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This week, the Honorable Judge Chin of the Southern District of New York granted us permission to file an amicus brief regarding the proposed Google Book Search settlement. Since the proposal’s announcement back in October, we’ve been poring over the 320 pages of text and attachments, meeting with parties on all sides of the issue, and weighing the upsides and the downsides of the deal. In the end, we have some serious concerns about aspects of the proposed settlement, and plan to bring those concerns to the attention of the Court before Judge Chin makes a final ruling. On Wednesday, he granted a 4-month extension for those who wish to file, so there is still much to be done, but we thought we’d give you a preview of the issues we plan to raise.
Our concerns center around the role of orphan works – works under copyright whose owners can’t be found – in the proposed settlement. As I discussed in an earlier post, the proposed settlement does some interesting things with orphan works. Of primary concern to us, however, is the way in which it goes about effectively licensing orphan books which have at some point (since 1923) been registered with the copyright office.
This license has a number of troubling features. It is authorized by only two organizations and a handful of individuals comprising a small subset of authors and publishers – who are by definition not orphan authors and who do not necessarily share their interest. Perhaps worse, it is offered to only one party – no one else can legally use these works. And in the end, the authors and publishers who can be found get paid for the works of those who can’t.
The effect of the settlement as proposed would also essentially be a change of the default rules of copyright regarding books for just one player. While we might not always agree with the balance that Congress has chosen for copyright, it is still the legislature’s domain to alter those rules. The judiciary is not the appropriate place to make such a change – especially with regard to only one party.
If the settlement goes through in its current form, it will also create some serious competition questions. It will result in a situation where, by getting sued for scanning and indexing (which we argue are fair use), one party has gotten the rights to fully display orphan books. But because those authors can’t be found and the settlement doesn’t give anyone the ability to license their works to other parties, no one else can get that license. And because this change to the rules required a class action settlement to create, no one else is likely to be able to replicate it judicially without getting sued and settling in a collusive-looking future action.
Let be clear here – there are some things about the settlement which, taken alone, would be great. The possibility of making the full text of millions of out-of-print books available to the public online is a compelling one. And a centralized registry to help locate authors and more clearly determine which works are orphaned – if done right – could be a great boon to the public. And if a structure looking something like this settlement could be offered to all potential users – and legislatively – we might come to different conclusions.
Way back in 2005, we asked Congress to stay out of the Google Book Search kerfuffle. But that was back when we were only talking about scanning, indexing, and snippets, and we could expect a ruling that either confirmed that Google’s uses were fair or (mistakenly) went the other way – in which case we could take it to Congress for a proper fix.
Now, the situation is different. we’ve got Google, book publishers, and authors all at the table saying that this sort of license is a good thing. I’m inclined to agree. So maybe it’s time for Congress to step in and give Americans the access to works that everyone seems to want them to have. They have a good deal of time before there’s any chance of the settlement being final. That’s time enough to do this right.