June 24, 2009.
Dear Fellow Authors,
I'd like to talk to you about orphans. Recently, regarding our settlement with Google, some dissent has been voiced that centers on so-called "orphan books." I am all for dissent. I would generally rather be a dissenter, myself, than not. It was the Guild's dissent from Google's scanning of copyrighted books that led to this settlement. I can't see any reason to dissent from the settlement over the matter of orphan books.
Orphan books are out-of-print books for which you can't find the rightsholders, so you can't get permission to use the books. The settlement will allow Google to make these works available to readers without tracking down the books' rightsholders. Since no one else will have this option, dissenters' concern is that Google will have a monopoly on these books.
Some dissenters are so alarmed at this prospect that they'd rather have the settlement fail. In that case, these "orphan books" would remain in limbo for everyone. And so would all the other out-of-print books that the settlement would make available, and marketable, online.
Let's examine the dissenters' concern. This alleged monopoly will be of a special kind of book. The book will be out of print, that is, it will already have been deemed unfit for continued commerce by traditional print publishers. No one currently has a monopoly on the book, because there is no market for the book: no one can get it, except at the library or in a used book store. So Google is essentially being accused of cornering the market on the unmarketable. And these orphans are only a subset of that market. Dissenters concede that Google wouldn't get a monopoly on all currently unmarketable books, because the settlement's arrangements are non-exclusive: rightsholders are free to provide access to anyone they want, including Google's competitors.
The settlement creates an enormous market. Google will be the sole purveyor authorized by the settlement for only a portion of that market: for those out-of-print books whose rightsholders can't be found.
When, you may ask, is a book consigned to the orphanage? Some people have the impression that most out-of-print books are orphans. That's not true. Most authors I know have written some books that are out of print. Me too. We are all findable. So are most of the authors I don't know. Many of us have produced books that included excerpts from other copyrighted work. The Guild did a survey a few years ago on how difficult it is for authors to clear rights to these excerpts. Of the authors that had tried, 85% reported that they had been "rarely" or "never" unable to reach the rightsholder to ask permission. I sit on the board of the Authors Registry, a non-profit organization that helps pay authors for photocopy and other uses of their books from overseas. Its success rate at finding authors of out-of-print books is upwards of 80%. If you look for authors, the odds of finding them go way up.
Another thing about this ostensible monopoly of the orphans: it will diminish every year. The new Book Rights Registry is obliged to locate authors. As the Registry starts sending out checks, books will exit the orphanage in a rush. Nothing gets an author's attention like a royalty check. It's not an orphan books problem that this settlement presents, it's an orphan books solution.
But orphan books are only a small part of the settlement. To prevent a monopoly of the orphans, the dissenters would undo a wide range of benefits to authors, publishers, and readers. We've put together a brief statement of the benefits of the Google book settlement. You might want to print it out and tape it to your monitor. It follows. Click here.
Roy Blount Jr.
President, Authors Guild