it doesn't once mention or consider the question of what we are going to do about the billions of orphan works that are being "born digital" every day.She represented the Internet Archive in responding to the report, so she knows whereof she writes about the born-digital user-generated content that documents today's culture:
Instead, the Copyright Office proposes to "solve" the orphan works problem with legislation that would impose substantial burdens on users that would only work for one or two works at any given time. And because that system is so onerous, the Report also proposes a separate licensing regime to support so-called "mass digitization," while simultaneously admitting that this regime would not really be appropriate for orphans (because there's no one left to claim the licensing fees). These proposals have been resoundingly criticized for many valid reasons.
We are looking down the barrel of a serious crisis in terms of society's ability to access much of the culture that is being produced and shared online today. As many of these born-digital works become separated from their owners, perhaps because users move on to newer and cooler platforms, or because the users never wanted their real identity associated with this stuff in the first place, we will soon have billions upon billions of digital orphans on our hands. If those orphans survive the various indignities that await them ... we are going to need a way to think about digital orphans. They clearly will not need to be digitized so the Copyright Office's mass digitization proposal would not apply.The born-digital "orphan works" problem is intertwined with the problems posed by the fact that much of this content is dynamic, and its execution depends on other software not generated by the user, which is both copyright and covered by an end-user license agreement, and is not being collected by the national libraries under copyright deposit legislation.