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.


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  1. Martin Panek says:

    Getting rid of intellectual property (which is an utter nonsense) would solve all the problems mentioned above.

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    • Felix says:

      I too am less and less impressed by intellectual property. What with software patents, patent and copyright troll companies, and Hollywood and other MAFIAA extortionists, I suspect the economy loses more to litigation than it gains from the presumed incentive. People created books, music, art, and inventions of all sorts long before intellectual property laws.

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    • Alex in Chicago says:

      Just as an example, what incentive does J.K. Rowling have to write her Harry Potter books if the instant they become famous they are printed everywhere without her being compensated?

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      • Martin Panek says:

        Your question lies on too many presumptions. How do you know people wouldn’t buy books from the original author? How do you know that — in a world without IP — there would be no mechanism to “force” people buy originals? How do you know that — if she decided to do other things — she could not monetize more?

        And above all: What gives you the right to impose a ban on my activities? Why cannot I use my pen and paper, PC, typewriter… or whatever in any way I see fit? Can I re-tell Harry Potter to my friend? Can I re-tell it to 20 friends? Can I write a short summary? If I have a good memory, can I write a 20-page summary? Or even a 100-page one? Isn’t it absurd that this “property” vanishes into thin air suddenly over night (70 years after the death of the author)?


        I imagine those guys writing on a piece of rock saying: “No, we cannot write on paper. Everybody can steal it!” :)))

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      • Jay Lake says:

        Martin –

        Turn your question around. What give you the right to impose a ban on my activities if I want to break into your house, eat your food, and take your tv home with me? Can I just do it for 20 minutes? Can I bring my friend? Can I make a copy of the key and come back any time I want? It’s absurd that your house doesn’t belong to you any more after you’re dead.

        It’s exactly the same question you’re asking about someone else’s property. Just because you don’t personally consider copyrights to be property doesn’t mean they are not. When someone creates something, they own it until they elect to dispose of it.


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      • Gary G says:

        To turn it around once more, is the analogy not closer to: if I admire your house, and want to build another of the same design (or duplicate your recipes…), should I not be allowed to do so? In your example, using my home is problematic not because of the theft of use, in my mind at least, but for the invasion of privacy. Stealing the food & TV is simply theft, denying me the use of those items, even temporarily if you do return the TV.

        By copying the design of my home, though, you haven’t deprived me of anything, other than the warm feeling from having the nicest home in the area. However, assuming you are working from external appearances, you haven’t invaded my privacy in doing so, nor have you done so if you copy recipes I post on my lawn.

        Copyright, on the other hand, is telling me not to use something of my own – my knowledge – in the way of my choosing. Yes, that knowledge was acquired by reading your book, for example, but the knowledge itself isn’t yours. You created the book, perhaps first had the idea, but the idea has been transmittted – you do not (absent copyright!) have any right to reach into my skull and erase that knowledge, nor to forbid me from disseminating it unless I have entered into a contractual agreement with you to that end. (And it’s in this agreement that I think a strong argument for copyright might lie!)

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    • Brett Dunbar says:

      Without copyright artistic works are a public good (non-rivalrous and non-excludable). Copyright converts them into a club good (non-rivalrous and excludable) for a period of time. Public goods are chronically under supplied in a market system while a market is perfectly able to supply club goods. Copyright is an effective method of dealing with market failure. The same basic argument applies to patent, design right, database right (not currently recognised in the US) and several other classes of IP. Trademark and heraldry have a different reason as both are forms of unique identification of a person, organisation or product.

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  2. James says:

    “Google Books allows users to search a massive database of books…”

    Except that that’s not at all what I see from this end. I do a search, I get back however many thousands of hits, and have to skip over the (often more numerous) Google Books results that I can’t view, in order to find the ones that I can. For me, Google Books does nothing more than increase the already high garbage fraction of searchs.

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  3. Mark Pitcavage says:

    As an author, I understand the concerns that authors have about Google Books (though Google is right that the “snippets” are no copyright violation but rather fair use) and the opt-out vs. opt-in issue, as well as issues surrounding exclusivity.

    However, as a researcher, I have to say that I am all in favor of any and every system that makes hard-to-find books accessible to researchers and, more importantly, searchable. I use Google Books regularly to find books that has information of potential interest to me. If the scan is available, great; if not, I at least know that the book in question may be worth finding.

    I think too many authors are being paranoid about lost revenue that is unlikely to happen. For the vast majority of authors, something like Google Books (no matter who operates it), would have either no effect on their revenue or would increase it, as people seek to obtain a book they learned about through a Google Books search.

    So far, most of the commentary on Google books seems to focus on either Google the company or on authors and publishers. No one seems interested in the desires of the users.

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    • Jay Lake says:

      Mark —

      See my comment downthread about this. As an author, I’m not too concerned about lost revenue from Google Books. In fact, I’d be delighted to be accessible through that vehicle.

      What I am concerned about is the pre-emptive copyright licensing GBS asserts. If Google can do it, what’s to stop Universal Studios from doing the same thing? Instead of proactively negotiated film options, they could just appropriate one of my works, or anyone else’s, wait for me to notice, then offer me a nominal license. Exactly the same process GBS specifies for Google and my work.

      This is an inversion of almost three centuries of copyright law, and has a potential impact on content creators that cannot be underestimated.

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  4. Dale Sheldon-Hess says:

    “[O]rphan 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.”

    I hadn’t heard that. If that’s seriously the only hold-up, write the law to apply just for works that include a substantial written component, so we can be done with it.

    But what I don’t understand is what’s stopping photographers from attaching their names to their work. If it’s printed, put it on the back; if it’s digital, every format has a way to attach that sort of information. I don’t see what the “special difficulties” are.

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  5. Jay Lake says:

    I’m an author, with eight novels in print, along with five collections, over a dozen anthologies edited by me, and about 300 short stories. I say this to establish my perspective – I decidedly have a dog in this fight.

    In principle, I admire the Google Books project. I am strongly in favor of finding some way to preserve orphan works. But the Google Books Settlement is profoundly flawed in a way that may permanently disadvantage independent content creators and owners. That is to say, anybody without a Google or Disney sized legal department.

    What GBS does is create a class of pre-emptive licensing unlike anything ever seen in modern Anglo-American copyright law. Since before the Statute of Anne, copyright has been entirely an opt-in process. The owner had to offer a license before it could be assumed. (Obviously this offer can be done on request, if someone seeks it out.) There has never been any presumption of use on the part of another.

    Here’s the analogy: Copyright is real property under the law. GBS says, in effect, that Google can come occupy your house if they think you’re not using it. If you object, they can decided what rent to pay you and what the lease terms are. If you don’t like that, you as a private individual are free to sue the corporation with one of the largest market capitalizations in the world.

    If you owned a cabin the mountains, and one day discovered Google had taken it over and was now prepared to pay you $10 a month in rent, how would you feel about that? If you went away from your primary residence for the weekend and returned to find the same thing happening there, how would you feel about that?

    In trying to solve the orphan works problem — which all authors recognize as real and important — the net has been cast far too widely. Believe me, I recognize the issue of public interest at work here. But it cannot be resolved by stripping my ability to make a living off my own creative product.

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    • Gary G says:

      “What GBS does is create a class of pre-emptive licensing unlike anything ever seen in modern Anglo-American copyright law. Since before the Statute of Anne, copyright has been entirely an opt-in process… There has never been any presumption of use on the part of another.”

      This, and most discussions on this issue, always present “never” as meaning “never since copyright was instituted”. If we go back one hundred years further, ‘lo and behold, there was no presumption of exclusive right to intellectual property… it is copyright that is the Johnny-come-lately. It all depends on how broadly one expands one’s view!

      Copyright’s aim, from a societal view, is not to limit access to materials, but the opposite. Nor is its purpose to ensure “fair compensation” for producers of work. That fair compensation is a means, the end is expanded access to materials. If copyright is failing in this purpose – as it is, in the case of orphan works – then society is right to revisit the protection of “intellectual property” that it has chosen to grant to producers of works. We’re so used to the status quo that we’ve begun to believe copy restrictions and ownership of ideas is the natural, or even only, state of affairs.

      I think there’s a place for copyright, but every restriction on free flow of information should be justified regularly and conservatively. Would there really be a “chronic shortage” of public goods, in the form of copyright-free works? Maybe… maybe not. The case should be for those advocating restrictive intellectual property laws to make, not for those advocating the freedom of intellectual works. I imagine there would be far fewer people making a living from writing in the absence of copyright, but I’m not yet convinced that this is sufficient reason to place an artificial constraint on speaking & writing. Would JK Rowlings have written the Potter books without copyright? Well… I don’t know. Maybe, maybe not. I’m quite sure there would be SOME works produced without copyright, either freely distributed, or with another business model to provide some compensation to the creators.

      One doesn’t have to look hard at all to find many creators of works putting their work in the public domain, either profiting through another business model, or producing without an eye to profit. The majority of these works are terrible, but then, so are the majority of works where copyright is retained.

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      • James says:

        But if we go back not all that long before the institution of copyrights, we get into the pre-printing press era, when the physical act of copying was the limit on widespread publication. And in the interval between… Well, consider Shakespeare. Since there was no copyright, the manuscripts of his plays were closely guarded by his acting company during his lifetime, with bootleg editions sometimes published from memory. The result was that at least several plays were lost, others exist in variant editions, etc.

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      • Jason Block says:

        I think this is a good point. What happened routinely before the invention of copyright and patent is that ‘information’ was hoarded by it’s creators, or, more often, their patrons – because it was through the hoarding that they could protect their profit. Copyright and patent in particular effectively encourage sharing of information, allowing others to build on what has come before, and they remove much of the risk of creation and innovation.

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      • Jay Lake says:

        Despite your calling me out for the use of the word “never”, I will point out that I qualified my comments with the phrase “modern Anglo-American copyright law”. Please zing me for something I actually said if you’re going to zing me.

        Beyond that, you’re absolutely right in your implication that society doesn’t owe writers a living wage. (Not that we get one now, but that’s a different discussion.) There could be good, strong social reasons to radically modify or even eliminate copyright. However, if you enjoy reading books or watching television or movies that have been created to standards of professional quality, you might want to consider that there should be some mechanism for compensating content creators and publishers to a reasonable degree. The current mechanism is heavily founded on pre-GBS copyright law.

        Because yes, both Rowling and I would almost certainly be writing with or without current copyright law in place. The stereotype of the obsessed writer is grounded in a fair amount of reality. But you’d be far less likely to reading either her or me without current copyright law in place. If you’re okay with that, I don’t have any particular counterargument to offer you. For my own part, I’m not okay with it, either as a reader or as a writer.

        Like I said in my comment, my dog in this fight is clear.

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      • Gary G says:

        James’ point about Shakespeare is a good counterexample, of lost information for lack of copyright. I suspect, for better or worse, technical means of surreptitious reproduction have reduced the probability of losing works in that fashion, though of course without copyright there could readily be reduced dissemination of works in the first place, and that is a valid concern.

        And Jay, you’re right of course, I apologize for swiping at you, your “never” could certainly be interpreted as qualified by the paragraph-heading reference to copyright law. I believe we’re entirely in agreement on the Google Books ruling, it was dangerously and badly out of step with current law and practice. I’m just looking for a more radical reconsideration of copyright and whether it’s still the best tool for the job.

        my interest is in re-evaluating the law itself.

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      • Alex in Chicago says:

        Copyright was obviously not needed prior to the printing press. Why? Because handwriting was too tedious to make copying anything other than elite works not worth the time. Once the PP comes out, and before copyright we see an increase in the amount of famous plays, once again we should ask why? I would contend it is because of the lack of copyrights so Shakespeare and Co. engaged in enterprises they could protect, like plays. Even if you do get the script to a play, it is not simply like reprinting a book, plays have unique actors and directors which make them interesting.

        The same becomes true with digitization. Unless we want easily copyable works to die out (like what is happening in the music industry, less new albums more concerts) we need to protect them.

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      • Jason Block says:

        “Copyright’s aim, from a societal view, is not to limit access to materials, but the opposite. Nor is its purpose to ensure “fair compensation” for producers of work. That fair compensation is a means, the end is expanded access to materials.”

        That is copyright’s ‘aim’ if and only if you rely on a single document, the U.S. constitution, and you are a literalist with a certain way of reading the text. Copyright is not an invention of the men who wrote the Constitution and their way of fashioning a compromise between competing printing presses in the context of press freedom can hardly be generalized to all societies everywhere.

        “I think there’s a place for copyright, but every restriction on free flow of information should be justified regularly and conservatively.”

        Why? Substitute the word ‘information’ in your sentence for any other class of goods. Why is ‘information’ singled out for special treatment? Is it somehow less real?

        Unlike some types of goods, such as real estate or minerals, there is no shortage of creative works. Mankind’s creativity is apparently boundless. We do not run out of ideas, and we do not stop writing them down. Every one can participate, and copyright does not stop anyone from participating. There are infinite variations of every expression and copyright only urges us to explore more of those variations, and every explorer is protected equally, whether they are rich or poor.

        I doubt we will ever see again such a protracted and seemingly sincere rationalization for theft as we’ve seen in the anticopyright movement.

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      • Gary G says:

        Alex in Chicago: “Unless we want easily copyable works to die out (like what is happening in the music industry, less new albums more concerts) we need to protect them.”

        This sounds like an argument against copyright, though I don’t believe that was the intent.

        Jason Block, I certainly was not using the US Constitution as the basis for my statement. Since the Statute of Anne was mentioned, the goal was the promotion of public education, by encouraging “learned men to compose and write useful books”. One can always go back earlier to the printer’s monopolies, and there the goal was to make money for publishers of course, not authors.

        Of course information is singled out. “Intellectual property” is a new concept, and using concepts of property and goods is problematic here. Do you also argue for infinite copyright terms? Presumably so, unless you also argue that once a family has had a home for enough years, it becomes public property. I think most people draw a pretty clear distinction between property rights and copyright, with good reason.

        You ask if information is less real than other goods. Perhaps not less real, but fundamentally different. It’s pretty obvious that copying information does not take something away from someone the way stealing their wallet does. It MAY be appropriate to restrict the former – I think it is in many cases. However, copyright may not be the best way to do so, and certainly the current manifestations of copyright in law may not be the best way to do so. Copyright extending 70 years after the death of an author… really? That encourages “creativity”? “Authorship”? No, it doesn’t.

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  6. Power and Privilege says:

    As an author, I understand the concerns …..

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  7. Jaosn Block says:

    I can access all kinds of out of print works, all the time – either I can have them sent to my local library or I can buy them from Amazon or ebay. It’s important not to overstate the case.

    Really this is an issue about profiting from so-called ‘orphan’ works, and who gets that profit. There are very few works that someone, somewhere does not own. Tracking down the owners is difficult and expensive, however, an expense that some would like to avoid.

    Who decides how much due dilligence is necessary before the state can sieze an individual’s property and deprive him of his rights?

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  8. Dave says:

    This is an extremely interesting story. It seems that, as usual, Google is doing everyone a favor. The only reason I can think of for this law suit is the legal departments of the plaintiff firms. In order to justify their existence they decided to sue Google. I have no idea what the judge who rejected this settlement is worried about, it seems that his has identified a problem that has not yet happened.

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