Digital Orphans: The Massive Cultural Black Hole On Our Horizon
from the wake-up dept
Imagine you are a researcher in 2050, researching the history of the Black Lives Matter movement. But you've stumbled across a problem: almost every Tweet, post, video or photograph with the hashtag #BlackLivesMatter that you want to use in your work is an orphan work (i.e., works whose owners are impossible to track down, but are still covered by copyright). You'd like to ask permission but all you've got to go on are usernames from defunct accounts. Where do you go from here?Last week, the Copyright Office accepted responses to its Report on Orphan Works and Mass Digitization. (Full disclosure, I represented the Internet Archive in this proceeding, but all views here are my own). But that Report has no answers for our hypothetical researcher; it doesn't once mention or consider the question of what we are going to do about the billions of orphan works that are being "born digital" every day.
Instead, the Copyright Office proposes to "solve" the orphan works problem with legislation that would impose substantial burdens on users that would only work for one or two works at any given time. And because that system is so onerous, the Report also proposes a separate licensing regime to support so-called "mass digitization," while simultaneously admitting that this regime would not really be appropriate for orphans (because there's no one left to claim the licensing fees). These proposals have been resoundingly criticized for many valid reasons.
Another reason to add to the pile is that it is exclusively focused on analog orphans -- books, photographs and other materials in physical formats gathering dust in small local library collections or arcane institutional collections. These materials are culturally important, and scholars have shown that many have fallen into a 20th-Century digital black hole. But the black hole that could engulf digital orphans is poised to be ultramassive in comparison.
Each day, billions of photos are uploaded to platforms like Instagram, Facebook, Snapchat, Flickr and What's App. Similarly, 400 hours of video per minute are uploaded to YouTube alone. While some professionals use these platforms commercially to exploit their creative work, the vast majority of today's copyright owners probably don't even know what copyright is. They are simply documenting and sharing their lives. Look, for example, to the rise in popularity of social video sharing services such as SocialCam, Vid.me, Periscope, and Meerkat.
Most of the content online today is created by amateurs. Much of it is also created anonymously or pseudonymously, with no real name attached to the account. And the vast majority of users of these platforms are under 35. To make matters worse, as new services become popular, users will inevitably move on, leaving their accounts inactive. What will become of the photos, blog posts, videos and other content that is posted online every day -- much of it being created by teenagers with no interest or expectation of commercial exploitation -- that will be left behind on these platforms? Copyright law will protect those works for 70 years after these prolific teenagers die.
We are looking down the barrel of a serious crisis in terms of society's ability to access much of the culture that is being produced and shared online today. As many of these born-digital works become separated from their owners, perhaps because users move on to newer and cooler platforms, or because the users never wanted their real identity associated with this stuff in the first place, we will soon have billions upon billions of digital orphans on our hands. If those orphans survive the various indignities that await them -- host platforms going under, being deleted for more server space -- we are going to need a way to think about digital orphans. They clearly will not need to be digitized so the Copyright Office's mass digitization proposal would not apply. However, the public deserves access to the cultural heritage being amassed on digital platforms.
It might be easy to dismiss these concerns, to say that there's little social value in much of the content being created by amateurs. But I suspect researchers and historians of the future will beg to differ.
New technologies have already allowed us to develop whole new systems of communication that have no non-digital equivalent, no physical record: hashtags, emoji, reaction .gifs, LoLcats, just to name a few. Remember the Occupy Movement? And the "we are the 99%" meme? People often told their personal economic stories by holding up a handwritten sign in a photograph that would be posted to Twitter or Tumblr. Any understanding of the consequences of the economic collapse of the late 2000s would be incomplete without this digital context.
The means for creating extremely rich records of our daily lives are everywhere. People are voluntarily and enthusiastically documenting big events and small moments. Technology platforms are now places of record, although they are not necessarily designed as such. Our very way of knowing about ourselves as a society will be shaped by the sorts of access we will have to these digital records, not only of major political events like elections, but also of everyday life.
We need to start thinking about these digital orphans today, before we have a culture crisis on our hands. Perhaps this should be our call to rethink the broken policies that created the orphan works problem in the first place: extremely long terms and lack of formalities. Perhaps we could pass legislation that would establish a safe harbor for those who rely in good faith on rights information available in the Copyright Office's registration database. Perhaps fair use will evolve to allow full public access to orphans.
Of course any solution will also have to manage the significant privacy issues that will pervade these works as well, but that's a problem for another article. But anything as burdensome as the Copyright Office's current proposal will be woefully inadequate to handle the staggering numbers of born-digital orphans in the future.
Lila Bailey is a copyright attorney practicing in the Bay Area. She also teaches Internet Law at Berkeley Law.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, history, orphan works, research, social media
Reader Comments
Subscribe: RSS
View by: Time | Thread
Public weigh-in
[ link to this | view in chronology ]
Re: Public weigh-in
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
Congratulations on making yourself feel superior while simultaneously completely missing the point of the article.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
You could just as well argue that copyright puts all fixed works in the public domain. I know YOU would never acknowledge that, but I think it's a fair point.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
That's not true. For unpublished works, courts of equity recognized a right of first publication. Unpublished works weren't copyrighted, but they were protected against copying and distribution by others. The 1976 Copyright Act changed this: Now even unpublished works are copyrighted, and since they're copyrighted, they fall into the public domain once the copyright expires. So, thanks to copyright, many works that never would have entered the public domain will now do so.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
He'd never acknowledge it because it's not true. You have it backwards, as ever.
All cultural works belong in the public domain by default. Copyright is a mechanism by which the public agrees to forego those rights for a limited period of time, in order to help the artist profit and encourage the creation of further works. Following that time, the works revert back to the public, where all of human culture ultimately belongs.
The problem is now, corporations and their deluded sycophants are creating a system in which the latter never happens, thus copyright robs culture from the public domain. Without copyright, everything is in the public domain.
[ link to this | view in chronology ]
So if in the future you do manage to track down the person that uploaded a picture, they'll likely have no copyright interest in the photo, and of course have no clue where it came from (it's likely the image they found was also infringing).
It's a hot mess and we won't have to wait until 2050 before it's a problem. It's already a problem in 2015.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
another, perhaps even bigger, problem
In the case of YouTube, perhaps the biggest destroyer of abandoned accounts might be bogus DMCA notices. Since there is no "orphan" account owner available to dispute the copyright infringement accusations (most notices being spewed out by automated crawling programs, but occasionally sheer maliciousness) the charges stick and by law, "repeat" infringers must be "terminated." It's hard to imagine that any large Youtube library that exists today won't get hit by at least a few bogus DMCAs by 2050, and the more controversial the subject matter, the greater the number.
So maybe it won't be as big of a problem as expected to hunt down the owners of today's orphan works in 2050, when few orphaned works online can be expected to survive decades of constant bombardment by DMCA takedown bots -- or practically anyone who would prefer that the content didn't exist.
[ link to this | view in chronology ]
Not defending the legislation, but it might not be *quite* as dire as presented.
[ link to this | view in chronology ]
Digital Orphans Are a Massive Problem
However, as this article points out, this will be a major problem for projects that may blur the lines between pure academic research and commercial ventures though. Many documentary videos have already had to change their plans due to copyright questions, for example.
[ link to this | view in chronology ]
Re: Digital Orphans Are a Massive Problem
[ link to this | view in chronology ]
Re: Re: Digital Orphans Are a Massive Problem
NSA maybe.
[ link to this | view in chronology ]
There may be a small amount that feel they should be entitled to a copyright, and should thus declare ahead of time the copyright (in detail?). And it should be a process that takes effort to go through (registering your twitter account - for example - as a copyright protected item with the copyright office) to prevent people just blanket protecting every last instagram of their lunch.
[ link to this | view in chronology ]
Re:
Personally, I think having the initial protection be automatic is actually a good thing. With that said, there is a middle ground of making that initial protection very short and requiring formalities for any longer term.
Lessig discusses both the history and the idea of returning to an opt-in / formalities-required system in his book Free Culture.
[ link to this | view in chronology ]
Lost memories
[ link to this | view in chronology ]
Average people can be insanely creative and artistic. There's a lot worth preserving if for no other reason that nostalgia. However, the truth about our history often doesn't reveal itself for a number of years. Without documentation, our history becomes maluable, liquid, a matter of perception rather than fact. This is already happening to a minor degree compared to what could happen in a few years.
Maybe someone else knows more about this, but it seems like there are few avenues to opt out of copyrights and patents while still preserving the works so that no one else can claim them, like a corporation later on. It's a very one sided system and for the most part, average people are not considered.
It's not just the system but people too. A lot of younger kids have a maximalist reaction to copyrights and patents expecting them to cover EVERYTHING. They grew up with the idea that fair use was a rare exception. I've had discussions trying to explain why a 4 ingredent cake reciepe could not be copyrighted, "brainwashed".
Long story short. This era might be considered the dark ages for a number of reasons.
[ link to this | view in chronology ]
You didn't link to your response on behalf of the Internet Archive, but I'm curious: Did you mention or consider the rights of these billions of people to NOT have their works appropriated down the road?
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
I love the way you transposed works into people during your silly attempt to distract.
[ link to this | view in chronology ]
Re: Re:
I should have said billions of people making billions of works. Is that not accurate? My point is that she is worried about others being able to appropriate stuff which is not theirs, but I'm curious if she's worried about the people who don't want their stuff appropriated.
[ link to this | view in chronology ]
Re: Re: Re:
Barely, but it depends on how you define "works". There's approximately 3 billion using the internet regularly at the minute, but nowhere near all of them use things like social media. So, if you include things like Facebook photos and tweets as "works", your statement might be technically true but only barely.
That doesn't matter so much, I was just commenting on what appeared to be a deliberate attempt to change the focus of the conversation. I apologise if that was a genuine mistake.
"I'm curious if she's worried about the people who don't want their stuff appropriated."
Define "appropriated" and "down the road" in your original comment, because you're still not being clear.
I can't speak for the author, but I'm sure that it depends on your point a of view. For example - nobody cares whether or not Samuel Pepys wanted his diary to be deciphered and published. He may have wished it kept private and never released outside his estate. But, it has been and its value to historians is priceless even if the man himself would have been horrified to find how many people have examined its contents and would have wished to stop them from doing so (which, in fact, he did - at least if the level of effort he put into obfuscation is anything to go by).
To a historian, the value of a document is greater than the whims of whoever created it at a particular moment. So, depending on how you define those terms, she may well not be worried about those people. If you want to define the terms in more recent timescales and from a professional/monetary point of view, the opinion may be different.
[ link to this | view in chronology ]
First and foremost, the issue of anonymous posters. Most sites that accept submissions / contributions / posts generally have some sort of "you grant us shared copyright / you grant us unrestricted license including resale" or similar for every post made. That means that there are corporate co-copyright holders out there for almost every piece of work made, and they are directly in the position to continue to disseminate, distribution, publish, and or re-license almost every work they get.
Second, I think you also have to consider the throw away nature of much of the "content" that is made. It's about on par with kids in the 70s making doodles in back of their school exercise books or writing a really bad personal journal. Except in very rare circumstances (such as they become really famous for doodling), most of this "culture" isn't really important, nor would it's loss be significant in cultural terms.
Third, with all of the backup systems, scraper bots, wayback machines, and so on, much of the transient "culture" of the internet has already been saved.
The truth is much of the "culture" being shared online today won't be worth a pinch of dust even 10 years from now, let alone 70. Calling mindless self indulgent scribbles and collections of selfies culture doesn't make them any more relevant they are - which is effectively not at all. It's not aging well.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
That could be a possible way out, though I believe it's more often an unrestricted license than assignment of copyright (is shared copyright even a thing?). It doesn't help if it's just as hard to locate who currently holds the copyright (license) bucket for all of the archived twitter posts, 20 years after twitter no longer exists.
As various stories on TechDirt have pointed out, it's hard enough to track down copyright holders today - see https://www.techdirt.com/articles/20100302/0127108353.shtml, for one.
The problem is that you can't tell the difference TODAY what won't be worth a pinch of dust, and what will be important and/or priceless. More to the point, the cultural value in a work may have no relation to its economic value, and the cultural value in a single work may have little relation to the cultural value of that same work in a body of work of its time. For example, a single #Occupy tweet is of nearly no worth, but an #Occupy movement is a cultural phenomenon likely to be worth future study.
So the content may be saved, but how much does that matter if copyright renders it inaccessible for fear of being dragged to court? For a starting film-maker documenting (for example) the #Occupy movement, including the content of hundreds of tweets could result in liability for hundreds of lawsuits! Free use barely matters at that point, since each use would have to be defended separately unless the laws change drastically.
[ link to this | view in chronology ]
Re:
Some don't, some allow you to pick the licence and most do so without affecting your own rights - that is, you retain your own rights even if you give the site permission to use the works as well.
"Second, I think you also have to consider the throw away nature of much of the "content" that is made"
You're right, the number of bad "professionally" written novels, horribly cliched art, vapid and insipid chart-topping music and badly made movies that somehow manage to be successes at the box office are utter trash. History would be better off without them.
Oh, you didn't mean that? OK, who is the arbiter of what's valuable enough to protect and what should be destroyed for eternity?
"Third, with all of the backup systems, scraper bots, wayback machines, and so on, much of the transient "culture" of the internet has already been saved."
In violation of the laws that cause this situation in the first place, of course, and which the likes of yourself regularly support being enforced to the degree where none of this is possible.
"The truth is much of the "culture" being shared online today won't be worth a pinch of dust even 10 years from now, let alone 70"
Same goes for much of the stuff produced in the 1910s as well. But, barring things like loss to fire and flood and the unstable nature of some of the storage format used, we can still access that culture.
"Calling mindless self indulgent scribbles and collections of selfies culture"
It's telling that this is what you're basing your argument on, whereas the people actually making the argument are generally looking at more obviously valuable culture.
Even then, there's historical value in looking at what people were doing in the culture of 2015, even if it's something like a selfie craze. The arbiter of its value will be the person looking at it 150 years from now as we would look at the fads of the Victorian era, as frivolous and pointless as they would have seemed to the the people living then. Some of the most fascinating things about history, from the cradle of civilisation to what was happening in the 1950s are related to the mundane, the throwaway, the trivialities of daily life of the people who lived in the era.
So, as usual, you cherry pick some random subjective "points" and pretend that no other opinion matters. You're as bad as ever at this.
[ link to this | view in chronology ]
Re: Re:
"Some don't, some allow you to pick the licence and most do so without affecting your own rights - that is, you retain your own rights even if you give the site permission to use the works as well."
Posting an image on twitter or instagram grants them a fairly wide ranging license. If you drop dead tomorrow (perish the thought) and nobody in your family decides to maintain the rights to your online presence, there are still rights holders who could distribute your work without requiring any additional license or permission.
The result is culture (or whatever it may be) that is not lost, not orphaned.
"Same goes for much of the stuff produced in the 1910s as well. But, barring things like loss to fire and flood and the unstable nature of some of the storage format used, we can still access that culture."
What percentage of mails, flyers, postings, church handouts, and the like do you think we really have access to (or care to have) from that period? For all that was created in that time, we have access to a very small amount that has been retained. Today's digital world means we already have way more "culture" in formats that generally won't be lost. The actual volume of it all makes it very likely that most of it won't be considered relevant or important. It's just reality, not sure why you have a problem with a simple concept.
"So, as usual, you cherry pick some random subjective "points" and pretend that no other opinion matters. You're as bad as ever at this."
"It's telling that this is what you're basing your argument on, whereas the people actually making the argument are generally looking at more obviously valuable culture."
define valuable. For someone researching second hand sales in the early 21st century, Craiglist listings might be valuable. By trying to limit things to works you consider valuable, you in effect limit culture to your preferences. Is that really fair?
All you have is personal attacks? Shame, your post is a waste of culture!
[ link to this | view in chronology ]
Re: Re: Re:
But they can't give anyone else permission to use them. Thus, orphaned.
[ link to this | view in chronology ]
Re: Re: Re:
Well, for historical purposes it doesn't matter what the author had in mind. It never has, and contemporary trivialities can be mportant in understanding the overall context of an era.
As for substantial - again, who's the arbiter of what "counts" and what doesn't?
"The result is culture (or whatever it may be) that is not lost, not orphaned."
For a while. But, Twitter have been blocking 3rd party tools and messages often never leave Twitter. What happens when Twitter no longer exists?
"For all that was created in that time, we have access to a very small amount that has been retained."
This is true. But, what remains is still potentially valuable, even the trivial stuff.
"Today's digital world means we already have way more "culture" in formats that generally won't be lost."
As far as you know. Physical media degrades, file formats become obsolete and things like DRM are applied to deliberately make them harder to access. We've already lost more digital data than you care to think of, probably because you can't see the world past what interests you personally.
"The actual volume of it all makes it very likely that most of it won't be considered relevant or important."
Most of what we have from other periods isn't either. But, a contemporary at the time might not understand what's valuable to us now and what's not.
It's just reality, not sure why you have a problem with a simple concept.
"By trying to limit things to works you consider valuable, you in effect limit culture to your preferences. Is that really fair?"
You seem to be confused. I've advocated no limits, you're the one trying to argue that some should not be collected since it doesn't matter. Are you actually losing sight of whatever you were trying to argue? or did you think I was arguing something else because I happened to agree that some is more valuable than others (while never advocating that the less valuable should not be gathered, of course).
"All you have is personal attacks?"
Cherry picking again while ingoring the overall points I'm trying to convey. All while retaining the smug delusion that you're somehow making better ones? Typical.
[ link to this | view in chronology ]
Re:
One of those terms shares copyright and the other does not. I suspect that the majority of terms of service (every one I've ever bothered reading) grants a license, not copyright interest.
most of this "culture" isn't really important, nor would it's loss be significant in cultural terms.
Almost all of it could be insignificant and still leave us with billions of valuable orphan works.
Third, with all of the backup systems, scraper bots, wayback machines, and so on, much of the transient "culture" of the internet has already been saved.
How much is acceptable loss?
Calling mindless self indulgent scribbles and collections of selfies culture doesn't make them any more relevant they are - which is effectively not at all. It's not aging well.
I imagine every generation says that about what the younger generation are doing.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Something as simple as updating copyright law so that "registered works" receive the current copyright protections, and "unregistered works" (i.e. the stuff most likely to become orphaned works) receives shorter protection (such as 5-10 years), then enter the public domain unless registered during that period would take care of much of it. The big media companies' stuff stays locked up, and things no one is even trying to monetize enters the public domain for them to raid. It should be win/win for them, and a win for the public as well. The amount of work to register is trivial, and something that would likely be done anyways by someone looking to use their copyrights for profit.
Much of the rest of the problems of orphaned works could be solved by adding a requirement that the owner of a registered work keep periodically updated contact information on file for their copyright. If they fail to do so, the work enters the public domain after a certain amount of time has elapsed. For example, they must update their contact information every five years, and if they fail to do so, the work enters the public domain after another five years passes. The net result being that all registered works for which the owner isn't willing to take the time once every ten years to formally say "I own this. You must pay me to make use of it. Those who wish to make me monetary offers can find me here." fall into the public domain. Again, a trivial amount of upkeep, one aimed at ensuring that people can offer the rights holder money at that.
Combine the two, and a large amount of material enters the public domain after a decade, as it's owners demonstrates they aren't interested in taking advantage of copyright's protections. People doing things as a hobby have ample time and protections to decide they want to try and make money off their hobby.
Is this an ideal situation? No. It's a quick and dirty solution that tries to protect the interests of legacy big media corporations while getting orphaned works into the public domain. There's almost certainly things involved I haven't thought of. It's just an example to show that it isn't that difficult to come up with ways to deal with orphaned works while providing essentially the same protections to works that aren't orphaned. The only people who would lose out are the people that can't be arsed to take the time once a decade to say "Here I am, this is mine, pay me." In other words, the people who orphaned the works in the first place. And really, if you aren't interested or willing in doing that much, then there's no real reason for you to have the copyright in the first place.
[ link to this | view in chronology ]
Re:
Even this simple fix (which I think is better than the incumbent situation) would likely require an update to the Berne Convention (or WIPO, or whatever).
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
210,240,000 hours of video per year on YouTube alone ...
[ link to this | view in chronology ]
Re: 210,240,000 hours of video per year on YouTube alone ...
[ link to this | view in chronology ]
Re: Re: 210,240,000 hours of video per year on YouTube alone ...
[ link to this | view in chronology ]
A lawyer complaining about an overly convoluted system created by lawyers for lawyers.
Droll indeed.
[ link to this | view in chronology ]
http://i.imgur.com/yyI3n5i.jpeg
[ link to this | view in chronology ]