Why Make a Federal Case of It? The Google Book Settlement Revisited

The Google book settlement: either you love it or you hate it. An interesting opinion piece in the Wall Street Journal yesterday returned the debate to my waking attention. I found the piece interesting due in large part to the insertion of comments made by Professor Larry Lessig regarding inefficiencies in the existing U.S. system of copyrights.

The piece identifies Google’s goal as restoring access to 60% of books under copyright but out of print and unavailable in any format or medium. Let’s put aside the possibility that Google might have other unspoken, more sinister goals in mind and consider the foregoing as a real possibility. The opinion author laments that, in order for Google to succeed in this arguably laudable pursuit, it must come to terms with existing copyright laws that have put Google in the position of having to chase down interests that really may not even be interested.

The problem is the concept of “orphan works” – books for which there is outstanding copyright protection but for which there is no longer any publishing interest. Out of print, out of sight and out of mind in the non-digital context. Google’s efforts would bring these orphan works out of the murky slime and back into the light of a new day in the electronic world. All other concerns being equal, I think most would agree that having easy access to information where there previously had been little or no access is a positive step.

The countervailing interest is the preservation of the existing system of copyright protection, which locks down rights to works well past the point where such rights have any meaningful value. Professor Lessig questions why there should even be a concept of an orphan work: copyright protection according to Lessig is “intended to make markets function more efficiently” while the current system’s embrace of “orphan works” that are locked down under copyright protection long past the point where ownership can be identified brings the markets to a screeching halt.

 One would think that the original authors might be interested in keeping their works in front of the public eye. One would also think that librarians and reference professionals might applaud a system that would offer easier access to these hard to find pieces. Not so – authors are complaining about their share from the Google book settlement and librarians fear a Google dictatorship over the rights to out-of-print books. Why the interest in maintaining the leaky plumbing?

Professor Lessig notes that our modern system of content creation screams for an update, one that will offer clearer rules of ownership. As an on-line content creator, I tend to agree – I would rather have my material shared and discussed than locked down and protected. I get a thrill from finding arcane information previously unavailable or difficult to locate that far exceeds my pecuniary interest in a blog post. But then again, I am not a famous writer. Not yet anyway.

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