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By Paul Biba

Jimages.jpegohn Mark Ockerbloom works for the University of Pennsylvania libraries and maintains the Online Books Page. In John’s blog, Everybody’s Libraries, he written a article about the pros of the Google Book settlement and how it gives us a chance to embrace some opportunities that we probably won’t see again.

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 (coming shortly), I’ll discuss reforms that might do the job, and the reasons I believe they would be difficult to enact without the settlement.

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