This is a brief observation about the central role that error costs must play in any discussion of orphan works policy. I made it at the Berkeley orphan works conference last month. By popular request (okay, by one person’s request), I’m putting it online here.
The first, and most obvious, errors are those made by copyright owners whose works become orphaned. Works don’t end up orphaned unless there’s been a mistake by the copyright owner. They make mistakes about whether they’re copyright owners, about whether they’re findable, and about whether there’s a potential audience interested in their works.
But these errors interact with errors made by potential users of the works. If users knew with certainty whether copyright owners would emerge and object to possible uses, there’d be no orphan works problem, because every search would lead either to genuine negotiations or to use without fear of suit. False negatives that expose users to the risk of being sued and copyright owners to mistaken uses; false positives chill use without benefitting copyright owners.
And finally, there are error costs in the judicial system, which magnify the effects of errors at the previous two stages. They award remedies more than sufficient to compensate copyright owners, or they fail to award sufficient remedies. And the same problems face any system for dealing with orphan works: it could mistakenly declare that works are orphan when they’re not, or vice versa, and that searches were diligent when they weren’t, or vice-versa.
The point is that the ubiquity of errors isn’t just an incidental feature of the orphan works debate: it’s the defining reality that causes there to be an orphan works problem at all, and with which any response to the problem must grapple.