Day 141: Codified but Denied: The Reality of Orphan Works
- mainemoviepirate
- Jun 3
- 3 min read
Actual Entry - 11/10/21 - WED -
Got a little sleep, going to dive into the Prof. Lessig email today with a concise email, and a direct question. Drafted it up, but I'm going to read it through and maybe get someone else to read it before I send it. Send in the AM (EARLY).
Had an interesting convo (or listened to mostly) with K.P and J.K. on how to fix America. I find myself agreeing with both of them on certain things.
LUNCH: HAMBURGERS (1 in reserve), Roll, tater tots.
Worked on the OW, section 108 of the appeal. I talked myself out of it several times, but I still think it overall fits. I'm going to finish it up and push it on to Steve. He must have OW in the Appeal, must.
Commissary day due to the holiday.
SUPPER: Nasty nachos, ate some.
Didn't do much after supper. Napped, ate, slept more. Read the BDN. Don't have much else in me. Going to re-read Prof. Lessig email and send it.
Hung out and read State of FEAR, pretty chill night.
[Bottom of page]
You're in my Seat - it was rumored to be Elf but when I went down it was a DANIEL CRAIG BOND, DAVE BAUTISTA WAS THE VILLAIN.
Four Years Later -
I believe this was the last email I sent to Prof. Lessig. We had been corresponding for a while, but once he stopped responding, I stopped sending them. I am thinking about contacting him again, though, specifically regarding the proposed NO FAKES Act (S.4591). Working on this journal has made me realize that my transformation into a copyright reform activist actually began eleven years ago when this case was first brought against me. I didn’t refuse to plead guilty just to avoid prison; I refused because I had a fundamental disagreement with their interpretation of criminal copyright law and how it relates to the Fair Use of Orphan Works. In my view, the prosecution's stance was basically an aggressive enhancement of an already overly restrictive law. The NO FAKES Act is yet another one of these enhancements, and it needs to be widely debated—not just rubber-stamped into law.
This brings me back to Section 108. I was hustling to finish my paper so I could get it to my lawyer before my direct appeal, even though, at the time, I didn’t fully understand the strict rules about what an appeal could and couldn’t cover. But I did understand this: at trial, the court gave the jury an overly simplistic explanation of Fair Use and pretty much nullified my defense by instructing them that "Orphan Works as a concept is not recognized by US Law."
Section 108 proves that isn’t true. I will be posting my original paper once we reach the day I completed it in the journal.
I realize now that, technically, the exact phrase "Orphan Works" isn’t written in the copyright code. But the concept is absolutely codified in Section 108. If my lawyer had brought in a true copyright expert to testify to that fact, the trial outcome—at least on the copyright charges—might have been very different. Additionally, Congress has acknowledged the Orphan Works problem twice—and failed to fix it twice. If that legislative history had been properly explained to the jury by the judge (instead of him just muttering about it under his breath, out of the jury's earshot), the "willfulness" aspect of the charges would almost certainly have had a different outcome.
More to come on these subjects... you can count on it.
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