Amid the rampant digital piracy our community is experiencing we often lose sight of the physical CD piracy that continues to effect our community. This week A2IM wrote to the California State Senate in support of the proposed SB 550 (Padilla) legislation which is directed toward reducing the manufacturing of counterfeit CD’s in California, which counterfeited CD’s are distributed across the United States. Our letter is here.
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A2IM previously messaged our community about the Combating Online Infringement and Counterfeits Act (S.3804) when it was originally drafted and we want to make sure you’ve seen the news that it has passed the Senate Judiciary Committee UNANIMOUSLY! There is still a long road ahead to get this bill to pass the full Senate and then have it presented to the House and hopefully get it passed into law but this Senate Judiciary Committee vote was a big step in the right direction for the creators community. You can read Senate Judiciary Chairman Patrick Leahy’s full remarks HERE.
We continue to urge our community to SPEAK UP regarding the value of music and all creative content and to let our elected officials know that we are independent local businesses that provide jobs and support creators and that we need our government’s support to help combat the decimation of our business and the value of music.
The call to action we sent to you all on September 23, 2010 has moved us forward to a Senate vote this Thursday, see below! If you have not yet written your legislators please do it now!!!
Bill Targeting Rogue Pirate Sites up for Vote Thursday
Make your voice heard today!
Dear Copyright Advocates,
As promised, we seek to keep you updated with news from Capitol Hill that affects your rights as an artist or creator. Read on to find out more about a new bill that is targeting rogue pirate sites. And take this opportunity to make your voice heard!
On Thursday, September 30th, the U.S. Senate Judiciary Committee is expected to vote on legislation that will target web sites that profit from infringing music, movies, books, images, software, and other creative works. These websites don’t give a dime to artists. The legislation is called ”Combating Online Infringement and Counterfeits Act” or S-3804. It is sponsored by 16 Democratic and Republican senators and its chief sponsor is Senate Judiciary Committee Chairman Patrick Leahy (D-VT).
Our online world is now polluted with professional, legitimate-seeming sites that offer a wide array of artistic works for free and are supported by ads sold on the sites. Sometimes these sites even charge subscription fees for access to creative works. NOT A DIME OF THAT MONEY ever reaches the artists who create the work, such as an independent filmmaker we blogged about recently or another independent filmmaker profiled today in The Los Angeles Times. These sites profit from theft, pure and simple.
The legislation would encourage online ad brokers, online payment processors (such as credit card companies) and ISPs to cut off the income flow that feeds this piracy. As comic book author and illustrator Colleen Doran said in her Creators Across America video, “These sites wouldn’t be around if not for the dough.”
A growing number of artists are banding together to support this legislation. Colleen has used her blog to promote the legislation (here and here). In addition, a coalition of artists has put together an online petition you can use to let your elected representatives know how important it is to keep rogue web sites from profiting from your work. As the petition notes: “The theft of copyrighted works like photography, music, movies, books, software and games is a devastating problem… This rampant theft inhibits the ability of American businesses to invest and innovate — and stifles the capacity of American artists and creators to earn a living, support their families, and invest in their own creative development.”
You might also want to let Senator Leahy know you appreciate the hard work he and his colleagues are doing on behalf of artists.
We’ll keep all of you informed as this legislative effort continues.
Director of Outreach
In June we wrote you to ask you to speak out to your elected officials about how online infringements have hurt your livelihood and over 16,000 emails reached Congress members from all parts of our country imploring them to support America’s creator community. We’ve heard that this was one of the most effective grassroots letter writing campaigns ever.
Well, it’s time to speak up again.
This week a bipartisan group of Senators introduced legislation that would give the Justice Department an expedited process for cracking down on rogue websites that are dedicated to making unauthorized copies of music available including the many foreign sites that have to date been outside our reach. The Justice Department would target the most egregious pirate websites, go to a federal court with the evidence, and then seize the domain name. Once a site has been seized, the Court would issue an order to intermediaries — such as ISPs, payment processors, Internet registries and registrars, advertisers, etc. — prohibiting them from doing business with such rogue sites.
Please click HERE to send an e-mail to your Senators and Representative and ask that they support this unprecedented legislation. It’s quick and easy – just enter your home address and click “send.”
We’re asking that you participate but that you also please forward this to everyone you work with, to your friends, artists, producers…we all need to seize this opportunity to be heard and support this legislation. Post it on your website, your Facebook and Myspace page, Tweet it…let’s be heard.
CNET called this bill, “one of the most ambitious attempts yet from the U.S. government to fight online piracy” and observed that “if the bill passes, it could mark the most significant antipiracy victory for the film and music industries in quite a while.”
So frequently, A2IM hears from members – middle class independent businesses from across our nation – asking how to combat this damaging distribution of their music. Too often when the infringing site is based outside of the U.S. there is next to nothing that can be done. This legislation would help address this problem.
You can be sure that the vocal support of our community – independent business people trying to make a living while protecting and creating jobs – is crucial to this effort. While A2IM’s independent music label members are actively evolving our business models embracing technology and maximizing the opportunities the Internet provides to market our artists, we also know there are sites that solely seek to drive the value of music to zero. We need the support of our government and stronger laws to prevent that from happening. Given the state of the manufacturing and service industries in the U.S. it has never been more important that our government supports and protects the creators of intellectual property and those that invest in that creation.
Thank you for your support.
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A2IM Position on the Proposed Orphan Works Legislation in the United States
Senator Patrick Leahy (D-VT) introduced the Shawn Bentley Orphan Works Act of 2008 (S. 2913) in the Senate (authored by Senator Leahy and Senator Orrin Hatch (R-UT), and named after the former Senate Judiciary Committee staff counsel. Congressman Howard Berman (D-CA) introduced the Orphan Works Act of 2008 (H.R. 5889) in the House, authored by Congressman Berman and Congressman Lamar Smith (R-TX). Both bills were introduced on April 24, 2008. This document outlines A2IM’s position on these important bills.
What is an “Orphan Work”?
Most of our members have encountered in their business what are now called “orphan works”. They have typically found a way around the problem that respected copyright without need of legislation.
Under the Orphan Works Legislation, an “orphan work” is defined in the negative—a work is “orphaned” when an “infringer” can’t find the copyright owner after a “good faith” and “reasonably diligent” search for same in accordance with “best practices” that have yet to be established for this law. (“Infringer” is what the new user is called in the bills.)
If the infringer conducts that search but cannot find the owner, the infringer is free to use any work in any manner for any purpose. Under the Senate bill, the infringer doesn’t have to notify anyone that they have used the infringed work. The House bill does have a notice requirement—but the notice goes to a non-public archive in the Copyright Office that only has to be disclosed to the copyright owner if the copyright owner sues the infringer. We get the decided impression that even that is likely to come out of the bill in the coming days or weeks.
The infringer is free to use any work—without regard to nationality of the copyright owner, or whether a comparable use in the copyright owner’s country would violate that country’s laws.
The infringer is free to use any work in any manner—there are no restrictions on how a particular work may be used. One of our members recordings could end up in a motion picture—of any rating—a political advertisement or other commercial, or in a mashup that will alter the sound quality and characteristics of the original recording beyond recognition.
The infringer is free to use any work in any manner for any purpose—the infringer could use a recording in a way that would violate marketing restrictions in the copyright owners recording, license or distribution agreement with the artist, giving the infringer even greater rights than the copyright owner herself could have. So even if the copyright owner found the infringer, approving the use might put the copyright owner in breach of their own rights agreement with the artist depending on what use was made by the infringer.
And if the original recording was made under a collective bargaining agreement—such as the Phonograph Record Labor Agreement of the American Federation of Musicians or the Sound Recordings Code of the American Federation of Radio and Television Artists, there may well be residual payments owed and trust fund payments almost certainly owed as well as pension, health and welfare contributions. None of these would be paid by the infringer—unless they are found.
The record company will very likely still have the obligation to make these payments under the union agreement—even if a court were to determine that the residuals were not “reasonable compensation”.
But since the Congress does not require the infringer to notify anyone of the infringement, even though the infringer has relief from statutory damages and payment of legal fees if they did the search in a “good faith” and “reasonably diligent” manner, how would the copyright owner ever know the infringement has occurred?
The current orphan works controversy began officially in 2005 when the U.S. Copyright Office began preparing the Orphan Works Report. Before its introduction a few weeks ago, the concept of the legislation had been largely messaged as a change in the U.S. Copyright Act designed to assist museums and libraries to better utilize their archives—a noncommercial emphasis. Since its introduction, the interests involved have taken a decidedly commercial turn, which has caused A2IM to reconsider the effect of the Orphan Works Legislation on our members.
The Orphan Works Legislation is also moving at “light speed” through the Congress. It has passed both the Subcommittee on the Courts, the Internet and Intellectual Property of the House of Representatives as well as the Senate Judiciary Committee—all in less than a month.
If the infringer begins exploiting the orphaned work and the copyright owner finds the infringer, the copyright owner can try negotiating with the infringer, but if no deal can be made, the copyright owner has no choice but to sue the infringer.
However, the only time that the copyright owner can get back the remedy of statutory damages is if the copyright owner sues the infringer and can prove in the lawsuit that the infringer did not conduct a good faith reasonable search in accordance with best practices.
The copyright owner will have the right to sue for “reasonable compensation” as determined in the lawsuit, and the court is supposed to take into account comparable licenses when determining reasonable compensation. Even so, nothing in the statute requires the infringer to pay the copyright owner’s legal fees, so it seems predictable that the infringing use will have to be significantly in excess of the anticipated legal fees or there must be almost perfect evidence that the infringer did not conduct a proper search in order to get an attorney to take the case on a contingency. Since it is nearly impossible to determine how the search was conducted or if one was even made without filing a lawsuit, the statute creates perverse incentives.
The Orphan Works Legislation requires that copyright owners in each sector of the creative community come together to determine what the “best practices” should be for a “reasonably diligent search”.
This includes not only record companies and music publishers, but also illustrators, motion pictures, television, visual art, choreography, graphic arts just to name a few. All these groups are supposed to decide what “best practices” should be in their industry, and then deliver these standards to the Copyright Office who is supposed to make them available online. No timetable or process for this determination is in the statute. Perhaps more importantly—no funding for the time involved in setting these standards is in the bills either.
And of course within each sector there are competing interests—we would not want RIAA making our decisions and in fairness RIAA would not want A2IM making theirs. Setting these “best practices” is a tremendous productivity loss for A2IM. We would have to stop dealing with our business and the business of our members to help to develop standards for a statute we did not want, do not need, and have not budgeted the resources to address.
It is important to note that there is nothing in the Orphan Works Legislation that limits who can make these important decisions regarding best practices. We could find ourselves at the table in a government mandated standard setting process with corporations and other organizations that are not in our industry and do not understand our business—and worse yet, may actually be interested in the outcome of these processes because these corporations and organizations either want to use orphan works themselves or want to develop a search capability to profit from the proposed law. If A2IM does not appear at these meetings, our members bear the significant risk of having these important standards set without them.
It is also important to realize that the House bill as currently drafted has the law potentially going into effect on January 1, 2009 regardless of whether the “best practices” have been agreed to by then.
A2IM’s Positions on Orphan Works
The positions that A2IM has taken on the Orphan Works Legislation come down to simple fairness in a statute clearly designed to benefit online companies, museums, libraries and some users.
If a museum, which is a 501 (c) (3) not-for-profit or a library want to use works for which they cannot find the copyright owner after putting their organization’s reputation on the line by claiming to have searched hard for that owner, then A2IM has no problem encouraging noncommercial and largely cultural or archival activities by these known entities. If the Guggenheim Museum, for example, wants to offer a retrospective on world music, we understand. If the for-profit Corporation X Museum that was started last week and only exists online suddenly has the need for featuring “orphan” works that others may link to, we would not support that kind of activity.
We believe that anyone seeking to take advantage of the Orphan Works Legislation and its safe harbor from statutory damages should be required to begin their search with a “commercial copy” of the work—the actual physical copy authorized by the copyright owner for sale, not a copy found on an Internet P2P site. This is to prevent infringers from downloading illegal copies of our members’sound recordings and trying to create something legal from something that is illegal.
Most importantly, however, is that the commercial copy of the work is likely to contain some references to the copyright owner, the artist, the songwriter, the music publisher, the performance rights society affiliation—some hard data that at some point was gathered and created for release to the public in commerce by the copyright owner. If the Congress required an infringer to start with a commercial copy of the sound recording, there would be a much greater level of transparency and many fewer “false negatives” in search results.
Mandatory Use of Existing Identification Systems
Any orphan works statute should mandate that infringers be subject to minimum search requirements such as utilizing systems already in place in an industry that the industry uses for the identification of works.
In our business this would involve searching for the title of the work and the names of the artist, songwriter, music publisher and PRO via all available information sources. This would include Copyright Office registrations, UPC codes, International Standard Recording Codes, ASCAP, BMI, and SESAC databases, record company catalogs and catalog numbers, distributor names, etc. Very often in the independent business legal lines may give the impression that a distributor or distributing label is the copyright owner, but the actual copyright owner is outside the US or has been acquired and is not out of business.
Most artists do not want their work associated with certain kinds of uses—political advertising, tobacco or alcohol products, pharmaceuticals, personal hygiene products, motion pictures with a rating indicating there may be objectionable material in the film, games with a violent theme. We all know the list because these are marketing restrictions that are frequently agreed by record companies so that our artists feel that their work and sensibilities are respected.
Plus, independent labels frequently distribute or license content from copyright owners outside of the United States. This provides the livelihood for a number of our members. Those agreements will customarily prohibit anything even remotely like an orphan work permission.
It should be very easy for the Congress to agree that some uses of orphan works would be restricted because the Congress has refused to require infringers to include artists in the standard of “reasonably diligent search”. If an artist search cannot be included in the search for the copyright owner, then the artist should at least be afforded some base line level of restriction on how their performances can be used.
Legal Fees for Copyright Owners:
As smaller independent labels will likely need to engage counsel as they typically do not have in-house counsel the denying of a recovery of legal fees is unduly harsh and will preclude smaller copyright owners from enforcing their rights. Notice of Infringing Use A2IM believes that it is only common fairness that an infringer is required to file a notice of use with the Copyright Office and that the filing be made public. The Copyright Office maintains a database where transfers of copyright and other documents are filed that are not copyright registrations, but just relate to copyrights regardless of whether the works are actually registered for copyright. The Copyright Office is required by law to maintain this database and has done so for decades. It would be very simple to require the infringer to file a notice of use in this database. While there would be a cost to file for the user of the copyright, the user would be paying no copyright cost, if a valid search was done, so there should be a more than offsetting savings. This would give the copyright owner a location to search for infringements on their copyrights.
However, the Congress has consistently rejected any obligation on the part of the infringer to require this simple notice. A2IM believes that failing to require notice of the infringement is at odds with the stated purpose of the Orphan Works Legislation—helping owners and users connect.