Surely there are better ways to dispose of orphan income. The Department of Justice in fact suggested one two weeks ago, when it issued a critique of the proposed settlement saying, among other things, that the court might do as we do with actual orphans: appoint a guardian to look out for them until they come of age. In this case, I believe, such a guardian would have to be charged with service to both the rights holders and the public good. He would have to try to find lost owners and pay them their due; should no owners be found, he would have to devise a way to release these works to the public domain. (He could simply require that users who’ve been charged for orphans get their money back, or that the fees Google charges libraries be lowered in proportion to revenue collected in error.)

The idea of a guardian obliged finally to serve public ends suggests a second way to expand Defoe’s metaphor. The Brat of the Brain has never been thought of the way that European nobility once thought of their land, as something to be handed down generation after generation. A copyright may be inherited, yes, but not in perpetuity. At this nation’s founding, “perpetuities” were understood to be one of the devices by which aristocracy maintained its power, and the founders therefore looked on forms of long-term ownership with a skeptical eye.

Jefferson especially believed that no generation had a right to bind those that followed. “The earth belongs . . . to the living,” he wrote to Madison in 1789; “the dead have neither powers nor right over it.” That being the case, “perpetual monopolies” in arts “ought expressly to be forbidden,” Jefferson’s own suggestion being that copyright run no more than 19 years.

Such time-limited ownership relocates inheritance to serve democratic rather than aristocratic ends. Where Europeans had shaped inheritance to serve powerful families, Americans would shape it so that something new under the sun — “the people” — might receive the legacy of all their forebears had created. The founders valued “civic virtue,” the honor that private citizens acquire by acting for the public good. By insisting that copyright exist only for “limited times” (as the Constitution says), they suggested a way that law itself might engender virtue, transforming the fruits of human imagination from private into common wealth by the mere passage of time.

The point here, of course, is that the parties to the Google settlement are asking the judge to let them be orphan guardians but without any necessary obligation to the public side of the copyright bargain. Quite the opposite: if Judge Chin grants them a pass to profit from orphan works, he will also be granting them a private monopoly in digital books.

Why? Because the Google case is a class-action lawsuit structured such that it will bind all rights holders unless they opted out by a deadline that passed last month. The missing owners of orphan works could not do that, of course; by definition they don’t even know this litigation concerns them. Now, included by default in the proposed settlement, their Brats are being readied for trade.