The Internet Archive first used the term “orphan” to describe books that are no longer commercially viable, (”out of print”); still in copyright; and whose ownership is either impossible or extremely difficult to determine. In 2004 Larry Lessig, Rick Prelinger, and I brought a suit to make it easier for orphans to enter the public domain (Kahle vs. Gonzales). As that case was proceeding, the Copyright Office held hearings and issued a report, which led to proposed orphan works legislation in both the House and Senate.
As that legislation has been wending its way through the Capitol Hill meat grinder, it turns out that Google, the AAP, and the Authors Guild were negotiating their own private solution to the problem of orphan works. After digesting the proposed Google Book Settlement, it becomes clear that the dizzyingly complex agreement is, in essence, an elaborate scheme for the exploitation of orphan works. The class action mechanism allows the Authors Guild (8,500 members) and the AAP (260 members) to extrapolate themselves to include millions of unfindable and unknowable rightsholders to orphan works. It is to this end–the certification of a class that includes the orphans–that the parties need the blessing of the court.
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