A few months ago, I started work on ArmchairGM’s New York Mets entry. My own knowledge stems back only until about 1983, but as one could imagine, the Web is a treasure trove of information, including stories about the early Mets teams. A quick search yielded this result — an entry from an old Geocities site. “Dave’s Mets Page”, in fact.

It immediately occurred to me that “Dave” would be a great contributor to ArmchairGM. After all, he had written excellent historical sports content to the point where I was able to base my writing almost exclusively off his. Scrolling down on his page, I found his email address, and sent him an email. It bounced.

Dave’s page admits that it was last updated on May 15, 1999. A quick look at his yearly summaries buttresses this fact, as the last summary written is 1998. And there’s one other interesting thing on Dave’s page: a copyright notice.

So here I have:

• Content I want to use
• An author who I can’t (easily) locate
• A clear indicator that the content is unavailable without permission.

That last bullet is, legally, meaningless, but anecdotally important. Web culture wrongly tends to assume that, in absence of a copyright notice or the equivalent, all content is available so long as due attribution is given. In this case, even that assumption is clearly false. Unless I have the author’s permission, I cannot use the content. And getting permission is, at best, difficult, as the author’s email address is inactive. (As it turns out, I probably could track the guy down. But let's assume he had a more common last name; say, like, “Lewis.”)

The side effect of all this? Even if I were willing to pay for rights, I cannot, because there is no one to which I can write the check. In a very real sense, the content is held captive by an absent rights-owner, and the cost of me either (a) tracking down the rights-owner or (b) ignoring his rights and re-publishing in violation thereof probably exceed the value of the content altogether. Per a press release from Senator Pat Leahy, "Potential users of orphan works often fail to display or use such works out of concern that they may be found liable for statutory damages, amounting to as much as $150,000."

If you find this silly, rest assured you are not alone. In 2005-06, the U.S. Copyright Office studied the issue — called “orphan works” — and released its report in early 2006. Since then? A whole lot of nothing. A few bills and hearings in Congress, but no final action. Senator Leahy introduced his bill only last months, so there is some hope there, but call me skeptical regarding its odds of passage.

Even if it does pass, it only solves half the problem — that is, it removes liability from those who use “orphan” works and the rights-holder appears, but it does not remove the burdensome cost of seeking out the rights-holder. Indeed, the bill would require the republisher to “perform and document a good faith – but ultimately unsuccessful – search for the owner of the copyright in the work being used prior to such use.” And even then, “[i]f the owner later emerges and provides notice of infringement to the user, the user must negotiate reasonable compensation in good faith and render any such compensation agreed upon in a timely fashion.” Basically:

• I spend time finding some content I want to use
• I can’t locate the author easily, so
• I have to spend time and/or money to locate the author or risk significant statutory damages, and
• If the author emerges, the author has significant negotiating leverage that he’d not have held if he were easily locatable in the first place.

Wow! The words “perverse incentives” pop into mind. So do the words “not really a solution, Senator Leahy.”

A Better Idea: The Duty to Maintain

In the digital age, with content available over the Web, why put all the burden on the subsequent user of the content? Instead, let’s shift the burden on the rights-holder to, in the very least, maintain his content and/or contact information. Here are my givens and, therefore, the rubric for the idea:

• It is unreasonable to require that the author divulge his or her identity or contact information in order to receive copyright in the work

I would be surprised if there is anything controversial about that. Necessarily, the author would need to reveal his or her identity in order to enforce the rights associated with the work, but that’s a distinct question.

The corollary to that given is that a work is not considered an orphan merely because it, in the words of Leahy’s bill, “lacks identifying information pertaining to its owner[.]” That seems self-evident; otherwise, anything anonymous or even accidentally unsigned would be immediately available for republication. In short, without this tenet, copyright is eviscerated to a meaningful degree in many cases where it should not.

• If the author is unknown or unreachable, a certain amount of time must pass before the work is to be considered an orphan.

To a large degree, that is a restatement of the bullet item preceding. Using my Mets history example, though, here’s a distinction — let’s say that today were May 30, 1999, and I sent the same email to the same juno.com email address, and, again, the email bounced. The author is unreachable, sure, but he worked on the content in question (or some related content thereto) just 15 days prior. Would it be acceptable for me to declare the work and orphan and republish it? Hardly.

In the context of blogging, this point is even more meaningful. Imagine an anonymous blogger who posts once every three days. He goes on vacation for two weeks. His last post should, by no means, become succeptible to re-use as an orphan. On the other hand, say he stops blogging for two years. Different result? I think so. Similarly, apply the same logic to a known-but-unreachable blogger — in the case of a two week vacation, it’s unfair to claim that the work is an orphan, but in the case of a two year hiatus, it’s fair game.

That seems right to me. The conclusion, then: If an author is unknown and/or unreachable, and he fails to maintain his work, his works are considered orphans, and thereby are available for use by third parties without prior permission.

And, per the problem that Senator Leahy’s bill aims to address, those works should be available for use by third parties. Maintenance can be something as simple as writing an occasional blog post or, in the case of Dave’s Mets Page, changing the date to say “Last updated January 1, 2008?, or something like that. (In this case, pleas bear in mind that I am really only discussing compilations of Web-based content, such as blogs and other continually growing websites. It’d be more difficult, by leaps and bounds, to continually “maintain” a photograph, for example.) Or even more simply? Make sure you, the author, provide an easy and reliable way for others to contact you. You know, like keeping your email address current.

The question then becomes: How do we effectively put the burden on the rights-holder? My solution: a time-lapse Creative Commons license. For the first n months of unmaintained, anonymous work, the copyright holder would retain all rights. Another n months after that, the content becomes available via a non-commercial, no derivative works (NC-ND) license. And another n months after that, the content becomes available under a pure attribution license — basically, a link back. Perfectly tailored for the Web, as the default way to give attribution is via a hyperlink back to the source of the content. And for our purposes, it meets the initial goal, by shifting the burden onto the original author and not onto the subsequent user.

Could this be done legislatively? Probably, although the details would be murky and, again, I am skeptical that Congress will ever act on Leahy’s proposal, let alone my admittedly more controversial one. I would not consider Congressional action to be a realistic goal here, or, for that matter, in regard to copyright reform in any meaningful sense.

However, this rubric could be achieved socially. Already, many authors choose, of their own accord, to use “copyleft” licenses such as the Creative Commons menu or the GNU Free Documentation License (used by Wikipedia, for famous example). I believe that many authors who do not subscribe to the copyleft dogma would find the time-lapse Creative Commons licensing scheme less controversial, as so long as they maintain either (a) the content itself or (b) their contact information, the copyleft scheme will never come into play. As the risk of losing rights to one’s work only comes from sloth, it would be very hard for an author to socially defend their refusal to adopt this time-lapse license. In short, what appears controversial legislatively should be less so socially — and an effective solution to Web-based orphaned works.

Sure, there are details that need resolution, such as how the hypothetical license would define “maintain,” but those definitions are more for edge cases than the core problem set caused by orphan works. One hopes that the eventual solution for orphan works will include a duty on behalf of the rights-holder to maintain their work — or allow for licensing which permits re-use.

Dan Lewis is an graduate of the Benjamin N. Cardozo School of Law and of Tufts University. He is a co-founder of ArmchairGM.com and now works at Wikia.