Applying Copyright Abandonment in the Digital Age

Copyright law protects orphan and parented works equally--but it shouldn't. Consequently, current law unnecessarily restrains public access to works that authors have not exercised dominion over for decades. This problem has come to the fore in the Google Books settlement, which critics argue will give Google a de facto monopoly over orphan works. But this criticism implicates an obvious question: Why are orphan works protected by copyright law in the first place? If orphan works were in the public domain, then no one would worry about Google's supposed "monopoly" because Google's competitors would be free to copy the works without facing class action lawsuits. To address these concerns, I propose a new equitable defense to copyright infringement: the orphan theory of abandonment.