Google Books, Congress, and Orphan Works
Testimony by the Register of Copyrights last week expressed concern that the Google Books settlement improperly wades into matters that are the domain of Congress and would impair congressional efforts to enact orphan works legislation. I certainly agree that the Google Books settlement goes much farther than a typical class action settlement. It uses the class action mechanism to achieve unusually broad goals -- in particular, the creation of what amounts to a kind of collective license. In light of that breadth, the settlement warrants the extensive scrutiny it has been getting. And yes, in an ideal world, Congress would take up the matter and provide a generally applicable (rather than Google-specific) path to creating the online equivalent of a comprehensive library.
But it seems odd to characterize the resulting license-like arrangement as "compulsory," as the Register of Copyrights did in the testimony, when rightsholders remain free to opt out (or, for that matter, to exercise more fine-grained control over what uses Google will or will not be allowed to make of their works). Whatever your view on how appropriate or inappropriate it may be to allow works to be included on an opt-out rather than an opt-in basis, participation is hardly "compulsory" within the normal meaning of that word.
I also see little reason to conclude that the settlement will interfere with Congress's effort to craft orphan works legislation. The orphan works bill and the Google Books settlement address fundamentally different questions.The orphan works bill addresses the problem of how to enable some use of works whose rightsholders simply cannot be found, even with a diligent search. The Google Books settlement addresses the problem that, for the specific purpose of creating the online equivalent of a comprehensive library, the cost of conducting diligent searches and rights negotiations on a book-by-book basis would very likely be prohibitive. So even if the orphan works bill considered in Congress last year were to pass, it wouldn't much help Google's effort to build a comprehensive book search tool. Conversely, even if the Google Books settlement were approved, it wouldn't much help anyone who wants to make use of a particular work but is unable to locate the rightsholder to seek permission. For true orphans -- works whose rightsholders can't be found -- we need orphan works legislation. Nothing in the Google Books settlement precludes Congress from moving ahead on that front.
Meanwhile, for out-of-print works -- works whose rightsholders often could be found, at the cost of some book-by-book inquiry -- we need some arrangement that eases the costs of facilitating large-scale online searchability and access. As a practical matter, it is far from clear when or if Congress would be able to produce a legislative solution to the latter problem. The politics of copyright are notoriously difficult. One response to that reality is to say, fine -- if Congress can't agree on what action to take, that just means there isn't enough consensus on an appropriate path through the legal thicket, so Google should not be allowed to proceed. But that approach doesn't much serve copyright law's underlying purpose of promoting the creation and dissemination of knowledge. Allowing the online equivalent of a comprehensive library could offer tremendous benefits both to the reading public and to the many rightsholders who would welcome the chance for their out-of-print works to be rediscovered (and to generate some new revenue to boot.) The proposed settlement, while not perfect, offers a way to achieve that broadly beneficial goal. And if the settlement were to prompt Congress to roll up its sleeves and develop a forward-thinking policy approach, so much the better.
In short, yes, Congress should have the last word. But in the meantime, the Google Books settlement offers the chance to expand public access and increase exposure for many millions of out-of-print works in ways that generally should benefit readers and authors alike. That's why CDT supports the settlement, albeit with the significant caveat that reader privacy concerns must be addressed. CDT detailed those privacy considerations in a report earlier this summer and in an amicus brief filed with the court in early September; links to those documents can be found here.