[chottocharaii]

I’d expect that if the maker undertook a thorough and well-documented search for the rights holder; then just made it anyway, they’d legally be covered

1) It might be hard for the rights holder to assert their copyright at a later stage, if they lack the evidence to do so at the outset 2) any damages awarded might be mitigated by the attempts to search for the rights holder, especially if the ‘true’ owner was contacted at some stage. Seems more likely they’d be compensatory as opposed to punitive

I know this isn’t the prevailing legal practice, but as a lawyer, the lack of a willingness to be bold in these legal situations has always surprised me

Perhaps the tail risk of being slapped down is just too large

I’ve always wondered about a business model of searching for such works, undertaking a bona-fide effort to find the owner, and then just selling it as your own if one can’t be identified. (Perhaps with a war chest kept in reserve for the rare instances licensing fees are demanded later). ‘Copyright squatting’ if you will

[coldacid]

>I’d expect that if the maker undertook a thorough and well-documented search for the rights holder; then just made it anyway, they’d legally be covered

In a sane, rational world that would probably be the case. Too bad we don't live on one!

[chottocharaii]

We need orphan work legislation to clarify the law in this area

[coldacid]

We really do.

[freejazz]

>I’d expect that if the maker undertook a thorough and well-documented search for the rights holder; then just made it anyway, they’d legally be covered

You're an attorney and don't know that copyright infringement is a strict liability offense?

[chottocharaii]

In ‘orphan work’ situations as long as a person had made a good faith effort to locate the copyright owner, and therefore isn’t infringing someone’s copyright wilfully; criminal liability won’t apply. The worst you’ll realistically face is an after the fact civil suit

[freejazz]

Lol who on earth is talking about criminal prosecution of copyright? Copyright is a strict liability civil offense.

[chottocharaii]

think there’s a misunderstanding. in my jurisdiction we use the word offence to refer to criminal actions. If the penalty is only civil, then this bolsters the case for being bold toward omens treatment of orphan works

[freejazz]

But we are talking about US copyright law - that's what the article is about, and there's no real issue with criminal enforcement of copyright. What jurisdiction are you in? It doesn't bolster anything because in the US copyright infringement is strict liability and civil enforcement of copyright actions are frequent. The greater point anyway was that it's odd for you to offer this legal advice while simultaneously not being aware that copyright infringement is strict liability. Now you are also saying you didn't think about the civil context at all. Bizarre.

[andreareina]

You willing to have your clients rely on your advice as counsel to do that?

[chottocharaii]

Riskier legal plays have been made