Wydenism in the UK: "Wydening" the Loopholes...

"'there is NO standard of what constitutes a good-faith or diligent search'. Well it would be for a court to decide and given Berne they'd have to have a damn good reason on newish data."

So every time someone wants to use any digitized or digital work, all anyone need do is claim that they conducted a "good-faith and diligent search and that it is - we promise, guv, really - an "orphan work", and wait until, firstly, the rights-holder finds out about it (and of course to do this, the rights-holder must spend time, money, and effort constantly scouring the internet for instances of his work or works being fraudulently listed as "orphaned"), then wait 'till the rights-holder spends the time and money to start a lawsuit, and then wait - possibly for years - until that lawsuit is adjudicated.

I.e. having created something and obtained a copyright, the creator must now spend the rest of his life having to defend his right to be protected by that copyright. He needs to keep heaven only knows whom constantly apprised and informed of his whereabouts and ways to contact him. And he must be prepared to legally contest any number of fraudulent (or even mistaken) "orphan declarations" in who knows how many jurisdictions - a task that would quickly bankrupt most copyright holders. In the end this would only play into the hands of Google and its allied parasites.

In fact, it is easy to imagine Google or similar thieves setting up (many) entities with the specific task of declaring works to be "orphans" - and applying this to both as large a number of works as possible, and to any given work as many times as possible, because they have nothing to lose, and eventually, most copyright holders will have to choose between going bankrupt or surrendering their rights to any number of avaricious and dishonest entities. And of course if the rights-holder does not find out about and can not contest, or is not informed (either intentionally or by oversight) of just one such "orphan declaration" then he loses his rights. So once again, this can only work to the detriment of the copyright holder and in favor of the tech companies and allied parasites.

From an American perspective, the "Enterprise and Regulatory Reform Bill" can be seen as a manifestation of "Wydenism", a phenomenon named after Sen Ron Wyden (Fascist-OR), and which describes any legislation aimed at depriving vast numbers of people of legal and property rights for the benefit of a very small number of very wealthy corporations and the very wealthy people who own those corporations or significant blocks of shares in them. Wydenism, which as the preceding sentence clearly shows, is a form of fascism, often uses the tactic of erecting new barriers that make the enforcement of property and legal rights even cumbersome, burdensome,and onerous than they already are, so that even more people will voluntarily surrender their rights due to the new barriers that the Wydenist wants to erect to complicate the procedures for obtaining legal relief.

Or to put it slightly differently, Wydenism seeks to "widen" the loopholes in the law that allow the tech oligarchs to get their filthy paws on other people's property, labor, effort, livelihoods, and lives.

Addendum: Re: Wydenism in the UK: "Wydening" the Loopholes...

I neglected to mention that Wydenism can also include legislative measures that curtail the (in the USA specifically) First Amendment rights (freedom of speech, freedom of association) and other civil rights of anyone criticizing tech companies as written in the IRFA, a bill which Wyden has sponsored:

IRFA would make it a violation of the Sherman Act for “any copyright owners of sound recordings acting jointly, or any common agent or collective representing such copyright owners, to take any action that would prohibit, interfere with, or impede direct licensing.”

http://thetrichordist.com/2012/11/29/congressional-research-service-memo-on-constitutionality-of-irfa-section-5/ :

The following is an excerpt from a memo by the Congressional Research Service on The Constitutionality of IRFA Section 5:

"David Lowery, writing for the Thetrichordist.com, has argued that “Section 5 of IRFA is perhaps the most pernicious part of the bill, for it would make it illegal for anyone to criticize digital sound recording licensees. If IRFA becomes law, artists and artist organizations will need to watch what they say in public in opposition to [certain licensees’]direct licensing efforts.” It seems that Lowery takes issue with the use of the words ”any action” that would ”prohibit, interfere with, or impede ”negotiations.

He argues that these terms are too broad and could apply even to those who would criticize licensees for attempting to negotiate direct licenses with copyright owners. Another concern cited by Lowery in opposition to Section 5 is the ambiguity inherent in the language “any copyright owners acting jointly.”

This language does not necessarily seem to be limited to large member-based royalty collection organizations like SoundExchange. It may be broad enough to encompass, for example,the members of an individual band, who might be considered to be individual copyright owners, acting jointly. Under this broad reading of the language, an argument could be made that a band, posting its criticisms of direct licensing negotiations between a licensee and a copyright owner, would betaking an action that would interfere with a direct licensing negotiation, thereby violating Section 5.

Though this hypothetical presents a broad interpretation of the language of Section 5, it is not an implausible one. It is possible that the language may be broad enough to cover a blog post by a band expressing their opinion regarding contract negotiations between a licensee and a copyright owner. Nonetheless, it seems unlikely that, in practice, Section 5 would impinge upon First Amendment rights" (Emphasis added.)

Again, that long citation is from the Congressional Research Service Memo on the Constitutionality of IRFA Section 5.

Sadly, the Congressional Research Service neglects to say exactly *why* Section 5 would be "unlikely in practice to impinge on First Amendment rights". Because, considering the amount of money at stake, and the ease with which these large and wealthy companies could subject any critics to crushing lawsuits and their crushing expenses, and the fact that the bill PERMITS legal action against any speech that "interferes" with their business - I think that the bill's "impingement on First Amendment rights" would be "guaranteed".

@streaky Re: How many of those orphan works will actually be of value?

"There's a reason the bill includes measures for orphaned works, they're orphaned - nobody owns them. If you owned it you'd be able to enforce copyright. Think about it. There's massive libraries of data that effectively nobody owns that can't be used because the owners are untraceable. These are orphaned works."

You do not have a good grasp of the issue. Example: first you assert that a work is orphaned because nobody owns it, and then you assert that the work is orphaned because the owner can't be found.

Your first assertion is wrong: a work which no one owns is in the public domain and anyone can use it for anything and need not pay anyone, or ask anyone permissions, etc etc.

But the idea that no one "effectively" owns particular "massive libraries of data" because the owners are untraceable does not at this point in time have any bearing on the matter. Even though the owner of this or that "massive library of data" (and who the fuck knows what such a bullshit euphemism stands for, anyway) might be untraceable for a prospective user, the "untraceable" owner STILL has the right to take action against the user should he find out about it. At this point in time that is the situation. It is the new Wydenist laws proposed in the UK that will change this, so that "being untraceable" - or, more importantly, being declared "untraceable" even if fraudulently or mistakenly - means that your work can be stolen by anyone who wants to take it.

@Peter Simpson 1

"These are the same media companies who are whining that non-commercial file sharing on bittorrent deprives them of revenue, correct?"

Are they?

Re: Wydenism in the UK: "Wydening" the Loopholes...

How is your horse doing?

Don't have a horse for everyday transport? You use a car? Do you keep to below 4mph (2mph in cities) and have a man with a red flag/lamp walking in front to warn others?

You don't?

But in driving a car you've enabled tech oligarchs to get their filthy paws on other peoples livlihoods and lives, and effected their property and labor and effort (which is labor).

BTW, since when is 'effort' rewardable?

And your argument is based on one premise - that you just 'saying' you did a dilligent search is good enough. Whatcha going to do when they say 'prove it'? At which point you're straight back to regular old 'infringing'.

Your outrage is based on a misreading of the law, expressed in a Daily Mail style outpouring of moral indignation.

@Peter Simpson 1

"'These are the same media companies who are whining that non-commercial file sharing on bittorrent deprives them of revenue, correct? I dunno, seems like they're proposing one set of rules for them and another set for the 'consumers'".

I can't make out your point here. Could you explain it please?

@David W: Re: @Turtle Addendum: Wydenism in the UK: "Wydening" the Loopholes...

Did you read my post?

If you read my post, did you notice that there was a long excerpt from the Congressional Research Service specifically addressing David Lowery's contention that Wyden's "Internet Radio Fairness Act" abridged the First Amendment rights of anyone who criticized direct licensing agreements?

If you DID notice such a section, did you actually read it?

If you actually read it, did you notice that the conclusion of the Congressional Research Service was?

Evidently not.

Let me put it here on the off-chance that maybe this time you will actually read it: "David Lowery, writing for the Thetrichordist.com, has argued that “Section 5 of IRFA is perhaps the most pernicious part of the bill, for it would make it illegal for anyone to criticize digital sound recording licensees. [...] Though this hypothetical presents a broad interpretation of the language of Section 5, it is not an implausible one. It is possible that the language may be broad enough to cover a blog post by a band expressing their opinion regarding contract negotiations between a licensee and a copyright owner.

Let me paste part of your post: "There are plenty of ways for big companies to manipulate the legal system to their advantage and use it to financially attack their opponents. This isn't one of them, and wasting your breath screaming about it only prevents you from defending against the real lines of attack." So not only is your understanding of the law better than that of the Congressional Research Service since, after all, the only people who would use that service are the actual people who write and pass laws for the whole nation - but your understanding of the law surpasses that of the people who run the multi-billion dollar corporations for whom Wyden works, and the armies of lawyers who advise them. And your understanding surpasses theirs to such a degree that you can safely say that, in having their hireling Wyden advance this bill, they have chosen a course of action which is such a trifle that it does not even deserve your attention.

If this is not a "real line of attack" ,what the fuck WOULD be? If this is not a "real line of attack" then nothing could be a "real line of attack".

You know, I can understand you thinking that you know better than me, because after all I am just a commenter here on this site. That's exactly why I cited the opinion of the Congressional Research Service. But that you think that you are smarter than congressional researchers, incredibly successful business moguls and the swarms of lawyers that they retain, then yours is a pathological case.

Oddly - and you might find this hard to believe - some people would think that an attack on the First Amendment by a US Senator meant to stifle criticism of multi-billion dollar corporations, even if doomed to ultimate failure, is a serious matter. You, for some reason, do not.

I don't think that I have ever come across anyone like you before. Luckily, people with your kind of, errrr..., "outlook" are not too common. It would be funny - and altogether appropriate - if someone were to find a photo of you, declare it an "orphan work" and then use it to make a poster advertising the Special Olympics.

@Andrew Norton: Re: Wydenism in the UK: "Wydening" the Loopholes...

Thanks for the incoherent reply. If you want to express your thoughts in a coherent manner, do not let me prevent you.

The only statement that makes sense is "since when is 'effort' rewardable?"

The matter here is not that people should or should be rewarded, but that their efforts as invested in the works that the Wydenists want to deprive of legal protection, should not be stolen. See the difference? People may or may not deserve to be rewarded for their efforts, but they should certainly be protected against having their efforts as embodied in the works they produce stolen.

Re: Hmmm

No point. The metadata will be stripped automatically.

Mail Online do it as do other newspapers.

Instant orphan works.

Re: Hmmm

Don't worry. The first thing the place you upload your pictures to will do is strip all the metadata for you. Wouldn't want that getting out onto the web would we? might contain private information you see.

Re: Hmmm

Although if this does go through, stripping metadata becomes a clear act of deliberate copyright infringement.

Somebody should be able to make that stick.

Re: Hmmm

Jeez.

Maybe I'll print my email address onto transparancy and tape that over the lens of my phone, so all my pictures are "watermarked"...

Re: Hmmm

Adding EXIF data to your jpegs won't help, when most media organisations have a policy of stripping all metadata on publication.

Plus - you can't read the EXIF data from a paper magazine!

Re: Re: Hmmm

"Maybe I'll print my email address onto transparancy and tape that over the lens of my phone, so all my pictures are "watermarked"..."

Someone copies your watermarked file and crops out the watermark. Tada! it's orphaned! Along comes MegaCorp, finds the cropped photo and suddenly your holiday photos are advertising yoghurt for incontinents. If you want to take someone to court for it, you'll probably find that you have to hunt down someone on the other side of the world, with a different legal system, because the megacorp who profited from using your photo in an advert didn't do the cropping.

Re: Hmmm

There's always stenography - make your watermark invisible. I'm not sure how robust it can be as far as recompression or scaling of the image goes, but it might do the job - you don't need to store your biography in there, just enough data to show you're you and knew what you were doing.

Re: Hmmm Water-Steg

A Sharp phone I bought in Tokyo in 2004, and other phones I've seen in Korea in 2012, will let users add painted-on-like info to the photo. Now, if the site to which the photo is uploaded dares to remove THAT, and dares to try to justify it by saying some sh*t such as "viewers of your photos do not want to be distracted by textual copyright info...", I'd say really, REALLY run over such an asshole with a steam roller. If viewers can read text and crayon-like text describing the location, time of day, and feelings, then the image can carry "copyright/full-attribution/no-sales or resales/no 3rd-party-collection-use" info.

If only the damned phones in the USA came with such watermarking AND steganographic software BY DEFAULT, rather than for free, users could be taught their inalienable right to not have their copyright stolen from them. But, then, fb, instagram, and all number of other sites would scream murder and end the world -- or the lives of those such as us who decry their greed for free photos they intend to monetize without permission and without compensation.

Hobbyists who misappropriate works without attribution get slammed in courts, and depending on the medium, get ungodly fines. Corporations do it, and most of them could expect to get off free, even if the work they use is the next undiscovered Ansel Adams photo. Stripping the metadata makes it nearly impossible for the specific originator of a photo to be found or compensated, even if out of 985 claimants only 1 or two have originals that are exact vantage/shooting point matches.

Engineers and others are taught to be clear, concise, accurate, honest, and more, such as citing their sources, with their work and notes, in the name of preserving the integrity in and the respect for their respective fields. Marketers and boards of directors, driven by profits, seem to not value such admonitions.

And, now, fecal-skinned politicos and lobbyists advocating the analogous wild west on IP against individuals by claiming orphaned works, it is almost akin to declaring war on the inventor. This should be smacked down harder and more painfully than any fake wresting *appears* to look.

What nerve.

Re: Hmmm

"Somebody should be able to make that stick."

Some highly paid lawyer, probably. The amount of money *you* would see would be insignificant and probably not worth all the pain.

Contrast that with the ability of large media corps to field teams of legal wranglers and you see the problem.

Their copyrighted works are valuable and will be defended from infringement at all costs -- yours?

Not so much..

Re: I don't think this is about copyright at all, it's simpler than that.

Facebook photos tend to be blurry snaps from drunken nights out. Instagram photos are taken by people who view themselves as artists and as such they care more about their copyright than most.

That Facebook had these policies from day one is beside the point. Facebook and Instangram target different demographics, although I admit their is probably some overlap.

Re: I don't think this is about copyright at all, it's simpler than that.

That Facebook had these policies from day one is beside the point. Facebook and Instangram target different demographics, although I admit their is probably some overlap.

I don't agree: it's entirely the point. Whatever terms and conditions, whatever demographic, whatever userbase Instagram *used to* have, is gone - it's all Facebook now. Whether you like it or not.

Also remember Facebook's primary agenda here - to boost their signed-up user base. THAT is what is worth money to them, THAT is why they've done this (bought Instagram).

The fact they offer a service to you or anyone else is not their primary objective, it's just the icing to attract a viable enough user base.

You are not the customer, you are the product. While that statement may not be absolute, but it most certainly leans that way.

Re: I don't think this is about copyright at all, it's simpler than that.

Your original point was that "I don't believe that copyright is the reason why people are abandoning Instagram".

Facebook are now trying to enforce their standard T&Cs (the ones that appropriate the copyright of uploaded works) against Instagram users. Instagram users are leaving en masse. That to me is a fairly clear indication that this is about copyright. The fact that Facebook users were happy about these T&Cs on Facebook is beside the point in regard to Instagram.

@heyrick: The Instagram Expropriation Fiasco

"It seems to me that it isn't so much a matter of copyright so much as 1, somebody else profiting from your work (I wonder how many would stay if they were offered a slice of the action), and 2, the work may be used in a way or for a cause that the creator disagrees with. Thankfully the creators have copyright on their side..."

See, the thing is, that what is used to prevent others from profiting from your work, and what is used to prevent your work being used in ways that you don't want, is... copyright. And you seem to know that, too.

So your statement that the Instagram Expropriation Fiasco isn't a matter of copyright is mistaken. And if it wasn't for copyright, Instagram could just take your work. And in fact, *anyone* could just take your work no matter what Instagram said about it. "Copyright" is the reason why Instagram had to ask at all.

So your post is very puzzling.

Re: 3 things

Thanks for the link. Though I don't think their case is helped by using the same kind of language we get from the likes of the RIAA, regarding copyrights as being some god-given human right (as opposed to a state granted temporary monopoly - so the idea that the state might take that away shouldn't be inherently dangerous).

Indeed, if this law was about orphaned music, and the opposition website went on about the livelihoods of artists, I can't help thinking the stance from people here would be rather different...

I guess there is the point that it seems geared towards favouring businesses, and seems rather a two-faced stance given this originally appearing in the DRA, which tried to enforce copyright law more strictly, again to favour businesses. But beyond that, is there a reason why people who generally favour relaxed copyrights should oppose this bill?

(My experience is that photographers often have much more pro-copyright views than say geeks.)

@Mark .: Re: 3 things

"Though I don't think their case is helped by using the same kind of language we get from the likes of the RIAA, regarding copyrights as being some god-given human right (as opposed to a state granted temporary monopoly - so the idea that the state might take that away shouldn't be inherently dangerous)."

As long as we understand that your right to get paid for your labor, to enjoy and dispose of your property (because the state will enforce your right to monopolize the use of your house, car, etc), all your legal rights, in fact, are granted by the state and not "god-given human rights". And therefore, as you so eloquently put it, " the idea that the state might take that away shouldn't be inherently dangerous".

Have an armband.