Why the Google Book Search settlement agreement under consideration could result in an extensive restructuring of the book industry.
GooGle Has sCanned of more than seven million books from major university research libraries for its Book Search initiative and
the texts
processed the digitized copies to index their contents. Google allows users to download the entirety of these books if they are in the public domain (about one million of them are), but at this point makes available only “snippets” of relevant text when the books are still in copyright (unless the copyright owner has agreed to allow more).
In the fall of 2005, the Authors Guild, which then had about 8,000 members, and five publishers sued Google for copyright infringement. Google argued that its scanning, indexing, and snippet-providing was a fair and non-infringing use because it promoted wider public access to books and because Google would remove from its Book Search repository any digitized books whose rights holders objected to their inclusion. Many copyright professionals expected the Authors Guild v. Google case to be the most important fair use case of the 21st century.
This column argues that the proposed settlement of this lawsuit is a privately negotiated compulsory license primarily designed to monetize millions of orphan works. It will benefit Google and certain authors and publishers, but it is questionable whether the authors of most books in the corpus (the “dead souls” to which the column title refers) would agree that the settling authors and publishers will truly represent their interests when setting terms for access to Book Search.
An estimated 70% of the books in the Book Search repository are in-copyright, but out of print. Most of them are, for all practical purposes, “orphan works,” that is, works technically still in copyright, but for which it is virtually impossible to locate the appropriate rights holders to ask for permission to digitize them.
A broad consensus exists about the desirability of making orphan works more widely available. Yet, without a safe harbor against possible infringement lawsuits, digitization projects
pose significant copyright risks. Congress is considering legislation to lessen the risk of using orphan works, but it has yet to pass.
The proposed Book Search settlement agreement solves the orphan works problem for books—at least for Google. Under this agreement, which must be approved by a federal court judge to become final, Google would get, among other things, a license to display up to 20% of the contents of in-copyright out-of-print books, to run ads alongside these displays, and to sell access to the full text of these books to institutional subscribers and individual purchasers.
Approval of this settlement would establish a new collecting society, the Book Rights Registry (BRR), initially funded by Google with $34.5 million. The BRR will be responsible for allocating $45 million in settlement funds that Google is providing to compensate copyright owners for past uses of their books.
More important is Google’s commitment to pay the BRR 63% of the revenues it makes from Book Search that are sub-
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