GBS and Students: James Grimmelmann of NYLS on Orphan Works

Although it is being modified, in the interest of better informing students about the Google Books Settlement, Students for Free Culture has solicited the thoughts of a variety of experts who are providing guest posts reflecting on how the settlement will likely impact students.

In this guest post, James Grimmelmann of New York Law School discusses the effects on orphan works. Interested readers should also check out the upcoming D is for Digitize Conference being hosted by NYLS.

The most important, and perhaps least appreciated, part of the Google Book Search settlement is its effects on “orphan works.”  There are hundreds of thousands (perhaps millions) of books that are in copyright but whose owners can’t be found. Anyone who wants to reprint them faces a catch-22.   Since the owner is unknown, there’s no way to get permission.  But if the new publisher just goes ahead without permission, it faces liability of up to $150,000.  No one wants to take that risk, so the orphan stays out of print.

The result is that orphan works languish in obscurity, hard to find and hard to consult.  If you’re not at a rich university with a huge library, you’ll have a tough time getting your hands on them. The orphan works problem is the Bermuda Triangle of the copyright system, where these forgotten books are lost to culture.

The Google Book Search settlement’s most exciting, and most dangerous, effect is on these orphan works.  Under the settlement, Google gets a license to sell copies of out-of-print books unless the copyright owners object.  For orphans, by definition, the owners are highly unlikely to show up and object.  The result is that most orphan works become will available again, both for individual purchase and as a bulk subscription to universities and libraries.

The downside, from a free culture point of view, is that only Google will be able to provide access to the orphans.  Instead of individual authors deciding on what terms to make their books available, that power is concentrated in Google’s hands.  If the database becomes a “must-have” item for research libraries, schools will compete against each other to have it, driving up the price until, once again, only the richest univerities have access.  (This might still be an improvement over the status quo, which privileges students who attend schools whose libraries have physical copies.)  Centralization also magnifies issues of scan quality, bad metadata, reader privacy (PDF), and censorship (PDF). These issues are all much bigger concerns if one company controls the only corpus of orphan works and can dictate the terms on which it’s provided.

Ultimately, the biggest reason to worry about the Google Book Search settlement  is its effects on the rule of law.  The class-action lawsuit by which Google is attempting to gain these rights is a complex, tempermental affair that pushes at the limits of the law and benefits one company exclusively.  A small group of large publishers and a self-appointed cabal of authors claim to speak for all authors worldwide.  And it will be enormously difficult for any other book-scanners to replicate the legal machinations that produced the settlement.  All of these precedents are bad for the integrity of the legal system and for the bottom-up processes of creativity, negotiation, and exchange that characterize a vibrant culture.

If the orphan works problem for books had been solved by Congress, at least there’d have been a place for everyone’s voices in the legislative process.  As it was, the settlement was negotiated in secret between a few parties, and its fate will be determined by judges weighing legal arguments rather making law for the public good.  The settlement is likely to be an enormous net positive for readers, but this is no way to run a culture.

— James Grimmelmann

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