The Google Settlement: Awarding Custody of Orphan Works?

The opportunities provided by the Internet for wide and inexpensive dissemination of literary and artistic works have led to efforts by librarians, educators and historians to create a mechanism for the publication of “orphan works” – works whose owners cannot be identified or located by someone who wants to publish them. Large corporations such as Google and Microsoft joined the cause and an orphan works bill passed the Senate but not the House in the last session of Congress. The issue may not be high on the agenda for the current Congress, but in the absence of legislative action, there has been movement along another track.

Faced with copyright infringement lawsuits from publishers and authors over its large digitization project, Google reached a proposed settlement with the authors and publishers on October 28, 2008, under which Google would pay $125 million to the authors and publishers in exchange for being allowed to display whole pages of up to 20% of the digitized books in its repository. Google would also be allowed to sell access to the copyrighted works in the repository, with most of the revenues going to the authors and publishers. All public libraries would have free portals accessing the repository.

The settlement is still subject to court approval and will be considered, along with briefs submitted by interested parties, at a hearing on June 11, 2009. In the meantime, the group Consumer Watchdog has asked the Justice Department to intervene, saying that the settlement gives Google an unfair advantage against its competitors.