(posted by Peter Hirtle)
Many of the critics of the proposed Google Book Settlement (GBS) have pointed out that it attempts to use the class action mechanism to effect what should be a legislative prerogative. James Grimmelmann’s amicus brief on behalf of the Institute for Information Law and Policy, for example, argues that the settlement “inappropriately attempts to solve a legislative problem through a class action settlement.” Most recently, Pamela Samuelson has recently written that “The GBS settlement contravenes core rule of law principles of our society. To accomplish such an extraordinarily comprehensive restructuring of the future market for digitized books requires legislative action.”
I can’t speak to the issue of the harm that GBS may do to our legal system; I am an archivist, and my primary interest is in making sure that as much information is possible is publicly available. If a legislative solution could do this, so much the better. So the question is what would a legislative solution look like? When one examines the alternatives, however, I don’t see much hope of agreement on an efficient solution.
Before we look at solutions, it is important to define the source of the problem. GBS is a product of four fundamental flaws with our current copyright system: automatic copyright protection for every fixed creative work; the presumption that the grant monopoly rights to the copyright owner is total; the provision of unconscionably long copyright terms that have no empirical relationship with the incentive to create (as mandated by the Constitution); and draconian penalties if one should infringe.
These four components of current copyright law – automatic protection, presumption of monopoly rights, long copyright terms, and draconian penalties – are deadly to any mass digitization project. Because of them, most published items are still protected by copyright. Furthermore, books cannot be digitized and made available without permission. The transaction costs of identifying, locating, and securing permission to digitize works is incredibly high, and for a large percentage, no rights holder will ever be found. Money spent on searching for these authors is just an additional tax on potential users of these works. Yet if one risks making those works available without permission, one runs the risk of incurring ruinous damages.
A desirable legislative solution would both respect the interests of rights holders while at the same time limiting the transaction costs incurred by mass digitizers. Those who have argued for a legislative alternative to GBS have not put forward draft legislation, but there are hints on what they would prefer in their writings. The proposed solutions cover a wide spectrum of approaches.
At one extreme are the ideas put forward by Marybeth Peters in her testimony before Congress. Peters notes that “the settlement proposed by the parties would encroach on responsibility for copyright policy that traditionally has been the domain of Congress.” Specifically, she notes that the settlement in effect creates a compulsory license for Google, and that “compulsory licenses in the context of copyright law have traditionally been the domain of Congress.” (Whether a license that has an opt-out provision is truly “compulsory” is an issue for a later day…)
Critics have long noted that the Copyright Office traditionally has protected the interests of copyright owners over the public. Perhaps as a consequence, it has traditionally opposed compulsory licenses that diminish an author’s ability to control his or her work. Peters did not assert that a legislated (as opposed to judicial) compulsory license would be appropriate to address the GBS problem. At most, it is “an interesting proposition that might merit Congressional consideration” (emphasis added). Instead, she seems to think that Google should be following the procedures recommended in the proposed legislation on orphan works. Yet the orphan works solution, which requires a diligent search for a copyright owner, just exacerbates the high transaction costs associated with a mass digitization project. As Georgia Harper has noted, the proposed bills on orphan works “conceive of orphans as adoptable on a case-by-case basis only, not at scale, with all the in-depth investigation that the analogy to adoption suggests. Such an approach seems to me to be unworkable even case-by-case, and … no legislative proposal will accommodate the scale of operation Google has undertaken.”
Peters also goes out of her way “to underscore for the Committee that out-of-print works and orphan works are not coextensive.” That means that if orphan works legislation were to pass, Google could make available the full text of those books whose rights holders cannot be found after a diligent search, but most out-of-print books would still be off-limits until permission had been secured.
In summary, if we can read between the lines of her testimony, Peters’s preferred legislative solution, would bend over backwards to protect the interest of rights holders. It would do nothing to lower the transaction costs. Google could, if it wanted, try to convince Congress (and the Copyright Office) that “a solution that is more like a compulsory license may make sense for those engaged in mass scanning,” but the Office’s traditional opposition to compulsory licenses stands. I don’t see anything in Peters’s testimony that suggests a likely legislative solution that would solve the four problems facing mass digitization.
At the other end of possible legislative solutions is an idea argued by Larry Lessig and Chris Sprigman: adding formalities back into the copyright system. Technology makes the idea of an affordable international copyright registry conceivable. It would make it possible to identify, locate, and negotiate with those who are concerned about the rights in their work, and make accessible all the works of those who do not care (and hence don’t register) or who don’t know that they own rights. This approach would seem to be the ideal method of both protecting the interests of rights holders and the general public, but the legislation introduced in 2004 to enact this idea went nowhere.
Perhaps even more radical is the approach of Brewster Kahle. There is, Kahle argues, an alternative to GBS: orphan works legislation. But Kahle’s vision of orphan works is different than everyone else’s. For Kahle, all out-of-print books are orphans. “Remember,” he writes, “this is all about controlling the Orphans, or out-of-print works” (emphasis added). Later in the same post he speaks of “out-of-print/Orphan works.” In this regard, Kahle flies counter to the Orphan Works report and the legislation that he extols, both of which make it clear that an out-of-print work is not necessarily an orphan work.
If not existing orphan works legislation, what is Kahle’s vision of a legislative solution? We have some hints:
Only if an owner comes forward and prove they own a work (with penalties for overreaching, and not just weak anyone-can-claim-anything-with-no-negative-consequences as it is proposed now) then they can negotiate for money. Otherwise Orphan/Out-of-Print works can be used by anyone, say, for non-commercial use. This is roughly how the Orphan Works legislation works…
Kahle’s vision is one where “out-of-print” equals “orphan,” and anyone is able to make non-commercial use of the work unless an owner comes forward. It is an inspiring vision, but to suggest that this is “roughly how Orphan Works legislation” works is disingenuousness worthy of Sergey Brin himself. Under the proposed legislation, orphan and out-of-print books could be used by anyone for any purpose – but only after a reasonable search for a copyright owner had been conducted. Out-of-print but non-orphan books could not be used, even if the purpose was non-commercial. No one other than Kahle has dreamed of a system where failure to maintain a work in print would limit one’s copyright monopoly.
Other legislative solutions are possible, though none seem likely. Sally McCausland, for example, in an absolutely top-notch paper entitled “Googling the Archives: Ideas from the Google Books Settlement on Solving Orphan Works Issues in Digital Access Projects,” suggests that extended collective licensing as practiced in some Nordic countries might be a legislative alternative to GBS. Given the Copyright Office’s antipathy to compulsory licensing, however, and the absence of other legislatively-enacted collective licenses, this suggestion would take years to develop.
So right into the middle of the legislative spectrum between those who worry about the rights of rights holders and those who worry about users appears Google’s judicial settlement. It gives rights owners the ability to opt-out, compensates those rights owners who want to stay in, and minimizes the cost of locating copyright owners. It is not perfect, and Samuelson in particular has articulated a slew of ways to improve it. But as far as a legislative solution goes, David Sohn at the Center for Democracy & Technology has still said it best:
In short, yes, Congress should have the last word. But in the meantime, the Google Books settlement offers the chance to expand public access and increase exposure for many millions of out-of-print works in ways that generally should benefit readers and authors alike.