Google and the Plaintiffs (Authors’ Guild and representative authors and publishers) went back to the negotiating table to craft a new settlement agreement that would address the concerns of the Department of Justice and other critics. The new settlement agreement was released yesterday.
There were quite a few positive changes. To address the concern of price fixing that the DOJ had expressed, the Books Registry no longer has any say in the pricing of books. This is really a win for consumers and for Google. Google now has the sole right to set prices and will do so using an algorithm developed based on market pricing. Authors might not like this because pricing of ebooks is trending downwards but it’s a plus for consumers. Additional revenue models have been changed to be limited to POD and PDF/EPUB downloads.
For Authors of Books in Print and Under Contract
The revised agreement also resolves many concerns that authors of books in print and under contract may have. It has removed the requirement to arbitrate one’s cases. Authors are allowed to dictate how a book is displayed through Google Book Search and can remove the book from sale if she disagrees with pricing or discounts.
Authors can also designate creative commons use/reuse rights, free distribution and removal of any display restrictions.
Still a central feature of the Google Book Settlement is the treatment of Orphan Works. Orphan Works are works that are in copyright but the owner of the copyright is not found. This usually occurs because the original content creator has died and has no direct heirs or the heirs do not know of their right to copyright.
The new agreement proposes to set up an Unclaimed Works Fiduciary. This person would be appointed by a supermajority vote from the Books Registry Board and be subject to court approval. The Unclaimed Works Fiduciary will be vested with the power to grant use licenses for these Orphaned Works. The money generated from the use of the Orphan Work license will be held in trust until such time as the rightful owner can be identified. After the 6th year of existence, the Registry can authorize the use of up to 25% of the funds in that trust to locate the rightful owners. After 10 years, the Registry can apply for court approval of distribution of funds to literacy based charities.
Essentially, the Google Book Settlement wants to create a Blackwater for Orphan Works. Blackwater is a private company that contracts with the government to offer various military related services. Blackwater serves as a government contractor to carry out the duties of the government that it cannot do itself. The government engages many, many contractors. Medicare program is administered by private contractors throughout the country. Individual public works projects such as highway repair or building construction are also carried out by contractors.
While the Copyright Agency could carry out the tasks that are being offered by the Registry and the UWF, it doesn’t have the funding nor staffing. Nor is there a legal structure which would allow the Copyright Agency to carry out the role of the Registry or the UWF.
The Registry and the Unclaimed Works Fiduciary wants to stand in the shoes of the government to administer a program that would allow the use of orphan works, collect money, and hold the money in trust. If the money goes unclaimed, the Registry and the UWF would distribute the money in way that would ostensibly assist the public. Google profits off the use of Orphan Works by establishing a larger database of searchable works than any other company.
In theory, the offering of orphan works to the public is is a social good. Google wants to create a world library that would permit the public access to books that it would not have in the past. However, the approval of this settlement sets this precedent. Where the law is lacking, private organizations with money and power can come together to create a private solution and change the law without legislative process.
Let me draw this example. Every year, real and personal property goes unclaimed primarily because people die without wills and heirs are not easily located. This property such as land, uncashed checks, stock certificates, or jewelry or other goods is taken by various States and then kept in trust until the property can be claimed. What if, instead of the property being turned over to the State, a private company came in and collected the unclaimed property up. They cashed the checks and use the interest for their own benefit, but never spent the principal. The company maybe even developed some of the land and placed a museum on it and made it open to the public so that the could see the property, enjoy the land. If some heir came along and was able to prove ownership, the company would give it up.
What’s the problem with this? The taking of someone else’s property for one’s own use is just fundamentally contrary to the rights of ownership upon which our legal system is based. The government may not do this without complying with specific legal guidelines (it’s called eminent domain). Further, laws are created and changed through legislative process, not through private agreements. Finally, under this agreement only Google would have the unfettered right to be free of suits from Orphan Work heirs (and any other copyright holder). Only Google would be able to create a worldwide library because other companies would be subject to the lawsuits of copyright holders.
The question that Judge Dennis Chin, the judge overseeing the Google Book lawsuit, must answer is this: Is the social good of creating a mechanism to deal with Orphan Works (an issue long ignored by the legislative process) greater than the requirement that laws are changed only through legislative process? I’m uncertain.