Ends, Means, and the Future of Books

The two previous papers have been queued up until I could catch a few minutes to take care of posting them. But this one really is of the minute. Today, the American Constitution Society released an Issue Brief I wrote for them on, what else, the Google Book Search settlement. (Yes, it’s dated the 15th, but it was actually mailed out today.) ACS Issue Briefs are 10-20 page summaries of the legal and policy issues raised by topics in the news; they’re written for lawyers, policy-makers, and the public at large, (rather than for academics). Mine is called “The Google Book Search Settlement: Ends, Means, and the Future of Books,” and in it, I explain the centrality of orphan works to the settlement. It’s good to the extent it makes the orphans available again, and worrisome to the extent it locks up control of them with a single company. Here’s an abstract (a couple of excerpts, really):

For the past four years, Google has been systematically making digital copies of books in the collections of many major university libraries. It made the digital copies searchable through its web site—you couldn’t read the books, but you could at least find out where the phrase you’re looking for appears within them. This outraged copyright owners, who filed a class action lawsuit to make Google stop. Then, last fall, the parties to this large class action announced an even larger settlement: one that would give Google a license not only to scan books, but also to sell them.

The settlement tackles the orphan works problem, but through the judicial process. Laundering orphan works legislation through a class action lawsuit is both a brilliant response to legislative inaction and a dangerous use of the judicial power. Many of the public interest safeguards that would have been present in the political arena are attenuated in a seemingly private lawsuit; the lack of such safeguards is evident in the terms of the resulting settlement. The solution is to reinsert these missing public interest protections into the settlement.