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May 27, 2009

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Let’s see, Google wanted to make books easier to find. So, a bunch of people in the book business sued for damages. (That’s the publishing business for you!) Now they come up with a settlement where books will sell over Google much as any bookstore — even books that are still in copyright but not available in print. Heavens, says Law Professor P. Samuelson, the law cannot permit this without an Act of Congress which by their last several Acts have created a vast number of books which are illegal to reprint, even though the books are no longer available for sale, so there’s no actual interest to protect by copyright, except the interest in limiting the amount of information available to readers. We need to protect the right of George Orwell’s grandchildren to keep his works off of the Kindle, at least unless they can cash in. So what if the Constitution defines a purpose for copyright, and it isn’t money-grubbing by the author’s descendants, who would deprive the world of their ancestor’s works if they can’t cash in on it? But let’s go back to Congress and see what they come up with this time, that might encourage some more donations from Hollywood in return for extending the length of copyright another hundred years or so? The implicit premise of Prof. Samuelson’s view is that our current copyright law is constitutional and that the courts cannot entertain any settlement that would — heavens! — make books more widely and easily available to the public.

Jerome, thanks for the comment. You are right that the Settlement Agreement stipulates that the Registry "will attempt to locate Rightsholders": Section 6.1(c). I wonder, however, how much effort it will actually invest in this. Any unclaimed revenues from the three types on works with non-active authors - non-orphan works whose authors elect not to participate; true orphan works; and public domain works accidentally included in Google's products - will go to the Registry to fund its operations. Furthermore, the Registry is going to governed by the Plaintiff's representatives; they would have little reason to look for potential rights holders outside of their circles.

My guess is that the biggest class of unclaimed books will be works by foreign authors that either do not know about the settlement or have elected not to be part of it. I hold out little hope that the Registry will rush to pay fees to them, when the revenue their books generates could be used to fund the operation of the Registry itself.

I am a SF attorney. Under the Google Book Settlement, a Registry trust is created to collect and disburse revenue from Google and other e-publishers for distribution to rights holders. If money adds up for any work,and is initially unclaimed, then the Registry will have the funds to search for and find the rightful parent for any orpahn work. Orphan works that dont produce income may stay abandoned and forsaked, but may still pop up in Google Search results.

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