The orphan works problem in copyright is real and serious. Several congressional hearings and a Copyright Office inquiry that drew hundreds of thoughtful comments—not to mention countless articles and blog posts—attest to that fact. This attention is heartening, and while orphan works legislation seems to have died this year, I’m optimistic that the next Congress will address the issue. As is often the case in Washington, however, such a victory might only mark the beginning of the next battle. The way I see it, the DMCA might create a second orphan works problem.

As you may know, an orphan work is a work under copyright the owner of which cannot be found. For example, say you come across a self-published political manifesto from 1967 in a Berkley archive or garage sale. You’d like to excerpt extensively from it in a book you’re writing about the Summer of Love. You try every possible avenue to locate the pamphlet’s author to get persmission, but you fail. That manifesto is an orphan work: it’s under copyright, but you can’t find the copyright’s owner.

The problem with orphan works is that if you nevertheless use the work without getting permission from the owner, you expose yourself to an infringement lawsuit if the owner later appears. Because statutory damages can run as high as $150,000 per infringing use, most orphan works go unused. This is a loss not only to the potential user, but also to society at large because it will be deprived of the promotion of science that would have resulted from a derivative work. Perhaps worse, an orphan work might be lost altogether because making an archival copy—say from fragile film to a more stable digital format—can be considered an infringement.

I have previously proposed a solution to the orphan works problem that would create an orphan works affirmative defense to infringement similar to fair use. Under this scheme, if you could show that you took every reasonable step to find a copyright owner and came up empty, you would not be liable for infringement. The Copyright Office made a similar recommendation, but instead of serving as a defense, showing a reasonable search for the copyright holder would merely limit the possible penalties for infringement. A bill based on that recommendation passed the Senate in September but never got a vote in the House before it adjourned earlier this month.

So what does this all have to do with the DMCA? My concern is this: Even if a strong orphan works bill were to pass Congress so that one would no longer have to worry about liability for copyright infringement, the work might still be unusable if in order to gain access to it one had to circumvent a technological measure in violation of the DMCA.

This is not a far-fetched idea. The Internet Archive has already successfully argued for a DMCA exemption for “Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive.” It needed this exemption to legally preserve legacy software stored on fragile floppy discs. Without that exemption, it would violate the DMCA even if it did not violate copyright.

You can see this problem presenting itself again. For example, the Prelinger Archive serves to collect and preserve ephemeral films of historical significance. According to its web site, “Included are films produced by and for many hundreds of important US corporations, nonprofit organizations, trade associations, community and interest groups, and educational institutions.” Today its collection is composed largely of videotapes and films, but there will come a time when one-of-a-kind movies will be on CSS-protected DVDs. Similarly, Amazon recently introduced its Digital Text Platform, which allows users to self-publish books that can be purchased and read on the Kindle. This means that there will soon be many books that will exist only as DRM-protected e-books. Therefore, even if we address the orphan works problem so that a user must no longer fear a surprise infringement suit from a previously impossible-to-find copyright holder, the user might still fear a DMCA suit.

The triennial exemption process provided in the DMCA will likely not provide sufficient relief because the Copyright Office is limited to exempting particular “class[es] of copyrighted works.” Just as it has refused to exempt “fair use works” because that is not a “sufficient” or “cognizable” class, the Copyright Office probably won’t recognize orphan works as a class that can be exempt. The sort of classes it will recognize will be very narrow, such as the one in the “obsolete video game or software” exemption. Not only is this exemption for one particular type of work, but it only applies to circumventions made for archival purposes.

Additionally, as Tim Lee points out to me, another way the DMCA might exacerbate the orphan works problem is by preventing the conversion of works into open and widely supported formats—the digital equivalent of what Prelinger is trying to do with film. Most of the proprietary DRMed formats we see around us today are likely to drop out of commercial use within the next couple of decades. As a result, people will gradually forget how to read those formats at all. By 2108, even if the DMCA has been reformed, no one may have any clue how to decrypt a PlaysForSure-encrypted audio file from 2002. Digital libraries in the near future need to be able to say “Boy, this format isn’t commercially supported any more, we’re going to convert it to MP3/MPEG/PDF so our patrons can continue enjoying it.” If they’re not allowed to do that, DMCA reform in the distant future may not matter.

I’m afraid I don’t have a ready solution short of abolishing or limiting the DMCA. One approach might be to include a limit to DMCA liability in the proposed orphan works legislation. However, I wouldn’t want to endanger that legislation’s political viability to address what is still a speculative problem. It won’t be long, however, before we find out if DMCA protections cause a second orphan works problem, metastasizing the harm visited on culture and society by that regrettable law.