Maybe Google tried too hard to stir the ocean with a swizzle stick. Way back in time, Google believed that indexing printed content that they had scanned represented a fair use of that content and compatible with the method they used to index web pages upon which they (and many other companies) had built search businesses. Judge Chin’s ruling that the court would not approve the Google book settlement is a set back for Google and the AAP/AG but it is not the end and, actually Google still hasn’t “lost” in the sense that their original issue has been adjudicated.
Who knows where this case will go next? One possible scenario is that the parties will agree a new settlement that removes the problematic issues that Chin identified but the core issues related to the extent of fair use and the ‘orphan’ works problem are likely to remain unaddressed both by this case and by anyone else. Congress is not going to provide a solution but in the unlikely event that they did address these issues the outcome would probably be detrimental to the public interest as has their prior work on copyright in recent decades. Remember also that the ‘orphan’ problem is not restricted to books but pretty much all media from watercolors to video. It is a complicated and expansive problem: A veritable ocean of competing and conflicting interests that is unlikely to be concluded anytime soon. One result of an approved settlement which I thought possible was had it been approved then Congress may have been more likely to act and the fact of the settlement might have established a framework Congress could use in enacting a law.
Google has moved the copyright peanut forward. Most commentators interviewed prior to 2005 would not have known or understood what an ‘orphan’ was in this context and at least many of us now conceptually understand what or who they represent. So with so many people now educated about the issue perhaps the on-going conversations can serve to move the industry(ies) in a positive direction. Unfortunately, we still don’t know the size of the potential problem in books – maybe it really doesn’t matter – and while my analysis was widely discussed and cited no one really disputed the conclusions which either means I was right on (unlikely) or no one else could be bothered to drawn different conclusions.
Over the past three years, the Book Rights Registry (run by friend of the blog Michael Healy) has been quietly building a repository of data on claimants. As many predicted, the number of claimants that have come forward is small in comparison with the number of titles that have been scanned and the database may not shed any greater light on the Orphan problem than we already know: Orphans either don’t exist, don’t care or don’t know. Whether we will ever see any data out of this collection effort isn’t clear but if it were provided the information might represent another opportunity to educate us on the ‘orphan’ community. More data will help understand the issue and help with a possible solution. The BRR could still be an effective clearing house for copyright claims and few would dispute we need that but who would pay?
Setting aside that the settlement was by no means perfect and represented an agreement between parties of ‘questionable status’ appeasing ‘bad behavior’, if your position in this fight was that the settlement enabled a vast collection of content available for the greater good then I don’t think you’ve ‘lost’ just yet. What happens next and particularly what happens to all the scanned archives at libraries across the US will be broadly discussed in the coming weeks. Some resolution we be announced in the short term: As this decision took longer and longer to come the parties must have been thinking about alternative scenarios. One significant issue however is that two of the main protagonists in this agreement - Richard Sarnoff from Random House and Dan Clancy of Google have moved on to other things. How that will impact the proceedings hereon is hard to determine although it might not be negative.
Meanwhile, Mr. Healy and the Book Rights Registry will probably continue to wait out further resolution but how professionally satisfying this will be to him and his team would be a question. Without doubt by now the BRR was supposed to be operational and adjudicating and licensing and effecting use of a vast archive of human knowledge. It will be hurry up and wait again at the BRR and libraries across the world.