The Google settlement and the alternatives

Thanks to Peter Brantley and his work spotting items of interest, I was pointed to a post in Wired which is an FAQ on the Google settlement. It is, as far as I can tell, an accurate summary that leads people through the issues in a way that discourages support for the settlement. But I focused on one particular question and answer:

That’s ridiculous. Isn’t there a better solution to the orphan works problem?

Yes. For one, Congress could step up and pass a law about orphan works. But the last time Congress passed a substantial law about the length of copyrights it extended them for 20 more years — keeping more and more books from reaching the public domain. Don’t expect much help here.

This a neat summary of the problem with the whole Booksearch settlement debate. The ONLY better solution to the orphan works problem is for Congress to do the right thing. The author of THIS piece sure didn’t try to come up with anything else. Since that is so, the debate about the settlement should focus on two questions:

1. If Congress does nothing, are we better off with the settlement or with the status quo ante (no settlement and a continuing lawsuit where the plaintiffs are the parties in the settlement, NOT the public and NOT the libraries and NOT the orphan owners — ha! — and not anybody else?)

2. Are we more likely to generate constructive action from Congress in the environment we’d have after the settlement is rejected (status quo ante) or where we’ll all be if  it is accepted?

The now 7-month long debate about the settlement is highly asymmetric. Those advocating it are forced to defend something specific, as if it were the last word (which it isn’t.) Those opposing it are forced to defend nothing. For those who believe the settlement should be rejected, the questions I believe are relevant:

1. Do you have any suggestion of an alternative solution OTHER than Congress passing sensible new copyright law covering orphans?

2. If not, can you explain why it is any more likely that Congress will do that now, or if the settlement is rejected, than in the half-century just past?

As far as I can tell, and I have been asking, there is no solution to the orphan works problem except by changing the copyright law, if this settlement is rejected. And, of course, the is only the most partial solution. Congress has not only failed to act on this question; to my knowledge  not one Congressman or Senator has even expressed an opinion about the Google settlement or the orphan works question in general.

So, this settlement aside, there is apparently no solution BUT Congress and there is no solution likely to be coming FROM Congress. So the cost of denying Google the notional economic monopoly over some unknown quantity of previously buried intellectual property is to also deny it to everybody else. At least until this lawsuit wends its way through trial and appeals.

There is an irony in the current debate which has gone unremarked upon in any of the material I have seen. No polls have been taken on the subject, but appreciating the irony will depend on agreeing with me that there has been more opposition to the settlement from the library community than from publishers. That’s my very strong impression. 

The entire corpus of scanned orphan works comes from library collections. Now the library community expresses the fear that Google, having obtained a “monopoly” on many of these scanned works through the settlement, will charge extortionate prices to libraries for access to the database beyond the one free terminal per library negotiated in the settlement. But at the time the Google library program was announced, it was publishers who were up in arms about whether the libraries – which were getting copies of the scans that Google was creating of their books with different “rights grants” from Google for what could be done with the scans Google had paid for – were exceeding fair use in their partnership with Google. If there hadn’t been deals between libraries and Google, there would have been no in-copyright material scanned, no lawsuit, and no settlement.

Of the people I have talked to who are opposed to the settlement, all agreed that a better solution could only come through a change in the copyight law. One particularly strong opponent said he believed that would be made more likely by rejection than by acceptance.  I don’t agree with him and he offered no logical support for that opinion.

Another, agreeing that we’d need an Act of Congress and wouldn’t be likely to get one, said that “not all problems have answers” and that orphan works might be one of those. And, anyway, he argues, the aggregate value of all the orphans was hardly worth the time and energy the industry is spending discussing them. He diverges from some fellow opponents who are offended by the dollar windfall presumably coming to Google from the sale of rights to the database of scans. 

This opponent of the settlement is arguing that the value to society of getting the “fair use” questions that arise in this case settled by a court is greater than the value of liberating several million books for consumption. That is a discussion worth having. It is not depending on things that won’t happen to make its case. Most of the arguments against the settlement don’t have that virtue.

And there is one more irony surrounding this debate. While the settlement is waiting for approval or disapproval from the judge, the registering of copyright claimants for the orphans continues. There have been no results announced, but I am led to believe that the number of c/r owners coming out of the woodword, because of the settlement, is much larger than anybody expected. This is, of course, shrinking the potential bonanza to Google and is also accomplishing what years of effort to influence Congress has failed to do: substantially reducing the number of orphan works.

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