On your first comment, I’m reminded of a joke I heard somewhere about how technophobic librarians might have designed a web search engine, before they became commonplace: You’d write down your query, drop it in a slot, and a few days later get a list of hits in the mail. Do you have access, in theory, to a search engine under these conditions? Yes. Is it access in a very meaningful sense? Not really.

Similarly, lots of out of print books are not accessible to many users in a meaningful way. If I want a look at a book that’s not anywhere near me, I might not actually have to hop on a plane and hope, as Sergey Brin suggests in a recent NYT editorial, but I might have to fill out a slip of paper, drop it in a slot, and wait a couple of weeks (and possibly pay a fee) for inter-library loan to go through, just to get a peek at it. In practice I’m not going to do this very often. But if I can get a quick look at it instantly online, that’s much more useful to me. (And even if I can’t see all of it without paying, the preview is often enough for me to see whether this is a book then worth paying and/or waiting a couple of weeks for. Basically, I get a much quicker, broader view of literature that might be useful to me.)

Regarding your second comment, I actually *do* want Congress to take action to free up out-of-print books in a useful way. But I think that they’re more likely to take the right action (and broad coalitions are more likely to form to push them to do it) if there’s a compelling working example of how it benefits people, than if there isn’t. (See my earlier post, on opportunities you see vs. ones you don’t.)

As I noted in my posts, the courts have established prior rights and benefits for the public (such as fair use and first sale) without waiting for Congress to act. (Congress then codified these rights later on.) I don’t assume that the way in which those rights were gained was “anti-democratic” simply because the legislature didn’t act first. Likewise, if the court and the settling parties are the first to grant rights to out of print books in this instance, I don’t see that as fundamentally anti-democratic either. (Especially since it would not preclude Congress from *either* codifying or overriding them through later statutory action.)

I understand there is some legal debate over whether a court has the authority to approve a settlement of this type. I’m not a lawyer, so I don’t claim to have the definitive answer to this question myself, but I’m content to let the court system decide whether or not it can approve the settlement. (I’ve certainly seen a number of other examples of courts saying “nope, we can’t do this”.) Assuming that class action *is* a legally appropriate means of reaching a deal like this, I see it as a promising first step towards a more sensible copyright policy overall.

Two comments:

1. “such a collapse might deprive the public of meaningful access to millions of out of print books.” Well, no, not unless you want to consider the current access through libraries to print copies meaningless. Yes, I realize that enhanced access through electronic means would be a wonderful thing, but not getting everything you want doesn’t mean you have nothing.

2. I could probably sum up most of your argument above as ‘A compulsory licensing scheme might help solve this but Congress is unlikely to take such action; Orphan works legislation might help solve this but Congress is unlikely to take such action; and copyright law reform might help solve this but Congress is unlikely to take such action. Which leaves us with private, one-on-one negotiations with rights holders, and in many cases we can’t identify them.’ I hate to say it, but this ends up being a profoundly anti-democratic argument. I’m well aware of the fact that there are powerful interests lined up on the side of copyright holders and that they hold significant sway with Congress, but Google isn’t exactly lacking resources itself, and if it chose to actually try to work to achieve legislative action to weaken copyright and make Google Book Search an unquestionably legal enterprise, I suspect it would have a lot of allies. Hoping that the settlement will solve our problems is effectively hoping for legislation from the bench. I think we would all be better off if instead the arguments for weakening copyright were made loudly, publicly, in the legislature, and we had a real public debate about what balance should be struck on intellectual property.

I got into this profession specifically because I wanted to help in the process of using electronic media to help put information in the hands of people who wouldn’t otherwise have it, but *how* we do that socially is far more important than how we do it technically, and I think the Google settlement isn’t the right approach. Much as I want to see the types of service Google is planning on offering, I sincerely hope the settlement fails, and that they lose in court, because then there may actually be some impetus to try to swing public opinion around to fixing what is clearly a broken copyright regime.

Wikipedia (http://en.wikipedia.org/wiki/Compulsory_license#Compulsory_Licensing_of_Copyright_in_the_US) suggests that the compulsory license lets me make a recording of my _own_ performance of someone elses musical work. But that there’s no compulsory license for playing someone elses recording on the radio, for making copies of someone elses recording, or even for a public performance by me of someone elses musical work.

Do you think that’s wrong? (Certainly wikipedia has been known to be wrong).

But I guess this is kind of a side issue here. I’m just curious.

But you’re right that the Book Rights Registry could serve as an ASCAP-like clearinghouse for general book rights. That’s what the settlement envisions for old out-of-print books, and it’s a natural extension for them to offer those same services for new books, should copyright holders decide to have them represent them. Whether or not they *will* generally serve that role going forward, or whether someone else will, remains to be seen. The BRR is a creature of the settlement, though (and is partly funded by its proceeds), so if the settlement did fail, it’s not clear anything like it would exist.

Though the Department of Justice’s filing last night, which gives qualified endorsement to the settlement process if not to all the current terms of the proposal, makes me more hopeful. I may write more on this later, if it seems useful.

If I’m right, this IS kind of the same thing as the Book Rights Registry, isn’t it? Except for the fact that the ‘opt out’ nature of the class action settlement means that for historical publications, they’re ‘in’ without asking to be. (going forward, they’d have to ask to be). But the Book Rights Registry kind of IS like an ASCAP for books — except they haven’t promised to license to all and sundry on the same terms, like ASCAP etc does.