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'I don't know what an orphan book is'

Whereas Brewster Kahle estimates that in-copyright but out-of-print orphans cover 50 to 70 per cent of books published after 1923, Dan Clancy worked to convince his Computer History Museum audience that the number of orphan works is marginal at best.

Google has already scanned roughly 10 million books, with plans to scan another 30 million or so, and Clancy guesses that orphan works account for only 10 per cent, arguing that most unclaimed works will eventually be claimed.

"The reason we do this with orphan works is that under the settlement, we don't know if a book is an orphan work or an unclaimed work," Clancy says. "I don't know what an orphan book is, because for me, any book here just hasn't been claimed yet."

And he's sure that once the orphans sift out, they'll hold little value. "When I talk to people in the publishing industry [about orphan works issue], it's kind of a joke. They say 'Well, they're orphaned for a reason.' If we've suddenly found a gold mine where the future of the book is the orphan works, then boy, the publishers aren't very smart."

Clancy spent much of the evening explaining how the net can unlock the potential of books buried in the world's libraries. But apparently, this doesn't apply to the orphans.

And if he's wrong, Clancy says, others will undoubtedly follow Google's lead. He dismisses the notion that no one else is positioned to spend the millions needed to settle their own book-scanning suit. "It is inconsistent to say there is significant economic potential [in the orphan works], but that no one else would spend all the money [we're] spending," he says.

"It may be that there's no economic potential, so therefore no one will spend the money we're spending and then we can all be glad that Google decided to spend. Or maybe we're onto the future of books, in which case [others will spend too]."

Slim Chances

Perhaps they will and perhaps they won't. Many have argued that even if someone were willing to try, there's little chance they could duplicate Google's result.

"Virtually the only way that Amazon.com, Microsoft, Yahoo!, or the Open Content Alliance could get a comparably broad license as the settlement would give Google would be by starting its own project to scan books," reads a now-famous post from University of California, Berkeley law professor Pamela Samuelson.

"The scanner might then be sued for copyright infringement, as Google was. It would be very costly and very risky to litigate a fair use claim to final judgment given how high copyright damages can be (up to $150,000 per infringed work). Chances are also slim that the plaintiffs in such a lawsuit would be willing or able to settle on equivalent or even similar terms."

But even if someone were bold enough to follow Google's lead - and lucky enough to match its terms - we're still left with a market of two. As Peter Brantley and the Internet Archive have said, the most sensible solution is federal legislation, a solution that applies the same rules to everyone.

Clancy says he has no objections to legislation. He says Google has lobbied for a federal law and will continue to do so. But he's adamant that Google's settlement should come first, arguing that the company's private agreement provides the quickest path to the public good.

"By creating the database and making the database [the Book Rights Registry] public, it solves what has always been one of the big challenges in getting orphan works legislation through," Clancy says. "You're trying to prove a negative, since nobody has put up the money and made an effort to build a database of copyright holders. How do we know what you have to do?"

A fair argument - up to a point. As Brewster Kahle pointed out, the Registry is its own monopoly. Shouldn't this copyright database be in the hands of the public? Or at least be subject to government regulation?

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