Lawrence Lessig, the Stanford Law professor best known as a leading figure of the 'free culture' movement and an originator of Creative Commons licensing, has today published an article criticisiing the US Orphan Rights Act 2008 as 'unfair and unwise'.

Lessig's stance will surprise many who expect him to unconditionally support all attempts to liberalise copyright in favour of cultural use, but his views are consistent. In 2006 when there was a previous attempt to legislate he pointed out that the proposed right to use orphan works "puts an especially unfair burden on foreign and unpublished copyright holders. In my view, photographers and other existing copyright holders are right to be outraged at the proposal. Hiding under the cover of “reasonably diligent search,” much of their work will be — unfairly — threatened.'"

Lessig's position hasn't changed, and his NYT article of today covers the same ground despite the new Bills being significantly different from the 2006 version:

The solution before Congress, however, is both unfair and unwise. The bill would excuse copyright infringers from significant damages if they can prove that they made a “diligent effort” to find the copyright owner. A “diligent effort” is defined as one that is “reasonable and appropriate,” as determined by a set of “best practices” maintained by the government.

But precisely what must be done by either the “infringer” or the copyright owner seeking to avoid infringement is not specified upfront. The bill instead would have us rely on a class of copyright experts who would advise or be employed by libraries. These experts would encourage copyright infringement by assuring that the costs of infringement are not too great. The bill makes no distinction between old and new works, or between foreign and domestic works. All work, whether old or new, whether created in America or Ukraine, is governed by the same slippery standard.

The proposed change is unfair because since 1978, the law has told creators that there was nothing they needed to do to protect their copyright. Many have relied on that promise. Likewise, the change is unfair to foreign copyright holders, who have little notice of arcane changes in Copyright Office procedures, and who will now find their copyrights vulnerable to willful infringement by Americans.

More at the NYT.