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Much Ado About Google Books Proposed Settlement

As L. Gordon Crovitz of The Wall Street Journal points out in his August 17th, 2009 column, 60% of all books are out-of-print but still protected by copyright. Yet Google's effort to make these books available through cheap digital copies is being met with fierce opposition from an unlikely coalition of publishers, libraries, European governments (who seem to oppose everything these days), law professors, and, just recently,

This is a complicated story, and a variant of the "it all goes back to" problem. Whether Google's efforts are to be seen as a public service or a massive land grab, whether the settlement does or does not make sense, depends on how far back you go in unraveling the problem.

First a little background. Google, in its typical audacious way, simply started its project to digitize some of the world's largest libraries. Eventually that effort caught up with the sleeping drones at the Association of American Publishers and the Author's Guild, who sued the company in 2005, claiming that regardless of how or even whether these digital copies were made available for use, Google was committing copyright infringement on a massive scale.

Google claimed its activities were protected by the much-abused doctrine of "fair use," but in 2008 the company reached a tentative settlement with the plaintiffs. Under the pending agreement, participating publishers and authors would receive royalties from any revenue Google derives from the effort, in exchange for immunizing Google against any further copyright infringement claims. Under the settlement, copyright owners (whether publisher or authors) who do not wish to participate in the settlement must affirmatively opt-out. (See the Google Settlement FAQ here.)

The principal objection to the settlement is that it gives Google too much power, effectively granting a monopoly for digital books, especially those that are out of print and whose ownership is unknown (so-called "orphan" works). Such books will be included in the settlement because the owners of their copyrights can't, by definition, opt out. Perhaps other on-line publishers will be granted similar rights in the future, but until then, Google will be the sole producer of copies. For now, of course, there are no producers of copies, and, given the unknown ownership status of these works, how could there ever be producers of copies until the copyrights on these works expires?

How can books become orphans in the first place? The answer is the one-size-fits-all nature of copyright protection, which extends monopoly power to the author of a work (or a publisher to whom she assigns that power) from the moment of creation until 70 years after the author's death. For published books that never earned a profit (most books fall into this category, by the way), it is often the case that ownership interests languish. Publishers are unlikely to keep records of such books for 100 years or so, and authors are unlikely to dispose of their rights in their wills. Interests may be subdivided to the point of being untraceable.

So the real problem goes back to copyright, or in this case to its extremely generous duration. In the U.S., copyright protection started out much more modestly, lasting only 14 years. Most of the extensions have taken place in the last fifty years, under pressure from large media companies who hold vast hordes of copyrights that continue to generate profits.

Prof. Lessig has argued that a simple solution to the orphan problem is to require copyright holders to register their rights with the Copyright Office, and to reassert their interests periodically (say, every five years) if they still want protection. Once an author fails to re-register, the works falls into the public domain, and anyone can do whatever they want with it, including producing and selling (but not copyrighting) new copies.

Indeed, registration was required under the Copyright law until 1976. Given the explosion of new content made possible by cheap publishing technology, it was felt at the time that registration and other technical requirements would hold back the development of valuable information and impose unnecessary costs and bureaucracy on a system that would work just fine on its own. Thanks to the Law of Disruption, of course, the cost of producing, publishing and distributing information has only fallen, at an accelerated rate.

Still, the same technology could be used to create a low-cost registration system. But in reality, only popular works would be registered, and everything else would fall into the public domain. Lessig's proposal is an elegant, clever solution to a serious problem that goes well beyond orphan works. Which is to say it would undo, for the most part, the excessive extensions of copyright granted at the urging of large media companies.

Or rather, it would effectively create a two-tiered system of copyright. Popular works would continue to be registered, and would continue to get excessive protection (life plus 70 years). Unpopular works would fall into the public domain in a matter of a few years.

Well, that's a start. But the real problem is excessive protection. The solution to that problem is to go back to the drawing board, and create a copyright system that grants only so much protection as is needed to incentivize information production without stifling the free flow of information for a century or so. Popular works do not need 100 years or more of protection. The land grab has already happened, and keeps happening every time Disney finds itself coming close to losing control of a single shred of its content.

The real fix would require us to look well past the Google settlement, past the moribund fair use doctrine, past the orphan works problem, and straight into the abyss.