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.