Bridging “Broad Divides,” Proposed Settlement May Show Path to Virtual Library of Out-of-Print Books

The following letter appears in today’s New York Times.

To the Editor:

Your March 31 editorial “Google’s Book Deal” correctly points out that the landmark settlement between the company and authors and publishers would have “given new life to millions of half-forgotten titles collecting dust in out-of-the-way libraries.” But your discussion omitted several crucial aspects of the case.

We have a fundamental disagreement with Google: we believe that without first obtaining permission, Google is prohibited from copying books for commercial purposes. That’s why we sued. Judge Denny Chin, who faulted Google for “wholesale, blatant copying” without permission, seems to agree.

The settlement was crafted to bridge the broad divides among the stakeholders in the negotiations — authors, publishers, research libraries and Google. It would have provided financial benefits to authors of out-of-print books and made available a vast virtual library of those books.

Critically, when it came to “orphan works,” it would have collected and escrowed funds for authors (or their successors or estates). And it would have empowered any copyright holder to compel Google to remove or never scan his or her works without having to go to court.

We could have simply refused to recommend settlement and pressed our original demand that Google withdraw all its copyrighted material. Instead, we chose to propose an agreement that would benefit authors, publishers and readers.

The dream of a virtual library of out-of-print books is dead, for now. Perhaps a legislative route may be found instead; we hope that the settlement shows how it can be done.

SCOTT TUROW
President, Authors Guild
Chicago, April 4, 2011

The New York Times editorial is here.

Comments: more
  • Rowena Cherry

    Scott,
    I notice that the NYT Editorial writer suggests “Congress, meanwhile, can resolve the problem of orphan books. In 2008, it almost passed a bill that would allow anybody to digitize orphan works without fear of being sued for copyright infringement as long as they proved that they had tried to find the rights’ holder. This would give all comers similar legal protection to that which Google got in its agreement.”

    How would we feel if Baidu in China –or any other search engine– did as Google and the Libraries did, and the works of any American author who did not follow the news in Chinese were to be legally considered an orphan?

    If I received an email in Chinese from a scrupulous Chinese digital publisher, would I read and respond to it? Or, realistically, would it go in my Spam?

    Would it be reasonable to expect every working author to cut and paste every foreign language “spam” filter message to an online Translate site?

    I cannot recall if the Google Settlement assumed that all foreign-authored works were “orphan”, but digital works can be published worldwide, yet national lawmakers only protect their own author citizens. (Or don’t!)

    For example, the British Public Lending Right only pays a small royalty on British Library loans to resident British authors, who can produce a street address and a recent utility bill with their own name and address on it. Presumably, books by all other authors in the world are loaned out without any PLR payments made.

    Opt-in is a good idea. As for orphan works, isn’t Amazon quietly facilitating that already on its DTP platform?

  • Rowena Cherry

    Scott,
    I notice that the NYT Editorial writer suggests “Congress, meanwhile, can resolve the problem of orphan books. In 2008, it almost passed a bill that would allow anybody to digitize orphan works without fear of being sued for copyright infringement as long as they proved that they had tried to find the rights’ holder. This would give all comers similar legal protection to that which Google got in its agreement.”

    How would we feel if Baidu in China –or any other search engine– did as Google and the Libraries did, and the works of any American author who did not follow the news in Chinese were to be legally considered an orphan?

    If I received an email in Chinese from a scrupulous Chinese digital publisher, would I read and respond to it? Or, realistically, would it go in my Spam?

    Would it be reasonable to expect every working author to cut and paste every foreign language “spam” filter message to an online Translate site?

    I cannot recall if the Google Settlement assumed that all foreign-authored works were “orphan”, but digital works can be published worldwide, yet national lawmakers only protect their own author citizens. (Or don’t!)

    For example, the British Public Lending Right only pays a small royalty on British Library loans to resident British authors, who can produce a street address and a recent utility bill with their own name and address on it. Presumably, books by all other authors in the world are loaned out without any PLR payments made.

    Opt-in is a good idea. As for orphan works, isn’t Amazon quietly facilitating that already on its DTP platform?