I may have given the wrong impression with my side comment about the DMCA in my original post on orphan works — it’s important to understand that the Orphan Works issue is only tangentially related to the whole issue of fair use, agressive copyright enforcement and corporate ownership of our culture. Orphan Works is specifically about works where you would happily pay the copyright owner for a license, and the owner would gladly give permission, if only you could discover who the owner was.

For me, the reason for separating this specific problem from the more general issue of indefinite copyright extension, erosion of fair use, etc. is tactical — this is one area that could create a whole lot of good for society in terms of online libraries and the like without entering the rat’s nest of whether fair use is “stealing from the mouths of artists” and the like. I almost said “without going head-to-head with the Copyright Cartel’s moneyed interests,” but that’s not quite accurate. The big media companies still have a huge interest in limiting media that’s available to consumers to their own new releases, and it’ll be interesting to see what kind of position they take on the orphan works issue. The nice thing about limiting this particular debate to orphan works is it steals the Cartel’s biggest moral shield, namely artist’s compensation, since in fact many artists would gain from more frictionless licensing, and the few that would lose would be those who never cared enough to renew their copyrights anyway.

I actually got a glimpse of the orphan works problem from the other side just a few days ago, when I was contacted by the MIT OpenCourseWare program and asked if I would be willing to grant permission for them to use some of my material in a course they were posting online. In this case, the material was a single PowerPoint slide from a single lecture in the course. I hadn’t made the slide, but it quoted a single sentence from one of my papers and included a photo of me a friend had taken while I was still in grad school. I happily printed out the two-page license giving them the right to use the material, put it in a stamped envelope and mailed it back to them. The license file was slightly over ten times as long as the material I was licensing.

I suppose I can’t call this an orphan-works problem per say, since the slide had my name on it and it’s pretty easy to track me down online — perhaps this was just a child-lost-in-the-supermarket problem. Or in MIT’s case, a whole sea of children lost in the supermarket, each needing individual attention. (As Downward Battle points out, this is the same problem that has kept works like Eyes on the Prize out of the public eye for the past 10 years.) My heart goes out for two (and soon three) intellectual-property coordinators who are trying to dot all the i’s that make up even a single course.

And yet, though I didn’t think of it until after I sent back the forms, even I can’t be quite sure that I owned the rights to that material. It was a friend who took my photo, and we certainly didn’t talk about copyright issues at the time. More significantly, I can’t recall off the top of my head which of my papers the slide quoted from, and whether that was one of the journals or conferences that required me to sign over total ownership of the copyright to them before they’d publish. Should I have consulted my lawyer before giving MIT permission to talk about my work? I don’t have time for that kind of shenanigans, and besides, I’m a researcher — the whole point of my writing papers is so that what I’ve learned can be passed on to others.

EFF and Public Knowledge have just set up Orphan Works, an organization dedicated to finding a way out of our current mess where works may have been out of copyright for years, but there’s no way to know because nobody (including the Copyright Office) knows who to ask:

What are orphan works? Orphan works are — broadly speaking — any copyrighted works where the rights-holder is hard to find. Because the cost of finding the owner is so high, creators can’t build on orphan works, even when they’d be willing to pay to use them. In many cases the works were abandoned because they no longer produced any income. In most cases, rights holders, once found, are delighted to have their work used.

The Copyright office is asking for public comment on the orphan works problem until March 25th (you can fill out the form at orphanworks.org). Even if you’re not an artist or filmmaker or the like, this issue probably affects you more than you’d at first think. Here’s the comment I just sent in:

My story is simple, but I expect it’s a common one. I’ve been learning to play piano and I love old music. My uncle gave me a photocopy of sheet music for a 1934 parlor piece that my grandfather used to sing, I found copy of Scott Joplin’s original 1902 score for The Entertainer, and a friend who collects old music gave me a photocopy of her antique sheet music to a 19th-century music-hall song. I’ve scanned them all on my home scanner and I’d like to put them on the Web for others to download, but I’ve no way of knowing if these are actually out of copyright. Plus, copyright holders are so aggressive these days that I’m afraid even if these pieces are in the public domain someone might convince my ISP to shut down my account under the DMCA, and if that happened there’d be no good way for me to prove I was in the right. So instead, I just gave up and have kept these scans to myself. It’s just not worth the risk to share with others.

Update: Larry Lessig has some pointers on writing comments (e.g. be nice, these guys are overworked) and stories people have submitted over at eldred.cc.