in non-display (computational) uses of
books in the GBS corpus for purposes
such as improving its search technologies and automated translation tools.
The proposed settlement would
also have been socially beneficial in
providing new income streams to authors and publishers through the BRR.
These benefits cannot be realized
through a class action settlement, but
can they be achieved in other ways?
Judge Chin made clear that he would
look more favorably on an opt-in settlement (that is, requiring Google to get
permission from rights holders before
commercializing their books) than
he had on the opt-out settlement proposed in 2008. However, lawyers for
Google and the Authors Guild have told
the judge that Google has no interest in
an opt-in settlement. An opt-in settlement would also not bring about the
socially beneficial results envisioned
in the proposed GBS settlement. Yet,
because litigation is very expensive,
takes a long time, and poses risks for
both sides, settlement is far more likely
than resuming litigation at this point,
although Judge Chin has indicated
that because the parties have not yet
reached a new settlement, the case will
be scheduled for trial next July.
Legislation would be another way
to accomplish some of the socially
beneficial aspects of the GBS settlement. Maria Pallante, the newly appointed Register of Copyrights, and
James Billington, the Librarian of
Congress, have written to key Congressional leaders to indicate their
willingness to undertake a study of
legislative options in the aftermath of
the GBS settlement disapproval.
Having studied the settlement and
assessed its possible benefits, I have
developed a framework for a legislative proposal that would aim to achieve
1 In brief, I recommend: 1) creating a privilege to scan
in-copyright works for preservation
purposes, to allow their contents to be
indexed, and to allow non-display uses
of the scans, including non-consumptive research uses; 2) allowing “orphan
works” (works whose rights holders
cannot be found after a reasonably diligent search) to be made available on
an open access basis; 3) expanding the
it was in some
respects, the GBs
have brought about
right of libraries and others to improve
access for print-disabled persons; and
4) ensuring that reader privacy interests
are respected. Unfortunately, the political economy of copyright in the U.S.
does not bode well for these proposals.
I also suggest that consideration be
given to creating an extended collective licensing regime for out-of-print,
non-orphan books so that an ISD such
as the GBS settlement proposed might
be created. Extended collective licenses have been used with considerable
success in Nordic countries to provide
rights holders with compensation
while at the same time allowing users
the assurance they can get a license to
make a large number of works available even when transaction costs of
clearing all rights, one by one, would
be excessive or possibly prohibitive.
Many, even if not all, of the social
benefits that would have flowed from
approval of the GBS settlement can be
achieved in other ways. Some reforms
can be done through private ordering
(for example, professors making their
books available on an open access basis), some through fair use (for example, scanning to index contents), and
some through legislation. We should
not let the failure of the GBS settlement stand in the way of finding new
ways to make cultural heritage more
1. samuelson, P. legislative alternatives to the google
book settlement. Columbia Journal of Law & Arts
(forthcoming 2011); http://papers.ssrn.com/sol3/
Pamela Samuelson ( firstname.lastname@example.org) is the
richard m. sherman distinguished Professor of law and
Information at the university of California, berkeley.
Copyright held by author.