What the Google Books Battle Really Means

Kal Raustiala, a professor at UCLA Law School and the UCLA International Institute, and Chris Sprigman, a professor at the University of Virginia Law School, are experts in counterfeiting and intellectual property. They have written a number of posts for us about copyright issues. This week, they write about the Google Books dispute.

If you like books — and what Freakonomics reader doesn’t? — pay close attention on Monday, April 25.  That’s when lawyers on all sides of the massive Google Books dispute meet in New York to consider how to move forward after a federal judge rejected a proposed settlement between Google and its adversaries, the Authors Guild and the Association of American Publishers.  The Google Books battle is complex. But it could help determine not only the future of reading in the Internet age, but also the future of copyright law.

Photo: Jim Barter

Google Books allows users to search a massive database of books — Google has digitized more than 15 million, and its ambition is to eventually reach all the books ever printed.  Google does not allow access to copyrighted books unless it has an agreement with a book’s publisher. Instead, users receive a list of books that include their search term.  Click on a book, and Google shows as much as its publisher has authorized, or, if there is no agreement with the publisher, Google shows only a few lines of text containing the relevant terms.
That’s nice, but it isn’t where the real payoff is. Google Books also provides — for the first time — access to millions of what are called  “orphan works.”  These are books that are out of print, but remain under copyright.  Google Books makes orphan works searchable too.  And that turns out to be extremely important.
The orphan problem arises because most books go out of print very quickly. A few copies may be available in used book stores or filed away in library stacks.  But for most purposes, these books might as well not exist.  Copyright, on the other hand, lasts a very long time — currently, the life of the author plus 70 years.  So for millions of books that are out of print and remain under copyright, would-be users — i.e., anyone who wishes to re-print the book, or to use it in a derivative work — must seek permission.
The problem is that owners are often hard to find.  This is especially true as the decades pass.  Owners die, and copyright passes to heirs.  But there is no reliable record of copyright ownership.  As a result, it is often impossible to find anyone to ask for permission. By opening up this treasure trove of orphan works, Google Books may make a truly major contribution to nearly every field of writing imaginable.
What is the effect of Google Books on the market for books?  Almost certainly to sell more of them.  People use Google Books to search for books, and if they find something that looks particularly relevant, they may be motivated to buy it.  Obligingly, Google Books provides links to online book merchants.  And Google Books is a special boon for orphan works.  It helps to bring them back to life.
So Google Books is great for Google, authors, publishers, and readers.  Who could complain, right?  Wrong.  The Authors Guild and the Association of American Publishers sued Google, arguing that by scanning copyrighted books into their database, and by distributing snippets from them, Google violated their copyrights.  Google disagreed, arguing that its copying was fair use.  But before the issues could be determined by a court, the parties settled.
The settlement was, characteristically for Google, a masterstroke of creativity.  In return for modest payments to Guild and AAP members, Google obtained copyright immunity for its Google Books project.  But the settlement sought to do more — Google would be free to include orphan works in its database — even though the authors of these works, by definition, were not represented in the settlement negotiations.  Royalties would be directed to the owners of orphan works if they later surfaced.
The federal judge overseeing the dispute, however, rejected this settlement, in part because he didn’t like that it required authors to “opt-out” of it rather than “opt-in.” So what happens now?  The parties may re-work the settlement. Or perhaps they will proceed with  litigation.
A better option is for Congress to step in.  Legislation has been pending in Congress for several years that would ease the orphan works problem.  If passed, it would allow those who have made a reasonable search to use that work. And if the owner later surfaces, the user need only pay a reasonable license fee.  So under these revised rules, Google Books could include orphan works, and be assured that it would be liable only for the fair value of a license — exactly the type of compensation that they envisioned in the settlement.   And, importantly, firms other than Google –perhaps public libraries — could do so as well.
Unfortunately, however, the orphan works legislation has been bottled up in Congress, due mostly to the objections of commercial photographers, who fear that the special difficulties of finding owners of visual works will deprive them of fair compensation.
These problems can and should be worked out, and a fair solution to the orphan works problem reached.  No one benefits when great creative works cannot be accessed because they have fallen out of print.  Google’s search expertise can breathe new life into a whole world of creativity — if liability fears don’t get in the way.