< The Issue of Orphan Works

Transcript

Friday, September 16, 2011

BOB GARFIELD:

This is On the Media. I'm Bob Garfield. Under copyright law, for obvious reasons, it can be illegal to mess photocopy pages from a library book. So when in 2004 the Google Books Project began scanning thousands of books in university libraries to create a digital archive and greater access for scholars, it's no surprise that someone objected.

A group called the Authors Guild, on behalf of its several thousand members, sued Google for copyright infringement. Eventually, the parties settled, creating what was in effect an online store for scholarly works, with the proceeds split between Google and the authors.

But that settlement was thrown out by the court, which said the Authors Guild did not have the standing to represent the whole universe of authordom.

That's when five universities themselves stepped in and decided to separate out the so-called orphaned works from the Google Archive and make digital copies of them available within their own network, whereupon the Authors Guild and its lawyers charged right back into the fray, alleging, quote, “One of the largest copyright infringements in history.”

James Grimmelmann has written about this lawsuit. James, welcome back to On the Media.

JAMES GRIMMELMANN:

It’s great to be here.

BOB GARFIELD:

Let's start with so-called “orphan works.” Can you tell me what that means?

JAMES GRIMMELMANN:

An orphan work is a book that is under copyright, but the copyright owner just can't be found to ask permission to do anything with it, which means that it basically just sits there on the shelf. No one can print new copies of it. So yeah, it’s this situation where the author is not making any money, but the public isn’t getting more access to the book.

What the libraries here have been proposed to do is to take some specific books, to do a search for the authors and the copyright owners, and if they can’t turn them up, then just to make that book available within the library’s own system to the people who could have had access to the book by coming down physically to the library; they’ll just get access to digital copy.

So the Authors Guild’s concern here is that maybe some its members will be mistakenly declared to be orphan owners.

BOB GARFIELD:

What exactly has the court said about this legal argument forwarded by the Authors Guild?

JAMES GRIMMELMANN:

Orphan works are really terra incognita for the legal system. We've known that there’s a problem about this for awhile. The Copyright Office and Congress have been thinking it. But no one really knows why the exact law governing them is going to be.

So, in some ways, this current lawsuit is really the first serious chance the legal system will have to weigh in.

BOB GARFIELD:

Let's just say that an author who had been out of pocket for whatever reason re-emerges to reassert a claim on his own work, or hers, isn’t that easily taken care of by removing the digital copy from the cache and resuming. life as usual?

JAMES GRIMMELMANN:

And that's exactly what the libraries are planning to do. They have a list of the books that they think might be orphans, and if a copyright owner emerges and says, “That's my book,” it gets taken out of the digital cache that's made available to borrowers and people using the library.

They keep it in storage for preservation purposes so that if the physical copy gets damaged they can replace it. And eventually, when the copyright expires, they’ll be able to use the digital copy to seed the public domain.

BOB GARFIELD:

Google had forged a settlement and then the court threw it out. So who won this dispute? Where does it sit at this moment?

JAMES GRIMMELMANN:

The court held that the Authors Guild, a membership organization of a few thousand authors, didn't have the standing to negotiate this comprehensive settlement on behalf of the millions of different copyright owners whose books Google had scanned.

BOB GARFIELD:

So if the Authors Guild does not have the standing in court to represent all of these authors living or maybe dead, who potentially could be harmed, does anybody?

JAMES GRIMMELMANN:

That's a really good question. This may be the kind of large-scale copyright dispute that’s simply beyond the capacity of the legal system or the courts to handle effectively.

People have been saying for a while that we need Congress to step in and really clarify the rules for what digital books are going to be. And so far, Congress has been backing away from this one as fast as it can.

BOB GARFIELD:

It sounds so theoretical, a whole lot of litigation over no specific harm, except that the public will be deprived of the works themselves.

JAMES GRIMMELMANN:

I mean, everybody's looking for a way forward that makes books available to the public, while compensating authors and publishers on fair terms. And maybe this is the right way and maybe this isn't, but you can see how everybody’s trying to feel their way toward some kind of deal that's good for everyone.

The Google books case was a stab at that kind of a deal. It turned out to be not a very good way of doing it, and this is not something that’s appropriate for a court to order. But Congress really does need to come in and find fair compromises here.

BOB GARFIELD:

Well, I have no doubts that they’ll take care of that promptly and with no political rancor.

JAMES GRIMMELMANN:

Books - who can be against books? Oh, wait…

BOB GARFIELD:

[LAUGHS] James, once again, many thanks for joining us.

JAMES GRIMMELMANN:

My pleasure. Thank you.

BOB GARFIELD:

James Grimmelmann is an associate professor at New York Law School and he blogs at Laboratorium.net.

BOB GARFIELD:

Shortly after we spoke to him, the plot of this story thickened. The Authors Guild posted articles seriously undermining the university's claim of due diligence in trying to locate the authors of the supposed orphaned works.

With what is described as a few phone calls and, quote, "about two minutes of googling" the Authors Guild located four authors whose works had been declared orphaned, among them, "The Communist World and Ours" by none other than writer, reporter and journalism luminary Walter Lippmann.

Of this revelation, Grimmelmann on his blog wrote, "No one will ever be able to make the orphan works argument again without opponents bringing up the orphans that weren't."