Another way to limit the damage that can be done by copyright would be to develop a more forgiving regime for works that were published but are no longer on the market. Mark Lemley has argued that the use of orphan works should be fair use, and while I’m skeptical of that argument based on the state of fair use law today, it’s a solid basis for a legislative fix. The best approach would be to modify factor two of the fair use analysis (“the nature of the copyrighted work”) by adding “including whether or not it is presently being commercialized”.