One of the English language’s most recognized and performed songs is Happy Birthday to You (HBTY), which likely first appeared between 1893 and 1912 as new age-grading standards in American schools increased the need for a common celebratory song. Historian Elizabeth Pleck’s work shows birthday parties as a common practice had only come into vogue around the 1830s, while confection-lovers would wait another 20 years before the modern birthday cake emerged in the 1850s. HBTY is a derivative work combing generally-assumed-to-be-folk lyrics with the tune of Good Morning to All (GMTA) a melody written by and copyright to Mildred J. Hill in 1893. The original GMTA lyrics were penned by her sister, Patty Smith Hill.

Good Morning to All sheet music

Today, after a series of mergers and acquisitions the Warner Music Group claims copyright on HBTY, and current law states it will remain rightful owner in the U.S. Until 2030. This assertion is contested in detail by Professor Robert Brauneis in his paper Copyright and the World’s Most Popular Song. In spite of common belief that it remains under copyright, Braunies’ archival research indicates that HBTY may actual be a public domain work. By recapping his arguments (after the jump), I hope to help other artists understand the importance of documentation and proper registration of works should they seek to obtain copyright protection – as well as to consider problems that can arise from the continued extension of copyright term limits and in turn, the estate-based control of past works. Lastly, I’d like readers to become more aware of the general contributions made by Patty and Mildred Hill to the respective fields of education and musicology.

Read the rest of this entry »

Victoria Espinel, the Obama administration’s intellectual property enforcement coordinator (“IP Czar”) is undertaking a serious review of American intellectual property enforcement policy. To her credit, she is asking for public input on how they should approach their task, though much of the document makes erroneous assumptions about the need for “enhanced enforcement” and the unmitigated “harms to the American economy” from intellectual property infringement. The economic reality that too much intellectual property actually harms the American economy is not present in the request for public information, making our job and input even more important.

The input should take two parts:

In the first, the IPEC seeks written submissions from the public regarding the costs to the U.S. economy resulting from intellectual property violations, and the threats to public health and safety created by infringement. In the second part, the IPEC requests detailed recommendations from the public regarding the objectives and content of the Joint Strategic Plan and other specific recommendations for improving the Government’s intellectual property enforcement efforts. Responses to this request for comments may be directed to either of these two parts, or both, and may include a response to one or more requests for information found in either part.

Submissions are due on or before Wednesday, March 24th, 2010 at 5 p.m. and should be directed to intellectualproperty@omb.eop.gov.

In the meantime, what topics and approaches should we, as a community, cover?

[Via BoingBoing]

As you undoubtedly know, college campuses are, in many ways, ground zero for the battles being waged for the future of intellectual property. The thousands of Americans that have been sued by the entertainment industry in the past few years include countless students who were accused of illegally downloading music.

Although the lawsuits may have stopped, the entertainment industry lobbyists are still set on using any means necessary to stop music “piracy” – oftentimes regardless of the unintended consequences. One of those efforts was included in a 2008 law entitled the Higher Education Opportunity Act which requires institutions of higher learning to take a number of steps to protect the business models of the entertainment industry.

Earlier this week, EDUCAUSE hosted a very informative webcast about how to comply with these P2P provisions. What follows is a summary and some thoughts on what students can do at their school.

The P2P Provisions

Gregory Jackson of EDUCAUSE outlined the requirements of the law. Essentially there are:

1. An annual disclosure to students that copyright infringement subjects them to civil and criminal liabilities, a summary of the Federal penalties for copyright infringement, and a description of the school’s policies for copyright infringement.
2. The development of plans to effectively combat unauthorized distribution of copyrighted materials, including educating the community, procedures for handling transgressions, and employing at least one technological deterrents (such as bandwidth shaping, traffic monitoring, vigorously responding to DMCA notices, and 3rd party commercial products).
3. Offer, to the extent practical, legal alternatives to P2P downloading, as determined by the institution.

There are some good pieces: the law is explicit in the individual autonomy and authority of schools in deciding the particularities of their plan (though it is obviously mandatory to comply); furthermore, none of these requirements should “unduly interfere” with the educational and research use of the network.

The Role of Students

Although this law, which in many ways turns our schools into private copyright cops for the entertainment industry, was largely crafted without the input of one of the largest constituencies – students – there is still room for us to be involved.

Schools have until July of next year to finalize their plans for compliance. There is a wide latitude for many of the provisions, oftentimes ranging from minimally objective to overtly troublesome. Administrators who may feel pressure to over-comply need to be reminded of the interest of their students in maintaining an open and enabling network.

Oftentimes, school policy-makers are happy to hear from students. At the University of Michigan, their innovative BAYU system (which alerts students they are uploading) was crafted with support of the student government and is very popular. This is a promising procedural and product model for other schools to examine.

Obviously, there are many worrisome parts of this law – privacy concerns due to network monitoring, stiffing of speech through the overuse of DMCA take-downs, and the high costs of compliance, to name three. Therefore, it is especially important that student voices are heard on this topic.

Reach out to the administrators and technologists on campus – they’re only an email away – offering your help and reminding them how important it is to get these questions correct.

[If you are especially interested in university network policy, be sure to get involved with the Open University Campaign's effort to promote open networks at schools around the world.]

As many of you know, following the Free Culture 2008 Conference, Students for Free Culture began the Open University Campaign – an initiative to increase collaboration, sharing, and openness at the level of higher education. With the academic year about to begin, we want to invite all interested parties to assist the with project; after all, we wouldn’t be very genuine if we didn’t do this in an open manner ourselves!

About the Open University Campaign

In October 2008, Students for Free Culture drafted and adopted the Wheeler Declaration which declared that:

“An open university is one in which:

1. The research produced is open access;
2. The course materials are open educational resources;
3. The university embraces free software and open standards;
4. The university’s patents are readily licensed for free software, essential medicine, and the public good;
5. The university’s network reflects the open nature of the Internet,

where “university” includes all parts of the community: students, faculty and administration.”

Out of this agreement has grown the Open University Campaign, of which a major goal is to produce objective, reliable indicators of individual universities’ levels of openness. A primary method through which this will be accomplished is through “report card” style profiles of leading institution of higher learning, similar to College Sustainability Report Cards. Students for Free Culture has already begun this work by defining principles of measurement, researching available resources, and developing surveys to be distributed to universities.

What Will the Open University Report Cards Entail?

Mirroring the Wheeler Declaration, the Open University Report Cards, as currently envisioned, will evaluate schools on five topics:

1. Open Access: Are faculty required to make their scholarship open access? Is the university press publish open access materials?
2. Open Educational Resources: Does the university create OERs? Does the university use OERs?
3. Free and Open Source Software and Standards: Does university computing use FOSS? Are students and faculty required to use proprietary software?
4. Intellectual Property: Is IP revenue transparent? Is IP used to promote innovation, or restrict knowledge?
5. Network Management: Is the network neutral? Is user privacy respected?

Establishing credible criteria under which schools will be assessed will be essential to creating a respected resource. For example, Which schools’ open access policies are currently lacking important criteria? Or, To what extent should a school actively support FOSS? The volunteers currently involved with the project are working through these questions on the wiki page, and we encourage you to join the conversation.

What the Open University Campaign Needs

In order to make this a successful endeavor, Students for Free Culture needs your involvement!

• Are you a student who can research official university open access policies?
• Are you passionate about FOSS and can develop a questionnaire for IT administrators about FOSS policy?
• Are you statistically-inclined and can handle data on universities?
• Are you a web developer who could create a public website for the Open University Report Cards?
• Are you a graphic designer who could create posters to raise awareness on campuses?

In Closing…

The Open University Campaign recognizes that scholastic advancement occurs most readily in an environment of sharing, openness and collaboration. By providing a cross-index of leading universities, the project will add important comparative measurements to encourage increased academic openness. Our hope is that these resources will provide a platform from which openness activists can endeavor to improve the scholastic environment.

Join us by jumping into the wiki, signing up for the Open University mailing list, or emailing board (at) freeculture (dot) org with suggestions or questions!

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, Jason Schultz, Assistant Clinical Professor of Law and Director of the Samuelson Law, Technology and Public Policy Clinic at the UC Berkeley School of Law, examines the academic implications of poor privacy.

I’ve never seen my students more depressed than the moment they walk about of the campus bookstore. Instead of inspiration and glee, they often look like Quasimoto, the famous hunchback — dragging their bags full of thick clunky tomes behind them and bemoaning the huge hit they just took in their wallets. This is especially true today, as monumental budget cuts have driven up tuition at state universities like UC Berkeley to unprecedented heights. The cost of a college education has never been more daunting or its debt more long-lasting.

Enter Google Book Search (GBS), the half-decade-old scanning project by the popular search company in Mountain View. With GBS, the promise of affordable modern access to textbooks is at your fingertips. For example, if an academic publisher is part of Google’s Publisher Program, a large or small portion of the book may already be available depending on the publisher’s permissions. However, for other books that are still under copyright, Google will only display snippets — small 8-12 line “samples” of text that highlight what the viewer is searching for. Still, if you find a snippet that sounds good, you can often order the book via library or bookstore through a link on the side of the page.

Despite the limited size of these snippets, Google has been involved in a copyright lawsuit over its Book Search project that has now come to a head with a gigantic and important Settlement Agreement. The original lawsuit mostly concerned Google’s scanning, indexing, and snippet displays and whether or not those were copyright infringements or “fair use” of the books. The Settlement, however, covers many, many issues — open access, disability and civil rights, competition issues, metadata accuracy, and fair use just to name a few — too many to describe in a single blog post. However, I do want to highlight one of the key issues — privacy. You can check out other issues here.

When it comes to book privacy, it is important to think about it in the context of what many academics and activists call The Chilling Effect. Think about it. If you go to a library or a book store most days, you can walk around and browse fairly anonymously. If you decide you want to take a sneak peak at the somewhat embarrassing new Twilight novel, most people will never know. Or say you have a more serious concern, such as HIV or domestic violence. The privacy in physical libraries allows you to explore and understand important issues, either personally or for research and educational purposes. This privacy even extends to what you buy or check out — almost all libraries and bookstores protect these records from access by third parties as vehemently as possible. (For example, the American Library Association Code of Ethics specifically commits every librarian to protecting patron privacy.).

So the question for Google, and for the Settlement, is what kind of privacy protections will GBS offer? Well, the Settlement Agreement doesn’t say. It’s entirely silent on the issue of reader privacy. To their credit, Google has taken this concern quite seriously outside the Settlement, even going so far as to post a proposed Privacy Policy and make several comments on their blog. Yet concerns remain. For instance, despite Google’s assurances that they “take our privacy commitments to our users very seriously[,]” there are open questions about how much information they will collect on readers who use GBS, whether that information will be used in conjunction with other Google Services (such as its advertising services), how long they will keep the information, and under what circumstances they will disclose it to third parties, such as the government or those involved in civil lawsuits. These concerns are very real, as we have seen examples of subpoenas for book information in the past here, here, and here.

Moreover, there is also a concern about Google changing its mind in the future. If the settlement is approved (the Judge in the case will hold a hearing on October 7, 2009 to consider the matter), there is nothing that prevents Google from deciding at some future date to offer less privacy to readers. Locking Google into privacy as part of the Settlement ensures that readers are protected now and in the future. (I should note that I helped file a brief asking the Judge to do just that on behalf on a group of authors and publishers who share this concern.)

In sum, GBS is an amazing new opportunity to access information from books. There is no doubt about that. And the Settlement provides unprecedented additional opportunities for students to read. However, it is important to keep in mind the trade-offs that GBS and the Settlement offer and to make sure that the balance is positive before we whole-heartedly endorse this dramatic change in the future of the way we read, learn, and share information. For every student reading this, it is your future that is at stake, so pay attention. This is one test that may well be part of your permanent record for years to come.

– Jason Schultz

Previous Posts in this Series

• Introduction
• Derek Slater of Google
• Rebecca Jeschke of EFF
• James Grimmelmann of NYLS
• Brandon Butler of ARL
• Ed Van Gemert of UW-Wisconsin

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, Ed Van Gemert, Deputy Director of the General Library System at UW-Madison, explains why students want to use Google Book Search.

At UW-Madison, we routinely refer students to Google Books and the University of Wisconsin Digital Collection. Several examples illustrate some of the K-12 and college use and wide adoption of electronic scholarly resources. Annual usage grows exponentially.

• “I am a college student working on a cultural tapestry for one of my courses.  My instructor wants us to save photographs of the culture we’ve chosen to study on a jpeg file and it can’t be copyrighted. I was hoping you would give me permission to use some of these pictures for my project.  She wants an e-mail sent with consent to use them.  I can’t find pictures any place that aren’t copyrighted, and have been unable to gain permission from any site.  This is strictly for my final; educational use only.  Please help!”
  – University of Wisconsin Digital Collection:  Africa Focus

“I am an eighth-grade student.  I am writing to request information for a school project.  My social studies and English classes are involved in a large research project called “History Day.”   Each year this project follows a different them that is set by the National History Day Office, and for this school year our theme is Conflict and Compromise in History.  I am investigating the 1933 Wisconsin milk strikes.  For this assignment, we are required to study the person/idea/event/issue itself, the background and context in which it happened, and the impact/influence/change it brought about.  I am writing to ask for any articles or documents you could send me with information about the three milk strikes that occurred because of the strikes, and the effectiveness of the strikes.”
University of Wisconsin Digital Collection: State of Wisconsin Collection

The State of Wisconsin collection probably has the greatest impact on K-12 students.  It contains thousands of images and hundreds of books documenting Wisconsin state history which is valuable for teaching and learning.  In this instance we were able to direct the student to primary source interviews, articles, and music of and about the milk strikes.  Many of the resources in the UW digital collection are open access.

National History Day had multiple K-12 students focusing on Harry Houdini.  Copies of his works were checked out from the library.  Campus librarians referred groups to Google Books because four books and a number of articles by Harry Houdini are available full text.  Books available include:

• Miracle Mongers and Their Methods:  a Complete Expose of the Modus Operandi,
• The Unmasking of Robert Houdini,
• Houdini’s Paper Magic:  The Whole Art of Performing with paper.

Native American History classes at UW-Madison as well as National History Day K-12 students have exhausted the available print copies of Chief Black Hawk’s autobiography.  It is available at Google Books as well as other early materials on Black Hawk. Native American History classes have been referred to Google Books to access the Annual Report of the Board of Indian Commissioners 1820-1940.  Google Books offers a good alternative.

An undergraduate researching the Titanic needed primary source materials.  Campus print copies of the congressional hearings into the Titanic were checked out.  The U.S. Congress Hearing on the sinking of the Titanic as well as the British inquiry into the loss of the Titanic was available full text on Google Books.

Undergraduates in environmental history classes have been referred to Google Books to access full text of 19th Century County/Local Histories.

Just some of the many examples of why students find value in using the digital scholarly resources now available in Google Books and the University of Wisconsin Digital Collections.

– Ed Van Gemert

Previous Posts in this Series

• Introduction
• Derek Slater of Google
• Rebecca Jeschke of EFF
• James Grimmelmann of NYLS
• Brandon Butler of ARL

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, Brandon C. Butler, Law and Policy Fellow at the Association of Research Libraries, addresses the settlement in the context of institutional equality and intellectual freedom.

First, we would like to thank Students for Free Culture for inviting us to share our thoughts on this important issue. The Association of Research Libraries has followed the Google Books litigation closely, and filed Comments with the court along with our partners the American Library Association and the Association of College and Research Libraries. These three associations collectively represent over 300,000 information professionals and thousands of libraries of all kinds throughout the United States and Canada. These associations also cooperate in the Library Copyright Alliance to address other copyright issues that affect libraries and their patrons.

Google and the authors and publishers who sued the search giant over its book-scanning activities have proposed a settlement agreement that would end the suit and govern Google’s scanning going forward. In essence, the settlement would allow Google to continue scanning, and even to offer new products based on the body of digitized books it creates, so long as it shares revenue from these services with rights-holders. More information from the Library Copyright Alliance about the Settlement is available here.

While the parties to this dispute have agreed to the settlement, the judge presiding over the case still has to approve its terms. Copyright owners and other interested parties have filed hundreds of comments with the court. Members of the LCA filed Comments in support of the settlement, but we also raised some serious concerns that we felt the court should address by careful oversight. Students for Free Culture asked us to explain two concerns we raised in our Comments: increasing inequalities between universities and limits to intellectual freedom.

Widespread access to a Google institutional subscription plan with millions of digital books would help level the playing field between elite research universities and less privileged institutions around the country. If the price of the subscription is too high, however, it will have exactly the opposite effect: Students and faculty will demand access to the Google service, but only the wealthiest institutions will be able to afford it. Paying a high price for the Google subscription would divert significant funding away from other important university priorities, creating new inequalities even among universities that have the service. Some schools could be forced to sacrifice heavily to keep up with the wealthiest institutions.

What are the chances that the settlement will have this effect? It is hard to say. If its price is modeled on increasingly exorbitant academic journal subscription prices, the Google service will be out of reach for most institutions. The authors and publishers of most books in the Google corpus are most likely academics who prize access over profits, but if the interest of rights-holders is represented solely (or mostly) by commercial writers and publishers, the price could be set too high.

Intellectual freedom is at stake in the settlement in several ways. First, concerns about user privacy could have a chilling effect on research use of the Google product. Second, the settlement only requires Google to provide access to 85% of the in-copyright, out-of-print works it has scanned. This gives Google discretion to exclude over 1 million books. Google itself may not want to “be evil,” but it will surely encounter pressure from angry partisans seeking exclusion of disfavored books. The Book Search product will give everyone, including children, access to up to 20% of any book from anywhere, and 100% of any book from free public access terminals in public libraries. How long before an angry parent demands that Google ban racy or politically edgy works? The First Amendment does not require private companies like Google to forego censorship, and there will surely be pressure on Google to choose economic expedience over political principle.

Unlike other critics who have voiced similar concerns, we do not oppose the Settlement overall. We believe its likely benefits substantially outweigh its possible harms. The parties and the court can ensure this net gain by awareness of these possible harms and reasonable vigilance against them. Thank you again for this chance to share our views.

– Brandon C. Butler

Previous Posts in this Series

• Introduction
• Derek Slater of Google
• Rebecca Jeschke of EFF
• James Grimmelmann of NYLS

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

Previous Posts in this Series

• Introduction
• Derek Slater of Google
• Rebecca Jeschke of EFF

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, Rebecca Jeschke of Electronic Frontier Foundation discusses the implications for student privacy.

A college student’s first job is to open his or her mind to new ideas and ways of thinking, challenging personal beliefs and assumptions.  The process of intellectual discovery demands exploration into the different, the challenging, the absurd, and even the uncomfortable.  For many scholars, artists, and scientists, a rigorous look at a broad swath of ideas and theories is the foundation for a life’s work in pushing the boundaries of knowledge.

For anyone interested in this kind of intellectual journey, Google Book Search is an intoxicating idea.  The search giant’s plan to scan and digitize millions of books — and allow users to search for and read those books online — would open up the world’s libraries and bookstores to anyone with Internet access.  But without basic privacy protections, Google Book Search will never live up to its promise to change the way students and others read, research, and explore new ideas.  That’s because the “chilling effect” of Google’s tracking could stop these important journeys in their tracks.

Google will be able to monitor and track the books you browse, even knowing how long you spent on each page, and keep a permanent log of every book you’ve ever bought and what pages you’ve read.  When you purchase access to books, Google can use that information to grow its already long dossiers of Internet users — which is bad enough — but then all of that information is vulnerable to police, the government and other third parties who can seek it with a subpoena.

In the physical world, bookstores and libraries have fought for strong privacy protections, requiring the police to get a warrant before getting access to your reading records.  These strong positions were developed precisely to respect our private, personal relationship with reading and learning, and to block any “chilling effect” violating that privacy might have on Americans’ right to explore the world of ideas. That’s why Google Book Search needs a robust, enforceable privacy policy that gives readers as much privacy in online books as we already have today.

A legal settlement that would pave the way for Google Book Search to go forward without these privacy protections is pending approval from a New York federal district court.  But a group of more than two dozen authors and publishers, represented by the Electronic Frontier Foundation (EFF) and others, has filed an objection with the judge.  The coalition—including best-selling novelists Michael Chabon and Jonathan Lethem along with Anthony Romero of the ACLU and science fiction author Cory Doctorow—presents a list of privacy protections that would improve the settlement, including limiting tracking of users and  requiring a court order or judge-approved warrant before disclosure of the information collected, ensuring user control of personal information stored by Google, and making the system transparent to readers.

The future of books is electronic. Something like Google Book Search is what bookstores and libraries will likely look like going forward.  We can’t let reading privacy be the price we pay for opening the door to the world of knowledge.  You can learn more about the issues at stake here.  

– Rebecca Jeschke

Previous Posts in this Series

• Introduction
• Derek Slater of Google

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, Derek Slater of Google explains why the settlement is a boon for students and the democratization of culture.

Google Books and our proposed settlement agreement help fulfill copyright’s core objective — opening up access to knowledge and creativity. If approved by the Southern District Court of New York, the settlement will give anyone, anywhere in the U.S., access to millions of books that today are only accessible at a few large universities. Google Books can already help students and scholars track down hard-to-find books, and under this agreement they will be able to read many of those works online as well.

In this way, “[the settlement] will help tear down the geographic and socio-economic barriers that deprive many Americans of equal educational opportunities,” as the United States Students Association stated in a letter to the court. Numerous voices from the civil rights, disability, library and education communities, representing tens of millions of Americans, also strongly support the agreement because it will help equalize access to information.

You can find more specifics about the agreement and its benefits here, but these groups and individuals — the Leadership Conference on Civil Rights, National Federation for the Blind, National Association for Equal Opportunity in Higher Education, Professor Gregory Crane, and many more — explain the benefits to students better than I ever could.

I want to turn my attention to why Students for Free Culture in particular should care. SFC is among the leading voices for the born-digital generation when it comes to copyright. You have not simply pushed for legislation and hoped that Congress will eventually save the day. Instead, you’ve started campaigns to democratize culture at your own schools, and urged technology companies and content creators to build innovative, win-win solutions that meet users’ evolving values and expectations.

The settlement represents this sort of win-win, a practical way to address difficult problems. This case started when rightsholders sued Google for digitizing libraries’ collections. While Google fully believes that this is an example of fair use that would have been upheld in court (and the settlement does not compromise fair use in any way), we settled the lawsuits because it ensures greater access to out-of-print books and broad benefits for the reading public, libraries, rightsholders, and innovators. With strong privacy protections, users will be able to browse and buy digital copies of millions of books that otherwise might be left behind in the digital age.

For too long, copyright law and a thicket of legal uncertainties have locked up most out-of-print books. As copyright scholar Mark Lemley explains, the problem here is generally not that these books are “orphaned,” with rightsholders that cannot be found.  Instead, they have two findable parents – an author and a publisher – but sorting out who actually owns the rights may be hard. Because the transaction costs of licensing these books is high relative to their uncertain market value, these “neglected” works simply gather dust on libraries’ shelves.

The settlement not only enables Google to make out-of-print works accessible, but it will also make it much easier for anyone to license them. It establishes a non-profit Book Rights Registry that will actively look for rightsholders and can help resolve ownership disputes. As rightsholders come forward, the Registry will make information publicly available about which books have been claimed and by whom, and rightsholders can authorize the Registry to license third-parties, including Google’s competitors.  Over time, we believe a significant portion of books will be claimed.

Of course, a small fraction of books will remain truly orphaned. While these books will be among the least commercially valuable, there is still a strong public benefit in opening access to them, and the settlement is one step to that end.  In addition, as we said in our testimony to the House Judiciary Committee, we will let any other book retailer resell access to each out-of-print book, including orphans, that Google can provide access to under the settlement.

That said, this settlement is not a panacea for the challenge of orphan books or orphan works more generally. Google has long supported effective legislation that would make it easier for everyone to use orphan works, and this is still a top priority of ours.

Some have taken the well-intentioned position that legislative reform would be preferable to approval of the settlement. But, as David Sohn of the Center for Democracy of Technology discussed in a blogpost last week, this misconceives the settlement as a substitute for, rather than a complement to, legislation. And it would mean that these books remain locked up, as everyone waits for Congress to address not only orphans but also the far larger category of neglected books.

With the democratization of so much of our culture within reach, it would be tragic to turn the perfect into the enemy of the good.

– Derek Slater

Previous Posts in this Series

• Introduction