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?

What’s Next?

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 these objectives. 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

controversial as
it was in some
respects, the GBs
settlement, if
approved, would
have brought about
many socially
beneficial results.

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 widely available.

Reference

1. samuelson, P. legislative alternatives to the google book settlement. Columbia Journal of Law & Arts (forthcoming 2011); http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=1818126

Pamela Samuelson ( [e-mail]) is the richard m. sherman distinguished Professor of law and Information at the university of California, berkeley.

Copyright held by author.