GBS: Yep, That’s Chutzpah


There are many acute points, and many deliberately obtuse ones, in the plaintiffs’ supplemental brief. But this one, from page 153, is easily the most brazen:

Lastly, the ASA may incentivize interested groups and Congress to enact legislation that could enable other distributors to obtain rights to use unclaimed works. A number of objectors have argued that such legislation, rather than the ASA, is the best way to address the licensing of such works. Unfortunately, previous efforts to enact orphan works legislation have been unsuccessful, and future efforts seem, at present, no more likely to succeed. With the ASA as a model, and the desire to allow other distributors to compete with Google as an added incentive, the prospects for enactment of appropriate legislation may well be improved by approval of the ASA.


This is the type of argument I’d expect to find in a 1st year student’s Legal Writing assignment. Eric.


They have big brass ones, surely, but the horrible part is that they probably aren’t so wrong. Or to put it another way, if this doesn’t go through, do you really have any confidence that Congress will craft a better solution?


Not especially, but that’s not the question the brief is trying to argue—or that Judge Chin is charged with answering.


The “solution” is to let the terms of the copyrights expire and let the works enter the public domain. Meanwhile, allowing the rights holders to use their copyright protection to publish, reprint, revise, or withhold the works from the market as THEY choose.

I did my work and registered my copyrights so I could use my own work—which has cost me many years and several thousand dollars so far—as I choose. Not to feed the desires of search engine companies for free content for them to use to sell ads.


An interesting law school exam question would be the power that Congress has to disturb the settlement if it’s approved. I mean, my guess is that Congress can do almost whatever it wants with copyright, but I’m sure there are counter-arguments.


In australia a few years ago , the collection society Viscopy, made a submission to the government, arguing for the granting to Viscopy of a compulsory Statutory right over the resale of art.In this submission Viscopy admitted that their proposal would make life harder for young artists, they then went on to say that this would offer “unforeseen efficiency gains” , firstly it would ‘encourage artists less sure of their market potential to leave the field ’ - and secondly it would encourage the survivors to ‘work harder at establishing a commercial reputation’ , Nice no?


Lawyer representing authors and publishers should not use ugly non-words like “Firstly” and “incentivize.”


Viscopy was an initiative resulting from a boozy lunch in the late 80s attended by the then chairman of the Copyright Agency Limited (CAL) and the then Chairman Of the National Association of the Visual Arts (NAVA) as well as the then director of NAVA.

this is from the Australian 18 feb 2010

http://www.theaustralian.com.au/news/arts/copyright-staff-get-more-than-they-give-to-authors-and-artists/story-e6frg8n6-1225831556653

About $100 million, Mainly from school/ university libraries, is paid to CAL for it to distribute to authors and artists. CAL keeps about 10 million for ‘costs’, it then distributes about 9 million directly to Authors and it then passes the remaining %80 of the moneys On to publishers to ‘distribute’. It gives a good idea of the sort corporate mind set that thinks these sort of schemes are of the nature ” important benefits”


Edward regarding your blog entries about a general shiftiness of these ‘representative groups’.

The above report from the Australian newspaper, of the actual reality of CAL’s behaviour is at stark variance with CAL’s Annual report. In this annual report CAL claimed to have paid 40 million to publishers , $25 million to journalists , $20 million to academics and about 7 million to “other authors” , In truth it paid $80 million +, to publishers.


CAL operates under a statutory license granted to it by the Commonwealth of Australia. CALs key duty is : delivering the royalty to the individual right holder. CALS devolving of this duty onto to third party(s) that are not subject to the strict rules and supervision applying to Statutory license holders especially when combined with the implicit ‘tendency to mislead’ about the CAL annual report is Id guess, a rather serious matter.

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