Two weeks ago, I talked about the Google Book Search settlement at a symposium at Georgetown; yesterday, I talked about it at a conference at Columbia. I’ve taken my remarks from these events, cleaned them up for print, and edited them down into a short essay I’m calling “Google and the Zombie Army of Orphans.” (PDF, HTML). Here’s the key passage:

This class action, though, this one is special. It’s not just Google ponying up for past wrongs. Instead, this is a structural settlement; it reshapes the entire book industry by giving Google and Google alone access to this comprehensive out-of-print backlist. To make that happen, the settlement takes away the rights of people who aren’t before the court. Indeed, knowing what we do about the orphan works problem in copyright law, we know that these absent class members are highly unlikely to be able to do anything about this massive giveaway to Google taking place supposedly in their name.

It’s a version of Russell’s paradox, applied to class action litigation. There’s a class here that consists of all people who don’t realize they’re part of it. Under the guise of this class action, the named plaintiffs have been able to use the huge collection of orphan works copyrights as a bargaining chip. The named plaintiffs negotiated away everyone else’s rights, lining up all those millions of books for Google’s benefit. The orphans have become zombies, raised from the dead by the dark magic of a class action, turned into a shambling army under Google’s sole control.

This, I submit to you, is not the way things ought to be done a democracy. We have political processes for resolving major social issues. We have a Congress; it holds hearings and passes bills. We have administrative agencies that can take expert advice and make reasoned decisions. The courtroom isn’t supposed to be the place where we resolve huge issues that involve the carefully regulated copyrights of multi-million-member classes. Litigation is structured to sort out individual adversarial you-versus-me disputes. It’s a uniquely bad way to sort out complex, sweeping questions—such as how we get at all of our information and all of our books.

Orphan works are a problem that everyone wants to solve according to their own interests. Some want to scan without recall and sell, some want to claim as publishers,even though they may not have the records to support that, somes want to claim on the basis of a reversal now long gone, some don’t even understand that they are still in copyright, some assume illustrations and pictures are part of the same copyright etc etc The problem is that the industry or industries never set up a rights repository, ownership was not always clear, publishers went out of business, lists or prts of lists were sold and records were inconsistant and may now be lost. Google has been ‘given’ freedom that others still don’t have to land grab first and answer later. To exploit works they don’t own because tracking down the answer may be too hard. The Google settlement should be thrown out by all as a bad settlement that rewards the thief and excludes the rest but the industry keeps its head down, voices are browbeaten by lawyer speak and complexity and as a result the silveris in danger of being sold for chump change.

Thanks so much for posting a version of your talk. The image of the zombie army is something that shouldn’t be lost from ongoing discussions about the settlement. Unfortunately, in writing up my summaries of the conference (at http://blog.librarylaw.com/librarylaw/2009/03/google-books-settlement-at-columbia-part-1.html and http://blog.librarylaw.com/librarylaw/2009/03/google-books-settlement-at-columbia-part-2.html, I had to omit most of the details from my discussion of the panel sessions. So it is doubly good that you have posted it.

James, I may be missing your point, but I’m not so concerned about the orphan works problem. There are lots of orphan works out there. Yes, a small minority of copyright holders may later discover, too late, that their orphan works have been swept up in the Google Books settlement. That’s sad. But:

(1) My impression is that the majority — perhaps the vast majority — of orphan works are lost for good; nobody will ever claim a copyright interest in them. Practically speaking, then, nobody’s interests are being harmed when the settlement sweeps in these permanently orphaned works.

(2) For the small minority of orphan works whose copyright holders later emerge (maybe we should call them Nemo works, rather than truly orphan works), yes, it’s unfortunate — but they’re the ones who neglected to look after their copyrighted works anyway. They’ve effectively abandoned the copyright (in the plain-language, not the strictly legal, sense), and I have a hard time drumming up sympathy.

(3) On the other hand, as you point out, these orphan works have been gumming up Google Books’ efforts in the past. Now that the settlement deals with them, Google Books can continue with its socially beneficial service.

(4) The other avenues you mention — Congress, agencies, etc. — are all fine alternatives, but they have their own pathologies. (See the CTEA and the PTO’s well-cataloged faults.) So for me, the question isn’t which institution is structurally best suited to resolve this problem. Rather, it’s which institution is, as a practical matter, the best forum for interested parties to confer and get things done.

It may be that, even under this metric, the Google Books settlement has serious problems (e.g., antitrust — although I don’t recall the settlement giving Google Books exclusive rights, and I would prefer one dominant player to no players at all). But against an imperfect background, I think the settlement is probably among the better of the realistic alternatives.