New Action in the Google Book Settlement
A number of events have begun to reshape the Good Books proposed settlement. In a recent ruling, District Court Judge Denny Chin extended the fairness hearing by four months, until September 4, 2009. Judge Chin's order noted requests from authors and from Professor Pamela Samuelson from Berkeley School of Law as some of the parties requesting the extension to review the merits of the proposal.
In an e-mail from the Authors Guild, they continue to urge their members to stay in the class. "We don't recommend opting out -- this settlement is a good deal for authors, bringing their out-of-print books back to commercial life (while leaving the marketplace for in-print books alone...)."
Professor Samuelson's concern is not for the authors represented by the Authors Guild or works in the public domain but rather for the "orphan works," those out of print works where the copyright owner cannot be found or no longer exists. For example, if a copyright was assigned to a company that went out of business, it may not have transferred the copyright when winding up its assets. The copyright owner is therefore extinguished. Authors who have died without heirs knowing they have been given the copyright or rights escheating to the state also result in orphan works.
An orphan work cannot opt out of the settlement. For the public, this creates legal access to these works. But for other publishers, libraries and those concerned about Google's unique position in the new book marketplace, the settlement provides it a significant legal advantage over other archives. Of course, owners of orphan works are highly unlikely to sue. The risk of liability may be overstated by the other archives, but immunity is a wonderful thing. The Internet Archive attempted to benefit from this immunity by joining the suit as a defendant, but the court was unwilling to allow the claim. (How must it feel to fail to even be sued!)
The economic advantage is less clear. Despite the potential for 'the long tail' in publishing, Amazon is betting that the marketplace for published works is new works. But the breadth of the catalog may provide a strong market edge. Readers will use Google - allowing it ever more ad revenue. And as Google partners with Sony or others, it may leverage the scope of its collection into the sale of new works.
This leverage has raised concerns in the Justice Department. Concerns raised by Pearson and four other publishers regarding Google's use of the settlement to create a legal monopoly in publishing has triggered a Justice Department review into the settlement.
Ultimately, the case should generate a statutory amendment to the Copyright Act, giving other archives and libraries the ability to publish the same content as Google on similar terms, subject to opt-out provisions. There are some implications to such legislation and U.S. compliance with international treaty, but that can wait for another blog - or for someone to introduce the legislation.
In an e-mail from the Authors Guild, they continue to urge their members to stay in the class. "We don't recommend opting out -- this settlement is a good deal for authors, bringing their out-of-print books back to commercial life (while leaving the marketplace for in-print books alone...)."
Professor Samuelson's concern is not for the authors represented by the Authors Guild or works in the public domain but rather for the "orphan works," those out of print works where the copyright owner cannot be found or no longer exists. For example, if a copyright was assigned to a company that went out of business, it may not have transferred the copyright when winding up its assets. The copyright owner is therefore extinguished. Authors who have died without heirs knowing they have been given the copyright or rights escheating to the state also result in orphan works.An orphan work cannot opt out of the settlement. For the public, this creates legal access to these works. But for other publishers, libraries and those concerned about Google's unique position in the new book marketplace, the settlement provides it a significant legal advantage over other archives. Of course, owners of orphan works are highly unlikely to sue. The risk of liability may be overstated by the other archives, but immunity is a wonderful thing. The Internet Archive attempted to benefit from this immunity by joining the suit as a defendant, but the court was unwilling to allow the claim. (How must it feel to fail to even be sued!)
The economic advantage is less clear. Despite the potential for 'the long tail' in publishing, Amazon is betting that the marketplace for published works is new works. But the breadth of the catalog may provide a strong market edge. Readers will use Google - allowing it ever more ad revenue. And as Google partners with Sony or others, it may leverage the scope of its collection into the sale of new works.
This leverage has raised concerns in the Justice Department. Concerns raised by Pearson and four other publishers regarding Google's use of the settlement to create a legal monopoly in publishing has triggered a Justice Department review into the settlement.
Ultimately, the case should generate a statutory amendment to the Copyright Act, giving other archives and libraries the ability to publish the same content as Google on similar terms, subject to opt-out provisions. There are some implications to such legislation and U.S. compliance with international treaty, but that can wait for another blog - or for someone to introduce the legislation.
