Orphaned works are most certainly not a fiction. As someone who regularly works with libraries, archives, & museums, I can say with some certainty that orphan works are huge problems for such entities, and copyright law as it's currently instantiated ensures that these works may disappear forever. Orphaned works are the majority of works in existence.

See the Copyright Office comments (and the US Copyright Office favors strong copyright laws)
http://www.copyright.gov/orphan/
See the Association of Research Libraries comments to the Copyright Office
http://www.arl.org/bm~doc/lcacomment0305.pdf
See the Society of American Archivists Best Practices
http://www.archivists.org/standards/OWBP-V4.pdf
See some of Peter Hirtle's comments.
http://blog.librarylaw.com/librarylaw/2009/09/orphan-works-and-the-google-book-settlement.html ...and so on.

Orphaned works is a huge issue, and will become more of an issue as we attempt to work with and preserve digital works.

This particular case actually didn't address the mercury issue. There are other ongoing cases which do.

However, the current scientific consensus is also that the mercury used as a preservative in some vaccines (thimerosal) is not linked to autism. Of course, thimerosal was also phased out of vaccines several years ago due to all the hoopla.

Er... not quite.

The use of the phrase "derivative right" is a bit misleading. Under copyright, there's the right to create a derivative work. For a work to be derivative, there needs to be fixation of that work in some tangible format, including electronic. There's no fixation here.

Similarly, not all performances are infringement. Copyright law covers *public* performances. This is not a public performance. If there is a public performance, it is the user of the device that is making that performance public, not any aspect of the device itself.

Even if that performance was somehow contrary to the ordinary rights of the author, I can't really argue that a private performance would not be a fair use.