Dan Heller is one of the most authoritative US commentators on the photo business. Always erudite and considered, what he has to say is always worth reading. However I can't help that feel he has gone off piste with 'My take on the Orphan Rights Act of 2008.'
To an extent Dan is correct that a lot of FUD is flying around the net, which he labels hysteria, but it's not all hysteria and it's not all baseless. It seems to me he barely touches on what are the real dangers of this Bill.
Much of the debate surrounding Orphan Works hinges on how common orphans are or are not.
Advocates of the legislation maintain that they need a 'right' to use photos that cannot be traced, which evokes a vision of frustrated, hardworking librarians and acadenics struggling and failing to find the copyright holder of works of cultural value. Don't worry, they say, stop the FUD, read the Bill, it will not harm anyone.
On the other hand, what alarms photographers is that digtal images are reproduced endlessly, carelessly and easily, and more often than not all traces of ownership are removed. Nobody has counted the number of orphans out on the web, because nobody can, but we have the sense that the vast majority of images 'out there' are difficult or impossible to trace back to their owners.
So here's a litmus test, and it's one that anyone can repeat. Go to Google images, and try and find out whether it's possible to find out who owns copyright of any arbitrary photos, and whether they are contactable.
Just because we're paranoid doesn't mean that they aren't out to get us. Anyone who has any lurking rational doubts about the ambitions of corporates to pervert copyright toward their own ends needs to look toward the bigger picture as a reality check. Copyright law is under intensive revision to deal with the internet age around the world, and the US is determined to establish lebensraum.
The ASMP is broadly and reluctantly in support of the OWA2008 House version of the Bill, as the best deal that can be got, according to their update at http://www.asmp.org/news/spec2008/orphan_update.php But whether or not they are correct that if this is opposed something worse will follow, the ASMP's points need critical examination: