Berkeley’s Pam Samuelson continues to demonstrate why she is the most significant copyright scholar thinking about the Google Books settlement. Her two previous extended articles, Google Book Search and the Future of Books in Cyberspace and The Google Book Settlement as Copyright Reform were both must-reads that put the settlement in the larger context of modern digital copyright law. She has just rounded out the trilogy with a draft of Legislative Alternatives to the Google Book Settlement (SSRN version, which plots out a possible way forward.
People have bandied about the idea that the settlement tried to create a form of extended collective licensing via the unusual route of a class-action settlement. Samuelson gives this idea a rigorous examination, noting some of its advantages and its pitfalls. In an especially illuminating passage, she compares the settlement programs and the kind of collective licensing in place in the Nordic countries to some of the closest comparable things in the the United States: the Copyright Clearance Center and JSTOR. She doesn’t fully extended collective licensing (indeed, she notes a number of significant concerns about its implementation), but instead recommends that the Copyright Office be asked to study the possibility.
Samuelson then proceeds to tick off a list of elements that she thinks belong in a balanced legislative package dealing with the issue Google Books raises:
- An expansion of the section 108 privileges for preservation, subject to appropriate safeguards such as security procedures. Digitization is an obvious and important component of preservation strategies; a well-crafted preservation privilege could help institutions like the HathiTrust use Google-scanned books to pass on our literary heritage. In a later section, Samuelson also argues for an expansion of library privileges in general. The Section 108 Study Group previously took a cut at this problem, but none of its (fairly modest) proposals have yet been acted on.
- A privilege to display snippets (subject to an opt-out) and to make what the settlement called “nonconsumptive uses” but Samuelson more accurately renames “nonexpressive uses.” (I would argue that both of these are or should be fair use already, but explicit recognition would provide a firmer legal footing.)
- “Congress should consider requiring Google to grant a license to other search engines to make nonexpressive uses of works in the GBS corpus.” Here, I wonder. I disagreed with the portions of Judge Chin’s opinion that could be read to suggest that Google’s initial behavior was necessarily reprehensible; Google engaged in activities that it reasonably thought were legal under copyright law. (I and others thought so, too.) Google’s competitors were not as tolerant of legal risks. This strikes me as a classic example of Learned Hand’s famous line from United States v. Alcoa, “The successful competitor, having been urged to compete, must not be turned upon when he wins.” In this case, if others would like to search the collected corpus of books, it seems reasonable to ask them to make their own scans. The real fix here is to reform copyright law so that scanning for purposes of indexing is unambiguously legal — which is captured in Samuelson’s point about snippet display.
- Her proposal for what to do about orphan works is a clever compromise between the settlement and a full open-access regime:
Yet, Congress might consider adapting the GBS approach to orphan works to achieve a similar but better outcome. Congress could authorize the creation of an ECL for out-of-print books, as noted above; unclaimed funds from these books could be escrowed for a period of years; and after efforts to locate owners during those years failed, the works should be designated orphans and made available on an open access basis. If a book rights holder later came forward, he or she should be able to change the open access designation for such works.
- The mess over who owns electronic rights under decades of accumulated author-publisher contracts, in Samuelson’s view, is severe enough that it may justify Congressional action, perhaps along the lines of the settlement.
- The settlement’s programs for print-disabled readers were groundbreaking; similar provisions in copyright law in general would be a real breakthrough in meaningful access for a group that could most benefit from it.
- Privacy protections for readers are serious enough that they should be legislated.
- Finally, good-faith determinations that a work is in the public domain or was not commercially available should act as a shield from liability, provided that the entity stops treating it as such once the mistake is pointed out to it.
All in all, this is a very important paper. It deserves to be read alongside the discussions of a possible Digital Public Library of America; it gives serious attention the legal details on which any such project would depend. One may not agree with everything in it, but if you are interested in copyright policy post-rejection, it would be a serious mistake not to read this article closely.