Today, the U.S. District Court for the Southern District of New York rejected a proposed class action settlement agreement between Google, the Authors Guild, and a coalition of publishers. Had it been approved, the settlement would have enabled Google to scan and sell millions of books, including out of print books, without getting explicit permission from the copyright owner. (Back in 2009, I submitted an amicus brief to the court regarding the privacy implications of the settlement agreement, although I didn’t take a position on its overall fairness.)
While the court recognized in its ruling (PDF) that the proposed settlement would “benefit many” by creating a “universal digital library,” it ultimately concluded that the settlement was not “fair, adequate, and reasonable.” The court further concluded that addressing the troubling absence of a market in orphan works is a “matter for Congress,” rather than the courts.
Both chambers of Congress are currently working hard to tackle patent reform and rogue websites. Whatever one thinks about the Google Books settlement, Judge Chin’s ruling today should serve as a wake-up call that orphan works legislation should also be a top priority for lawmakers.
Today, millions of expressive works cannot be enjoyed by the general public because their copyright owners cannot be found, as we’ve frequently pointed out on these pages (1, 2, 3, 4). This amounts to a massive black hole in copyright, severely undermining the public interest. Unfortunately, past efforts in Congress to meaningfully address this dilemma have failed.
In 2006, the U.S. Copyright Office recommended that Congress amend the Copyright Act by adding an exception for the use and reproduction of orphan works contingent on a “reasonably diligent search” for the copyright owner. The proposal also would have required that users of orphan works pay “reasonable compensation” to copyright owners if they emerge.
A similar solution to the orphan works dilemma was put forward by Jerry Brito and Bridget Dooling. They suggested in a 2006 law review article that Congress establish a new affirmative defense in copyright law that would permit a work to be reproduced without authorization if no rightsholder can be found following a reasonable, good-faith search.