Orphans in the storm

Pity Judge Denny Chin, the federal district court jurist in New York presiding over the Google Book Search case (The Authors Guild, et. al. v. Google, Inc.). Having steered the long, complex class action to within sight of the finish line he suddenly finds himself the object of an intense last-minute lobbying campaign from interests that were not party to the case and at the center of budding international incident.

google-books-imagen1In my previous post, I discussed the commercial interests that began lining up last week in support or opposition to the proposed settlement between Google and the class-action plaintiffs, including Amazon, Microsoft, Yahoo and Sony. Now, foreign nations, and perhaps whole continents, are throwing down markers.

On Tuesday, lawyers for the government of Germany filed a strongly worded brief (pdf) with the court declaring that the settlement, if approved, would “run afoul of the applicable German nationallaws,” “irrevocably alter the landscape of internationalal copyright law” and potentially violate U.S. treaty obligations.

Some European Union officials, meanwhile, have come out in favor of the settlement’s terms (if not its legal implications) and have suggested importing it to Europe. A meeting on the issue is scheduled for Sept. 14 in Brussels.

How did it come to this?

The issue animating Sony’s and Amazon e.al.’s interest in the settlement is essentially a commercial dispute. Under the terms of the settlement, Google would receive a blanket license to digitize and sell so-called “orphan works,”–books that remain under copyright but whose copyright owner is unknown or cannot be found. Money from the sales, minus Google’s percentage, would be held in escrow by a new collecting agency called the Book Rights Registry in the event the rights owners turn up. (Reader Ken Horowitz points out in an email that monies from orphan works would first go to defray the costs of operating the registry, and could ultimately end up being disbursed to registered authors and publishers if they remain unclaimed. His blog post on the issue is here).

Although Google’s commercial rights to sell orphan works would technically be “non-exclusive,” it would be the only provider covered by the blanket license. Any would-be competitor who was not a party to the suit–which is to say any and all would-be competitors–would have to negotiate those rights individually–not an easy trick when the rights owner is unknown.

In any case, in the three years it took to negotiate the settlement the market of e-books has grown by orders of magnitude.  Now, realmoney could be at stake, and the potential long-term value of Google’s blanket license has suddenly taken on great competitive significance. Thus, the last minute commercial interest in the settlement.

The issues raised in the German complaint have less to do with orphan works but are in some ways even more problematic. In addition to the orphan works blanket license, under the terms of the settlement Google would also receive a blanket license to scan all books within certain U.S. libraries–including books distributed by German publishers who were not party to the suit or settlement–in order to make their content searchable, and to display portions of the work in response to search queries. According to the German brief:




The Settlement also permits Google to digitally scan books of German authors and make them available to the public in the U.S. Authors of “commercially available” books will still need to grant consent for this display. However, should Google unilaterally determine that a book is not commercially available (out-of-print), it need not secure any rightholder permission — meaning those who opted in by not opting out. Instead, Google may make such display uses as it chooses unless the rightholder follows the filing requirements. It seems unlikely that most German authors will make such formalfilings as such filings would, as discussed above, normally be considered a formality prohibited by international copyright laws. In failing to file, however, the works of the vast majority of German authors will be held hostage to whatever uses Google, in its sole discretion, chooses to make;

Although the settlement stipulates that Google Book Search would be available only within the U.S., the German brief points out that German citizens will inevitably be able to access it through the use of proxy servers. Thus, German works will be displayed, or “made available,” in Germany in contravention of German copyright law.


orphanfotoBoth issues, however, stem from the same basic problem(s). In the absence of a clear policy from Congress on orphan works, the issue is being worked out ad hoc through the courts. Congress actually attempted to create new rules for the use of orphan works through legislation last year. But push-back from copyright owners, particularly photographers, graphic artists and music publishers, thwarted those efforts. Now, should the Google Books settlement be approved it would set a de facto (if not quite legal) precedent for granting a commercial interest unilateral control over orphan works through private litigation. It’s hard to see how copyright owners benefit from that trade off.

Likewise, the negotiated settlement in the Google Book case prevents even the courts from reaching a finding on the copyright implications of scanning works to make them searchable–a not insigificant policy question. Instead of a policy, we end up with a practice, worked out in the narrow and closed forum of private litigation that nonetheless holds global implications.

That’s really no way to run a railroad. Maybe it’s time to slow that train down.