Julian Sanchez wonders about the political economy of “orphaned works”. Granting that owners of valuable old content (Mickey Mouse, Batman) have a strong interest in preventing those works from coming into the public domain, can’t we at least get some relief for the vast majority of other works that don’t fit that bill.
Megan McArdle is also puzzled:
As Julian notes, it’s puzzling that this hasn’t been resolved. Julian asks “Who’s the rational veto player here?” and I can’t think of an obvious candidate. And yet, congress has not seen fit to do something about the problem, even though resolving it would seem to be a rare example of pareto improving legislation: readers get to enjoy the material, while the copyright holders, who aren’t collecting royalties now, are no worse off.
I suspect the answer is either that Congress simply overlooked this issue, or that there is some reason to block it that Julian and I don’t understand.
This seems to me like a mistaken model of how congress works. For a bill to pass, it needs a majority in at least one House subcommittee. Then it needs a majority in at least one House full committee. Then it needs a majority in the entire House of Representatives. In parallel, a bill that is identical in all respects needs a majority in at least one Senate subcommittee, one full Senate committee, and sixty votes on the floor of the United States Senate where objections from even a single Senator can force days of delay. Members of congress need to do all this work while simultaneously fundraising & electioneering, positioning themselves for sundry bids for higher office, etc. The only veto player you need to explain why something doesn’t happen in the federal government is basic human laziness and risk aversion.
Meanwhile, even though Walt Disney and DC Comics wouldn’t be hurt by an orphaned works bill they don’t really gain from one either and it makes sense for them to be mildly averse to anything that puts intellectual property policy on the national agenda.