Prof. Randal C. Picker, The University of Chicago Law School
June 20, 2011

This past Wednesday, I attended a terrific conference at George Washington University Law School on “Can the Google Book Settlement be Fixed?”  After more than a year of silence, on March 22, 2011, Judge Denny Chin rejected the proposed settlement in the Google book search case.  In the court’s view, the innovative settlement asked more than U.S. class-action rules could deliver and would, in Judge Chin’s words, “simply go too far.”  With the proposed settlement rejected, the conference considered the question of what happens next.  We still have a pending copyright class action and we have the much broader question of how we should move forward on our digital library future.

As I have argued in greater detail in a recent paper , the rejection of the settlement means that we are at a point of rebooting how we design our digital library future.  There were many criticisms of GBS and the settlement, but perhaps chief among those was the risk that approval of the settlement would have locked in a single approach to digital libraries.  Google would have received unique access to the so-called orphan works and that would have provided it what may have been a decisive advantage against digital library competitors, both private and public.  As we move forward on the orphan works, we need to do so with two principles in mind.  First, we need to enable broad competing uses of the orphan works while, to the greatest extent possible, respecting the rights of the orphan works holders.  Second, we should not repeat the mistake of the GBS settlement by somehow tilting the table in favor of digital library monopoly, either public or private.

We should want to foster a rich digital library ecosystem.  GBS makes clear that we can have large-scale private digital libraries.  That is an important development and one that we should seek to enable.  If we create use rights for copyrighted works for digital libraries, we should be sure to make those privileges available to both public digital libraries and private digital libraries such as GBS and its successors.  Our existing statutory safe harbors for libraries favor noncommercial libraries and archives.  The emergence of GBS suggests that that is too narrow a conception of what libraries can be in the digital age and we need a statutory scheme that supports that.

We will face tradeoffs regarding private and public online libraries.  Private libraries are just that and are likely to limit access to those willing and able to pay, though even the GBS settlement contemplated some free public access to the books database.  Public libraries are likely to facilitate broad access, an important democratic value.  The problem with a new online public library isn’t with its users but is instead possible problems in the acquisition of new works.  Copyright holders will be nervous that ease of use of a digital public library will mean that consumers will substitute out of buying books.  Public library e-books are at an early stage, but as numbers have started to grow, publishers are adjusting how they approach e-book sales to libraries.

To the extent that we create other statutory helps for digital libraries, we need to ensure that we enable private efforts as well.  The current copyright statute draws sharp lines here – mainly in Section 108 – in carving out special exemptions for noncommercial libraries and archives.  The noncommercial limit undoubtedly taps into a sense that we shouldn’t do special favors for those seeking to profit from copyrighted works, but we need to step carefully here.  I confess to skepticism about creating special copyright exemptions to subsidize noncommercial libraries.  If we believe in the subsidy, distribute the burden of it generally and don’t just target copyright holders.  It would be easier to run public libraries if they received free paper and pens but we don’t require Office Depot to ship stuff to the libraries for free.  But even if you buy the notion of a special in-kind copyright subsidy for public libraries, that isn’t to say that we shouldn’t also create safe harbors for private, for-profit libraries.

This could be a fascinating time in libraries.  The switch from physical libraries to digital libraries means that we are at an interesting stage of institutional design.  GBS is likely to move forward in one form or another.  The most limited version would include the entire public domain plus whatever works Google can negotiate access to through contract.  Orphan works legislation could greatly add to what Google and other libraries, public and private, could offer.  We are likely to see public and nonprofit efforts, both here and abroad.  Orphan works legislation should respect the rights of copyright holders to the greatest extent possible while enabling use of those works.

The great problem with the amended settlement agreement negotiated between Google and the Authors Guild was precisely in the way that it seemed to tilt the tables powerfully in favor of one, and only one, model of the new digital library.  We should want this ecosystem to be rich and teeming.  Both public and private efforts are likely to have distinct advantages and disadvantages and we should be sure that the government doesn’t resolve the institutional design question through casual fiat.  Approving the settlement might have done just that, but we have now sidestepped that.  Orphan works legislation that somehow only allowed noncommercial libraries to use those works would be committing the same mistake, just in a different form.  More broadly, legislation enabling new digital libraries should foster digital libraries generally and should operate from a posture of neutrality as to whether those libraries are public or private or non-profit or for-profit.