Google Books Rejection Highlights Need for Orphan Works Reform

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Today Judge Chin released his decision in the Google Books case. This is the biggest development in a while in a saga that has been unfolding since 2004. It’s great the the Judge recognized that Google and the Authors Guild (and the rest of the plaintiffs) were trying to use his court to set public policy, rather than to settle a dispute between parties. Hundreds of authors, academics, librarians, companies, and even foreign governments filed objections to the settlement, and we’re honored that the Judge agreed with us that the agreement, if approved, would give Google monopoly control of orphan works. The public deserves access to these works, but it should come through a change to the law, rather than a private agreement that locks in just one supplier.

Some context is necessary to understand this latest development in such a complex issue.

It was exciting when Google first announced its Books project. Not since Project Gutenberg or the Internet Archive had a project seemed likely to bring us so close to the promise of a universally accessible digital library of all human knowledge.

Obviously there were going to be some interesting copyright arguments. Google had a strong fair use argument—they weren’t going to display the full text of any copyrighted books they didn’t have the rights to. Rather, just as they and other search engines do with documents on the web, any “copies” of books they made were purely for indexing purposes. The book search engine they created would should snippets of the book, but point searchers to the original books—again, just as search engines display brief snippets of web pages but direct searchers to the actual web pages.

But when Google was sued by the Authors Guild and others (I’ll just refer to all the plaintiffs as “the Guild” for clarity), instead of defending its actions, it cut a deal. Google and the Guild came to an agreement that greatly expanded the scope of the Google Books project, gave Google special privileges unavailable to anyone else, and tried to have the Judge give it the force of law.

There were a lot of problems with the deal. It purported to settle the claims any authors might have against Google—even ones who didn’t sue Google, or belong to any groups who did. The effect of this was that the agreement essentially rewrote copyright law for Google and Google only. It would give Google the right to sell copies books it didn’t have the rights to—“orphan works” that are still under copyright, but where the copyright owner can’t be found. Selling full-text copies of copyrighted works without permission is not a traditional fair use--and it’s not what Google was doing when it got sued, to begin with.

The Guild and publishers have shown that they can come to their own agreements to sell copies of books where the copyright owners are known. As for orphan works, Congress needs to act.  The law needs to be fixed to allow orphan works to be used in reasonable ways while respecting that they're still under copyright.  It’s great that Google and the Guild thought creatively about how to pay any orphan works rights-holders who eventually came forward, but a situation where the orphan works problem is “solved” by creating a monopoly digital library is untenable. If Google is able to exploit orphan works, then anyone else should be able to on the same terms.

Google Books is a interesting project, and it has a bright future. But the future of books depends on Congress acting to fix the orphan works problem once and for all, for everyone. Public Knowledge looks forward to working with librarians, publishers, and authors, as well as Google and the rest of the high-tech community to do just that.

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