The Passive Virtues

Two more thoughts about the paucity of holdings in Judge Chin’s opinion:

First, the structure of the opinion makes appeal more unpleasant. Chin didn’t put all his cards on the table. If the parties appeal his denial and win, one plausible outcome is that the case gets remanded back to him to try again — but he’s signaled that he’s likely to deny it again. That’s a long and protected litigation process, which can’t be encouraging to parties considering going the appeal route.

Second, by refusing to make new law on any issue except for Rule 23, he limited the uses to which his decision can be put as precedent. The antitrust section will be a gift to Google’s enemies in the court of public opinion, but probably not in a court of law. He thus avoids creating an immediate basis for me-too antitrust lawsuits. Similarly, the international-law section takes foreign concerns very seriously, but imagine a world in which Judge Chin is reversed on appeal, or some other court approves a similar settlement. Anything Judge Chin says could be cited against the U.S. in a WTO arbitration or some other international forum. By limit what he says, he also limits the potential headaches for U.S. diplomats and government lawyers.


Very interesting points that I haven’t seen made elsewhere. It does seem that the opinion was carefully crafted to decide as little as possible, and yet decide just enough to steer the parties in a certain direction.

I can’t decide how I feel about this. The Settlement would have been an incredible act of private law-making that took important policy decisions away from Congress, and yet it was also a bold and interesting attempt to reduce the costs of our permissions-laden system.

And whats next for the me too cases pending-the illustrators, and childrens book cases??

J Garchik

A word about “the costs of our permissions-laden system”:

While Google complains about the inconvenience of seeking the permission of copyright holders, there has been no mention of the small army of Permissions Freelancers, independent rights researchers who earn their living working on behalf of anyone who needs to secure rights in copyrighted works—everything from song lyrics quoted in novels to photos and text reprinted in textbooks. If Google is indeed planning to lobby Congress for legislation that would open up the world of “orphan” books and if that emancipation is dependent on an exhaustive search for the rightsholders, these rights specialists will be invaluable.

I do business with them all the time and they are, by and large, wonderfully resourceful and pleasant, exceedingly professional, and don’t seem to be writing from mansions on the Gold Coast. Therefore, with its deep pockets, Google should be able to afford their fees. I’d bet that volume discounts would be available.

Imagine if all the legal fees that went into the settlement had been put toward seeking permission for copyrighted works, the vast Alexandrian library everyone is dreaming about might be even closer to reality. And we’d know a lot more about which orphans are truly without parents (or guardians).


I don’t think the “cost of our permissions-laden system” is an outcry from publishers. Dover Publications and many others seem to be able to successfully reprint mid-20th-century books (the so-called orphans), and add informative introductions and other useful material when they reprint them. I hear the outcry from readers, very few of whom have the remotest intention of reprinting the books or creating derivative works. They just want freebies to read. But, I also don’t see them checking those books out of libraries, which they can legally do for free, or buying the books on the used market, where many books of that age can be bought easily and relatively cheaply, or even very cheaply.

One thing that strikes me about most people saying all books should be free (and they do often mean all, not just the so-called orphan works), is they also appear to heartily dislike books. They constantly say most books are trash and not worth paying for—or presumably, reading. They constantly scream about “rip-off” authors and publishers and any assertion that authors and publishers need to be paid is greeted with derision.

Therefore, I think we are getting most of the public outcry from people who don’t want to read or otherwise use the so-called “orphan works” anyway. Google is another story—they’re looking to profit from book and ad sales, and so would other businesses if they had the chance.

I think it is important to see this as an attempted seizure of copyrighted works for financial profit, rather than as a public hungry for education and/or entertainment they just can’t get unless someone hands them free copies of mid-20th-century works publishers have not wanted to revive.

Not again, Frances, not here. Your comment is off-topic for this post.

Sorry, James. Is it off-topic to speculate that now that Judge Chin has disapproved an opt-out Settlement, that Google, and/or the Open Book Alliance, will start to try and push another “Orphan Works” bill through Congress?