent infringement. These extreme penalties are meant to deter infringement, but in this case, they deter activity that no one will object to in most, if not all, cases. Nevertheless, a small chance of being wrong, but a high penalty if one is wrong, makes for a risky situation. So what’s going to happen to all those orphans? The promise of renewal on the Internet dangles temptingly for them, but only very brave librarians will take this risk and digitize and display them.

And, I believe, that’s just what we have, cautiously brave librarians.

The photographers’ successful campaign to destroy the chance for effective Congressional legislation regarding orphan works, to which I referred in earlier sections, draws the line in the sand. Either those who care whether a staggeringly large part of our cultural record ever makes it off the shelves, out of the boxes and onto the Internet, are willing to step over or they are not. Enormous numbers of works give no signs of who the author is, who the publisher was or when the work was produced or distributed. If a work is published without proper notice (name of publisher and date) during certain time frames (1923 – 1989), it becomes a part of the public domain. But if it is not published, or if it is published after 1989 without an indication of who its author is, its protection is automatic and lasts for the life of the author plus 70 years in the U.S. (and longer in some countries). If you can’t determine the author, you can never know when such works enter the public domain. The obscurity we consign these works to is not a temporary condition. It is forever. The cost of doing nothing has become unacceptably high.

Without legislation reducing the enormous penalties for being wrong, there is considerable pressure to get the “reasonable search” for an owner right, so that the reasonable search becomes our insurance against catastrophe. This calls for collaboration. Librarians are beginning to build an evidence base, at first dedicated to freeing the books that are in the public domain, but not currently properly identified as such. But next in line are the orphans. The routine we engage to determine whether a work is properly copyrighted (notice) and whether the copyright was renewed as required merges imperceptibly into an inquiry into when an author died, where are his heirs, whether a publisher is out of business, where the last place of business was, and on down the line. Participants in this project will document sources of law and the factual information about each book, author and publisher, document results and publicly display the process and the findings so that others may build upon what has been learned. In the U.S., evidence about a particular book’s publisher’s disappearance identifies not just one orphan book but every book that publisher owned. When copyrights are owned by individual authors, evidence that an author left no estate or heirs identifies as orphaned every book she ever wrote. So it is important to publicly conserve this evidence and rebuild not only our public domain, but identify our orphan works. Slowly but surely, librarians will put together the evidence we need to feel confident that, even facing draconian penalties, we can reduce the risks to manageable levels.

There is additional evidence that other risk-averse institutions are also beginning to wade into these waters. Brewster Kahle, long committed to bringing public domain works to a world audience, was reported in hangingtogether.org (OCLC) to have encouraged participants at Open Content Alliance’s (OCA) annual meeting (2007) to take the next step with a pilot-project that will “start digitizing out-of-print/in copyright works, a departure from the strictly public domain digitization in the OCA to date.”

Brewster could be standing shoulder-to-shoulder with Google in relying on fair use for the digitization step, but if he plans to offer these works to a public audience, he would be going much further, perhaps claiming these works as orphans. It’s not clear from the hangingtogether.org meeting notes, but if Brewster is venturing into making orphan works available, he would be grappling with the same issue described above — establishing the contours of the reasonable search that establishes the fact of orphan status. Perhaps the project seeks permission, and in the failed attempt, determines that a work is an orphan. This will be a project to watch.

Here again, however, the sad consequence of Congressional paralysis is looming copyright irrelevance. The pronouncement by then Patent Commissioner, Bruce Lehman, that, “[w]ith no more than minor clarification and limited amendment, the Copyright Act will provide the necessary balance of protection of rights — and limitations on those rights — to promote the progress of science and the useful arts,” turned out to be dead wrong (introduction to the 1995 NIITF White Paper). In marked contrast, he confidently dismissed opponents’ concerns that turned out to be deadly accurate, among others, that fighting technology would result in massive disrespect for the law. And its ultimate irrelevance. Isn’t this too high a price to pay?