The Google Settlement: What's at Stake and Why It Is Important

By Michael Stillman

Developments in the proposed settlement involving Google Books are on hold until the next court hearing scheduled in February. We will use this temporary halt to explain a few of the issues and why this case is of such groundbreaking importance to those interested in books.

Q. What is the cause of the controversy?
A. Google has been scanning millions of old books in various libraries, and making images of their text, or at least part of their text, available to the public. Some books are out of copyright, and these cause no problem. Google has arrangements with the copyright holders of others, and these, too, are not an issue. Where the issue arises in when Google makes copies of books still under copyright available to the public without the permission of the copyright holder.

Q. Why would Google do this, instead of first obtaining the copyright holder's permission?
A. Many of those who oppose the settlement, particularly the Open Book Alliance (a consortium of opponents), raise this very question. However, there are millions of books out there whose copyright holders are unknown or cannot be located. These are generally referred to as "orphan books." Every book published in the U.S. after 1923 could still be under copyright. So, let's say a book was published in 1925 and never reprinted, but is still under copyright. Perhaps the author died in 1930, and the publisher went out of business in 1940. How do you locate the copyright holder? How do you even know who the copyright holder is? Perhaps dozens of great-great-grandchildren of the author, or the heirs of publisher's bankruptcy creditors hold those rights, but who knows? Most likely whoever technically holds those rights doesn't even know it. Obtaining permission first essentially means these books cannot be made available to the public, by Google or anyone else. We are the losers, as access is lost.

Q. How does the proposed settlement resolve this issue?
A. When Google began making these "orphan" and other copyrighted books available to the public, groups representing authors and publishers sued them. Google and these groups then reached a settlement. It provides for an independent registry to manage copyrighted books. Google could sell access to these books, including "orphans," but 63% of the revenues they generate would go to the copyright holders (the remaining 37% to Google). Copyright holders who do not agree to this arrangement are free to opt out and then Google will not make their books available to the public.

Q. What happens to money earned by unknown copyright holders? Does Google get to keep it?
A. Royalties earned by sales of access to "orphan books" are subject to the same 63%-37% split. Google gets their standard 37% share, but no, they do not get the other 63% too if copyright holders cannot be located. That money goes into separate fund, up to 25% of which can be used to attempt to locate missing copyright holders, and if they are never found, may, after a minimum of 10 years, be given to charities which promote literacy.

Q. So why hasn't this resolved the problem?
A. Because however reasonable the arrangement may be, the copyright holders of "orphan books" have not agreed to the arrangement. Normally, you must obtain permission first to publish a copyrighted book. Instead, Google is publishing the book first and then waiting to see if the copyright holder objects. It's sort of putting the cart before the horse. But, as noted earlier, requiring permission for most "orphan" works first is virtually impossible as copyright holders are lost, meaning that sticking to normal form amounts to making millions of old books almost unobtainable. That would not be a good outcome from a public policy standpoint.

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The Google Settlement: What's at Stake and Why It Is Important

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The Google Settlement: What's at Stake and Why It Is Important

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