Google tried to get around this issue with a common sense solution. It decided it would electronically publish “orphan books,” or at least a part of them. Anyone who owned the copyright could either demand royalties or that Google remove the book from its database. Google would sell access to the “orphan books,” but if no copyright holder spoke up, 63% of the revenue would go to a publishers' organization, to be held in trust for such copyright holders if they ever appeared, or otherwise to be applied toward worthy causes. Here is where Google has been losing. So far, the courts have said sorry, common sense be damned, you need to get their permission first. Good luck.

Chairman Goodlotte in his statement acknowledged this issue: “Efforts to digitize our history so that all have access to it face questions about copyright ownership by those who are hard, if not impossible, to locate.” Register Pallante did as well when she said, “And in compelling circumstances, you may wish to reverse the general principle of copyright law that copyright owners should grant prior approval for the reproduction and dissemination of their works — for example, by requiring copyright owners to object or 'opt out' in order to prevent certain uses, whether paid or unpaid, by educational institutions or libraries.” She also suggested a minor reduction in the time of copyrights for “orphan works:” “You may want to consider alleviating some of the pressure and gridlock brought about by the long copyright term — for example, by reverting works to the public domain after a period of life plus fifty years unless heirs or successors register their interests with the Copyright Office.”

We certainly wouldn't minimize the importance of copyrights to protecting authors – living ones and their children for a generation – they deserve to reap the fruits of the labor. Without protections, they may stop writing. Whether they need protection for 70 years after they die to encourage them to write is questionable, but some substantial period of protection is desirable. We have seen what can go wrong for those who create – the massive digital copying of music a few years ago, and some copying of movies as well. This could happen to books. However, this is not a question of providing legal protection. Most of that stolen music was protected by copyrights. The question there was how to enforce those copyrights, and that is certainly a bedeviling question in the digital/internet age. Still, that is a different question from what very old material should still be subject to copyright, and how permission must be sought for “orphan” material with very old copyrights.

The other issue Ms. Pallante cited that we will briefly mention is that of the “first sale” doctrine. This provides that once a book has been legally sold, the buyer (and any subsequent owners) can do with it as they please. The author's copyright does not prohibit that person from selling or giving away their legally owned copy. In a recent case, a student from Thailand attending college in America imported Thai editions of textbooks also published in America and sold them to other students. The Thai editions, though essentially the same, were much cheaper in Thailand. The publisher printed in the books that they could not be sold in America. The publisher sued the Thai student. He responded that he legally bought the books in Thailand, and consequently the “first sale” doctrine protected his right to resell them in America. The U.S. Supreme Court ruled in favor of the student. However, it also implied that Congress could pass legislation prohibiting the importation of such books into America, achieving essentially the same effect. Since the “first sale” doctrine has regularly been applied broadly, we are concerned that any reconsideration of this rule would more likely be designed to reduce the public's access to books, rather than expand it.