Prof. Peter S. Menell, University of California at Berkeley School of Law
Director, Berkeley Center for Law & Technology
April 7, 2011

Two weeks ago, Judge Denny Chin rejected the proposed settlement of the Google Books litigation.  While acknowledging many benefits of the proposal in terms of preserving books, making books more accessible, and enhancing income streams for authors and publishers, Judge Chin ultimately concluded that the class action mechanism was inappropriate to address the orphan works problem.  Furthermore, he was troubled by the effects of the proposed settlement on competition and privacy.  Judge Chin sent the parties back to the negotiating table while acknowledging that key elements of the settlement were more suited for legislative action than judicial resolution.

This debacle brings to mind the opening montage from the “Six Million Dollar Man” television series: “We have the technology….  We can make [it] better, stronger, faster.”  A decade ago, few believed that it would be feasible to digitize the vast body of written knowledge in our lifetimes.  But Google has shown that neither technology nor cost stand in the way.  We unquestionably “have the technology” to preserve all books and make them accessible, but we lack (thus far) the political will.

The Google Books settlement was a “compromise” in many senses of the word.  Google gave up the opportunity to test its fair use defense in exchange for a dubiously far-reaching agreement.  Publishers and authors obtained new sources of digital marketing and revenue while ceding to Google substantial control of a critical digital marketplace.  The settlement afforded the public substantially greater access to written knowledge, while the opt-out provision deprived the public of a truly universal archive.  Had the settlement been approved, society would have ceded legislative power to powerful private actors without even the pretense of democratic deliberation.

As I explained in an article before the Google Books settlement was proposed, the public need not compromise at all.  See Peter S. Menell, “Knowledge Access and Preservation Policy in the Digital Age,” 44 Hous. L. Rev. 1013 (2007) available at   Congress can and should foster the economic, social, and cultural benefits that would flow from establishing a comprehensive publicly searchable database of literary and artistic works.  Private parties constrained by obsolete copyright-law provisions cannot achieve the full potential.  Furthermore, important aspects of an optimal system require public involvement.

Congress can effectuate the overarching purposes of “promoting progress” and preserving human knowledge without sacrificing the beneficial economic incentives afforded by copyright law.  A carefully crafted safe harbor with safeguards to prevent piracy of in-copyright works would fuel markets for copyrighted works (and search within those works) while making accessible the vast stock of knowledge to scholars and authors.  It would also preserve the largest possible written record for future generations.

A key issue in bringing about knowledge access, cultural preservation, and stronger creative incentives is process.  Congress and the Administration should immediately appoint a panel that is broadly representative of the interested parties and the public at large to study and recommend the contours of digital archiving, search technology, and other urgent issues in the digital age.  Congress successfully used such an approach four decades ago to evaluate the first wave of computer technology.  The Commission on New Technological Uses of Copyrighted Works (CONTU) provided the president and Congress with recommendations concerning those changes in copyright law “to assure public access to copyrighted works used in conjunction with computer and machine duplication systems and to respect the rights of owners of copyrights in such works, while considering the concerns of the general public and the consumer.”

An analogous commission is needed to confront and prepare recommendations for digital
preservation of and online access to published works – as well as other important challenges posed by the latest wave of digital technology.  Advances in digital technology have far outstripped the copyright law’s provisions and institutions.  The copyright registration system is moribund and inefficient.  Copyright enforcement is ineffective while threatening grossly disproportionate penalties.  Even elements of the Digital Millennium Copyright Act are obsolete.

We have the technology to accomplish digital preservation, search, and access to knowledge without jeopardizing protection for copyrighted works.  The time is ripe to revise and reinvigorate copyright law to better promote progress in the digital age.  The marketplace needs an updated copyright system to unleash the full potential of the digital age for creators and consumers.