On Tuesday, after more than a year of silence, Judge Denny Chin rejected the proposed settlement in the Google book search case. The innovative settlement asked more than Rule 23 could deliver. In his words, the settlement “would simply go too far.” Others have offered a detailed run down on the opinion itself (see Kenneth Crews here and James Grimmelmann here) but I want to turn to the bigger picture and ask: Where does this result leave us?
Of course, for works in the public domain, Google did not need the consent of copyright holders. Instead, Google needed to figure out a means of accessing those works and digitizing them and Google did exactly that often through agreements with university and public libraries. More contracts but with different parties.
But Google could not rely on contract to use the orphan works, that is, the works without readily-identifiable copyright holders. The genius of the settlement—seemingly evil genius as I understand Judge Chin’s opinion—was precisely the way in which it surmounted the consent requirement associated with many uses of a copyrighted work. The opt-out class-action offered the chance to flip the default position so that orphan work holders had to affirmatively opt out of the settlement and, though that, Google offered a path for its use of the orphan works. That was the bridge too far for Rule 23 according to Judge Chin. Say what you will about the opinion, I think that everyone knew going in that the settlement was a boundary-defining case and it is hardly surprising that effort has been found too aggressive.
Absent a reversal of the opinion by the Second Circuit, we will now need legislation to enable broad use of the orphan works. My original criticism of the settlement was the fact that it conferred an exclusive license to the orphan works to Google. Only the government can create a license for those works and I am hard-pressed as a matter of first principles to understand why that license should be limited. That means that it should not run in favor of one party nor should it be limited, as suggested by Robert Darnton in today’s New York Times, to entities that wish to make noncommercial uses of those works. New orphan-works legislation should enable broad competing uses of the orphan works, by both commercial entities and non-profits.
Google will now presumably re-examine its options under copyright’s fair use doctrine. Were I Google, I want to distinguish the use of works to improve its search engine from the presentation of chunks of the work to the public, so-called snippet use. The search-engine use—in the language of the case, non-consumptive research use—may very well stand on a different footing than snippet use and we should not just assume that the fair use analysis will apply equally to all possible uses of the works in question. Google may be able to get much out of what it wanted from the orphan works pursuant to fair use without ever displaying those works to the public. For the rest of us, we will need to wait for Congress to move forward on orphan works legislation.