The Google Books settlement fairness hearing is still a few weeks away, but in the last few weeks the deal has been talked and shouted about with ever-higher volume.  Still, it wasn’t until the other day, in a House Judiciary Committee hearing where US Copyright Register Marybeth Peters came loaded for bear, that I started thinking there was a significant likelihood that the settlement might fall apart.

There are a number of people in different communities, including libraries, who hope this  happens.   I’m not one of them.  I’m not a lawyer, so I can’t comment with authority on whether the settlement is sound law.  But I’m quite confident that it advances good policy.  In particular, it’s one of the best feasible opportunities to bring a near-comprehensive view of the knowledge and culture of the 20th and early 21st centuries into widespread use.  And I worry that, should the settlement break down, we will not have another opportunity like it any time soon.  The settlement has flaws, like the Google Books Project itself has, but at the same time, like Google Books itself, the deal the settlement offers is incredibly useful to readers, while also giving writers new opportunities to revive, and be paid for, their out of print work.

The potential

Under the status quo, millions of books are greatly under-utilized.  It isn’t just that people don’t have easy access to them; it’s that people don’t know that particular books useful to them exist in the first place.  I work in a library that has collected millions of volumes, many of which are hardly ever checked out. Not only would Google’s expanded books offerings give our users access to millions more books, but it would also make millions of books that we already own easier for our users to find and use effectively.

Want to know what books make mention of a particular event, ancestor, or idea?  With existing libraries, and good search skills, you might be able to find books, if any, that are written primarily about those things. But you’ll probably miss much other information on those same topics, information in works that are primarily about something else.  With expanded search, and the ability to preview old book content, it could be much easier to get a more comprehensive view on a topic, and find out which books are worth obtaining for learning more.

And if that’s a big advance for people in big universities like ours, it’s an even bigger step forward for people who have not had easy access to big research libraries.  Once a search turns up a book of interest, Google Books would offer a searcher various ways of getting that book: buying online access; reading it at their library’s computer (either via a paid subscription, or via a free public access terminal); buying a print copy; or getting an inter-library loan.  These options all involve various trade-offs of cost and convenience, as is the case with libraries today.  While one could wish for better tradeoff terms, the ones proposed still represent big advances from what one can easily do today.

And as with other large online collections like Wikipedia or WorldCat, or the Web as a whole, the advantages to large book corpuses like Google’s aren’t just in the individual items, but in what can be done with the aggregation.  I don’t know exactly what new kinds of things people will find to do with a near-comprehensive collection of  20th century books, but having seen all that people have done with other information aggregated on the Internet, I’m confident that there would be many great uses found, large and small.

The peril

If the Google settlement does fall apart, are we likely to see any collection like the one it envisions any time soon?  I’m not at all confident we will.  The basic problem is that, without some sort of blanket license, it’s impractical (and in the case of true orphan works, currently impossible) to clear all the copyrights that would be required to build such a collection.  This represents a failure in copyright law.  Instead of “promot[ing] the progress of science and useful arts”, as the Constitution requires, current US copyright law effectively keeps millions of out-of-print books in obscurity, not producing significant benefits either to their creators or to their potential users.

The current proposed Google Books settlement is, among other things, an attempt to get around this failure.  If the settlement fails, would the parties make a new agreement that would allow a readable collection of millions of post-1922 online books?  The divergence in the complaints I’ve seen (for instance, on one hand that the collection would cost readers too much, and on another hand that it would pay writers too little) suggest the difficulty of coming to a new consensus that satisfies all the parties, if negotiations have to start again from scratch.  And, if the arguments of the Copyright Office and some of the other parties carry the day, even if such an agreement were reached, the agreement could not be ratified by a court anyway.  Instead, it would require acts of Congress, and maybe even re-negotiations of international treaties.

Based on past history, there are two things that would make the government likely to reform copyright law to permit mass reuse of out-of-print books.  Ether there needs to be a clear example of the benefits of such a reform, or there needs to be a strong coalition pushing for such a reform.  Clear examples have usually come from businesses that are actually in operation; for example, the player piano roll industry that successfully persuaded Congress to streamline music copyright clearance in the previous century (or the Betamax that persuaded a slender majority of the Supreme Court to declare the VCR legal).

If the proposed Google Books library service goes online, even under a flawed initial settlement, it too could provide a compelling example to encourage general copyright reform.  But without such an example, it can be hard to move Congress to act.   It’s easy to undervalue the opportunities you don’t clearly see.

What about a strong coalition pushing for a reform in the law that would let anyone create the comprehensive online collections of out of print books I’d described?  I’d like to see one, but I haven’t yet.  (Yes, there’s the Open Book Alliance, but its members don’t seem to be distinctly allied in anything particular other than objecting to the settlement.)  In my next post, I’ll discuss reforms that might do the job, and the reasons I believe they would be difficult to enact without the settlement.