Having written in opposition to the Google Books Settlement (1 2 3), I was pleased with Judge Chin’s decision overall. The GBS (which, a couple of generations ago would have unambiguously referred to George Bernard Shaw) was worked out by Google, the publishers, and the Authors Guild without schools, libraries, or readers at the table. The problems with it were legion, although over time it had gotten somewhat less obnoxious.

Yet, I find myself slightly disappointed. We so desperately need what Google was building, even though it shouldn’t have been Google (or any single private company) that is building it. In particular, the GBS offered a way forward on the “orphaned works” problem: works that are still in copyright but the owners of the copyright can’t be found and often are probably long dead. So, you come across some obscure 1932 piece of music that hasn’t been recorded since 1933. You can’t find the person who wrote it because, let’s face it, his bone sack has been mouldering since Milton Berle got his own TV show, and the publishers of the score went out of business before FDR started the Lend-Lease program. You want to include 10 seconds of it in your YouTube ode to the silk worm. You can’t because some dead guy and his defunct company can’t be exhumed to nod permission. Multiply this times millions, and you’ve got an orphaned works problem that has locked up millions of books and songs in a way that only a teensy dose of common sense could undo. The GBS applied that common sense — royalties would be escrowed for some period in case the rights owner staggered forth from the grave to claim them.. Of course the GBS then divvied up the unclaimed profits in non-common-sensical ways. But at least it broke the log jam.

Now it seems it’ll be up to Congress to address the orphaned works problem. But given Congress’ maniacal death-grip on copyright, it seems unlikely that common sense will have any effect and our culture will continue to be locked up for seventy years beyond the grave in order to protect the 0.0001 percent of publishers’ catalogs that continue to sell after fourteen years. (All numbers entirely made up for your reading pleasure.)

As Bob Darnton points out, this is one of the issues that a Digital Public Library of America could address.

James Grimmelmann has an excellent and thorough explanation of the settlement, and a prediction for its future.

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