…the deal also would allow Google — and only Google — to digitize so-called orphan works, which has raised some eyebrows in antitrust circles. Orphan works are books or other materials that are still covered by U.S. copyright law, but it is not clear who owns the rights to them.

“Essentially, it gives Google a free pass for infringement for selling all these books,” said James Grimmelmann, who teaches at the New York Law School. “Publishers (who are part of the settlement) would be happy to share the monopoly with Google.”

[…]”We would like the court to say: ‘This is fine theoretically, but these orphan books, they don’t have anyone to speak for them, so let’s take them out of the agreement,'” he said.

via  Reuters.

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  1. This is the same as the orphan works about art. it really is a rights steal by corporations. The bill originally started out for education and research purposes. Corporate America saw an opportunity and is trying to make money on it. Shameful!

  2. Orphan works are the whole point of the agreement; they won’t come out. They’re under copyright, but no one can find the copyright owners, so its a gold mine for anyone who can monetize them.

    Part of the problem is the Author’s Guild, who claims to speak for every single author, dead or alive. By making it a class action suit, they do. The AG would love Google to have a free pass to sell these books because a certain percentage comes back to them. No orphan works, no free money.

    If anything, the Justice Department will open things up so that other companies can scan and sell orphan works without fear of being sued by the AG. Ideally they should be in the public domain, but that’s a whole other can of worms.

    Google is not in the business of selling books – their goal is to digitize everything. I have a feeling that whatever the Justice Department decides won’t really affect them – the AG stands to lose a lot more (of what they didn’t even own in the first place IMHO).

  3. On the other hand, isn’t Google’s deal a good thing for consumers/readers who would not have access to the “orphaned works” otherwise, since they are by definition no longer produced by their respective copyright holders?

    • @Michael, Those same people will also have access to all the ads Google can run when a search result is displayed. Imagine the revenues Google can generate from selling all those additional ads tied to “orphaned” content.

      • @Gordon Moat,
        Yes, Google will be capitalizing on this by running their ads, Should they not be able to, though, seeing as they are a digital distributor? They are, after all, footing the bill for digitization and electronic delivery.

        • @Michael, So if they generate a profit, and why else would they do this, then should they have any obligation to share that profit? If the content allows them to generate a profit, why should Google be the only entity benefiting?

          • @Gordon Moat,

            As I understand it, authors of both in-copyright and orphaned works will get a cut. Google is not the only one benefiting.

            “…it creates the books right registry, …, which gives authors a place to go to identify themselves and receive compensation for Google’s use of their books, including a portion of purchase and ad revenues. The creation of a BRR does good both for the authors of currently-orphaned works and for those who want to use them: It provides a way for authors to effectively un-orphan their books and receive compensation, and it provides a way for users to locate previously-unknown rights holders and obtain the rights to use those works. It also provides a financial incentive for those authors to come forward, as they will receive the compensation that the BRR has collected on their behalf.”

            And from Google’s page about orhpaned works:

            “…When this agreement is approved, every out-of-print book that we digitize will become available online for preview and purchase, unless its author or publisher chooses to “turn off” that title.”

            In-copyright in-print books

            (12)Rightsholders will also be able to set the price for access to their books if they wish.

            • @Michael, See my reply below. Google determines the rate of payment, if any, and only upon notice and filing in their database registry. The Authors Guild has been the only negotiating party; though they have decided to take that role of representing all writers on their own accord. If you are a writer, your future compensation has been pre-determined, and if you don’t like it, then you can just opt out.

              I suppose in the end “might makes right”, in this case financial power. Google could easily outspend any challengers in the US Courts. Though I guess that brings up another question: does the results of this settlement in the US legal system affect the global nature of searches, or will Google restrict this database to US based searchers?

              • @Gordon Moat,

                This thread is informative for me – thank you for the exchange, Gordon.

                Just wanted to point out this from Google’s FAQ, which implies that an author will indeed be able to set their price if they so choose:

                “The price of purchasing online access to a book will be set in one of two ways, at the rightsholder’s option. Google will automatically set and adjust prices through an algorithm designed to maximize revenues for the book. This algorithm will be based on multiple factors; it is not a subjective evaluation of each individual book. Google and the Book Rights Registry will work to ensure that the algorithmic pricing maximizes the value for the rightsholder. Rightsholders will also be able to set the price for access to their books if they wish.”

                • @Michael, Yes, thank you too Michael. Recent news suggest the Department of Justice is investigating possible anti-trust issues with Google. Whether or how that affects future outcomes is too early to tell.

  4. Just a few quotes from the actual (proposed) Settlement:

    “A. Google’s Use of and Payment for Books
    Plaintiffs view the Settlement as an excellent opportunity to breathe new commercial life into potentially tens of millions of out-of-print Books, and to provide an innovative marketing tool for authors and publishers of in-print Books. Under the Settlement, Google is authorized to 1) continue to digitize Books and Inserts, 2) sell to institutions subscriptions to an electronic Books database, 3) sell online access to individual Books, 4) sell advertising on pages from Books, and 5) make other uses, all as further described under “Access Uses” in Question 9(F)(1) below.”

    The legal issue in this is that when a Settlement is accepted, then the only recourse is to request removal from the Google database. If Google already made money from the placement of a work on their search database, then Google get to keep it.

    Seriously, if the full Settlement is accepted, and I were Google, then I would simply copy everything, and wait for people to come forward and request removal. While I am waiting, I (Google) rake in the revenues and enjoy the profits, with no worry of liability. This will set a precedent.

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