Comments on: Copyright Policy: Orphan Works Reform http://www.lessig.org/2007/02/copyright-policy-orphan-works/ Blog, news, books Mon, 06 Feb 2017 22:13:00 +0000 hourly 1 http://wordpress.org/?v=3.8.2 By: Victorina http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-29087 Thu, 14 Mar 2013 05:08:48 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-29087 Inspiring quest there. What occurred after? Take care!

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By: anonymous http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15651 Thu, 02 Oct 2008 10:50:23 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15651 Mr. Collins:
I alone make thousands of sketches and doodles a month. I am to pay out $1000 dollars a month to keep my intellectual property from being ripped off?

If you haven’t turned a sketch into a commercial success by the time it’s time to register, you’d honestly rather the sketches languish in obscurity than be added to our cultural heritage for somebody to build on?

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By: Mr.Collins http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15650 Sun, 24 Aug 2008 03:09:41 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15650 This obviously a movement for someone or entity to make money and turn art into a factory process. It totally cuts out the individual freelance artist. Would not surprise me if Microsoft was backing this bill in order to by up all the registries and force all artists to submit their work into a pile like taking cans to the metal scrappers. How can an artist protect and retain his art if he has to pay to register every scrap of paper. I alone make thousands of sketches and doodles a month. I am to pay out $1000 dollars a month to keep my intellectual property from being ripped off? Current copyright law is a right that should not be messed with to make it easier to catalog for libraries and the like. They already have fair usage rights that I think no artist is in opposition to. If a student uses art of mine for a report to get a grade so be it. The guise of protecting librarians and students from legal ramifications of righting a report is bull. This is the obliteration and deconstruction of the individual, free thinking, creative process we as artist now enjoy. It is the beginning of the end my brothers and sisters.

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By: seo http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15649 Wed, 28 May 2008 14:05:03 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15649 Existing orphans and future unmarked work will need a legal path that Artists agree is fair to them. Proposals have been offered by artist groups to solve the complaints of archivist and filmmakers.

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By: Britt Griswold http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15648 Sat, 17 May 2008 06:35:51 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15648 The only thing you have said here that makes any sense to me as an artist is a 50 year patent and then a very inexpensive re-registration fee. After 50 years you should have a good idea if your art is worth something. The idea of officially registering visual works for full Government Protection offered by the Copyright office – ICANN style in private databases all linked up for searching, for a few cents a piece, is a good idea. As long as it is viewed as a way to find the owner, not as away to avoid the owner who has not participated. Also visual search is not 100% effective. that means through random chance every work will be labeled “orphaned at some point. I am not one who thinks technology can solve this problem, it can only successfully be used as a tool to help a user find an author, it can not be used to exclude authorship and create an orphan. These tools will minimize the orphans of the future. Existing orphans and future unmarked work will need a legal path that Artists agree is fair to them. Proposals have been offered by artist groups to solve the complaints of archivist and filmmakers. Regular web denizens and non-profits and commercial companies will need to abide by the fairly reasonable fair use laws we have or get explicit permission after a VERY Diligent search.

For works that already exist, institute a Canadian style Board to consider requests for Orphan Status with appropriate payment for the requested use to the owner should they turn up later, again all searchable on line. Offer these avenues to use work, and you might get the artist community to agree. Leave the big fines in place to deter those who don’t ask permission, innocent or not. If the path is clear, not asking is the same as not wanting to ask, cause it is free if you don’t ask and don’t get caught.

Since images can not be identified as foreign or domestic, any solution that does not consider global markets is destine to fail. Any system that does not take into account the ingenuity and sneakiness of people who can dream up a dozen ways to get around the proposed law and look innocent because it will pay, is doomed to fail, at least fail the creator of the work.

I believe copyright is needed to encourage new expressions of ideas, be they old or new. This is what copyright is about, wether the professor thinks we all owe a debt to everyone else or not for the inspiration.

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By: Brady Brim-DeForest http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15647 Wed, 07 May 2008 00:06:33 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15647 Lawrence,

I am very curious about your take on the latest iteration of this bill: The Orphan Works Act of 2008.

http://www.thomas.gov/cgi-bin/query/z?c110:H.R.5889:

Thanks so much,
Brady

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By: Tamiya http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15646 Tue, 30 Oct 2007 13:00:04 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15646 Although informative, this better suited as a cure for insomnia than to drive legal change. I am sorry, Lawrence, I generally like your work, but I have to be honest that this was painful to watch because I sincerely want you to succeeded in having an impact.

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By: freeporn http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15645 Sat, 02 Jun 2007 02:54:21 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15645 I think this is an excellent idea. Whats the status of H.R.5439?

Would you like to see it withdrawn and a new bill created. Would Smith or Berman object to this? What’s the scope of the political battle currently.

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By: Tony Sleep http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15644 Sun, 25 Feb 2007 15:31:29 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15644 We have the Gowers report proposing similar orphan rights here in UK, where of course there is no copyright registry. Gowers proposes creating one, but no doubt it will be as cumbersome and disastrous as every other Government bureaucracy.

As a UK photographer, firstly alarmed by the US proposals, and now by our own domestic equivalent, I was pretty happy to see LL talking what looks like good sense here. It is the beginning of a way past a logjam of conflicted interests and denial.

I agree universal cheap and simple registration is a way forward – as LL suggests, a sort of ‘DNS for copyright’. This even exists already as the Digital Object Identifier system, which is a suitable open standards protocol already supported by some browsers. All we need is registries implemented for the purpose. DOI costs work out to a few cents per item.

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By: Chris Castle http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15643 Sun, 18 Feb 2007 21:01:31 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15643 Professor, I have heard your statements about how difficult it is to find out who owns what copyright, and the disintegration of the cinema. You are surely aware that these issues are dealt with every day at a relatively modest cost? Thompson and Tompson reports costing less than $500, film preservation projects, etc.?

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By: BAM http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15642 Sat, 10 Feb 2007 03:09:04 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15642 I was able to hang on there for only 28 minutes and I am interested enough in your topic to have read several of your books and I occasionally check out your blog. We must think of a way to explain this in bite size pieces that are consumable by the average person and inspiring enough to spurn action. Although informative, this better suited as a cure for insomnia than to drive legal change. I am sorry, Lawrence, I generally like your work, but I have to be honest that this was painful to watch because I sincerely want you to succeeded in having an impact.

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By: Adam Goldstein http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15641 Wed, 07 Feb 2007 19:42:12 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15641 It’s always very disconcerting to have that moment where you wonder if your icons have become victims of their own sucess and have taken one step off the edge. This proposal triggered that moment for me.

I’m not especially concerned for what it imposes on commercial entities, and I don’t worry too much about the difference between domestic and international treatment (though, as we already have people forum shopping for trademark protection, it raises the incentives to forum shop for copyright protection, and any incentive to do that is inherently damaging to the “progress of science and the useful arts” in this country).

What troubles me is that the Copyright Office came out with what looks like a kind of metaphysical test, and you want it to be a mechanical test. Mechanical is good, you say, because it provides certainty for owners and users, and certainty is good because it eliminates lawyers.

But then I turn my head, and I look at fair use. Which is just as metaphysical (I notice you circled “may” in the proposal, which reminded me of the “shall include” in 107), if not more so. And I don’t see a broken system there. I don’t see that the majority of Fair Use users need to hire lawyers to make use of the system. I don’t see that the majority of copyright holders are cowering in fear of Fair Use.

This isn’t to say that Fair Use is a perfect system or that it does good things for everyone. But I think fair use is a pretty good system, and a better one than a more concrete, more mechanical rule could enforce. And I would even go so far as to posit that some degree of ambiguity keeps most everyone honest.

So my take on the proposal was that it had to look fuzzy, because it’s fundamentally trying to carve out a new type of fair use–an exception big enough to accomodate the archivsts and narrow enough to exclude those who want to steal from copyright holders. And there’s no reason why you couldn’t impose a registry on top of that, and say that a search is not reasonable unless it checks that registry. But you can’t make a form of fair use without making it flexible enough to accomodate unforseen uses.

As I understand it, what you are proposing is either leading to a form of fair use or the entry of the work into the public domain. I don’t see that the former is any better for users and I don’t see that the latter is any less damaging to copyright holders than what the Copyright Office has proposed. So I don’t see why the Copyright Office’s proposal is bad.

One last point… I’m not entirely sure whether you’re confused or kidding when you say that consumers will understand mechanical laws better than they understand broad concepts, like fair use. Do you think people aren’t hiring lawyers for the mechanical areas of the law, or that a registry wouldn’t spawn litigation? Are people so comfortable with the highly-mechanical tax code that lawyers are obsolete? (Honestly, I’m a not-for-profit attorney with a primary area of interest and study of copyright, and I wasn’t quite able to process the justifications for the varying 14/5 year “safe harbors” for pre-registration.)

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By: Justin Levine http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15640 Mon, 05 Feb 2007 20:13:53 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15640 I have to agree that trying to limit this only to “U.S.” works is ultimately unworkable. It is seems counter-intuitive in one respect: wouldn’t you think that for a reseacrher in the U.S., works created overseas would be among the most diffucult to discover who an unkown author is? In a digitally connected world, copyright becomes an “all or nothing” proposition. Distinguishing between territories when it comes to intellectual property just doesn’t make any sense.

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By: Pat Gunn http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15639 Mon, 05 Feb 2007 17:19:11 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15639 3bm, it appears that you wholly accept the idea of intellectual property as a moral obligation, rather than a pragmatic tool to push for more creation of creative works. I don’t suggest that we consider original intent as a sacred work, but the original justification for copyright and similar things in the American legal system (if I understand correctly) is more in line with the latter than the former.

Inspiration and imitation have a very fuzzy border – there are some music groups I listen to where they have a particular “sound” that makes new songs by them instantly recognisable — this is likely because their songwriters have certain tone patterns, sequences of notes, and similar that constitute a narrowly defined taste. Would stepping into that zone be an infringement? What if I wrote a sequel to Poland and ran it through a word filter that replaces the character names with other names? It takes judgement to distinguish inspiration and imitation, and we can easily imagine different legal systems adopting different attitudes/heuristics/rules/whatever to help them make such determinations (if they choose to protect copyright, anyhow).

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By: three blind mice http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15638 Mon, 05 Feb 2007 16:03:29 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15638 You know that the professor is utterly incapable of understanding orginality and creativity, whether by cynical design or genuine psychosis.

that’s unfair anonymous. our perception of the professor is that he is a passionate advocate for internet users whose need (and ability) to copy is unprecedented in human history.
his is a respectable point of view and one well worth taking into consideration.

that being said, we are passionate defenders of original artists, inventors, and authors. the professor’s zeal to make content available for internet users should not be at the expense of original, creative artists – the most precious assets of any culture.

I should think the practical effect would be to remove from regulation those works that would no longer benefit from regulation. Who does it benefit to keep such works regulated?

regulated? c’mon professor. you write as though everytime a copyright is infringed, red lights start flashing, the federales decend from a helicopter and the perpetrator hauled off to prison for life. you know full well that copyright is by and large a civil matter whose enforcement is intitated by the copyright owner. if the owner is absent, or unaware, or uncaring about her copyright and makes no effort to enforce her right, then there is no penalty for infringement. what you want is life without risk.

Obviously, creativity has never been 100% “original” in the sense that it didn’t build upon the past — folk music, classical music, jazz, hip hop, Disney, the Brothers Grimm, etc. So we’re simply arguing about proportions here.

no sir, it is not a matter of proportion. you are confusing inspiration with imitation. in recent days, for example, we’ve been reading james mitchner’s “poland” – a bit tedious in the beginning (like most of his books) but it’s getting very good. clearly, mitchner draws on things he has read and researched (i.e., the work of other authors). some of his characters are real, some fictional, but his novel – his expression – is completely unique and original.

the fact that mithcher has written a book about the history of poland IN NO WAY hinders us from doing the same. what we cannot do (without his permission) is use HIS words, HIS characters, or anything that is clearly derivative of HIS work.
it is not a matter of proportion. if we are to write a book about the history of poland, we can be inspired by his work, but copyright forces us to THINK and be original and creative in how we write it. copyright is a magic and powerful tool – not something to be weakened simply so that internet users can have something to watch on their newfangled TV.

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By: anonymous http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15637 Mon, 05 Feb 2007 13:39:00 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15637 Dear tbm,

You know that the professor is utterly incapable of understanding orginality and creativity, whether by cynical design or genuine psychosis. He demeans creators and their creativity by exalting only those who can tinker with a creator’s work, or exploit it. He repeatedly confuses a users’ actions with that of a creator.

He has no respect for the artist that begins with the blank canvas. In fact, he believes them to be a romantic myth.

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By: Lessig http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15636 Mon, 05 Feb 2007 04:59:48 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15636 “but our position is not about “class warfare”… it is about not imposing procedures whose only practical effect is on those least capable of protecting themselves.”

“only practical effect”? I should think the practical effect would be to remove from regulation those works that would no longer benefit from regulation. Who does it benefit to keep such works regulated? You say, “those least capable of protecting themselves” — and on my machine, the sappy background music begins to rise with the all the emotion that is intended to evoke. But what does that sentence mean? I could be a millioniare, but if my copyright is not earning me more than the periodic registration fee, it doesn’t make sense for me to renew it. Or I could be a pauper, but if I’m earning more from my copyright that the periodic renewal fee, then I’m certainly able to (and it makes sense to) renew it. This has nothing to do with wealth. It is only about the value of the right — to the public and the rights holder.

“copyright has always”

false. For 186 years at least, you got the right only after very extensive efforts

“been the easiest property right to secure, because, among other things, it is the easiest one to avoid – DON’T copy other people’s works”

false again. For most of the history of copyright in America, at least, it had nothing to do with “copying.” Copyright regulated “publishing” and “republishing”. There was plenty of “copying” that we perfeclty permitted in that world.

” and you are totally, 100%, in the clear. create your own characters, use your own words, write your own melodies, and strive to be origial and creative.”

You can’t possibly mean what this sounds like it means. Obviously, creativity has never been 100% “original” in the sense that it didn’t build upon the past — folk music, classical music, jazz, hip hop, Disney, the Brothers Grimm, etc. So we’re simply arguing about proportions here. Who knows what the precisely right balance is, but one thing can’t be denied: There has been a radical increase in the effective term and scope of copyright protection (e.g., the effective term in America going from about 28 years to over a century; expanding from a regulation of commercial activity primarily to now regulating consumers). I should think those who justify the current regime resting so comfortably upon tradition should do some more to justify this change.

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By: three blind mice http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15635 Mon, 05 Feb 2007 04:05:06 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15635 Give up the Marxism. A solution isn’t a solution if and only if it burdens corporate copyright holders.

marxism? if concern for the “orphan” and individual artist places us in the same league as groucho and his brothers then we proudly wear the label.

but our position is not about “class warfare” – there is enough corporate-bashing on this site already – it is about not imposing procedures whose only practical effect is on those least capable of protecting themselves.

copyright has always been the easiest property right to secure, because, among other things, it is the easiest one to avoid – DON’T copy other people’s works and you are totally, 100%, in the clear. create your own characters, use your own words, write your own melodies, and strive to be origial and creative.

originality professor: this is what copyrght laws are intented to encourage. pity that puts animal crackers in the soup of those less creative.

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By: Andre Uratsuka Manoel http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15634 Mon, 05 Feb 2007 00:23:12 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15634 You mention 14 years for future works comparing it to the
founders copyright initial term, but why do you propose a similar term for such different things? The original 14 years were opt-in, with no risk of orphan works. 14 years opt-out is a very long time when so much is produced all the time, a lot of it not interesting for the copyright owner anymore.

Also, how would an American doing an unsuccessful search on the registry and not finding anything know that she is not liable if the work could have been produced by a foreigner?

Thirdly, there are dns registries that keep track of domain name
searches and register those domains (so, if you find a cool name
and do a whois search, nab it immediately or you may not be able to do that later). Wouldn’t such a system be vulnerable to things like that?

Fourthly, how do you do a search for a photograph? Or a search for a video? It seems pretty difficult and, worse for the user, ambiguous.

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By: Lessig http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15633 Sun, 04 Feb 2007 15:24:41 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15633 Pat: I’m not sure I see the risk in outsourcing. The burden of the system is a registration requirement, 14 years in the future. Even at the current cost of registration, that’s a very tiny amount of money. And as for “Marxist” — yea, that’s too much, but my point was more narrow: 3bm (a regular and very valuable contributor here, if not one I regularly agree with) made it seem like the measure of virtue is whether the system burdens rich people more than poor. That particular value isn’t in my scheme.

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By: icecow http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15632 Sun, 04 Feb 2007 03:39:48 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15632 The joke around here is..

What does the American Diary Association and the Media Industry have in common?

They both try to milk you for everything you’re worth.

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By: Pat Gunn http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15631 Sat, 03 Feb 2007 20:30:17 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15631 I would worry that exempting foreign copyright from qualifying would just lead to outsourcing of registration to Canada or similar. I also think your dismissal of the above poster’s position as Marxist is a bit unfair — making the system work “more efficiently” is always a value-laden matter – what kinds of efficiencies are desirable? I can imagine a number of different values that might go into construction of the system that would legitimately lead it in different directions.

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By: lessig http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15630 Sat, 03 Feb 2007 11:39:21 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15630 3bm: Right, patent imposes SEVERE affirmative obligations on the inventor in order to keep “his property.” Trademark too doesn’t let the property owner just sit around. And whether or not it’s a good idea to buy insurance has nothing to do with whether there is an obligation to take steps to perfect you rights. There is. In every “sane” property system — except copyright.

And re a “back door to a shortened copyright terms”: what? Is the requirement to perfect title a back door to stealing someone’s house? Very careless, 3bm. Anyone who wants the full term of copyright gets it — so long as they comply with the minimal social regulations to make the system function well for everyone.

And re your (plural) position: Give up the Marxism. A solution isn’t a solution if and only if it burdens corporate copyright holders. This isn’t class warfare. It is a regulation designed to make the copyright system function more efficiently. Sure, if, e.g., Congress were to adopt the proposal I made (and make reregistration cost $1), there might be some “poor” copyright owners who couldn’t afford the $1. But exactly how many? As opposed to the many many libraries and archives who couldn’t afford to pay the lawyers necessary to know whether they can archive or make accessible a work no longer commercially accessible, and whose author can’t be located.

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By: Benjamin Carlyle http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15629 Sat, 03 Feb 2007 05:01:39 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15629 What about DRM? If a DRM work is not registered and falls into the orphaned work category, will DRM-cracking tools be available and allowed by applicable law?

The search mechanics may also be an interesting problem. How do I search for the image I just downloaded from the Internet? The easy answer would be that I embed a registered id into the copyright statement associated with the image. ie, I may register my identity with the copyright system and include this identity with the image copyright statement. When I sell this copyright to someone else a kind of redirection would need to exist in the registry, although the redirection would obviously not apply to all of my works. It may actually be necessary to register a specific image ahead of time and include this identifier. Certainly this registration would be difficult at the 14 year mark. Fun and games ahead, I think.

Benjamin

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By: three blind mice http://www.lessig.org/2007/02/copyright-policy-orphan-works/#comment-15628 Sat, 03 Feb 2007 02:11:17 +0000 http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html#comment-15628 friends please excuse the terrible grammer in that last post! sheesh. whilst the post records 9PM it is just before 6AM where we are and last night’s scotch hasn’t quite worn off. well, that and the fact that our grammar sucks to begin with.

on preview, Janet, you make some good points but please do try to be a bit more brief. this tiny window is, blessedly, not well-suited to more than one paragraph and one point at a time.

everyone enjoy the weekend.

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