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by Vault Law Editors | October 05, 2009


A shorter version of “Advantage Google,” the essay at the back of yesterday’s Times Book Review section, might read:  “Dear Judge Chin: Please reject the Google class action settlement, Rakoff-style.”   

The proposed deal would settle the suit brought by authors and publishers against Google for copyright violations in connection with the company’s digitization of millions of books. Professor Lewis Hyde makes the case that the settlement’s treatment of books with unknown copyright owners, (“orphan works”) violates the “public side” of the copyright bargain.  Of more than seven million books scanned by Google so far, four to five million appear to be orphaned.

If the settlement is approved, Google will be permitted to sell and otherwise commercialize these works and split the proceeds with a new Book Rights Registry, where the money will wait five years for absent owners to claim it. After five years, all unclaimed funds will be distributed to the authors and publishers whose works the registry represents.   Hyde points out an obvious problem:

Nothing in the history of copyright can possibly allow for such indenture. […] In no case are third parties meant to profit, as the Google settlement would allow. To let them do so would be like letting an executor drain an estate whose rightful heirs cannot be found.

[The orphan works] will effectively belong only to Google and the other settling parties. It will be almost impossible for any other online player to get the same right to use them. The only way a potential competitor could avoid the threat of statutory damages would be to do what Google did: scan lots of books, attract plaintiffs willing to form a class with an ‘opt out’ feature, negotiate a settlement and get it approved by a judge. Even for those with time and money to spare, that promises to be an insurmountable barrier to entry.

Essentially, Hyde fears that if the settlement is approved in anything like its current form, Google will be granted an unlimited monopoly over electronic books.  For anyone who has read this accountof the metadata problems plaguing Google's digitization project thus far, such a monopoly is an ominous prospect. 

                                                                              -posted by brian


Filed Under: Law

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