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Eric, I would love to see copyright law changed. My personally preference would be to have everyone admit that joining Berne was a mistake, and that we need a copyright system based on formalities and the active exploitation of copyrighted works. Otherwise, they become part of the commons that we are all free to draw on.

I don't think for a minute, however, that Congress would ever consider such an option. All we have seen for the past 30 years is ever-greater control over copyrighted works given to copyright owners. The fact that simple orphan works legislation (which would still have required expensive copyright investigations) couldn't pass is a sign that we could never get a legislative response to the problem Google tried to address. And orphan works legislation would not affect the bulk of the out-of-print books included in the GBS that are not orphans, but merely out of print.

I should add, too, that there are lots of things that I don't like about the settlement and that I hope the court can fix. The idea that royalties from works whose authors have not elected to participate in the Registry will be distributed to others strikes me as particularly unfair. I wish that Google had included its library partners in the negotiations with the authors and publishers - the libraries might have been able to highlight those elements of the settlement that were not consumer-friendly. I hope as well that critics of the settlement will push Congress on both the idea of a compulsory license as well as orphan works legislation. Together, they might obviate the need for the settlement. (And Congress has in the past changed copyright law to overturn judicial decisions with which it did not agree.) But until we get a compulsory license (and see what sort of costs are associated with it), I don't see any other way that the full-text of out of print books can be made available. The settlement is far from perfect, but it is better than any other option that is likely to be implemented.


With respect, I don't see how your argument supports the two implications made in your final sentence: that we don't want a legislative solution to orphan works; and that no other, equally (or more) cost-effective solution is possible.

It is certainly true that in order to put full-text of all such works online would require cost-prohibitive copyright research if there were not legislation or *a* settlement. But that does not mean that *this* settlement is the only theoretical, or even practical possibility. The negotiators *could* have come up with settlement language which would have assuaged many of the concerns (though probably not the anti-trust charges), but they did not have an interest in doing so. When I hear the two parties (Google, the AG) pushing this as though it is the only option, it starts to sound like a hustle to me. There are always other options, even if the litigants don't want to try and find them.

Besides, I disagree with the notion that a legislative solution is either not desirable or not possible. For my part, I would greatly favor "massively altering the copyright law" over moving an entire class of works to a license regime, especially one in which neither of the negotiating parties has the public's interest at heart. Legislation would allow anyone, not just Google, to benefit from the availability of Orphan Works, and would remove all of the anti-trust, and many of the privacy concerns. I will grant that legislative solutions have been tried, and have failed so far, but it does not follow that legislation is impossible (could the settlement language itself be ported to legislation?). And it seems to me that Legislation is far more likely to have support when big players like Google are frustrated in their efforts.

My two cents anyway.
Eric Harbeson

Thanks for this great analysis.

My impression was that the issue was that the settlement gives Google, de facto, the exclusive ability to earn income based on the distribution of materials they have scanned, many of which appear to be orphaned works.

Google's approach is to assume that every work they happen to have scanned falls under the settlement, unless there is an obvious reason it doesn't. It is to only their advantage that they act this way.

It is a bit like not acting on internet copyright violations until the copyright holder complains - sure, it is within the law, but it is sloppy ethics. Except in this case, we're waiting to hear if what Google proposes is within law or not.

I don't see your argument that establishing copyright status is too expensive. That's exactly what people said about scanning books in the first place, and look at us now.

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