When we last left the Orphan Works bill, the previous versions had died in committee without even going to a vote while various sources were passing around blog posts claiming the (dead) bill was the end of copyright protection as we knew it. On April 24th, new legislation was brought before the U.S. House and Senate in the form of HR.5889 and S.2913, two nearly identical bills based in part on the last draft. The original concept behind Orphan Works legislation was to free up works that would otherwise be in copyright limbo due to dead or vanished owners (think Depression-era photographs) for use by non-profits such as schools, libraries and religious groups and/or transformative variations. Since copyright has been and is being extended almost infinitely thanks to the army of lawyers on the Disney payroll, the proposed legislation has been viewed as a blessing by non-profits looking to use items otherwise left to get dustier in archives and closets. Other parties, most notably the Illustrators' Partnership of America (IPA), have been less enthusiastic about the proposed bill, saying it would open up millions of works to copyright infringement. Big corporations would be able to poach works without having to pay a dime to creators, and if they got caught (so the argument went) they wouldn't even have to pay legal fees, just an unspecified "fair amount" for the use of the work. Non-profits who immediately stopped use of the work wouldn't have to pay at all for the infringement. And this is why artists went up in arms a few weeks back after an inflammatory article by Mark Simon on the subject. The cooler heads in the debate pointed out flaws in the assumptions being made by Simon and the IPA, and said to wait until there was an actual bill written before making claims about the contents.

And now that there's a bill?

There are significant differences between the Orphan Works Bill of 2006 and the Orphan Works Bill(s) of 2008.

"In determining whether a search is diligent under this subparagraph, a court shall consider whether (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. (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)."

There's more at http://www.thomas.gov for anyone who'd like to read the full text (note: documents found from searches cannot be linked later from websites, so input "Orphan works" in the search field). There are protections in place for copyright holders if they surface, payment is legally required except in cases of non-profits who immediately stop the infringement upon receiving notice, and there are penalties for any infringer who does not follow the process as described. It is not the end of copyright as we know it, it is not going to steal your fanart from your notebook, and it still might die in committee like the others. So relax.