Free the Orphans: Are we being played for fools in Google Books play?

I'm reposting an insightful piece about the pull-back of the Google Books settlement by Brewster Kahle of the Internet Archive. Brewster was among the first to cry foul over the deal and he has been a leading voice throughout the full debate. (Disclaimer: I have a personal friendship with Brewster, but no financial ties.) The parties retraction of the settlement is directly, and in my opinion, solely based on the Department of Justice's antitrust and class-action objections. A myriad of other problems will not ever be willingly addressed by the Authors Guild, the publishers association or Google.

At End of Act II: Are We Being Played for Fools OR Building an Enlightened Digital World?

The grand and dastardly scheme was to construct an organization to control/monetize the Orphans — might they get away with it? It seems they might — in fact everyone seems to be playing the role that was laid out for them by Google et al. As seen in the New York Times today, they may be getting what they want: “Laying out a path forward, the [Justice] department said some of its antitrust concerns could be mitigated by ’some mechanism by which Google’s competitors’ could gain comparable access to orphan works.” If so, the plan to control and monetize would be left in place.

If this happens then we are being played for fools in someone else’s play. And that will hurt access to books and book culture — past, present, and future.

With the Justice Department objection, we are just where the Google+TradeLawyers may have hoped we would be. The question now is: do we play the concluding Act III of this saga according to their script or do we build a competitive and rich digital world?

Please grant me a moment to explain. Act I: Google makes secret agreements with libraries to scan all books, calls it “search”, is greeted as a savior. When the details come out and are quite dark, it is too late as people remember it as a good thing.

Act II: Google is sued (surprise!) and secretly negotiates for maximum rights with as small a number of lawyers as possible. Having it be a class action is the stroke of genius — the parties get to rewrite copyright law. Google+TradeLawyers make a backroom deal — Google would get to solely control the out-of-print book world (most of the books of the 20th century) and the lawyers from the Authors Guild and the AAP would share tens of millions of dollars. Seems like a tidy deal. But there are two troubles — copyright and anti-trust. They need an act of Congress or the Justice Department to bless their cabal.

So where are we? They drafted a settlement that is completely self-serving, while short-changing authors, publishers, libraries, other countries, and Internet companies (if you don’t believe me, please read the words of hundreds of well-reasoned objections to the suit). The Justice Department did the right thing to cry anti-trust foul about the *two* monopolies that are proposed: Google and the Books Rights Registry. But interestingly, Google could only make a settlement where they were the only beneficiary because this was done as a class-action suit. This bizarre circumstance means they could not offer their protection to any others because the others were not party to the suit and they wanted a small room to negotiate in — you can only commit others with a law or judicial approval.

So they set out to allow their monopoly to be blown and still rule the day. Yes, they seem to have set this up so that they win if the Justice Department objected and said “anyone has to be able to get the deal that you got.” (This idea of non-exclusive access is consistent with the rhetoric that Google has been slathering on the media for the last several months.) And then, voila, Google would fall back on the 2nd tier monopoly, the Books Rights Registry, to allow them to control all out-of-print books. Justice would then look like they got something, when in fact, they did not.

Not following me? Sorry, but let me take another shot. Let’s say the Justice Department says “anyone else should be able to do what Google has just negotiated for itself” and allows the judge to approve this complicated mess-of-a-settlement or goes to Congress who obliges with a law to that effect. Then, Google, with a five-year head start, and setting out the rules of how the Books Rights Registry works, gets to be the only compelling offering for libraries to subscribe to. If you get a five-year head start AND write the rules of the game, then if you lose, you are an idiot. And if there is something we should all be sure of, these lawyers are not idiots.

So how do we know if we are being played? At the end of the day, if the Books Rights Registry is allowed to control and collect money for the Orphan Works, then we have been had. Remember, this is all about controlling the Orphans, or out-of-print works. These works are those that are too expensive to research to figure out if they are the property of publishers or authors or even if they knew they would want them accessible. The contracts are often hard to track down and they are not making money anyway. If an organization gets to control the orphans, then they can determine who can have a complete library and on what terms.

The Book Rights Registry that has been designed by this cabal, which would be controlled by a few of the lawyers that wrote this settlement, would control the out-of-print/Orphan works and be able to charge whatever they wanted for them. Google, who has said they have scanned 10 million books, is off to a healthy head start. A subscription service of bundled services will favor those with the most books, hence Google wins.

So what should we do to change this outcome?

Only one thing needs to be changed: Don’t let anyone control the Orphans/Out-of-print. Only if an owner comes forward and prove they own a work (with penalties for overreaching, and not just weak anyone-can-claim-anything-with-no-negative-consequences as it is proposed now) then they can negotiate for money. Otherwise Orphan/Out-of-Print works can be used by anyone, say, for non-commercial use. This is roughly how the Orphan Works legislation works, which almost made it through congress last session. But it should not be surprising that these guys are trying to substitute a closed system for that open approach.

What would happen if no one controlled the orphans? Is would be best for the industry, best for libraries, publishers, authors, and best for the general public.

• Even Google would be better off because they would be able to make the Orphans available to everyone not just to subscribers. (Remember, they are an advertising based business.)
• The AAP would also be serving their publishers because Google would not be the only game in town to negotiate with.
• Libraries would be better off because they could digitize, preserve, and provide access to millions of digitized books for researchers historians scholars and the general public.
• The Authors Guild would be better off because they could build membership by offering to negotiate on authors behalf with many parties.
• Many author associations and registries would compete to provide good services to those that sign up with them.
• Authors would be better off because this would help create a diverse ecology of publishers, libraries, and readers.
• The general public would be better off because they would leverage many search engines and many reading devices to buy and borrow digital books from many different booksellers and libraries.

The only loser is the Books Rights Registry, but it does not even exist yet.

This would be the World Wide Web of Books that we have been dreaming of rather than a Monopoly of Books. Google has helped build momentum — let’s take it the rest of the way without blowing it. This could be done by Congress or the Justice Department — both of which are working on this right now.

Free the Orphans.