This article explores the advantages of opt-out plans and identifies a critical shortcoming in Copyright’s doctrine of Fair Use. The discussion is fueled by a current controversy: In December of 2004, Google, Inc. announced its plan to digitally scan thousands of copyrighted ... [show]

This article explores the advantages of opt-out plans and identifies a critical shortcoming in Copyright’s doctrine of Fair Use. The discussion is fueled by a current controversy: In December of 2004, Google, Inc. announced its plan to digitally scan thousands of copyrighted books as part of a massive new digital indexing service. Hedging against possible litigation, Google provided a free and easy opt-out procedure for authors who didn’t want their books scanned. Despite this measure, two major authors’ groups have sued Google, claiming the opt-out plan imposes an unfair burden. This article explores the fairness of established opt-outs in contract law, privacy law, and class action rules. Further, the discussion explores how Copyright already places similar burdens upon authors. Ultimately, these lessons are applied to the Google Book Search problem, and an important new Fair Use consideration is identified. [hide]

As a result of legislation passed to extend the duration of copyright protection and to eliminate the formalities previously required to obtain it, a large category of works has been created that are protected by copyright, but whose copyright owners cannot be identified ... [show]

As a result of legislation passed to extend the duration of copyright protection and to eliminate the formalities previously required to obtain it, a large category of works has been created that are protected by copyright, but whose copyright owners cannot be identified or contacted to obtain permission to use the works. These “orphan works” are problematic because the uncertainty over their copyright status often leads to substantial transaction costs that prevent them from being used in new creative works or made available to the public, even when there is no one claiming copyright ownership, or the copyright owner would permit such use at no cost. As a result of the inefficient resource allocation caused by such transaction costs, the public is forced to bear the substantial economic, social, and cultural costs of orphan works being used unproductively. In response to this problem, the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property, on May 24, 2006, approved a bill known as the “Orphan Works Act of 2006.” If passed, the Act would limit the relief available to copyright owners whose “orphan works” are infringed upon by a user who performed a reasonably diligent search in good faith to find the copyright owner in order to obtain permission, but did not succeed. In doing so, it would allocate a portion of the transaction costs of initiating negotiations from the potential orphan works user to the copyright owner, thereby reducing the value of the copyright monopoly. Surprisingly, there has been almost no discussion by either the U.S. Copyright Office or anyone else about how the Act would allocate transaction costs. However, the effectiveness of the Act will ultimately depend upon whether such cost allocations would allocate orphan works more efficiently than they are now and thus, reduce the economic, social, and cultural costs of the orphan works problem. Because efficiency increases alone do not justify intentional copyright infringement, this paper examines whether the Act would minimize overall transaction costs, whether such cost allocations would cause copyright orphans to be used more efficiently than the current system, and whether any potential efficiency increases would comport with the goals of copyright law, such that the Act would provide a meaningful solution to the orphan works problem. [hide]