Following up his recent article in the New York Review of Books, Robert Darnton has an exchange of letters in the forthcoming January 14 issue with a number of others, including Paul Courant. The most novel element of the conversation is the following proposal by Darnton:
I like Theodore Koditschek’s suggestion that Google be treated as a public utility subject to regulation in the public interest. If that seems unrealistic, one should consider a compromise solution, which would draw a line between the books digitized by Google that are strictly commercial and the books that are no longer in print, although some of them are still covered by copyright. Google would continue with its project to commercialize digital copies of books currently in print, sharing the proceeds with the rights holders. At the same time, it would continue to scan out-of-print books and to include them in a database that would constitute a separate, open-access repository. The rights holders of the in-copyright but out-of-print books in that database would be given the opportunity to choose to keep their books out of the open-access plan and, if they preferred, to include their books in Google’s commercial operation.
This opt-out provision would be adapted from the similar provision of the ASA, which permits rights holders to remove their works from Google Book Search. By doing so, it would take advantage of the class-action character of the original lawsuit in order to promote a nonprofit project dedicated to the public good. The books in the open-access repository would be protected against litigation without recourse to legislation by Congress, and they would be merged with books in the public domain, forming a gigantic database—that is, a national digital library. (Of the ten million books that Google has digitized, roughly two million are in the public domain and six million are out of print but still protected by copyright.)
This proposal would effectively put unclaimed out-of-print books in the public domain, at least as to full-text access, with an opt-out option for copyright owners. It would deal with some of the exclusivity issues raised by the proposed settlement, but would heighten the class-action concerns and could be expected to draw substantial opposition from copyright owners.