Two cheers for Google Books

Friday's settlement offers an awkward resolution on "orphan works." The real problem, says lawyer Larry Downes, is the sad state of copyright law.

Larry Downes
Larry Downes is an author and project director at the Georgetown Center for Business and Public Policy. His new book, with Paul Nunes, is “Big Bang Disruption: Strategy in the Age of Devastating Innovation.” Previous books include the best-selling “Unleashing the Killer App: Digital Strategies for Market Dominance.”
Larry Downes
5 min read

Editors' note: This is a guest column. See Larry Downes' bio below.

A month and a half after Google and the leading trade associations for publishers and authors withdrew their proposed settlement over Google Books, the parties on Friday filed a new version of the agreement.

The hope is that this new draft (now weighing in at 165 pages) will respond to the many objections to the original version, particularly those from the U.S. Department of Justice.

Significantly, the revised settlement excludes books published outside the United States, United Kingdom, Canada, and Australia. And the registry that will collect royalties on sales of out-of-print works whose copyright owners are unknown will now act independently of Google. Some privacy concerns were also clarified. But I doubt that those who screamed the loudest will be satisfied with the changed document.

What the objectors--including most of Google's competitors, regulators, and a gaggle of overwrought law professors--seemed to dislike most was Google's audacity, specifically in using technology to solve a problem created by lawmakers in the first place. New objections, more attenuated and jargon-laded, will no doubt follow, until federal judge Denny Chin grabs the reigns of this increasingly unwieldy class action and steers it to resolution.

Let's back up. In 2004, Google began to scan all of the books languishing in some of the world's leading research libraries. Today, Google Books lets anyone search the contents of these libraries for free. For books whose copyright has expired, Google makes the entire text available and downloadable.

Citing possible copyright infringement, however, Google was sued in 2005 by the leading trade associations for authors and publishers. After three years of intensive negotiations, the two sides worked out a detailed settlement. The original agreement seemed to create a cheap and elegant solution to a problem that has plagued scholars, librarians, and ordinary readers for decades: how to provide low-cost access to books no longer in print but whose copyrights have yet to expire.

But then the objections began pouring into Judge Chin's chambers. The problem, according to most of these complaints, is that the agreement gives too much market power to Google over out-of-print books. How's that again? Out-of-print books, by definition, are those for which there is no market today, nor likely to be one any time in the future.

Thanks to advances in information technology, it may now be cost-effective to offer these works to their limited, if passionate, audiences. Google Books, in any case, is investing heavily to develop these markets. The revised settlement makes it even easier for potential competitors to do the same without having to rescan the old books. But let's not kid ourselves. It will be some time before we know if there's any revenue here worth fighting about, let alone an antitrust problem.

The real problem, which no one has the guts to face directly, is the sad state of copyright law. Copyright grants authors and their publishers the exclusive right to make copies of their work in order to encourage the growth of intellectual life, from novels to research papers to songs to cookbooks.

Lawmakers are supposed to balance that powerful control--in this case, a legal monopoly--against the value to consumers of letting information flow as freely as possible. That's a goal that has become fantastically easier and cheaper with the creation of the World Wide Web, high-resolution cell phone displays and other portable reading devices, and the digitization of just about all the world's information, much of it thanks to companies like Google.

Yet even as information distribution gets cheaper, entertainment industry lobbyists have pressured lawmakers to extend the copyright monopoly to absurd levels. The "fair use" exceptions have been all but eliminated through strategic litigating. Civil and criminal penalties for infringement are regularly enhanced, as recently as last year. In the only case of thousands brought by the recording industry that actually went to trial, a file-sharing user was found liable for nearly $2 million dollars in damages for sharing 24 songs. Yet the Obama Justice Department filed a brief supporting that penalty as "rational."

Worst of all, consumers must wait longer and longer for works to enter the public domain, where they can be freely copied, adapted, and sampled. As recently as 1909, a copyright lasted only 28 years in the United States. Since then, Congress has repeatedly extended it and applied the extensions retroactively. Today, copyright runs from the moment of creation until the death of the author, plus another 70 years.

Acknowledging that the U.S. Constitution requires copyright to be for "limited times," the late Congressman Sonny Bono once proposed changing the term to forever minus a day. No copyright on work produced by Disney has ever expired. That's not a coincidence.

Since most published works never make a profit, however, millions of books still under copyright are now out of print, existing only in the ghost towns of a few dingy library stacks. The authors of a growing number of these works are long dead, having made no provision for the inheritance of their rights. Since these books cannot be copied without permission, and no one knows who can give that permission, they inhabit a kind of intellectual limbo. Copyright scholars refer to them as "orphan works."

So far, Google has scanned 10 million books. Two million are old enough to be free of copyright, and another 2 million are still in print (Google has made separate agreements with the publishers of those books). The other 6 million are in copyright but out of print, many of them orphans. Thanks to the madness of recent copyright extensions, that category is certain to get bigger all the time. Congress has tried and failed for years to pass legislation dealing with orphan works.

In large part, the revised Google Books settlement would bring these books back to the world of the living. How? Copyright owners who don't want to participate in the deal must opt out of it, impossible by definition for orphan works. (The opt-out, to dispel a common myth, can occur at any time, not just before the settlement is approved.) So Google would have the right to make these books available in digital form, with any revenue going to a new nonprofit registry that will attempt to locate and compensate the owners.

Tellingly, the objectors say little to nothing about the impact of the settlement on consumers, who already benefit from Google's efforts and would benefit even more, if the agreement is approved.

The interests of information users ought to be the top priority of U.S. copyright officials, but Marybeth Peters, U.S. Register of Copyrights, condemned the original agreement. She spoke on behalf of the theoretical owners of orphan works--authors and publishers, in other words, who were given a powerful monopoly and then abandoned it. Peters accused Google and the organizations who sued the company of conspiring to execute an "end-run around copyright law as we know it."

There's the real problem. Copyright "as we know it" is a disaster and an embarrassment. Rather than complain about the ingenuity, leadership, and careful diplomacy of Google in trying to clean it up, why doesn't Peters focus on the job she was hired to do: urging Congress to bring copyright law in line with the realities of the 21st century?

Congress and its enthrallment to entertainment lobbyists created this mess. Reset the balance of copyright to something fair for authors and consumers, and all the objections to the Google Books settlement evaporate.