Eric,

What the States Attorneys General suggest regarding the applicability of “abandoned property laws” in this situation makes no sense to me and shows they don’t have a clue as to how copyright law works, or what federal preemption means. As Gene noted, ever since the 1989 Berne Convention was adopted by the U.S., copyright exists the minute the author creates the work. The author owns the work, plain and simple, and controls the exclusive rights in the work, including the right to doing nothing with the work. The States can’t simply ignore the right of the author (or their heirs) to do noting to exercise exclusive rights in the copyrighted work. In fact, 17 USC 201(e) suggests that any such attempt at “involuntary transer” by the State, such as treating the copyright as “abandoned property” where there has been no voluntary transfer of the work by the author is prohibited by federal law.

The SAG’s position that the “States have sovereign immunity and cannot be subject to a federal court’s order” is completely nonsensical. First, the 11th Amendment that is asserted only applies to actions for damages against the States, nothing else. Also, 17 USC 301 already preempts the State’s ability to create rights the same or similar to federal copyright makes it clear which law will prevail, and that is federal law. If the States’ view on “abandoned property” is in conflict with the federal copyright statutes, the States will lose under either 17 USC 301, or the general doctrine of federal preemption.

It sounds like you are heading down the path of compulsory licensing. There already is compulsory licensing in one way, namely statutory damages. The trouble is that the argument is that it is just to difficult to find out who are the owners of the orphan works, so they want them to be taken and given to Google. If it is to difficult to find out who owns them why then wouldn’t it also be to difficult to find out who payment is owed to? There are owners of abandoned works, and it seems like for the public good what is being said is that since it is to much work their rights are forfeited and transferred to Google, who will then do what they want and won’t pay the owners because it is to hard to find out who they are. Sounds like an egregious taking to me.

-Gene

I think it is absurd to talk about “abandoned” property. The copyright laws grant the owner the right to exploit or not exploit. Although exceptionally watered down, a copyright is still a form of exclusive right, which means the owners have the right to exclude and no affirmative right to do anything. If this or any other court takes rights away based on them being abandoned that would substantially alter copyright law and effectively allow corporations to wrestle away unused rights. That would fundamentally change the nature of a copyright and that would be unwise in my opinion.

-Gene

Interestingly, the State Attorneys General who objected to the Agreement argue that State abandoned property laws should determine who gets to control orphan works. What do you think of this angle? For more, see: http://go-to-hellman.blogspot.com/2009/09/in-which-judge-denny-chin-becomes.html