The Copyright Funkiness of the Google Book Settlement

Well, Google's Book Settlement website is up and running, the Fairness Hearing is scheduled for February 18, 2010, before the Court in the Southern District of New York and the reaction and speculation is really all over the board. I mean, if this settlement is only for the millions of out-of-print books that are making zero dollars for their authors and publishers, what's the big deal?

Despite the amended settlement agreement, the U.S. Dept. of Justice ("DoJ") still has concerns about what, in its view could be a far-reaching settlement. The DoJ's concerns boil down to three primary areas of interest: Copyright, Anti-trust and Class Action issues.  My primary focus is going to be the Copyright issue since I don't really follow Anti-Trust of Class Action and there are plenty of other more competent people out there to tell you about those things.  So here goes...

According to the DoJ's Statement of Interest, "[u]nder existing law, copyrighted works typically cannot be exploited in all the ways the [Amended Settlement Agreement] contemplates without the prior permission of the rightsholders." The problem that the settlement agreement brings to light something like the Y2K of publishing agreements: Many to most of the out-of-print books were written and published before the digital age and / or the contract just doesn't address who owns the digital rights to such a book. The Amended Settlement Agreement attempts to get around this thorny little issue by creating an "opt-out" mechanism whereby rightsholders could prevent their copyrighted material from appearing. 

This presents a couple of interesting things to think about. First, this would seem to give Google a license to books without permission from the rightsholder and shifting the burden to the rightsholder to say no way Jose! Not too many copyright holders are going to be in love with that idea. Second, from an academic standpoint, if no rightsholder can be found for a given book, isn't it better to throw it into the database rather than let it sit on obscure bookshelves of a handful of libraries?