"Loot the Orphan Works Bill"

This is an email conversation (posted with permission) I had with a good friend, a fellow Artist and someone I consider a mentor - Mike Segal, regarding the Orphan Works Bill, and his response I felt needed to be shared...
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The Orphan Works Bill is blatantly unconstitutional. Here is the fifth amendment to the US Constitution:

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U.S. Constitution: Fifth Amendment

Fifth Amendment - Rights of Persons

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
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What this amendment is saying is that no one, including the government can take your property without just compensation. Congress may pass all the laws it wishes, however, if the law is unconstitutional, as in my view, this law obviously is, then the law does not stand. An artist's art work is their property, that has been well established in common law for hundreds of years. Even if there were no copyright laws at all, common law would protect the artist's property rights.

If someone uses your art work they must compensate you, it does not matter what congress says. If congress passes a law that is unconstitutional, it gives the courts the opportunity to fine tune how that law will be enforced, or it may throw it out all together. Meanwhile, any institution or individual who pirates an artist's work thinking that they are protected by this new Orphan Works Bill, will be unpleasantly surprised when after the courts knock the law down, they will have to compensate the artist.

Let’s look at some of the stupid crap in this bill that would not hold up in court due to the vagueness and unworkability. These would be knocked down without even needing a constitutional argument, my comments are in red.

In particular the draft bill:

• Makes it legal for anyone desiring to use a copyrighted work for any purpose to go ahead and use it without a license if they have made "good faith, reasonably diligent search" to locate the copyright owner.

A fifth grader could make an effective argument showing that the so called “good faith, reasonably diligent search” was actually half ass with no intention at finding the copyright owner in order to steal the work.

A really good lawyer would have a field day, easily proving that the thief did very little to find the person. The court would say that this language is not sufficient to make certain a reasonable search was made, and they would knock down the law for that reason.

• Use of such an "orphaned work" is free, unless the copyright owner comes forward. But even in that case the copyright owner can only claim (or sue to claim) the normal license fee, but not any additional damages or attorney's fees--even if the work had a registered copyright.

Once again we see sloppy logic leaving out the main operative concern, that is, the thief must also give up any money they gained from the use of the work due to the fact that the work was the property of the artist.

Otherwise it would be an invitation to steal whatever copyrighted work one wanted, use it to make a ton of money and then when you get caught, pay the artist a small user fee. This provision would make the entire copyright law useless, and therefore, the court would knock it down. The stupid thief who pirated the copyrighted work would have to pay damages because the law will be knocked down and not available as a defense.

• And even if the copyright owner discovers the violation, if the user is not making commercial use of the image, then there is no recourse and no compensation.

Commercial use when? Never? And what is the definition of commercial use? If they used a copyrighted image on their letterhead, or splash page, or on a business card or any of a thousand other uses, it could easily be proven that it was a commercial use even though they did not receive immediate compensation as the image was used for promotional purposes to further their ability to earn money.

The fact that they placed the image in free circulation and that it may have been copied and used by others due to this action would give the copyrighted artist grounds to sue for damages.

I am sure Disney would have every lawyer on their payroll after someone who used an old Disney image and then the pirate claimed they could not find who made it and they just sent it out as an email logo to friends. Micky does not have a sense of humor when he gets screwed.

So do not worry, this is election year pandering. Let the stupid congress pass all the idiot laws they wish, this law will be knocked down by the courts for many reasons besides, and as well as, the fifth amendment which is bigger than they are.