Round Two in the Carolina's

Frustrated by a generic response from Senator Graham, J. Anderson cut to the heart of the matter with the text below and still hasn't received a response.

Dear Senator Graham,

Thank you for your correspondence of 21 May 2008 in response to my initial contact regarding the Shawn Bentley Orphan Works legislation.

The problem is not about what this bill does, though, rather, what it does not do. This bill in essence seeks to LIMIT recourse and restitution to artists. Surely you acknowledge that artists are not a very highly paid profession. By limiting the restitution and recourse available to them, this legislation in essence wrenches control over their work and places it firmly in the hands of corporate America and the legal establishment.

Since there is no solid definition of what is "fair and reasonable" , the legal establishment now gets to define what we are entitled to - and that just goes against some of the fundamental principles of what this country was founded on.

Furthermore, the legislation really has no place under federal code as it fails to define what is an orphaned work properly. For example, consider the following scenario:

You take a picture of your child at her birthday party. You then share that picture with family and friends via online venues such as Flickr or Shutterfly. Along comes image scraping software which pilfers the image anonymously, strips out meta data and collects it into a database of what are now "orphan works". This database is then crawled by Google and is discoverable in a simple search for "pictures of kids". A commercial entity now comes along and performs a search for the artist. None is immediately found so they are protected for having performed the search. This image is now eligible for use as an orphaned work. YOUR CHILD'S PICTURE CAN NOW BE USED COMMERCIALLY, BOTH WITHOUT YOUR CONSENT, AND WITHOUT ANY LEGAL REMEDY FOR YOU!!! Whether the use is for selling soda, AIDS awareness or Nike shoes, you can no longer collect damages! How would you feel as a parent if you had no recourse? How humiliating would it be to one day open the US News and World Report to see your child's face being displayed next to an ad for condoms? Please keep that in mind when considering this legislation.

Another scenario that does not help artists is that even in the case of an infringement, the infringer is permitted to continue use after paying a "reasonable fee". With the prevalence of stock and microstock agencies, that fee could be as little as a dollar! Please consider artists needs if it comes time to vote on this legislation.

There are so many ways this legislation is bad and so few ways that it is good. When the cons outweigh the pros, it's time to abandon the bill and start over. Please vote AGAINST the Shawn Bentley Orphan Works Act if this ever makes it out of committee - you will be doing your constituency a great disservice if you don't!

Sincerely,

J. Anderson