by Michael Capobianco

Judge Chin’s recent ruling that that the Google Books Settlement was not “fair, adequate and reasonable” was a victory for authors everywhere who depend on copyright, and particularly for those authors and their heirs whose works were inappropriately labeled “orphans.” It’s gratifying to see so many of the objections raised by authors and authors’ groups cited in the judge’s ruling.

From the beginning, the settlement raised fundamental questions about copyright and the rights of authors to control who uses and profits from the books, stories, and articles that they’ve created. The settlement would have given Google the right to use and profit from millions of books simply because they had digitized them, as well as the exclusive right to publish out of print “orphan” books. The settlement was widely regarded as “audacious” because of its casual disregard for the rights of authors, and rightly so. It attempted an end-run around copyright law for the benefit of Google by using a loophole in U. S. class action law. It was a legal monstrosity that Judge Chin rejected, declaring that “a copyright owner’s right to exclude others from using his property is fundamental and beyond dispute.”

The parties to the settlement have wasted much time and millions of dollars because they were too greedy, and wanted everything.

The question now becomes, “where do we go from here?” The parties were left free to negotiate a new settlement, or continue the original lawsuit. Judge Chin concluded that “many of the concerns raised in the objections would be ameliorated if the ASA (Amended Settlerment Agreement) were converted from an ‘opt-out’ settlement to an ‘opt-in’ settlement.” This is what many authors have been saying from the beginning. However, the details of such an opt-in regime are crucial to determining whether it could be found “fair, adequate and reasonable” to authors. If done correctly, an opt-in would allow authors to explicitly choose to participate in Google’s publishing program in the same way they decide whether to license their work to any other publisher.

Depending on how it was implemented, an opt-in Google Book Store might be a very good thing for authors, and the creation of an opt-in Book Rights Registry would also function to benefit them, as well as making inroads into the orphan works problem. The goal would be to create a new market for authors of out of print works, which would be in competition with Amazon and other e-book publishers. The key here is that Google is in a position to offer authors and other rightsholders of out-of-print works a deal that would be very attractive. It would be especially appealing for authors of out of print works who don’t have the money or technical expertise to create an e-book out of their work.

Some commentators have said that, since Google already offers authors the opportunity to publish through the Google Books Partner Program, it would be meaningless to have another opt-in publishing program, but the partner program is simply not attractive enough to give Google what it wants. In order to attract a very large number of authors to opt in, Google would have to make an offer that went far beyond the terms of the current partner program, giving rightsholders exceptional flexibility for their publications and offering most of the income from book sales to the authors, financing the program primarily from book search-related advertising revenue. In short, if they offer a good enough deal, authors will come and opt in.

A voluntary Book Rights Registry would go a long way to satisfy one of the Copyright Office’s recommendations about how to deal with the orphan works problem, by creating and maintaining a searchable registry of rightsholders’ contact information which could be used by publishers as they performed a “diligent search” for a work’s owner(s).

Orphan works pose a very real challenge under current copyright law, and an opt-in settlement does not address the problem. That’s entirely appropriate, because, as Judge Chin says, “a mechanism for exploiting unclaimed works is a matter more suited for Congress than this Court.” Hopefully, the defeat of the settlement in its current form will refocus efforts to address the orphan works problem where they belong, in the legislative branch of the government.

In order to reach a settlement that all authors can embrace, much work has to be done. There are still many valid concerns about how payments are split between authors and publishers–especially concerning works for which electronic rights were never licensed–and about the default assumption that publishers retain rights for the out of print works that they have abandoned.

Although making the settlement opt-in addresses most of the copyright, antitrust, and international law issues cited by Judge Chin, there are still problems with user privacy, security, and adequate class representation. Many of these problems result from the lack of diversity in authors represented in the settlement negotiation. For the settlement to truly represent all authors, the Authors Guild must include other writers’ groups in future settlement talks. The creation and administration of the Book Rights Registry, in particular, is too important to be reserved to one writers’ group.

Larry Page, who has recently returned as CEO of Google, initiated the wholesale scanning of books as a way towards an all-inclusive Alexandria Library of the future. If he is genuinely interested in doing no evil, opt-in is the only course open to him, and, by financing a genuinely revolutionary system that gives authors a deal no one else can match, he will bring about the digital revolution that he wants, without violating antitrust or copyright law.

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Michael Capobianco is the author of one solo science fiction novel, Burster (Bantam 1990), and co-author, with William Barton, of the controversial hardcore SF book Iris (Doubleday 1990, Bantam paperback 1991, Avon Eos 1999), Alpha Centauri (Avon, 1997), and the critically acclaimed near-future novel Fellow Traveler (Bantam, 1991). Capobianco served as President of Science Fiction and Fantasy Writers of America (SFWA) from 1996-1998 and 2007-2008. He received the Service to SFWA Award in 2004 and is currently on SFWA’s Board of Advisors.