‘Only one thing needs to be changed: Don’t let anyone control the Orphans/Out-of-print. Only if an owner comes forward and prove they own a work (with penalties for overreaching, and not just weak anyone-can-claim-anything-with-no-negative-consequences as it is proposed now) then they can negotiate for money. Otherwise Orphan/Out-of-Print works can be used by anyone, say, for non-commercial use. This is roughly how the Orphan Works legislation works, which almost made it through congress last session.’

I have always had a high regard for you, Mr Kahle. I am dismayed to find you playing the game (familiar from some of the supporters of the Google Book Settlement) of obscuring the distinction between ‘orphan works’ and out-of-print works. I recommend to you the words of the US Register of Copyrights to the House Judiciary Committee: ‘As a side note, the Copyright Office would like to underscore for the Committee that out-of-print works and orphan works are not coextensive.’

The 2008 Orphan Works bill contains stringent provisions requiring diligent search for the copyright holders by those who wish to use an out-of-print work. You are leaving these provisions unmentioned and outlining a system under which rights-owners would have to come forward to claim their works: much like the proposals in the Google Book Settlement agreement, with the added highly objectionable aspect that more or less anyone (not just Google and its licensees) would be able to make unauthorized use of the out-of-print works of more or less any author, and it would be up to the copyright-holders (or their agents) to try and keep a continual (hopeless) watch. Moreover, there would apparently be no provision for terminating these uses if a work were to be republished by its legal owner(s).

I agree that there are big problems over the provisions for claiming works set out in the GBS, but your proposal is not necessarily any fairer. It is not always possible to ‘prove’ ownership of a published work by producing, for example, old contracts. It is a fairly common practice for work in short forms – such as poems – to be published on a non-exclusive basis under mutually satisfactory verbal agreements. In such cases there is no paper trail.

As for ‘negotiating for money’: money isn’t everything. Privacy is one issue. Authors have a right to suppress, for instance, early works that they feel do not adequately represent their powers. There is also the matter of who republishes a work, in what context and and for what purpose. An author of erotic poetry may not wish to find his/her work on a website alongside crude pornography. A gay or lesbian author would have good reason to object if an anti-gay organisation hijacked his/her work for propaganda purposes.

On the other hand, money is quite a lot. Your proposal substitutes for Google, which at least proposes to pay rights-holders something, ‘anyone’, who may or may not be in a position to pay adequate recompense (quite possibly won’t be, especially if there are very large number of works involved), and who is only required to pay at all if tracked down by the copyright-holder (or his/her agent). If these people are tracked down, they may prove uncooperative: what happens then? Will the copyright-holder be compelled to have recourse to expensive legal proceedings? (Even more expensive, if the copyright-holder is not a US national.)

‘Non-commercial’ sounds very fine, but it would cover the actions of unauthorized people who put in-copyright works on the web for free to ‘share’ them just as much as the activities of organisations with educational goals, like the Internet Archive. Either way, the copyright-holder sees the value of his or her property damaged or destroyed, with small likelihood of recompense.

To sum up: there should never be a presumption against the author and in favour of the unauthorized user of other people’s copyright works: the onus should be on the users to prove that they have, at the very least, followed very strict guidelines on carrying out a diligent search for the copyright owners. Authors should never be placed in the position of having continually to prove their ownership of the rights in their work. Nor should they be compelled to spend vast amounts of valuable time tracing unauthorized uses of their works and negotiating with the publishers. Authors also have a number of perfectly legitimate reasons for wishing to control the uses made of their writings by other parties.

I think very well of the Internet Archive; I use it for research, and prefer it to Google Books, since I find that the quality of the scanning is much more reliable. I would not like my feelings about it to sour. Google has angered a very large number of authors (including many who have opted into the Book Settlement, as in their estimation the lesser of evils) and in the process it has done, and continues to do, a great deal of damage to its public image. The Internet Archive, as a non-profit, dependent on donations of money and data, should be careful what it campaigns for, lest it tarnish its invaluable reputation.