Berkeley economist Hal Varian has an op-ed in the New York Times about "orphan works", works that are copyrighted but where the original owner can't be located. This is a particularly nutty aspect of copyright law - you might want to use a work and be willing to pay for it, but can't, and if you do anyway, you'd be liable for $150,000 in statutory damages.

To Varian, an economist business-ologist, this is broken.

Read more...He praises Larry Lessig's orphan works proposal for a registry, similar to the DNS registry, operated by private companies but with a central standard ensuring interoperability. Lessig's plan would require that any copyright holder register a work after 14 years in order to retain protection, while the Copyright Office's orphan works proposal has a vaguer standard where someone wanting to use the copyright would have to conduct a "diligent search", with the precise definition of "diligent" up to courts.

Varian suggests, why wait for the Copyright Office to mandate such a registry? If there were a registry, then courts could decide that searching the registry could be enough to satisfy the courts under the Copyright Office's vaguer proposal. Given that the Copyright Office probably won't adopt Lessig's suggestion, that sounds like a great idea.

Still, I prefer Lessig's proposal. Its best asset is the way it creates a clear rule for how to determine if a work is orphan or not. Having clear rules is good, because gray areas mean litigation. Big companies can afford to fight in court, but small creators can't, and therefore the vaguer "diligent" standard will still mean that many creative works that could have been legally made won't be, because of the risk of lawsuits. Furthermore, what if you're developing technology to automatically use various works in transformative ways? Does a diligent search have to be by hand? A registry could be easily computer-accessible as well.

Creativity and innovation flourish most when the threat of lawsuits is least. Having a clear rule for which works are orphan, and which aren't, best serves the public interest.