Commons cause

Techies are forging some strange alliances to enlarge the public domain

By Matthew Hirsch

A Wal-Mart representative came to Berkeley last month as an envoy of culture and democracy.

Seriously. In a federal hearing that could help determine the future availability of art and literature to the public, a Wal-Mart rep named Joe Lisuzzo called on Congress to rewrite copyright law so that more creative works can enter the public domain.

Specifically, Lisuzzo and Wal-Mart are pushing the government to change the way it deals with "orphan works," which are described by the US Copyright Office as "copyrighted works whose owners are difficult or even impossible to locate." Orphan works can be literally anything from an old film clip to a line of computer code to a haiku scribbled on the back of a napkin. As the law stands, anyone who wants to reproduce an orphan work or tweak it into some novel creation (à la sound collagists Negativland) has to hunt down the copyright holder for permission or risk getting sued.

At the Aug. 2 hearing, held in a conference room at UC Berkeley's Boalt Hall law school, Lisuzzo encouraged the feds to make it easier for folks to use orphan works. Talk about strange bedfellows: In this particular battle Wal-Mart is on the same side as librarians, intellectuals, and the Electronic Frontier Foundation, an activist group that spends much of its time wrangling with big corporations.

There's no way to gauge how many works have been orphaned, but there's definitely a decent number of people who'd like to use them: About 700 people contacted the US Copyright Office in February and March to ask for revised regulations on orphan works, and you can get a sense of the headaches they're having by checking out the public comments posted on the Copyright Office's Web site (

One poster is William Haynes, whose child tore an old photo in his wedding album. "I went to a photo shop, and asked if they would scan, repair, and reproduce the photo," Haynes explained on the site. "But because it was taken by a professional photographer, who was out of business and long-lost, they refused the job on copyright basis. For heaven's sake, this is a photograph of me and my wife, and I can't have it legally repaired!"

For some, copyright is less about making goods accessible than it is who gets to cash in.

Consider the fans of Canadian industrial dance band Skinny Puppy who wanted to reprint old tour shirts after the band broke up. Surviving members of the band supported the idea, but Skinny Puppy had already sold the rights to its T-shirt images. Unable to locate the copyright holder, the fans gave up on the idea – only to find Skinny Puppy tour shirts selling years later at Hot Topic, a mall-based chain store that markets to kids.

Then there's Joseph Hall, a graduate student at UC Berkeley who wants to upload a rare book on voting technology to the Internet for public use. The book was originally published in 1942, and Hall believes the publisher has since gone out of business. "If this work is public domain, it would be a great resource if it was online in a searchable form. I have the ability to do this, but I'm uncertain whether or not the work is public domain or if the current rights holder would authorize such a use," he wrote on the Copyright Office's Web site.

Hall's problem is echoed by, a nonprofit that uses the Internet to bring books to people with disabilities. is looking for a cheaper and easier way to track down copyright holders for books that are old and out of print.

"Most copyright holders would give permission [to use their books] willingly. However, the cost to track down copyright holders on a case-by-case basis is prohibitive," wrote James Fruchterman, CEO of Benetech, which operates

It wasn't always this way. As Lawrence Lessig, the guru of intellectual property law, notes in his book The Future of Ideas, copyright holders once had to register and renew their work to keep others from freely using their ideas.

Now copyright takes hold automatically; you need not even apply. And unless you set up a general public license for your creative works, which allows others to openly tinker with and improve them, they will remain under copyright protection for 70 years after you are dead and buried.

"This shift is bizarre," Lessig writes of today's copyright statutes. "If welfare recipients can be denied their benefits because they fail to complete a benefits form properly, then I can't see the unfairness in requiring those who demand state support to defend their monopoly similarly by filling out a registration form."

Among other copyright reforms, Lessig advocates the creation of a federal database that would put the onus on copyright owners to show they actually want control over their work, instead of sharing it in the public domain.

"Copyright has become basically a set of land mines for creators and members of the public who want to use copyrighted work," Ren Bucholz, a policy coordinator for the Electronic Frontier Foundation, told the Bay Guardian.

Bucholz set up Orphan Works (, with help from the advocacy groups Public Knowledge and, to tell the public what's going on and to involve the artists, coders, and gearheads who would benefit most from a renaissance in the public domain.

Bucholz would like to see Congress enact the Public Domain Enhancement Act, a piece of pending legislation introduced by Rep. Zoe Lofgren (D-Calif.) and inspired by a Lessig-penned op-ed that appeared in 2003. The bill would require copyright holders to pay a nominal fee to renew the copyright 50 years after the work was originally published; otherwise the creation would become fair game.

So why the hell is Wal-Mart involved in this discussion? Well, not surprisingly, it's all about the Benjamins. Lisuzzo says the company is itching to make copies of old photos for customers but can't do so unless the customers can prove they own the rights to those pics. "We're in a situation as a retailer where we'd like to do nothing more than take their money, but we can't because of our policy and the law," Lisuzzo testified at the Berkeley hearing.

And, quite possibly, Wal-Mart is already eyeing other ways to turn a buck without paying copyright royalties.

E-mail Matthew Hirsch at