GBS: Recent Commentary Roundup

  • Lewis Hyde has an essay in the New York Times about orphan works, what ought to be done with the income they generate, and the way the class-action allows Google to “aggregat[e] the monopoly power latent in each orphan.” The argument will be familiar to readers of this blog, although Hyde’s exegesis of it is wonderfully literary. One thing is off, though: he claims that four to five million out of the seven million books Google has digitized appear to be orphaned. That estimate is absurdly high, and I don’t know where Hyde got it.
  • Tim Lee has a blog post responding to Tim Wu’s Slate piece. Lee reiterates his argument that the class action here is the problematic part; he calls it a “loophole” for avoiding legislation. I’ve made similar arguments, primarily in my ACS Issue Brief. But Lee’s position is more absolute than mine; he thinks that this kind of a structured settlement is absolutely out, and indeed, that the original lawsuit class was impermissible. (Google would have almost certainly litigated this issue had the case not “settled.”) Query who, if anyone, would have sued Google were the class action option not on the table.
  • Mike Masnick at Techdirt has a blog post on the value provided by book search. He tries to “bring the whole thing back into focus” by praising the usefulness of being able to search through millions of books. This whole settlement thing (and the criticism of it) is just a silly distraction from the important question: establishing Google’s indexing as a fair use. I beg to differ. Mike hasn’t yet wrapped his mind around the value of a full digital universal library-slash-bookstore; it makes search alone look like nothing. People are shouting about the settlement—pro and con—because it matters.
  • More entries from the Students for Free Culture blog: Jason Schultz on privacy, Ed Van Gemert on some of the Wisconsin collections available through GBS, Brandon Butler on intellectual freedom, Rebecca Jeschke on privacy, and Derek Slater on increased access.
  • Peter Brantley has a Huffington Post post (using the word “post” in the name of a blog leads to some ambiguity) that calls for Congress “to assume its rightful place in this debate — convening interested voices and arbitrating on behalf of public good.”
  • Alexis Madrigal, writing at Wired Epicenter, praises the value of Google Books, particularly for public-domain materials.
  • Brandon Butler at the Association of Research Libraries wrote a short report on the filings with the court, breaking down the objections, amici, and supporters into a number of helpful categories.

Hyde’s endpiece in today’s NY Times Book Review is the first reference I have seen all year there to the GBS.Isn’t it the mouse that roared? I think the NYT BR’s editors should explain: why the long delay in running some comment on what has been called the biggest thing to hit publishing since the invention of movable type. In any case, I look forward to the reviews of Ken Auletta’s aptly named book due out any day: “Googled:the end of the world as we know it.”

Dear James,

Regarding the puzzle of how many orphans there are (“[Hyde] claims that four to five million out of the seven million books Google has digitized appear to be orphaned. That estimate is absurdly high, and I don’t know where Hyde got it.”]

I agree it may be high, though the inherent problem with orphans is that nobody can know. That said, the metrics I used were prompted by your own essay: “The Google Book Search Settlement: Ends, Means, and the Future of Books.” The Journal of the ACS Issue Groups.

There you suggest two routes to making an estimate:

First, when we had the rule that copyrights had to be renewed after the first 28 years, 85% were not renewed. The implication is that most books get abandoned by their parents. [Source is a Stanford Law Review article (see your p. 8, note 35)] Conclusion: “Half of all books would be a conservative, lowball estimate.” Out of 7 million scanned, that would yield 3.5 million.

Second, the money set aside to pay copyright owners whose works have been scanned suggests that Google expects only 10% of them to register and get their money. Thus by their own calculations, no one will step forward to claim 90% of the in-copyright books.

I’m sure there are better ways to estimate the number of orphans—but I didn’t have any at hand when I wrote that piece. Suggestions?

— Lewis Hyde

Ouch! Talk about one’s own petard. My initial estimates were high, and I’ve been revising them downwards. It’s embarrassing to be confronted with my own prior ignorance, even if it is a good intellectual memento mori.

Recently, I’ve found Michael Cairns’s 500,000 estimate quite plausibly well-done. Peter Hirtle also has been thinking about the problem; his numbers are higher.

Thge number of “orphan works” is directly related to the definition, which varies from “books whose rightsholders can not be located after a diligent search” to “books whose rightsholders won’t come forward when offered a pittance after a minimal attempt has been made to notify them.”

In connexion with Cairns’s figure, the following statement of his should be noticed:

I am calculating the potential orphan population, not the number of orphans. These numbers represent a total before any effort is made to find the copyright holder.

So again, this is not the true number of ‘orphan books’ in the sense of ‘books whose rights-holders cannot be located after a diligent search’.

James - Thanks for the link.

Gillian I’m not sure from your comment if you understood my point. My estimate is a ‘gross’ not a ‘net’ number meaning it is subject to ‘Orphan’ authors making themselves known in the process of registering with Google, making themselves known independently going forward to the BRR and also being found proactively by BRR who may be waiving checks (albeit for small royalty amounts) in their general direction.

Michael Cairns -

I believe I understood you, but evidently I expressed myself too elliptically. Thank you for clarifying the matter.

I’m not sure why Michael Cairns limits his comment above to “orphan authors”. People rarely disappear without a trace, but artificial business entities often do (partnerships, sole proprietorships, doing-business-as names, corporations), especially if they went out of business without formally transferring their copyright interests or licenses to anyone else, because they didn’t realize that they would someday become of value again.

Even taking into consideration unknown author pseudonyms, as may be common in certain genres (e.g. erotica), I assume that there are many times more, perhaps an order of magnitude more, “orphan” (unfindable) publishers than orphan authors — which is part of why it is so unfair to hold authors hostage to receiving payment through publishers, even when the author owns the relevant rights.