It’s All About the Orphans

The Internet Archive first used the term “orphan” to describe books that are no longer commercially viable, (“out of print”); still in copyright; and whose ownership is either impossible or extremely difficult to determine. In 2004 Larry Lessig, Rick Prelinger, and I brought a suit to make it easier for orphans to enter the public domain (Kahle vs. Gonzales). As that case was proceeding, the Copyright Office held hearings and issued a report, which led to proposed orphan works legislation in both the House and Senate.

As that legislation has been wending its way through the Capitol Hill meat grinder, it turns out that Google, the AAP, and the Authors Guild were negotiating their own private solution to the problem of orphan works. After digesting the proposed Google Book Settlement, it becomes clear that the dizzyingly complex agreement is, in essence, an elaborate scheme for the exploitation of orphan works. The class action mechanism allows the Authors Guild (8,500 members) and the AAP (260 members) to extrapolate themselves to include millions of unfindable and unknowable rightsholders to orphan works.  It is to this end–the certification of a class that includes the orphans–that the parties need the blessing of the court.

The upshot, if the Settlement is approved, would be legal protection for Google, and only for Google, to scan and provide digital access to the orphan works. Presto! Like magic, Google proceeds without any need for legislation: their own private orphan works legislation.

So, should the Settlement be approved, Google will be handed exclusive access to the orphans, and the public loses out. With orphan works legislation, orphan works could have been opened up to digitization by anyone: not just Google but competitors to Google, libraries, Open Content Alliance partners, and others. Now, however, no one but Google will have access to the orphan class created by the Settlement, without enduring a similar class action lawsuit from the authors and publishers.

I, personally, am amazed at this creative use of class action law. The three parties have managed to skirt copyright law, bypass legislative efforts, and feather their own nests–all through the clever use of law intended to remedy harms.

This Settlement, if approved by the judge, will accomplish things appropriate to a legislative body not to private corporate board rooms. Let’s live under the rule of law, as arduous as that might be, and free the orphans, legitimately, not for one corporation but for all of us.

-brewster

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15 Responses to “It’s All About the Orphans”

  1. Google Granted Dangerous Monopoly, DMR Requirements in Settlement with AAP at Nick Dynice Says:

    […] Google will receive exclusive right to profit from orphaned works. This would seem to go against Google’s own motto: Do no evil. Google themselves should understand that creating an exclusive right for work that should either be entered into the public domain or to not allow competing services such as the defunct Microsoft book scanning program does not jibe with their own ethical compass. Google seeks only to win by meritocracy. Google search points to the better source, and most if the time it is not Google’s own content. Google wants competition. It should want to allow it to find the best interpretation or organization of orphaned works. For this reason, I could not imagine it sending DMCA nastygrama to sites that republish these works. Google would want to open the orphaned works to the general public and to any developer so that they may mine even more public value from it. There is now a Books and Interest Registry for copyright holders and publishers of any book to register their works so, they too can get a cut of Google profits on sales to orphaned book access. Now, anyone can receive this welfare, just write a book. […]

  2. Google Book Settlement Link Dump Awesomeness at pureinformation.org Says:

    […] Open Content Alliance: It’s All About the Orphans […]

  3. Frances Grimble Says:

    Actually, the settlement includes _every author and publisher of every book published before January 1, 2009, in every country that signed the Berne Convention. We’re hardly talking about Google only exploiting those poor–but highly profitable–“orphans.” Although Google has not publicly released a list of books scanned (Google Book Search is not the same thing), apparently they scanned plenty of in-print books by living and identifiable authors. The Settlement also gives Google the right to sieze control of copyrighted books (whose rights owners do not opt out of the entire Settlement) as soon as Google’s book registry–not the publisher or author–declares them out of print for one year. Print-on-demand books can be declared out of print.

    This is a straight grab that enriches no one but Google and the Author’s Guild. Re the latter, they will be running a database/registry that the rights owners will have to pay to be included in.

  4. ResourceShelf » Blog Archive » Brewster Kahle: It’s All About the Orphans Says:

    […] From the Blog Post: The Internet Archive first used the term “orphan” to describe books that are no longer commercially viable, (”out of print”); still in copyright; and whose ownership is either impossible or extremely difficult to determine. In 2004 Larry Lessig, Rick Prelinger, and I brought a suit to make it easier for orphans to enter the public domain (Kahle vs. Gonzales). As that case was proceeding, the Copyright Office held hearings and issued a report, which led to proposed orphan works legislation in both the House and Senate. […]

  5. Brewster Kahle on the Google Book Settlement Says:

    […] of these cultural works going into the public domain, they’ve instead gone into Google. Says Kahle: As that legislation has been wending its way through the Capitol Hill meat grinder, it turns out […]

  6. Seeing the picture » Blog Archive » Thomas Lord & Tim O’Reilly on Google Book Settlement Says:

    […] comments by Thomas Lord and Tim O’Reilly. I’m excerpting this interchange here. About Kahle’s posting, Stone says that he “focused on the plight of ‘orphan works’ – that vast number […]

  7. Immateriblog.de - Matthias Spielkamp über Immaterialgüter in der digitalen Welt Says:

    […] Urheberrechtsaktivisten USA, hat im Blog der von ihm mitgegründeten Open Content Alliance eine Einschätzung des Google Settlements veröffentlicht. Sie ist kurz, erschreckend, mit Sicherheit richtig und […]

  8. Hyperlinks Subvert Hierarchy : india sem Says:

    […] while we are being profiled, pieces of our culture are being locked up via anti-competitive agreements. Richard Sarnoff, the chairman of the Association of American […]

  9. Econs.net Blog » Hyperlinks Subvert Hierarchy Says:

    […] while we are being profiled, pieces of our culture are being locked up via anti-competitive agreements. Richard Sarnoff, the chairman of the Association of American […]

  10. CG Says:

    If you or anyone reading this blog is an eligible class member, you have until May 9th to file an objection to the settlement. Objection rules are spelled out in the settlement notice at http://www.googlebooksettlement.com.

    Do not underestimate the power of an objection. If enough class members object, clearly stating reasonable arguments for how the settlement should be modified, the Judge and the Attorneys will pay attention. Trust me, every objection in a class action is read and considered carefully by all parties involved. All you need to do is a write a letter – no attorneys need be involved.

    Many class action settlement agreements are taken back to the drawing board by objecting class members, and this settlement is no different.

  11. Academitron» Blog Archive » The deal with the Google Book Search settlement Says:

    […] there’s the class that everyone is concerned about: books that are out of print but still under copyright. People often call these “orphan […]

  12. Open Content Alliance (OCA) » Blog Archive » At End of Act II: Are we Played for Fools OR Building a Enlightened Digital World? Says:

    […] grand and dastardly scheme was to construct an organization to control/monetize the Orphans *– might they get away with it?  It seems they might– in fact everyone seems to be […]

  13. bamboolabcode Says:

    Thank you for this information.

  14. Mary Says:

    I never stop being amazed at how much google is a law onto themselves! they have redefined the meaning of copyright with their many greedy tentacles.

  15. Danny Says:

    The other path of information liberation, currently deemed left-handed by sworn opponents of BitTorrent-based file sharing, will be the equal and opposite force to this power grab, and frankly it’s one of the many reasons we should be thankful for it’s presence. Here we are at one of the many, many cusps of greatness in our ever-emerging digital age, the entrance of millions of orphaned works into the public domain, and the political might of one major player is poised to take it all away. Short of whatever ground was made/can be made by voicing objections to settlements such as these, I see few means of recourse other than piracy once these kinds of laws are on the books.

    It’s not an ideal solution. The piracy world has a habit of thumbing its nose at even the most noble appeals for copyright protection. The flames that irk the “victims” of piracy the most are only getting more and more fanning by legislation like this. What’s to stop hundreds of millions of people whose want of information is finally joined with the means of accessing it, threats of legal repercussions be damned? If content creators want their way, this a horde that ought to be consulted, not aggravated. Giving Google the golden goose while everyone else makes do with bupkis is Grade-A aggravation. While I may not completely approve of the retaliation, I am grateful for its existence. It feeds the commons and keeps monopolization in check.