You may have noticed that posting has been very slow as of late. After seeing that Prof. Paltry is closing down his blog, I am following suit. The reasons for ending the blog are the same as why I have not been blogging much and why Paltry is quiting.

1. There are some strange people out there. You would not imagine the strange and abusive emails I recieve because of a stance I take on something as benign as balance in copyright law.

2. Time. I only have a limited amount of time, and I would rather spend my academic time writing articles on domain name disputes or orphan works, arguing with people who actually know what they are talking about. My academic career needs work, my marriage need work, my work needs work. Something has to give, and this is it.

3. It is depressing. As in all things, there are a number of people out there who want to get more than their fair share of rights/money/power, etc. These people who try to do evil seem to have infinite patience, as they always seem to outlast those who are trying to do good. There are a number of bills introduced yet again this year to serve as examples.  For example, there is nothing in the Pro-IP bill to benefit actual people or even creators, only things to put the screws to anyone unlucky enough to get to in the way of a record label or large movie house. Copyright law already favors rights-holders too much over the public good. And, nothing seems to staunch the flow of the rights grab by big business. I am tired of writing about how large corporations are pushing the boundries and arguing for more, more, more.

4. It is really depressing. The phone calls I get are the worst. On average, I receive about one phone call every other day from someone being sued for file-sharing music. I have my response memorized. There is no good news for (usually parents of) someone getting sued by RIAA, et, al. I believe that given the right case I could win. I have a dozen arguments against these suits and a complete plan of attack ready, starting with having the record company prove they are the rightful holder of rights, that each file contained both what it purported to be and that it was a enough to be infringing, that the sharing does not equal distribution, that the collection of information equaled unlicensed private investigation, that the collection of information was without permission and equals hacking, abuse of process, etc. However, no person with anything to lose would do anything but write the $4-5k check and go on with their lives. The sadness in their voices pains me. This is the reason I didn’t do criminal law or family law or even personal tax law. I love the law, I don’t like the messiness of peoples lives. I really love IP law. If someone would give me a full time IP law teaching gig, I would likely die in that job. However, I really can’t take anymore of these calls from people being hijacked by record companies for (what is usually) their life savings, or more.

I have a business plan I am launching in the Spring, I am sure that I will be blogging about that and will give details later.

Bar exam results are out for July 2008. Congrats to all of my classmates and students.  The full list, also available on the Ark. Supreme Court (pdf) web site, follows:

Ables, Jason Keith
68 Kings River Rd. N. Little Rock, AR 72116

Albritton, Allison Curran
2325 Apple Blossom Lane Conway, AR 72034

Allen, Katie Summer
11901 Pleasant Ridge Rd, #127 Little Rock, AR 72223

Ament, Jeremy Scott
645 N. Walnut Ave. Fayetteville, AR 72701

Backstrom, Eric Joseph
9616 Relda Dr. Little Rock, AR 72205

Baker, Andrew Johnston
6550 Shady Brook Ln, #23300 Dallas, TX 75206

Baker, Jonathan Earl
1063 Liberty Dr. Fayetteville, AR 72701

Bard, Benjamin Wesley
12 S. Hampton Dr. Conway, AR 72034

Baugh, Monty Vaughan
3111 Ridge Pass Rd Little Rock, AR 72227-2125

Beel, Jessica Michelle
950 N. Lindell Ave, #11 Fayetteville, AR 72701

Bell, Arthur Watson
800 North St, #51 Little Rock, AR 72201

Bell, Heather Marie
804 N. Highland Ave. Fayetteville, AR 72701

Bennett, Justin Grant
898 S. Curtis Ave Fayetteville, AR 72701

Bertram, Dawn Marie
1609 Brighton Pl. Fayetteville, AR 72703

Birdsong, Melany Christine
420 Walnut St, #1 Little Rock, AR 72205

Bolden, Lakesha Quinshay
8 Par Circle, #4 Little Rock, AR 72210

Boone, Katie Ellen
6530 Hawthorne Rd Little Rock, AR 72207

Box, LeAnn Powell
POB 456 Greenland, AR 72737

Boyd, Angela Lynn
2200 Riverfront Dr., #1101 Little Rock, AR 72202

Boyeskie, John Jason
2075 N. Freedom Place Fayetteville, AR 72704

Bridges, Emily Ruth
1753 W. Pleasant Woods Dr. Fayetteville, AR 72703

Brister, Beverly Ivy
2212 Reed St. Malvern, AR 72104

Bryant, Joshua Sean
619 W. Pine St. Rogers, AR 72756

Burk, William Michael
2778 E. Meandering Way Fayetteville, AR 72701

Carmichael, Chase Adam
625 E. 19th St., #C-7 El Dorado, AR 71730

Childs, Cory DeMon
POB 55892 Little Rock, AR 72215

Clark, Suzanne Greichen
438 E. Fairway Lane Fayetteville, AR 72701

Cox, Sarah Emeline
3005 S. 28th Pl, #4 Rogers, AR 72758

Crow, John William
201 Bafanridge Hot Springs, AR 71901

Darling, Leta Marie
3345 W. Essex Dr. Fayetteville, AR 72704

Darst, Dustin Robert
1776 Par Lane, #206 Springdale, AR 72762

Davis, Kara Michelle
8501 Canopy Oaks Dr. Ft. Smith, AR 72903

Dempsey, Matthew Austin
3020 N. Taylor St. Little Rock, AR 72207

Depper, Robert Lamar
502 S. Mashburn Ave. Fayetteville, AR 72701

Desikan, Suba Sruti Kambarajapuram
16401 Chenal Valley Dr, #8306 Little Rock, AR 72223

Donathan, Benjamin Thomas
122 Aqua Crossing, #2 Fayetteville, AR 72701

Dorrough, Deanna Michelle
12 Brooklawn Dr. Little Rock, AR 72205

Eaton, Lee Starritt
1841 Piedmont St. Jackson, MS 39202

Eubanks, Brent Jay
3510 Hemlock Cove Benton, AR 72015

Evans, Jamie LeAnn
518 E. 8th St., Apt. B Little Rock, AR 72202

Feilke, Patrick Butler
10234 Western Trails Springdale, AR 72762

Ferguson, Lucas Michael
16 Summerville Dr. Greenbrier, AR 72058

Fields, Branch Tuzon
38 Iviers Dr. Little Rock, AR 72223

Fink, Ronald Paul
Box 2097 Fayetteville, AR 727012097

Fiser, Jennifer Carol
1611 W. Crowne Dr. #106 Fayetteville, AR 72701

Freeman, Kristin Faye
104 W. Watson St. Fayetteville, AR 72701

Gibson, Robert Bynum
207 Stonegate Crossett, AR 71635

Glenn, Ginger Diane
116 Veterans Parkway Rogers, AR 72756

Glover, Matthew Alan
7717 Briarwood Circle Little Rock, AR 72205

Graham, James Lucas
501 Napa Valley Dr., #812 Little Rock, AR 72211

Gray, Alex Tyler
812 N. Bryan St. Little Rock, AR 72205

Gray, Travis Allen
2733 Villa Blvd Fayetteville, AR 72703

Gruber, Regan Paige
1704 N. Grant St. Little Rock, AR 72207

Hall, Brent Alan
4417 North N St. Ft Smith, AR 72904

Hardin, Jonathan Grant
625 E. 19th St., #D2 El Dorado, AR 71730

Hargraves, Megan Dooley
1224 N. Polk Little Rock, AR 72205

Harris, Phillip Michael
2475 Hwy 67 S. Prescott, AR 71857

Hebar, Richard William
2 Cambria Lane Bella Vista, AR 72715

Heck, Sara Elisabeth
92 Dakota Trail Farmington, AR 72730

Henderson, Mark Christopher
2942 Hwy 425 Pine Bluff, AR 71601

Henson, Susie Hatcher
2027 N. Garfield St. Little Rock, AR 72207

Hudson, Megan Jean
305 Torrington Way Ft. Smith, AR 72908

Hunt, Neil Wesley
5 Longtree Court Little Rock, AR 72223

Hyde, Angela Marie
1899 N. Caton Dr. Fayetteville, AR 72704

Jackson, Matthew Scott
2301 Auburndale Cove Jonesboro, AR 72404

Johnson, Timothy George
5005 Chimon Way Fayetteville, AR 72701

Justiss, Alexander Douglas
5455 S. Scenic Dr. Little Rock, AR 72207

Kannett, Keith Michael
12607 Timber Hill Dr Little Rock, AR 72211

Kearney, Jason Phillip
2474 W. Newport Dr, #2 Fayetteville, AR 72703

Kemp, Joseph Hamilton
45 N. Sherrill Rd. Little Rock, AR 72202

Kersten, April Nicole
3010 Breckenridge Dr. Little Rock, AR 72227

Knisley, Kathryn Bess
303 Booker St. Little Rock, AR 72205

Kobbeman, Kerrilee Elizabeth
64 N. Skyview Lane Fayetteville, AR 72701

Krupitsky, Eugene
4007 Sam Peck Rd. Little Rock, AR 72223

Latimer, Sherri Lynn
12207 Teton Forest Dr. Little Rock, AR 72212

Loftis, Travis Bo
2765 Indian Hills Rd Benton, AR 72019

Lundy, Lauren Michele
2965 Dallas Loop Conway, AR 72034

Mahony, Emon Ossian
2316 N. University Ave. Little Rock, AR 722074338

Martinsky, Alanna Ellen
742 Green Point Trace Fayetteville, AR 72704

Massey, Brandon Justin
1784 W. Cascade Dr, #105 Fayetteville, AR 72701

McCombs, Jesse Lee
110 Village Lake Dr, #2 Fayetteville, AR 72703

McGahhey, Courtney Anne
3408 Woodridge Texarkana, TX 75503

McIllwain, Emily Ann
267 S. Enid Ave. Russellville, AR 72801

McKinney, Jared Charles
3 DeJarnett Rd Greenbrier, AR 72058

McKinney, Quincy Walter
65 Hampton Rd. Greenbrier, AR 72058

McLaurin, John Campbell
129 Woodsong Way Madison, MS 39110

McLaurin, Mary Claire
129 Woodsong Way Madison, MS 39110

McLelland, Kelly Lynn
1710 Alberta Dr. Little Rock, AR 72227

McNulty, Christopher Anthony
5821 F St. Little Rock, AR 72205

Miller, Reid Davis
3408 Woodrige Texarkana, TX 75503

Mooney, Matthew Lyle
215 West Ila St. Fayetteville, AR 72701

Moore, Lawrence E.
519 E. 8th St. Little Rock, AR 72202

Nation, Valerie Denise
9518 Dartmouth Dr. Little Rock, AR 72204

Neal-Graves, Lisa Michelle
2070 NW 113th Ave. Portland, OR 97229

Nebben, Christopher Andrew
3705 Longwood Rd. Little Rock, AR 72207

Newell, Daniel Shanks
507 Bare St. W. Jefferson, NC 286947402

Nixon, Carol Elizabeth
1905 W. 42nd Pine Bluff, AR 71603

Norment, Rashauna Antoinette
9701 Cerelle Dr. Little Rock, AR 72205

Northcross, Trace Tneil
1775 W. Mitchell St, #11 Fayetteville, AR 72701

Northern, Mary Christina
3257 Drakestone St. Fayetteville, AR 72704

Nutt, Michael Travis
3594 Tower Circle Fayetteville, AR 72704

Parker, Chasty Quinn
17 Rainwater Cove Vilonia, AR 72173

Parkey, Justin Ellis
11901 Pleasant Ridge Rd., #324 Little Rock, AR 72223

Parnell, James Paul
604 McAdoo Little Rock, AR 72205

Parsons, Matthew Brent
1016 McGowan St, #115 Little Rock, AR 72202

Pearce, Charles Wallace
5 West Augusta Dr, #9 Fayetteville, AR 72703

Pearce, Oscar Eugene
1103 E. Woodruff Ave. Sherwood, AR 72120

Pekron, Chad William
7 Equennes Dr. Little Rock, AR 72223

Pennington, Blake Evan
75 N. Holland Dr. Farmington, AR 72730

Peoples, Ashley Denise
8 Alfred Cove Conway, AR 72034

Pharis, Billy Carl
609 Robinson Van Buren, AR 72956

Phillips, Ashleigh Dale
1712 N. Harrison St. Little Rock, AR 72207

Phillips, David Dero
POB 8072 Springdale, AR 72766

Pierce, Michael David
607 Trenton Dr. Fort Smith, AR 72908

Pipkin, Brian Austin
6530 Hawthorne Rd Little Rock, AR 72207

Pitt, Julie Rebecca
1511 Church St. San Francisco, CA 94131

Rains, Justin Michael
367 N. Amethyst Court, #10 Fayetteville, AR 72701

Rantisi, Allison Joyce
1600 Florida Ave. Little Rock, AR 72207

Roller, James Ashley
6 Back Forty Cabot, AR 72023

Rowan, Lucas Zachary
29 Point West Circle Little Rock, AR 72211

Samples, Lee Taylor
4827 Madison 6060 Huntsville, AR 72740

Sanders, Paul Benjamin
<removed>

Sanders, William Roy
5620 Blake Ln. Springdale, AR 72762

Sappington, Michael Andrew
7401 N. St. Little Rock, AR 72207

Scott, Timothy Ryan
1273 N. Tradition Ave. Fayetteville, AR 72704

Simpson, Carmen Sanders
5106 Lochridge Rd N. Little Rock, AR 72116

Smiley, Christopher Ray
904 St. James Court Gentry, AR 72734

Smith, Amanda Nicole
9316 Meledy Cove Sherwood, AR 72120

Smith, Anna Rene
2510 Jeanne McQueen Jonesboro, AR 72404

Smith, Clayton Joshua
2908 W. 6th St. Little Rock, AR 72205

Smith, Gretchen Ellen
1534 Elmwood Dr. Fayetteville, AR 72703

Steele, Misty Nikole
4400 Foster St. Little Rock, AR 72204

Story, Travis Wayne
2771 N. Old Wire Rd. Fayetteville, AR 72703

Strack, Whitney Paige
1313 Melmart Dr. Bartlesville, OK 74006

Strike, Jane Fletcher
19 Meadow Ridge Loop Maumelle, AR 72113

Stroud, Kelvin Paul
107 Watson St. Fayetteville, AR 72701

Sullivan, Robin Lynne
128 Crystal Ct. Little Rock, AR 72205

Summers, Grant Ernest
509 Market St, #800 Shreveport, LA 71101

Terry, Tasha Marie
72 Timberwood Dr. Cabot, AR 72023

Thomson, Dennis Nathanial
3308 Dumaine St. New Orleans, LA 70119

Tinsley, Jordan Brown
5900 Hawthorne Little Rock, AR 72207

Tobler, Joseph Douglas
37 Point West Circle Little Rock, AR 72211

Trybulec, Mary Beth
1 Oak Valley Lane Bentonville, AR 72712

Tucker, Pamela Jane
75 Riverfront Dr, #414 N. Little Rock, AR 72114

Turnage, Christopher Craig
200 Redbird Place Hot Springs, AR 71913

Van Es, Todd Aaron
13916 Carrington Pl. Cv. Alexander, AR 72002

Wankum, Mark David
3602 Allen St. N. Little Rock, AR 72118

Watson, Thomas Alan
10034 416th Ave S.E. North Bend, WA 98045

Webb, Kendra Michelle
52 Smoking Oaks Rd. Conway, AR 72034

Weisbecker, Erich Walter
2309 Lakeshore Dr. Bryant, AR 72022

Welch, Jeffery Daniel
3401 Millbrook Rd. Little Rock, AR 72227

West, Erin LeAnn
5212 Camden Cutoff Pine Bluff, AR 71603

Whatley, Amanda Lynn
3421 County Ave. Texarkana, AR 71854

Wiede, Aileen Michelle
1602 NE Greenbrier Rd Bentonville, AR 72712

Wilson, Ryan Michael
7 Bradbury Dr. Little Rock, AR 72212

Wolf, Kaycee Leigh
28 Alta Way Hot Springs Village, AR 71909

Wright, Ashley Renee
1401 Pine Valley Rd. Little Rock, AR 72207

Wright, Wade Anthony
1725 S. Tallgrass Dr. Fayetteville, AR 72701

Younger, Robert Ryan
109 N. 3rd St., #315 Ft. Smith, AR 72901

The following passed the bar, but have either not taken the Multistate Professional Responsibility
Examination or their scores have not been received. Therefore, certification to the Clerk for
admission to the Bar of Arkansas will be deferred.

Allen, William Christopher
1867 N. High Ave. Fayetteville, AR 72704

Amerine, Marjorie Frazier
17 Briar Patch Court Little Rock, AR 72211

Cuzick, Greg Russell
11393 Giles Rd. Farmington, AR 72730

Hughes, D’lorah Lynn
927 Hall Ave. Fayetteville, AR 72701

Kemp, James Harrison
45 Sherrill Rd Little Rock, AR 72202

Roda, Daniel Jonathan
105 Golf Links Cir. Lake Village, AR 71653

Stinnett, Acacia Wright
5505 Lee Ave. Little Rock, AR 72205

I will be posting very sporadically for the next few months. I am not teaching this semester and am working on a business plan in order to begin raising money in the spring.

Under thr 1909 copyright law, formalities (concerning notice and registration) were very important. I do not find it surprising then that the Disney’s may have messed up their copyright notice. The law then was that if there existed any ambiguity in the notice, then copyright was void. Of course, when a young law student working on an article asked Disnry about it, they threatened a slander of title suit if he made his thoughts public. Under the same difficulties in managing copyrights in the early days, I also firmly believe that other items generatin millions annually now, i.e. the Birthday Song, have expired copyrights. I am always available for anyone with unlimited funds who wants to take up this fight.

Ethically, a California slander of title action would not have been frivolous, and I have no doubt that they would bring such a suit, so the threat made by Disney General Counsel, now Los Angeles County judge, Louis Meisinger was not unethical. I do, however, find it unseemly – and just the sort of anecdote that makes the public hate lawyers. Threatening a law student with a lawsuit just for making a theory about a voided copyright public is an assault on decorum and propriety (and before dozens of people email me about the first amendment, please note that Disney is not a govt. actor).

Disneys rights to young Mickey Mouse may be wrong – Los Angeles Times

The notion that any Mickey Mouse might be free of copyright restrictions is about as welcome in the Magic Kingdom as a hag with a poisoned apple. Yet elsewhere, especially in academia, the idea has attracted surprising support.

“That Steamboat Willie is in the public domain is easy. Thats a foregone conclusion,” said copyright scholar Peter Jaszi of American Universitys Washington College of Law after studying the issue at The Times request.

The issue has been chewed over by law students as class projects and debated by professors. It produced one little-noticed law review article: a 23-page essay in a 2003 University of Virginia legal journal that argued “there are no grounds in copyright law for protecting” the Mickey of those early films.

Singer Jackson Browne is suing US Republican presidential candidate John McCain for using one of his songs without permission. (NY Times)

McCain used Browne’s 1977 hit “Running on Empty” in a commercial shown in Ohio. Browne claims that the use of the sone infringes hiis copyright and will make people conclude thaT he endorses McCain. He is seeking $75,000 on damages.

On a different front, a week ago on Swingtown,  Laurie ran away from the cabin so she could hitchhike back to Chicago so whe and Doug could go to a Jackson Browne concert. 

All in all, a big week for Jackson Browne. And I am not sure that “Running on Empty” is the best song for a campaign.

Online petition: Against the Orphan Works Act of 2008. This bill is no better than the one that I wrote about the Journal of the Copyright Society this Spring. It even includes a registration database requirement, which is an anathema to the stated purpose of the copyright clause of the Constitution. If you have time, please sign.

Yesterday, my new Tivo Series 3 HD arrived. Yes, I know that it is a box that is being discontinued in favor of the Series 2 HD, but the extra candy on this box is so nice I couldn’t pass it up. As it is also intended to be in the Home Theater some day, the THX certification was an added bonus.

So now we have a both single tuner and dual tuner Series 2 Tivo’s sitting around. If I could just use them import recorded content and watch them in other rooms without having them activated, then life would be perfect. As it is though, I am left with having them as useless bricks, hacking them, paying Tivo $9.99 a month to make them useful, or selling them on eBay. I guess what I am saying is… if you need a cheap used Tivo, let me know.

The Central District of California granted summary judgment in UMG Recordings, Inc. v. Troy Augusto, No. CV 07-03106. (SJO), regarding the legality of reselling promo CDs. Mr. Augusto acquired promo CDs and resold them on eBay, which Universal alleged infringed their copyright due to the following language placed on the CDs:

This CD is the property of the record company and is licensed to the intended receipient for personal use only. Acceptance of this CD shall constitute an agreement to comply with the terms of the license. Resale or transfer of possession is not allowed and may be punishable under federal and state laws.

Augusto argued that his resale of the CDs was protected under the first sale doctrine. The court agreed.

Finally, a voice of reason in the wilderness. Thank you Judge Otero for a very well written opinion.

Here is the full opinion (pdf).

I haven’t gone through both new versions of the Orphan Works bills (House, Senate). However, this month the Journal of the Copyright Society of the USA published my article detailing problems with all previous versions of orphan works legislation. Here is a PDF of the article, Darrin Keith Henning, Copyright’s Deus Ex Machina: Economic Fostering of Orphan Works through Reverse Registration, 55 J. COPYRIGHT SOC’Y U.S.A. 201 (2008).

I will have more on the new bills next week.

110th CONGRESS 
2d Session 
S. 2913

To provide a limitation on judicial remedies in copyright infringement cases involving orphan works.

IN THE SENATE OF THE UNITED STATES 

April 24, 2008

Mr. LEAHY (for himself and Mr. HATCH) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To provide a limitation on judicial remedies in copyright infringement cases involving orphan works.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Shawn Bentley Orphan Works Act of 2008′.

SEC. 2. LIMITATION ON REMEDIES IN CASES INVOLVING ORPHAN WORKS.

(a) Limitation on Remedies- Chapter 5 of title 17, United States Code, is amended by adding at the end the following:

`(B) sources of copyright ownership information reasonably available to users, including private databases;

`(C) industry practices and guidelines of associations and organizations;

`(D) technology tools and expert assistance, including resources for which a charge or subscription fee is imposed, to the extent that the use of such resources is reasonable for, and relevant to, the scope of the intended use; and

`(E) electronic databases, including databases that are available to the public through the Internet, that allow for searches of copyrighted works and for the copyright owners of works, including through text, sound, and image recognition tools.

`(A) The name of the owner of the infringed copyright.

`(B) The title of the infringed work, any alternative titles of the infringed work known to the owner of the infringed copyright, or if the work has no title, a description in detail sufficient to identify it.

`(C) An address and telephone number at which the owner of the infringed copyright may be contacted.

`(D) Information from which a reasonable person could conclude that the owner of the infringed copyright’s claims of ownership and infringement are valid.`(1) MATERIALS AND STANDARDS- The term `materials and standards’ includes–

`(2) NOTICE OF CLAIM FOR INFRINGEMENT- The term `notice of the claim for infringement’ means, with respect to a claim for copyright infringement, a written notice that includes at a minimum the following:

`(3) OWNER OF THE INFRINGED COPYRIGHT- The `owner of the infringed copyright’ is the legal owner of the exclusive right under section 106, or any party with the authority to grant or license such right, that is applicable to the infringement.

`(4) REASONABLE COMPENSATION- The term `reasonable compensation’ means, with respect to a claim for infringement, the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began.

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    •  
      `(I) performed and documented a qualifying search, in good faith, for the owner of the infringed copyright; and

`(II) was unable to locate the owner of the infringed copyright;`(i) proves by a preponderance of the evidence that before the infringement began, the infringer, a person acting on behalf of the infringer, or any person jointly and severally liable with the infringer for the infringement–

`(ii) provided attribution, in a manner that is reasonable under the circumstances, to the owner of the infringed copyright, if such owner was known with a reasonable degree of certainty, based on information obtained in performing the qualifying search;

`(iii) included with the use of the infringing work a symbol or other notice of the use of the infringing work, in a manner prescribed by the Register of Copyrights;

`(iv) asserts in the initial pleading to the civil action the right to claim such limitations;

`(v) consents to the jurisdiction of United States district court, or such court holds that the infringer is within the jurisdiction of the court; and

`(vi) at the time of making the initial discovery disclosures required under rule 26 of the Federal Rules of Civil Procedure, states with particularity the basis for the right to claim the limitations, including a detailed description and documentation of the search undertaken in accordance with paragraph (2)(A).

`(i) fails to negotiate reasonable compensation in good faith with the owner of the infringed copyright; or

`(ii) fails to render payment of reasonable compensation in a reasonably timely manner.`(A) IN GENERAL- Notwithstanding sections 502 through 505, and subject to subparagraph (B), in a civil action brought under this title for infringement of copyright in a work, the remedies for infringement shall be limited in accordance with subsection (c) if the infringer–

`(B) EXCEPTION- Subparagraph (A) does not apply if, after receiving notice of the claim for infringement and having an opportunity to conduct an expeditious good faith investigation of the claim, the infringer–

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  •  
    `(I) the actions taken in performing that search are reasonable and appropriate under the facts relevant to that search, including whether the infringer took actions based on facts uncovered by the search itself;

`(II) the infringer employed the applicable best practices maintained by the Register of Copyrights under subparagraph (B); and

`(III) the infringer performed the search before using the work and at a time that was reasonably proximate to the commencement of the infringement.`(i) IN GENERAL- For purposes of paragraph (1)(A)(i)(I), a search is qualifying if the infringer undertakes a diligent effort to locate the owner of the infringed copyright.

`(ii) DETERMINATION OF DILIGENT EFFORT- In determining whether a search is diligent under this subparagraph, a court shall consider whether–

`(iii) LACK OF IDENTIFYING INFORMATION- The fact that a particular copy or phonorecord lacks identifying information pertaining to the owner of the infringed copyright is not sufficient to meet the conditions under paragraph (1)(A)(i)(I).

`(i) STATEMENTS OF BEST PRACTICES- The Register of Copyrights shall maintain and make available to the public, including through the Internet, current statements of best practices for conducting and documenting a search under this subsection.

`(ii) CONSIDERATION OF RELEVANT MATERIALS AND STANDARDS- In maintaining the statements of best practices required under clause (i), the Register of Copyrights shall, from time to time, consider materials and standards that may be relevant to the requirements for a qualifying search under subparagraph (A).`(A) REQUIREMENTS FOR QUALIFYING SEARCHES-

`(B) INFORMATION TO GUIDE SEARCHES; BEST PRACTICES-`(1) CONDITIONS-

`(2) REQUIREMENTS FOR SEARCHES-

`(3) PENALTY FOR FAILURE TO COMPLY- If an infringer fails to comply with any requirement under this subsection, the infringer is subject to all the remedies provided in section 502 through 505, subject to section 412.

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    `(i) the infringement was performed without any purpose of direct or indirect commercial advantage;

`(ii) the infringement was primarily educational, religious, or charitable in nature; and

`(iii) after receiving notice of the claim for infringement, and after conducting an expeditious good faith investigation of the claim, the infringer promptly ceased the infringement.`(A) GENERAL RULE- Subject to subparagraph (B), an award for monetary relief (including actual damages, statutory damages, costs, and attorney’s fees) may not be made other than an order requiring the infringer to pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright for the use of the infringed work.

`(B) FURTHER LIMITATIONS- An order requiring the infringer to pay reasonable compensation for the use of the infringed work may not be made under subparagraph (A) if the infringer is a nonprofit educational institution, museum, library, or archives, or a public broadcasting entity (as defined in subsection (f) of section 118) and the infringer proves by a preponderance of the evidence that–

`(C) EXCEPTION TO FURTHER LIMITATION- Notwithstanding the limitation established under subparagraph (B), if the owner of an infringed copyright proves, and a court finds, that the infringer has earned proceeds directly attributable to the use of the infringed work by the infringer, the portion of such proceeds attributable to such infringement may be awarded to the owner.

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  `(i) may not restrain the infringer’s continued preparation or use of that new work;

`(ii) shall require that the infringer pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright for the use of the infringed work; and

`(iii) shall require that the infringer provide attribution, in a manner that is reasonable under the circumstances, to the owner of the infringed copyright, if requested by such owner.

`(i) has complied with the requirements of subsection (b); and

`(ii) has made an enforceable promise to pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright.`(A) GENERAL RULE- Subject to subparagraph (B), the court may impose injunctive relief to prevent or restrain any infringement alleged in the civil action.

`(B) EXCEPTION- In a case in which the infringer has prepared or commenced preparation of a work that recasts, transforms, adapts, or integrates the infringed work with a significant amount of the infringer’s original expression, any injunctive relief ordered by the court–

`(C) LIMITATIONS- The limitations on injunctive relief under subparagraphs (A) and (B) shall not be available to an infringer if the infringer asserts in the civil action that neither the infringer or any representative of the infringer acting in an official capacity is subject to suit in the courts of the United States for an award of damages to the legal or beneficial owner of the exclusive right under the infringed copyright under section 106, unless the court finds that the infringer–

`(D) RULE OF CONSTRUCTION- Nothing in subparagraph (C) shall be construed to authorize or require, and no action taken under such subparagraph shall be deemed to constitute, either an award of damages by the court against the infringer or an authorization to sue a State.

`(E) RIGHTS AND PRIVILEGES NOT WAIVED- No action taken by an infringer under subparagraph (C) shall be deemed to waive any right or privilege that, as a matter of law, protects the infringer from being subject to suit in the courts of the United States for an award of damages to the legal or beneficial owner of the exclusive right under the infringed copyright under section 106.`(1) MONETARY RELIEF-

`(2) INJUNCTIVE RELIEF-

`514. Limitation on remedies in cases involving orphan works.’.

`(a) Definitions- In this section, the following definitions shall apply:

`(b) Conditions for Eligibility-

`(c) Limitations on Remedies- The limitations on remedies in a civil action for infringement of a copyright to which this section applies are the following:

`(d) Preservation of Other Rights, Limitations, and Defenses- This section does not affect any right, limitation, or defense to copyright infringement, including fair use, under this title. If another provision of this title provides for a statutory license that would permit the infringement contemplated by the infringer if the owner of the infringed copyright cannot be located, that provision applies instead of this section.

`(e) Copyright for Derivative Works and Compilations- Notwithstanding section 103(a), an infringer who qualifies for the limitation on remedies afforded by this section with respect to the use of a copyrighted work shall not be denied copyright protection in a compilation or derivative work on the basis that such compilation or derivative work employs preexisting material that has been used unlawfully under this section.’.

(b) Technical and Conforming Amendment- The table of sections for chapter 5 of title 17, United States Code, is amended by adding at the end the following:

SEC. 3. DATABASE OF PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS.

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    (A) the name of all authors of the work, if known, and contact information for any author if the information is readily available;

(B) the name of the copyright owner if different from the author, and contact information of the copyright owner;

(C) the title of the copyrighted work, if such work has a title;

(D) with respect to a copyrighted work that includes a visual image, a visual image of the work, or, if such a visual image is not available, a description sufficient to identify the work;

(E) one or more mechanisms that allow for the search and identification of a work by both text and image; and

(F) security measures that reasonably protect against unauthorized access to, or copying of, the information and content of the electronic database.(1) IN GENERAL- The Register of Copyrights shall undertake a certification process for the establishment of an electronic database that facilitates the search for pictorial, graphic, and sculptural works that are subject to copyright protection under title 17, United States Code.

(2) PROCESS AND STANDARDS FOR CERTIFICATION- The process and standards for certification of the electronic database required under paragraph (1) shall be established by the Register of Copyrights, except that certification may not be granted if the electronic database does not contain–

(1) shall make available to the public through the Internet a list of all electronic databases that are certified in accordance with this section; and

(2) may include any database so certified in a statement of best practices established under section 514(b)(5)(B) of title 17, United States Code.(a) Establishment of Database-

(b) Public Availability- The Register of Copyrights–SEC. 4. EFFECTIVE DATE.

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    (A) the date on which the Copyright Office certifies under section 3 at least 2 separate and independent searchable, comprehensive, electronic databases, that allow for searches of copyrighted works that are pictorial, graphic, and sculptural works, and are available to the public through the Internet; or

(B) January 1, 2011; and(1) take effect on the earlier of–

(2) apply to infringing uses that commence on or after that effective date.(a) In General- With respect to works other than pictorial, graphic, and sculptural works, the amendments made by section 2 shall apply to infringements that commence on or after January 1, 2009.

(b) Pictorial, Graphic, and Sculptural Works- With respect to pictorial, graphic, and sculptural works, the amendments made by section 2 shall–

(c) Publication in Federal Register- The Register of Copyrights shall publish the effective date described in subsection (b)(1) in the Federal Register, together with a notice that the amendments made by section 2 take effect on that date with respect to pictorial, graphic, and sculptural works.

(d) Definition- In this section, the term `pictorial, graphic, and sculptural works’ has the meaning given that term in section 101 of title 17, United States Code.SEC. 5. REPORT TO CONGRESS.

Not later than December 12, 2014, the Register of Copyrights shall report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on the implementation and effects of the amendments made by section 2, including any recommendations for legislative changes that the Register considers appropriate.

SEC. 6. STUDY ON REMEDIES FOR SMALL COPYRIGHT CLAIMS.

(a) In General- The Register of Copyrights shall conduct a study with respect to remedies for copyright infringement claims by an individual copyright owner or a related group of copyright owners seeking small amounts of monetary relief, including consideration of alternative means of resolving disputes currently heard in the United States district courts. The study shall cover the infringement claims to which section 514 of title 17, United States Code, apply, and other infringement claims under such title 17.

(b) Procedures- The Register of Copyrights shall publish notice of the study required under subsection (a), providing a period during which interested persons may submit comments on the study, and an opportunity for interested persons to participate in public roundtables on the study. The Register shall hold any such public roundtables at such times as the Register considers appropriate.

(c) Report to Congress- Not later than 2 years after the date of the enactment of this Act, the Register of Copyrights shall prepare and submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the study conducted under this section, including such administrative, regulatory, or legislative recommendations that the Register considers appropriate.SEC. 7. STUDY ON COPYRIGHT DEPOSITS.

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  (1) the historical purpose of the deposit requirement;

(2) the degree to which deposits are made available to the public currently;

(3) the feasibility of making deposits, particularly visual arts deposits, electronically searchable by the public for the purpose of locating copyright owners; and

(4) the impact any change in the deposit requirement would have on the collection of the Library of Congress.(a) In General- The Comptroller General of the United States shall conduct a study examining the function of the deposit requirement in the copyright registration system under section 408 of title 17, United States Code, including–

(b) Report- Not later than 2 years after the date of the enactment of this Act, the Comptroller General shall submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate a report on the study conducted under this section, including such administrative, regulatory, or legislative recommendations that the Comptroller General considers appropriate.