Back in June we noted how the very first net neutrality complaint had been filed and that it was notably stupid, but important. Basically, a small San Diego company by the name of Commercial Network Services (CNS) tried to complain that Time Warner Cable was abusing its monopoly power by refusing to give the company free peering. CNS operates a series of webcams in the San Diego area which, when visited, inform users that the reason they can't access the "ultra-HD" version of the cameras is because their ISP isn't a peering partner with CNS:
In its informal FCC complaint, CNS tried to claim that Time Warner Cable's refusal to offer free peering violates the "no paid prioritization" and "no throttling" sections of the new net neutrality rules. Basically, CNS has been trying to claim that net neutrality somehow means it somehow deserves free peering from bigger ISPs, even though that's never been how things work, and the new net neutrality rules don't change that. So it was the first net neutrality complaint, but it was also the first example of a company trying to use the rules to weasel out a business advantage, something mega-ISPs complained would happen.
"In this instance we regret that you were not satisfied with attempts by FCC staff to facilitate a more satisfactory resolution of the underlying issue. At this point, you might want to contact the company directly to see if you and the company can arrive at a resolution that is more acceptable to you. You will receive no further status on your complaint from FCC staff."
While the net neutrality rules don't specifically cover interconnection, they do give the authority for the FCC to resolve complaints on a case-by-case basis. In this case, the FCC clearly found nothing wrong. And that's a good thing; one narrative of incumbent mega ISPs before the rules were passed was that the FCC would run amok, competitors would abuse the rules, and we'd be wandering a minefield of unintended consequences and protracted legal battles, decimating the telecom landscape as we know it. Yet here, the FCC quickly saw a stupid complaint and shot it down with minimal fuss.
Obviously that's only one complaint, and we'll need to watch the FCC closely to see just what trips the agency's definition of anti-competitive behavior. But so far so good, and none of it has required "heavy handed regulation." Simply having rules in place has already helped on the interconnection front, with companies like Netflix, Cogent, Level 3 and the mega ISPs (Comcast, AT&T, Verizon) getting along famously simply due to the threat that a regulator might just do its job.
CNS, meanwhile, insists it's going to proceed and file a formal net neutrality complaint, for whatever that winds up being worth (and it won't be much).
China's plan to control the hearts, minds and internet connections of its citizens continues unimpeded. That's the great thing about authoritarian regimes: rollout of mandatory programs is usually only a problem of logistics, not opposition.
The Chinese government has mandated a rating system for all of its connected citizens. It looks like a credit rating but goes much deeper than just tying a measurement of financial risk to a number. It's a way of defining who someone in terms of the government's desires and aims. And its desires aren't all that honorable.
Everybody is measured by a score between 350 and 950, which is linked to their national identity card. While currently supposedly voluntary, the government has announced that it will be mandatory by 2020...
In addition to measuring your ability to pay, as in the United States, the scores serve as a measure of political compliance. Among the things that will hurt a citizen’s score are posting political opinions without prior permission, or posting information that the regime does not like, such as about the Tiananmen Square massacre that the government carried out to hold on to power, or the Shanghai stock market collapse.
This is where all the government's moves towards greater control of the internet comes to fruition. To keep "score," the government needs to tie IDs to online activity. Keeping the internet within the government's walls makes it that much easier. But it's not just online activity that will affect "citizen scores." It's almost every aspect of their lives.
Also used to calculate scores is information about hobbies, lifestyle, and shopping. Buying certain goods will improve your score, while others (such as video games) will lower it.
Chinese citizens who want to remain in the government's good graces will need to balance "negative" purchases with offsetting positive purchases, most likely domestic electronics and appliances.
As disturbing this is, the truly horrific aspect of the "citizen score" is that it can be influenced by friends and family members.
It will hurt your score not only if you do these things, but if any of your friends do them. Imagine the social pressure against disobedience or dissent that this will create.
The Chinese government is introducing a caste system -- one that will result in the shunning of people who can't be bothered to keep their dissenting opinions to themselves… or just enjoy certain leisure activities. Certain people will be considered too harmful to hang out with, thanks to the government's mandatory "citizen score." And with anyone able to check anyone else's "score," the pressure to ostracize low scorers will be greatly magnified.
Most disheartening is the fact that many citizens seem to view higher scores as status symbols.
Sadly, many Chinese appear to be embracing the score as a measure of social worth, with almost 100,000 people bragging about their scores on the Chinese equivalent of Twitter.
The government's program feeds on the natural competitive desires of human beings. There may be no official leaderboard (YET!) but with millions of easily-accessed "citizen scores," anyone can enter this unofficial score-measuring contest. The government obviously realizes this, as it has tied perks to certain score tiers.
Those with higher scores are rewarded with concrete benefits. Those who reach 700, for example, get easy access to a Singapore travel permit, while those who hit 750 get an even more valued visa.
Klout, but for controlling the hearts and minds of a large populace.
And just in case anyone wants to feel superior about China's decision to grade its entire populace on a mandatory curve, let's not forget that employers and loan providers are using applicants' social media interactions to determine their worthiness -- including who they're friends with and what those friends are posting to Twitter, Facebook, etc.
The US government may not be calling for a "citizen score," but there have been pushes for a national ID, and government agencies are certainly using the same hiring "tools" as the private sector when considering job applications. The US government hasn't made many direct assaults on dissent, but it does perform a lot of this same tracking behavior in the interest of national security -- what with the TSA asking for bids on social media mining software and the DHS suggesting retailers voluntarily report "suspicious" purchases.
The Chinese government, however, is sending an implicit message to its citizens with this program: conform or be cast out. The smallest of carrots is dangled and members of the public -- in the interest of maintaining their own high scores -- will act as the stick.
Previously leaked reports and drafts of the TPP agreement had showed that the US and Australia were strongly pushing other countries to extend the minimum copyright terms to "life plus 70 years," up from the international norm of "life plus 50 years." Mexico was actually pushing for life plus 100 at one point. This seemed bizarre to us. It's hard to see how anyone could legitimately support extending copyright terms, but the USTR refused to back down. This made no sense, given that here in the US, as we undergo a major copyright reform effort, even the head of the US Copyright Office has admitted that perhaps it's time to start moving back towards life plus 50 years here in the US.
TPP requires New Zealand to move to 70 years as well, but allows for a transition to do this over time.
This change could benefit New Zealand artists in some cases, but the benefits are likely to be modest. Extending the copyright period also means New Zealand consumers and businesses will forego savings they otherwise would have made from books, music and films coming off copyright earlier. The net cost of extending New Zealand’s copyright term from 50 to 70 years will be small to begin with and increases gradually over 20 years, reaching a relatively constant level after that. Over the very long term, including the initial 20-year period, the average annual cost is estimated to be around $55 million.
This is hugely problematic and, once again, shows how even if the TPP doesn't directly require changes to current US law, at the very least it locks in a very dumb provision that the US has already expressed interest in changing. And now we won't be able to because an unelected bureaucrat, negotiating behind closed doors with help from the MPAA & RIAA, pushed through provisions like this one.
To get a sense of where we're going with this, here's a bit from the opening paragraphs of the opinion:
The defendants, Jason Estabrook and Adam Bradley, stand indicted for murder and related crimes arising out of a shooting that took place on July 7, 2012, in Billerica. They moved to suppress evidence of historical CSLI pertaining to Bradley's cellular telephone that the police initially obtained in July, 2012, without a search warrant but in compliance with 18 U.S.C. § 2703 (2006), and then, in November, 2013, reobtained pursuant to a warrant.
The CSLI was sought twice. This is the first sign that something's not quite right. Historical cell site location information doesn't change. That's the thing about history. And yet, the police obtained it twice: once with a subpoena (which was wrong) and once with a warrant (the lawful way to do it).
You see, the Massachusetts courts had already created a bright-line (of sorts) for the acquisition of cell site location data. Under the state's interpretation of its Declaration of Rights, cell site location info carries with it a reasonable expectation of privacy. This status demands the use of a warrant. An earlier decision determined that small amounts (up to six hours) of CSLI can be obtained without a warrant, as the limited time period makes acquisition much less analogous to long-term tracking.
The police knew they could only get six hours of CSLI without a warrant, but they had already grabbed two week's worth using only a subpoena. But the officers had an angle…
In this case, however, because the Commonwealth requested two weeks of historical CSLI, a search warrant was required, even though the Commonwealth proposes to use only six hours of the CSLI as evidence at trial.
That's a very opportunistic reading of the court's intentions. If the police were so inclined, they could subpoena a year's worth of CSLI and trim it down to only the most incriminating six hours of data before presenting it in court. Or they could just go fishing with subpoenas, look over the collected data and see if they could match any six hours of it to an investigation or prosecution.
The court points out the flaw in this logic, which, let's face it, the cops knew all along.
It is important to emphasize that, in terms of reasonable expectation of privacy, the salient consideration is the length of time for which a person's CSLI is requested, not the time covered by the person's CSLI that the Commonwealth ultimately seeks to use as evidence at trial.
The warrant requirement is for the "asking," not the "telling," to put it elementary school terms.
Fortunately for the police, the twice-obtained CSLI didn't harm their case too much. The defense argued that other evidence -- including statements made to the police -- should be suppressed because it originated from tainted CSLI. The court, however, concludes that a great deal of evidence was obtained independently and that only a few moments from various interviews could be traced back to inferences drawn from the cell site location info.
The court also came to the conclusion that the warrant the police sought well after it already had the subpoenaed CSLI in hand was likely legitimate, rather than just a shoddy attempt to cover up its earlier misdeed. Over the course of several paragraphs, the court lists all of the information gathered by officers prior to their issuing of the subpoena and finds it adds up to probable cause that isn't overly-reliant on the already-acquired CSLI info. The court doesn't offer any speculation as to what actually happened here, but rather points out that the CSLI was still lawfully-obtained, and anything stemming from the latter acquisition cannot be suppressed.
While this obtain-twice, admit-once method of cell site evidence acquisition didn't pay off for the criminal defendants, it at least provides another citable example of how far law enforcement agencies are willing to go to bypass the mild logistical hiccup that is obtaining a warrant.
A ways back, we brought you the delightfully dumb news that LMFAO, the band, had sent a cease and desist letter to Pigeon Hill Brewing Co. over one of its beer brews, the LMFAO Stout. At chief issue, according to the brand, was a misguided concern that drinkers of the stout would somehow think that the acronym in the beer's name meant that LMFAO the band had endorsed or was otherwise affiliated with the beer. This was dumb on any number of levels, but the primary reason is that LMFAO got its name from a common internet/texting acronym, rather than achieving any kind of originality in music-group-namesmanship.
Which, you know, yay, but why did it takes weeks of litigation and lawyerly conversations to conclude that everyone could live with a beer named LMFAO? Trademark law has a very handy provision that requires that marks be acquired and used ongoing in specific industries. LMFAO is a band. LMFAO Stout is a beer. There's no common marketplace here.
And, while it's a breath of fresh air to hear that two sides had legal representation that were able to work amicably to an end that got us back to exactly where we started, it isn't enough to simply congratulate everyone for not being jerks. This trademark thing is a problem the craft brewing industry is going to have to deal with eventually, or else they risk stifling the immense growth it's experienced in the past decade.
We've seen some early-stage advances for ways that might help restore sight to people with low vision (or no vision), but it will take many more years before the clinical trials and safety approvals are complete. And not everyone will want to undergo an eye surgery to try to regain some vision, either. Fortunately, robots and wearable technology continue to improve, and these gadgets could become very useful for the blind (and the rest of us, too). Maybe we won't just see telecommuting iPads for remote workers -- but also robot assistants for casual and everyday uses, as well.
In Johnson County during the summer of 2013, an argument occurred between Yeasin and his now ex-girlfriend after he saw messages from another man on her phone. The two drove around arguing and she asked Yeasin to let her out, but he refused. He also refused to return her phone.
She complained to the Johnson County police. Court records show Yeasin was charged with criminal restraint, battery and criminal deprivation of property. To resolve this incident, Yeasin voluntarily entered a no-contact order, meaning he could not contact his ex-girlfriend.
What Yeasin did next did not play a role in this decision, which was ultimately decided on the merits (or lack thereof) of the University of Kansas' interpretation of its own policies. But it does say something about the reach of the school's no-contact order (the school added its own on top of the one handed down by the county court), which was certainly further than it should have been.
“The Judge who entered the order ruled that it was entered by consent with no findings of abuse,” [attorney Terry] Leibold said. “In order to comply with the no-contact order, Navid removed the ex-girlfriend as a follower of his tweets. His Twitter account was private and could only be accessed by his followers.”
Yeasin still used his Twitter account to make disparaging remarks about his ex-girlfriend (referred to simply as "W" throughout the proceedings). But he never directed messages towards her. He tweeted about her but never used her name. This didn't keep the tweets from being mostly despicable and they certainly were "decoded" by those familiar with both parties, but the university's no-contact order went far enough to make even this indirect non-communication a potential violation. From the ruling:
You are hereby informed that this 'no contact' order means that you understand you are prohibited from initiating, or contributing through third-parties, to any physical, verbal, electronic, or written communication with [W.], her family, her friends or her associates. This also includes a prohibition from interfering with her personal possessions. . . . Moreover, retaliation against persons who may pursue or participate in a University investigation, whether by you directly or by your associates, is a violation of University policy.
On the same day the university opened its investigation into his off-campus actions, Yeasin tweeted:
On the brightside you won't have mutated kids. #goodriddens
After being informed of the university's no-contact order, he tweeted:
Jesus Navid, how is it that you always end up dating the psycho bitches?' #butreallyguys
Over the next few weeks, he tweeted the following:
Oh right, negative boob job. I remember her.
If I could say one thing to you it would probably be "Go fuck yourself you piece of shit." #butseriouslygofuckyourself #crazyassex
Lol, she goes up to my friends and hugs them and then unfriends them on Facebook. #psycho #lolwhat
These tweets were reported to the university. (No reports were made to law enforcement.) The university's Office of Institutional Opportunity and Access (IOA) sent Yeasin an email telling him that even though the tweets didn't mention W's name, they were still a violation of the no-contact order, which was expanded to cover even more potential communications.
Brooks gave Yeasin a second warning that "[g]oing forward, if you make any reference regarding [W.], directly or indirectly, on any type of social media or other communication outlet, you will be immediately referred to the Student Conduct Officer for possible sanctions which may result in expulsion from the University."
Seven hours later, Yeasin tweeted:
lol you're so obsessed with me you gotta creep on me using your friends accounts #crazybitch
Yeasin was summoned by the IOA, where he made conflicting statements about whether or not the tweets referred to W. He also made this concession:
Yeasin told McQueeney that he would not tweet anything that could be perceived as being directed at W. and he recognized doing so was a violation of both the protection order and the no-contact order.
The university moved ahead with its investigation and decided Yeasin's tweets had violated the no-contact order and expelled him, along with banning him from the campus until W. had graduated.
Yeasin then sued the university for kicking him out over incidents that had occurred off-campus, including the original confrontation that had resulted in his arrest. The lower court found in favor of Yeasin.
[G]iven its finding that the University erroneously interpreted the Student Code by applying it to off-campus conduct, the district court found that the University's decision that Yeasin violated Article 22 was not supported by substantial evidence because it failed to establish that Yeasin's conduct occurred on campus or at a university-sponsored event.
The district court ordered that the University readmit Yeasin, reimburse or credit Yeasin for his fall 2013 semester tuition and fees that he paid, and pay the transcript fees. However, the court issued a stay order at the University's request.
The appeals court agrees. It points out that the sections of the student code the university cited to support its expulsion of the student both contain wording that limits the university's discipline to actions taken on campus or during university-sponsored events.
Through every step of the disciplinary proceedings, the University relied on Article 22 of the Student Code as the basis for Yeasin's discipline. But, on appeal, the University cherry-picks a small phrase from Article 20 to argue that it did indeed have the authority to expel Yeasin for his actions in Johnson County during the summer and for his tweets in violation of the no-contact order.
The University asks us to find that the district court should have interpreted the phrase "or as otherwise required by federal, state or local law" found in Article 20 to mean that the University's jurisdiction to discipline a student for violating Article 22.A. extended to a student's off-campus conduct.
If we construed Article 20 as the University wants, we must insert words to the effect "for conduct wherever committed." The phrase then becomes, "or as otherwise required by federal, state, or local law for conduct wherever committed." If that is what the drafters of the Student Code meant, the article could have been written in that fashion.
Following this conclusion, the appeals court affirms the lower court's decision and lifts the stay order. Because the case was limited to school policies, the question of whether Yeasin's speech was protected by the First Amendment (almost definitely) isn't addressed.
While it's hard to conjure up much enthusiasm for an abusive jerk being told he's right by the appeals court, the decision prevents the eruption of negative side effects. For one, Kansas universities will still have to limit their disciplinary efforts to incidents on school property or during school-sponsored events. No one should be in any hurry to allow educational institutions to extend their reach into the private lives (and homes) of their attendees.
On top of that, there's the nature of the tweets themselves. While undeniably unpleasant and misogynistic, they were never aimed directly at W. Also unaddressed by the court's decision is the breadth of the university's no-contact order, which basically forbade Yeasin from engaging in private disparagement of his ex-girlfriend.
From Yeasin's lawyer:
The tweets made their way back to the ex-girlfriend who told the IOA about the tweets claiming the tweets were in violation of the no-contact order issued by the IOA…The tweets were no different than if Yeasin had complained to his friends about his ex-girlfriend and whatever he said ultimately reached the ex-girlfriend.”
The ruling here makes sense, even as it protects the unsavory actions and words of an apparently terrible person. But it is very much limited to the policies in place at the University of Kansas. The ruling notes that the school could claim jurisdiction over events occuring off-campus, but it apparently hadn't considered that angle until it was in the middle of a lawsuit. Expanding that reach may be the school's perogative, but any attempts it makes to control off-campus speech will only result in addtional lawsuits -- these ones predicated by the First Amendment.
It's been rumored for years, but reports out of Atlanta suggest that it's now confirmed that in order to finalize the Trans Pacific Partnership (TPP) agreement, everyone agreed to carve tobacco out of the corporate sovereignty system, better known as ISDS (investor state dispute settlement). These systems allow companies to sue countries for passing regulations that the companies feel harm their ability to profit -- and tobacco companies have already filed ISDS complaints in a few countries that have pushed to put health warnings on cigarette packages.
While some health activists have cheered on this carve out -- it appears that almost everyone else is pissed off. Not because they think that Big Tobacco should be shaking down countries that pass anti-smoking laws (though, there may be some of that), but because they recognize the problems that occur when governments can start to set up trade deals that "carve out" certain industries. It's opening up a huge can of worms. Even some supporters of corporate sovereignty/ISDS are worried about what it means when one particular industry can just be excluded entirely from the process. Two of the biggest supporters of ISDS and TPP in Congress, Senators Mitch McConnell and Orrin Hatch, have both warned that the US should not carve out tobacco. Here's McConnell a few months ago, standing up for those poor, poor tobacco farmers:
“It is essential as you work to finalize the TPP, you allow Kentucky tobacco to realize the same economic benefits and export potential other U.S. agricultural commodities will enjoy with a successful agreement.”
And here's Hatch actually making a fairly salient point about the carve out:
“Although I don’t support tobacco at all, I still think it was essential,” Hatch said. “It’ll cost us some votes. And every vote is essential. And there are other things I am very concerned about. I’ve committed to read the bill, and I will read it, but right now I’m leaning against it.”
That doesn't bode well for the agreement, given that Hatch was a huge supporter of the TPP. Another Senator, Thom Tillis, has pointed out that carving out one industry opens up the possibility of carving out others:
“I’ll not only vote against it, I’ll work hard to have it defeated if it goes in the final agreement.... Once you carve out someone from dispute settlement agreements, then who’s next?”
And the tobacco carve-out, believe it or not, seems to be one thing that both big business and big labor agree on, though for entirely different reasons. The US Chamber of Commerce and the National Association of Manufacturers are totally against it:
we ask all of the TPP governments to reject the exclusion of products from the coverage of the TPP and its enforcement mechanism.... Such exclusions are unnecessary and would be highly damaging to the international rules based trading system and the prospects for the TPP.
And here was the AFL-CIO opposing the entire ISDS mechanism, and noting that the tobacco carve-out just highlights the problems of ISDS. Whereas Senator Tillis worried about "who's next" to get carved out, the AFL-CIO is pointing out that maybe there should be a lot more.
Any industry-specific carve-out will not address the serious structural problems inherent in the system itself. Issues of broad public interest should not be viewed through the narrow lens of trade and investment at all, let alone decided by unaccountable private panels. Systems of justice should be transparent and accessible on an equal basis. ISDS is anything but: Only foreign investors can use it and there are no requirements that affected communities be allowed to participate or even have their view considered. In many cases, there often are not even requirements that hearings or decisions be made available to the public at all! Even in the case of clear legal error, it is almost impossible to reverse a decision.
Indeed, as Sean Flynn pointed out just last week, carving out tobacco really just enforces how dangerous corporate sovereignty really is:
The new exception validates, rather than assuages, the concerns of those who have been criticizing ISDS systems for many years. Without express carve outs, ISDS provisions do threaten common health and safety regulations.
The carve out does nothing to halt the disturbing recent trend of companies using ISDS provisions in trade agreements to enforce international intellectual property norms through ISDS tribunals. This is, indeed, the claim at the heart of the tobacco cases now being litigated in ISDS systems. The claim is that tobacco regulations requiring plain packaging violate the trademark rights of tobacco companies protected by the World Trade Organization agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The pharmaceutical company Eli Lilly has also claimed that the denial of a new use patent on an old (off-patent) medicine violates rights granted by TRIPS and the North Atlantic Free Trade Agreement (NAFTA).
Meanwhile, US trade officials are, of course, trying to tap dance around the fact that basically everyone absolutely hates this. The USTR has tried to pretend this isn't a big deal because tobacco is "unique."
The U.S. Government seeks to include this language because tobacco is a unique product – it is highly addictive, always harmful to human health, and the single most preventable cause of death in the world. Recognizing these facts about tobacco through the TPP will represent an important step forward for public health in the international trade community.
It's true that tobacco can be a serious health concern, but shouldn't we be raising questions about why this procedure is no good for tobacco companies, but just dandy for every other industry -- including some that produce harmful products? Or those like pharmaceutical companies who are jacking up prices to keep necessary medicines out of the hands of the poor?
Oh, and then there are those who are in complete denial, who are insisting that there really isn't a carve-out for tobacco, even though there almost certainly is (we can't say for sure, of course, because the documents are secret):
“TPP will not discriminate against any agricultural commodity nor will it exclude tobacco. On the contrary, TPP will provide protections to ensure that governments can implement tobacco control measures, while guaranteeing that tobacco has the same legal status as any other product,” a U.S. official told CQ Roll Call last week.
In short, the whole tobacco carve-out situation is a microcosm of the problems with the TPP. You have a terrible idea (corporate sovereignty) mixed with a weak attempt to appease health activists (carve out tobacco), that basically fixes nothing and satisfies no one. And, now, the same Senators in Congress who demanded the fast track authority be granted, which ties their own arms behind their backs in terms of changing the agreement, are threatening to force this change, even though they've already given up the power to do so.
from the orphan-works-are-your-fault,-don't-blame-us dept
A few weeks ago, we wrote about the big ruling by Judge George King in a district court in California that Warner/Chappell does not hold a valid copyright in the song "Happy Birthday." The press ran with the story, with nearly all of the coverage falsely stating that the judge had declared Happy Birthday to be in the public domain. As we noted in our post, however, that was not the case. While the plaintiffs had urged just such a finding, Judge King noted that there were issues related to this that a jury would need to answer, and he would not go that far. Instead, he merely stated that Warner did not hold a valid copyright. Many people assume that this is good enough. The likelihood of some third party magically showing up after all of these years and not just claiming the copyright, but having enough evidence to prove it seems very slim. Glenn Fleishman has done a nice job writing up a detailed explanation of this copyright mess for Fast Company, in which he notes the "uncertainty is maddening."
It's worse than that. As we noted in our original post, technically, this makes "Happy Birthday" an orphan work -- i.e., a work where the exact copyright status or owner is "unknown." Orphan works have been a big problem that the Copyright Office has been studying for some time. However, the solution proposed by the Copyright Office is ridiculous, and the case of Happy Birthday should demonstrate pretty simply why the proposal is broken.
The plan says that anyone who wants to make use of an orphaned work would have to meet six criteria to avoid possible liability:
Users must: (1) if sued for infringement, prove to the court by a preponderance of the
evidence that they performed a good faith, qualifying search to locate and identify the owner of
the infringed copyright before the use of the work began; (2) file a Notice of Use with the
Copyright Office; (3) provide attribution to the legal owner of the copyright, if reasonable under
the circumstances; (4) include a to-be-determined "orphan works" symbol with any public
distribution, display, or performance of the work; (5) assert eligibility for such limitations in the
initial pleading in any civil action involving the infringed work; and (6) state with particularity
the basis for eligibility for the limitations during initial discovery disclosures.
Now, let's look at this in terms of Happy Birthday. If you want to sing Happy Birthday, you would first have to conduct and document a "good faith, qualifying search to locate and identify the owner" of Happy Birthday before you sang it. You would then have to file a "notice of use" with the Copyright Office, telling the Copyright Office about this use of an orphaned work. Now, obviously, for most folks singing "happy birthday" at a birthday party, they're not going to do that -- and that's fine. After all, they ignored the copyright when many believed Warner/Chappell held a valid copyright.
But -- and here's the important point -- all of the "professional" situations where the song was used would almost certainly have to go through this process. Films that used the song wouldn't be able to get "errors and omissions" (E&O) insurance without first proving they made it through this process (and you need E&O insurance to ever get a movie released). Restaurants that wanted to sing Happy Birthday rather than their made up song would need to do the same thing. And they'd all likely have to hire lawyers in order to properly document the "search" and to file the notice with the Copyright Office. And very few people are going to want to go through that process. It may be slightly better than paying thousands of dollars to Warner/Chappell, but not much.
How is this solution possibly a "good compromise" on the issue of orphan works? How does adding such a burden, just so someone can sing Happy Birthday, possibly make sense?
Once again, the "problem" of orphan works is a self-made problem, created by copyright laws that automatically grant copyright to all new fixed works, rather than requiring registration in the first place. If it required registration, there would be some sort of record and paper trail of who owned the copyright and when it was valid. But in a world where everything gets copyright protection, we get a world with millions upon millions of orphaned works -- and if anyone who ever wanted to do anything with it had to go through the convoluted mess just to do something like sing Happy Birthday, the "answer" is no answer at all. It's just making a bad problem worse.
The way to fix orphan works is not to increase the burden, it's to fix a broken copyright system, and to require registration in the first place.
Bonus content: This doesn't fit directly into this post about orphan works, but this video by Vi Hart about the copyright on Happy Birthday is totally worth watching, presenting the issue from the perspective of someone knowledgeable about music theory, rather than copyright law, and showing yet another way in which the idea that Happy Birthday ever deserved copyright is a ridiculous idea.