Friday, September 25, 2009

Orphan Works and the Google Book Settlement Part 1

From Brad Holland and Cynthia Turner at The Illustrators' Partnership:

Orphan Works and the Google Book Settlement / Part I


We've been asked for news about the Orphan Works bill. Last June Intellectual Property Watch warned that it would be back during the summer. And on June 11th, Senator Orrin Hatch confirmed his intent to reintroduce the bill. We immediately put out a notice to artists. But summer's over and we've had no further news. So far, so good.

Of course Congress has had other priorities: the ongoing financial mess, the health care debate and - on the copyright front - the Google book search controversy. For those who haven't followed the news about this Google assault on copyright, we'll try to summarize it.

The World's Largest Library (Or is it Bookstore?) In 2004, Google announced its intent to digitize all of the world's 80-100 million books - and to make most of them commercially available as orphaned works. The plan has been controversial since its inception.

Google began with the cooperation of several major libraries. The libraries gave Google access to their holdings. The problem is that libraries are libraries; they don't own the copyrights to the books they hold. In short, they gave Google the rights to other people's work. So far, Google has scanned over 10 million books.

In 2004, the Authors Guild and Association of American Publishers sued Google for copyright infringement. Last October the parties settled. The resulting agreement is 141 pages long, with 15 appendices of 179 pages. The implications for copyright holders are not clear, but what the litigants would get is breathtaking. As Lynn Chu, a principal at Writers Representatives LLC, wrote in the Wall Street Journal, March 28, 2009:

"[I]f approved by the federal court, [it would] permit Google to post out-of-print books for reading, sales, institutional licensing, ad sales, and other publishing exploitations, by Google, online. The settlement gives the class-action attorneys $30 million; a new, quasi-judicial bureaucracy called the Book Rights Registry $35 million...and $45 million for owners infringed up to now -- about $60 a title."

Google would keep just over a third of the profits generated by selling these books online. The rest would go to the Book Rights Registry run by publishers' and authors' representatives. In other words, 63% would go to the parties that sued Google. In theory, the Registry would attempt to locate the authors of orphaned works and pay them royalties. But as Ms. Chu points out, the parties that sued Google - and would therefore benefit from Google's infringement - have themselves traded away other people's rights in the bargain:

"No one elected these 'class representatives' to represent America's tens of thousands of authors and publishers to convey their digital rights to Google. Nor are the interests of this so-called class identical."

The US Department of Justice apparently agrees. Last Friday, it filed an objection to the settlement and advised the court to reject the settlement as written. On page 9 of their brief, the DOJ attorneys write:

"The structure of the Proposed Settlement itself, therefore, pits the interests of one part of the class (known rightsholders) against the interests of another part of the class (orphan works rightsholders). Google's commercial use of orphan works will generate revenues, which will be deposited with the Registry. Any unclaimed revenues, however, will inure to the benefit of the Registry and its registered rightsholders. Thus, the Registry and its registered rightsholders will benefit at the expense of every rightsholder who fails to come forward to claim profits from Google's commercial use of his or her work...

"The greater the economic exploitation of the works of unknown rightsholders by Google and the Registry, the stronger the incentive for known rightsholders to retain the unclaimed revenues for themselves." [Emphasis added]

The Department of Justice also warns that the settlement fails to comply with copyright, antitrust laws and the rules of class action litigation.

The US federal court was scheduled to hold a fairness hearing October 7. But over 400 objections from around the world have been filed by rightsholders, competitors to Google and (in addition to the US government) the governments of France and Germany. Yesterday we received news that the fairness hearing has been delayed.

The Google settlement has also been condemned by Marybeth Peters, Register of the US Copyright Office. Testifying before the House Judiciary Committee last Wednesday, Ms. Peters stated that it would allow Google to "operate under reverse principles of copyright law," adding "it could affect the exclusive rights of millions of copyright owners, in the United States and abroad, with respect to their abilities to control new products and new markets, for years and years to come."

We haven't had much to say about this agreement because, with the notable exception of childrens' book illustrations (which for purposes of the settlement are considered part of the text) the agreement doesn't include visual art. Yet like the Orphan Works bill itself, the Google Book Settlement would be a radical change to copyright law.

Tomorrow we'll examine some of the ways in which this settlement parallels the Orphan Works bill.

- Brad Holland and Cynthia Turner for the Board of the Illustrators' Partnership
For news and information, and an archive of these messages:Illustrators' Partnership Orphan Works Blog:

Over 85 organizations opposed the last Orphan Works bills, representing over half a million creators. Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses.


Ken Pedersen said...

Mike, long time reader of your blog, it's one of the first things I read daily.

What's the big deal, Google has been digitizing works from the 1890's. The works themselves would be lost.
Now they are making a searchable database for anyone could see how different ideas evolved over time.

Google just owns the scans not the actual book themselves.

I like see artist work that would once again see the light of day,,
or maybe the glow of pixels from a display

dan reynolds said...

Cartoonist Profiles said, "What's the big deal?"

(5 minutes later...)

I just came back to my computer after smashing all the windows in my house and breaking all the vases.


What's the big deal?

No big deal. I like people stealing my things and selling them on the street for a profit. It's even more enjoyable when I tell them to stop and they hire an expensive lawyer (because they have billions of dollars) who buys a judge to say, "You will let them steal your work and sell it for their profit...and you'll like it."
Who wouldn't enjoy that? It builds character to let people walk all over you. Kind of makes you want to change your name to "Matt", Door Mat.

So, CartoonProfiles,"Google just owns the scans not the actual book themselves", huh? Please, let us know where you live. We'll take some pics of your credit cards. They're not your credit cards or real money. You have unspent potential in those numbers on your cards. I think we can all agree we'd like to see the unspent money on those credit cards of yours see the light of day.
I, personally, would be willing to scan in some pictures of the things I buy with your credit card numbers, and send them to you so you can rest in the knowledge that your money is being well spent.

Seriously, I can't even begin to explain to someone who asks the question, "What's the big deal" what the BIG DEAL is.

Now, if you felt I was being sarcastic, that's the real kicker because how could it be possible that you would see sarcasm in my reply and at the same time be okay with what Google wants to do?

No one else may applaud me for my response, but believe me, I did very well because I didn't reach into my computer and grab you by the throat for even asking such a question. DON'T YOU GET IT CP? THEY START OFF BY GETTING THE POWER TO MAKE MONEY ON WHAT SEEMS SOMETHING INNOCENT LIKE WORKS FROM THE 1890's AND BEFORE YOU KNOW IT THEY GET THEIR GREEDY PAWS ON EVERYTHING????
Come on, how can their be people out there who don't understand this simple concept???
I'm not very encouraged when there are people out there who are so willing to give up their freedom and rights so damn easy.

Sure, LOTS of people might like to get to look at things for free. It's not THEIR work. What do THEY care. This is exactly what's wrong with this country. So many people want a free ride and think they're entitled to things. This Orpham Works crap is a good case in point.
Having said all that, IF a writer, cartoonist, artist, whatever CHOOSES to throw in, that's up to them. But to make a law that takes choice away????!!!! No way.

Ken Pedersen said...

WOW!! Looks like we got ourselves a real Donnybrook here.

Walked into a hornets nest so to speak!!

Any way let's start with your analogy, because you really need some help with that.

Breaking into my house and taking pictures of my credit cards, is out right credit and identify theft and fraud, along with a slew of other felonies.

I don't think you meant that!

Now suppose I walk into into your house and take pictures of a book that you had published. Yea I may own the photo's but could I publish them?

NO of course not! They are protected by copyright

Currently a copyright last the life time of the author plus 70 years.

Now suppose,... YOU shuffle off this mortal coil in the year 2060! I 'll give you long life. That book that you wrote, falls into public domain in the year 2130!

I guess the issue I have is TIME!

I know that if I had a cartoon that is a relevant symbol speaking to that future generation of 2130 Dude! there welcome to it! Because I would be long gone and don't know who my heirs are, or care!

It's a little bit on immortally that all artist, writers, strive for isn't it!

You seem to be worried about giving Corporations a toe hold. hey I'm with you on that. And that's why we have Congress, and Courts to hash out these problems. And yea it is slow and expensive, But it is still the best system. As long as we have junk yard dog's like you ready to bite off the head of Corporate lawyers, they'll be tip toeing around and not making the fast breaking and entering on our copyright laws. and that's all right!

Now where is that dust pan and broom you need clean this place up.
And hey if you reached through that computer screen you would have gotten my wife. And she wouldn't like this and really could care about this issue


dan reynolds said...


I questioned whether I should even bother explaining why it is a big deal. I said, "Dan, if someone would actually say that, they are NOT going to understand if you try to explain it."
Did I listen to myself? No. If I didn't listen to myself, I should not expect you to do so.

CP said, "Breaking into my house and taking pictures of my credit cards, is out right credit and identify theft and fraud, along with a slew of other felonies."

Yes, that's EXACTLY what I's an analogy to what you propose as okay when it comes to using other people's belongings for your own (Google's) profit.

You said, "Currently a copyright last the life time of the author plus 70 years."

That's not entirely true.

For works published after 1977, the copyright lasts for the life of the author plus 70 years. HOWEVER, if the work is a work for hire (that is, the work is done in the course of employment or has been specifically commissioned) or is published anonymously or under a pseudonym, the copyright lasts between 95 and 120 years, depending on the date the work is published.
Fact, is you're not going to get it. So, I'll continue to stand by what I said, and hope that others out there who are invested in having control of their creative rights, will read what I said and concur.
I hate preaching to the crowd, but it has to be said so people out there, who are artists as am I, know we can stand together on this. We're not alone and we don't have to take it like a pinata.
I realize there are a lot of people in this country (or wherever) who are more than willing to grab money from a lost wallet without thinking that the money is not theirs but belongs to someone else. The consequences to the "someone else" doesn't seem to matter to many people.
It's all about them.

The point is the underlying goal here is get a foot in the door to take more AWAY from the creative artist. Anyone who's for that is against not only the hard laboring artists, but against creativity. Artisans are just like plumbers when it comes to haing to make a buck to keep their families going.

dan reynolds said...

CP said, "You seem to be worried about giving Corporations a toe hold. hey I'm with you on that"

If that's true then why the heck are we even having this conversation???
Don't you know that's what you're proposing?????

Ken Pedersen said...

I'm not proposing anything, just an observation! I guess you don't understand the difference.

dan reynolds said...

I'm afraid you'll find yourself standing alone in this debate, observation.
Artists just don't feel the same as you do.