Google Inc. revised its controversial books settlement late Friday night and revived the debate over who should decide the fate of orphan works: Google or the government.
Changes to the settlement were aimed at addressing concerns that Google had grabbed unfair control of orphan works -- books whose rights holders can't be found -- by including them in a class action settlement with authors and publishers over its book scanning project. But critics say that Google is still playing God -- a task better left to Congress.
"Nobody should get a license to orphans without congressional action," said Pamela Samuelson, a professor at UC-Berkeley School of Law. "This is a legislative matter -- you shouldn't use a class action for that."
Academics, Google competitors and the Department of Justice's Antitrust Division opposed the first settlement because they said it gave the search engine an unfair advantage: Google would essentially have exclusive rights to the digital distribution of orphan works. If a competitor wished to do the same, it would risk lawsuits.
The revised settlement attempts to assuage some of those concerns. It creates an "independent fiduciary" that would oversee the unclaimed works. That fiduciary would be allowed to license the books to third parties, such as Google competitors, "to the extent permitted by law." The problem, say critics like Sherwin Siy of Public Knowledge, a nonprofit that advocates for digital rights, is that right now it doesn't seem like such a license would be permitted under the law.
"It is still questionable under the terms of the settlement and under existing law whether that fiduciary would be able to license works to third parties," said Siy, deputy legal director at Public Knowledge. "That still leaves Google with the sole ability to digitize and make available orphan works."
Siy suggested that "a legislative solution would allow anyone the access of orphan works," without making one company the gatekeeper.
On a late Friday conference call, representatives of Google and the authors and publishers groups offered differing answers about the role of the government.
Paul Aiken, executive director of The Authors Guild, one of the parties to the settlement, said that a class action and not Congress was the best way to clear up the problem.
"You can't solve this problem without something like a class action," Aiken said. "We weren't going to sit around and wait for a legislative solution."
Following Aiken's declaration, Dan Clancy, Google Books engineering director, tried to clarify, saying: "For orphan works, we don't think legislation will take decades." Clancy said that the new settlement will work well with whatever legislative fix may come, since Google hopes to compile a database of unclaimed works.
Richard Sarnoff, chairman of the Association of American Publishers, then piped up to say, "We are certainly hoping that this settlement is the key that unlocks a positive outcome on the legislative process."
The revised settlement also shook up the plan to compensate the owners of unclaimed works in case they come forward after the fact. In the previous settlement, the money would have been held in escrow for five years and then distributed to other authors and publishers. Now, it will be held onto for 10 years before being donated for charity.
The settlement also eliminated most foreign-language books after countries like Germany and France complained that it doesn't comply with their copyright laws.
Google is being represented by Durie Tangri and Wilson Sonsini Goodrich & Rosati. The case is proceeding in New York before Judge Denny Chin.
