Move By Universities Creates New Problem For Google Books Deal

As authors and publishers wait to learn the final fate of the Google (NSDQ: GOOG) Books settlement, a group of universities has quietly launched a major initiative that could reshape the future of copyright law.

As part of its quest to digitize the world’s books, Google has scanned millions of titles. But it can’t make them available to the public until a judge gives his blessing to a troubled settlement the company has reached with authors and publishers. One of the sticking points has been what to do about books that are still in copyright but whose owners can’t be found. Now, the universities, which include Cornell, Duke and Michigan, have decided that they aren’t going to wait for the judge’s OK to make those e-books available. They have announced they will allow library users to have full access to the digital text of those so-called orphan works, which are estimated to number in the millions.

Orphan works have long been a copyright law quagmire. In the past decade, Congress has several times proposed bills to address the fate of these works, which include everything from scholarly tracts to family cookbooks to detective stories. None of the bills gained traction, however, and so an untold number of physics musings and dumpling recipes languish on forgotten library shelves.

Orphan works were also a major factor in Judge Denny Chin’s initial decision last March to reject the ambitious digital book deal between Google, publishers and the Author’s Guild. The settlement, which will be back in court on Sept. 15, called for the creation of a trust fund to locate the owners of orphan works, but Judge Chin rejected the plan as inadequate to protect the interest of the anonymous authors. Many people expect the judge to again reject the latest plan when the parties meet next month.

The new plan by the universities will grant owners access to the digital texts of orphan works if their libraries already possess them in printed form. This could effectively spring a vast amount of content from beyond the obscure confines of a few select research libraries.

In theory, the plan could be a risky one for the schools. Law firms that specialize in copyright trolling could, for instance, beat the bushes for the owners of the orphan works, register their copyright and then sue for unauthorized reproduction of the works. Under the statutory damages provisions of the Copyright Act, plaintiffs are entitled to between $750 to $30,000 for each act of infringement.

Michigan librarian John Wilkin doubts, however, that the universities would be liable. In an interview with paidContent, Wilkin explained that librarians will make a digital work available only after a careful attempt to locate its owner, and will take it down if an owner emerges to object to the digital publication.

The universities are also claiming that the plan for orphan works would qualify as a fair use under copyright law. This legal interpretation is bold in some regards given that fair use typically applies only to excepts, not entire works.

But James Boyle, a copyright authority at Duke, said a fair use defense is “quite plausible” in light of a legal test that looks at factors like the purpose of the copying and its impact on the market for the work. He also expressed support for the endeavor.

“All librarians are driven insane that they hold knowledge that is made inaccessible because of the copyright statute.”

The immediate impact of the universities’ decision will be minimal, as only 150 or so titles will be released at first. The long-term effect could be enormous, however, given Wilkins’ estimate that more than half of the almost 10 million titles in Michigan’s collection are orphans.

The orphan works plan could also gain momentum if other schools sign on to it. Participants so far also include the University of Florida, the University of Wisconsin, Emory and the University of California.

As for the parties to the books settlement, there has so far been no public reaction. A source close to the publishers refused to comment, while Google and the Authors’ Guild did not reply to email queries. But the universities’ decision could reduces those groups’ control over the orphan works and undercut one of their arguments in favor of the settlement – that the orphan works will remain unavailable unless Judge Chin approves the deal.

For Google, though, the schools’ orphan works gambit is not entirely a setback. The company has long pushed for broader definitions of fair use, and now it has a number of large and sympathetic allies to help advance that argument.