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March 24, 2011

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Michael Risch

Question - do we really need legislation to deal with orphan works?
1. There is still (I think) a good fair use argument for making orphan works searchable (with snippets), and a moderate argument for making them available wholesale (without fee) so long as they are truly orphan.

2. More practically, who is going to sue? It seems that this opinion opens up the argument that the class should be decertified and orphan authors (and perhaps others) should be excluded because their interests are different. Indeed, any settlement could build in such a severance by simply leaving orphan rights open. If so, then who is going to sue Google if it publishes orphan works? By definition, there's no owner that can be found. Of course, there is a risk of getting it wrong, but maybe it's a calculated risk.

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