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RyanSongFirstPaper 8 - 13 Apr 2010 - Main.EbenMoglen
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< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | Google book settlement: the future for orphan works? | | | The main issue of the orphan work problem is the impossibility of bringing the user and the copyright holder together to bargain in an efficient way. Digitally archiving orphan works is great for preserving creative materials, and the liability rule is also the right approach when the transaction cost of bargaining is too high. However, the Settlement has abandoned the spirit of the liability rule and gives Google unbounded power to monopolize the orphan work online market. Therefore the court should order the Settlement to be amended. Google’s objective is to profit from digitally archiving all books, including orphan works and all other copyrighted materials. The court can use the other copyrighted materials as leverage and request Google to dedicate all its profits from orphan works to the purpose of locating copyright holders and compensating them for their works. This way, we can resolve the orphan work problem and everyone will benefit. | |
>
> | This is a pretty
competent recitation of the meaningless dispute so far conducted,
which explains to a naive reader pretty much everything except why
none of it matters.
In the first place, Google isn't going to make any money giving
access to these books: they have a marginal cost of zero, being
bitstreams, and in a competitive market, as you may have heard, price
equals marginal cost. Contrary to supposition, the market will be
fully competitive, because scanning books and releasing the
bitstreams on the net is nearly costless now, owing to the book
ripper, which can be built at present for less than $200, and the
cheap sheet-fed tabletop scanners, which cost little more.
Within a few years, every book that exists anywhere will be scanned
by anyone who comes across it, and all texts will circulate in the
web the way all music does now. In that competitive market, making
readers pay stupidity taxes to get what they could get for free will
no longer be possible, and no one will be transacting for electronic
texts at non-zero prices. This settlement, which is three-quarters
bullshit and one quarter final period of play pathologies, will then
be remembered as the irrelevancy it is. | | | | |
>
> | The route to revision is to think out of the box. | | | | |
<
< |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line:
# * Set ALLOWTOPICVIEW = TWikiAdminGroup, RyanSong
Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list | >
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RyanSongFirstPaper 7 - 06 Apr 2010 - Main.RyanSong
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | -- By RyanSong - 16 Feb 2010 | |
<
< | The 1976 Copyright Act has lead to a proliferation of copyrighted materials known as the orphan works. As the current copyright law is inadequate of resolving this growing waste of creative materials, some members of the Congress have proposed to ameliorate this problem through legislative acts. However, the pressures from special interest groups nipped the proposed act in the bud. The Congress’s failure has not discouraged the private sector to take action: the Google Book Settlement (“Settlement”), if approved, will create a new market for orphan works on the internet. The Settlement will provide greater public access to the orphan works, but its anti-competition measures will also lead to a Google monopoly over this new-found on-line market of orphan works. | >
> | The 1976 Copyright Act has contributed to a growing proliferation of abandoned and copyrighted materials, known as orphan works. In 2008, some members of the Congress proposed to resolve this problem through legislative acts. However, their attempt eventually failed due to the uncertainty of potential future litigations. The Congress’s failure has not discouraged the private sector to take action: Google is attempting to expand its dominion of the cyberspace by creating a new on-line market of orphan works. The Google Book Settlement (“Settlement”), if approved, will provide greater public access to the orphan works, but it will also lead to a Google monopoly over this vast and untapped resource. | | | History of The Google Book Settlement | |
<
< | In 2004, Google created the Google Book Library Project, a partnership between Google, several university libraries and numerous publishers to scan book pages and make the scanned image searchable online. In 2005, the Authors Guild and the Association of American Publishers brought copyright infringement lawsuits against Google for digitalizing copyrighted works without permission. Without resolving whether Google’s practice satisfied the fair use doctrine, the parties settled.
In October 2008, the initial draft of the Settlement required Google to pay $125 million in damages. $34.5 million of the damage would fund the Book Rights Registry (“Registry”), a collective copyrights organization that would act as the middleman to collect revenues from Google and distribute them to the copyrights holders. The settlement also included several revenue models: institutional subscription for colleges and universities; the consumer perpetual access to individual books; and various others. The settlement is pending approval by the court. | >
> | In 2004, Google released the Google Book Library Project, a partnership between Google and several university libraries to scan book pages and make the scanned image searchable online. In 2005, the Authors Guild and the Association of American Publishers brought copyright infringement lawsuits against Google for digitalizing copyrighted works without permission. Without resolving whether Google’s practice met the fair use doctrine, the parties settled. | | | | |
>
> | In October 2008, the initial draft of the Settlement required Google to pay $125 million in damages. $34.5 million of the damage would fund the Book Rights Registry (“Registry”), a collective copyrights organization that would act as the middleman to collect revenue from Google and distribute them to copyrights holders. The settlement also included several revenue models: institutional subscription for colleges and universities; the consumer perpetual access to individual books; and various others. The settlement is pending approval by the court. | | |
The Orphan Work Problem | |
<
< | One particular category of books covered under the Settlement, known as orphan works, presents a unique legal challenge. The orphan books are essentially “abandoned book” which are still in-copyright, but it is impossible or too difficult to reach the copyright holders to secure a license. Many of the books are rotting on the shelves of libraries because people do not want to risk potential copyright infringement litigations. The 1976 Copyright Act exacerbated the problem of orphan works because it permitted automatic attachment of copyright without registration and longer duration for the copyrights once attached. | >
> | One particular category of books affected by the Settlement, known as orphan works, presents a unique legal challenge. The orphan works are essentially “abandoned book” which are still in-copyright, but the contact information of the copyright holders are either missing or incorrect. Many of such books are rotting on the shelves of libraries because people do not want to use them and risk potential copyright infringement litigations. The 1976 Copyright Act exacerbated the problem of orphan works because it permitted automatic attachment of copyright without registration and longer duration for the copyrights once attached. | | | Property Rule v. Liability Rule | |
<
< | A workable solution to resolve the orphan work problem should both maximize the usefulness of the orphan works and promote creativity and innovation. The current copyright law adopts a property rule approach: a user must obtain permission first before using the copyrighted material. The purpose of the rule is to protect the copyright holders from potential exploitation. However, when the transaction cost of locating the copyright holders and bargaining for an exchange of the right is prohibitively high, it also prevents the copyright of orphan works from moving to the person that value them the most. Essentially this rule produces zero net benefit to society because neither the copyright holders nor the users are getting what they want. An alternative to the property rule is the “liability rule” which allows people to use the material without fear of infringing anyone’s right; then the court will decide the right amount of compensation. The liability rule reduces the transaction cost of negotiating for a license and it can still protect copyright holders from exploitation. The Settlement follows the liability rule and it stipulates that, for out-of-print books, Google can adopt an “opt-out” approach, which means it can digitalize orphan works with impunity and profit from it unless the copyright holder opts out. The Registry will use some of these profits to actively seek out copyright holders of orphan works and create a database to store their contact information. Google will be the first to partner with the Registry. Any third party who wishes to work with the Registry must obtain the permission from the copyright holders, which is practically impossible for orphan works. | >
> | A workable solution to resolve the orphan work problem should both promote creativity among the authors and maximize the usefulness of the orphan works. For most of the copyrighted materials, the law adopts a property rule approach: a user must obtain permission first before using the copyrighted material. The purpose of the property rule is to protect the copyright holders from exploitation. However, when the transaction cost of locating the copyright holders and bargaining for an exchange of the right is prohibitively high, it also prevents copyrights from moving to the people that value them the most. In the case of orphan works, the property rule produces zero net benefit to society because neither the copyright holders nor the users are getting what they want. An alternative to the property rule is the “liability rule”, which allows people to use the material without securing a license first; then the court will decide a reasonable compensation for the copyright holders. The liability rule can promote creativity by ensuring the copyright holders are reasonably compensated and increase the usefulness of orphan works by reducing the transaction cost of negotiating for a license. The Settlement follows the liability rule and it stipulates that, for out-of-print books, Google can adopt an “opt-out” approach, which means it can profit from digitalizing orphan works with impunity unless the copyright holder opts out. The Registry will use some of these profits to actively seek out copyright holders of orphan works and create a database to store their contact information. Google will be the first company to partner with the Registry. Any third party who wishes to work with the Registry must obtain permission from the copyright holders, which is practically impossible for orphan works. | | |
Google Book Settlement and Orphan Works Monopoly | |
<
< | There is no denying that digitally archiving the orphan works serves the important public interest of preserving creative materials and also eliminating the geographical limitation to access, but the opt-out arrangement and anti-competition exclusionary provision essentially create a Google monopoly in the on-line orphan work market. The liability rule rests on the assumptions that copyright holders will assert their claims and the court will be able to award just compensation. Neither assumption is met here. Orphan work copyright holders are unlikely to know that someone used their work. The revenue model proposed by the Settlement affords Google tremendous leverage in fixing prices for its institutional and private subscriptions because there are no other competitors. If approved, Google and the Registry will successfully usurp the judicial function of determining the appropriate amount of “just compensation.” Liability rule lifts some of the obstacles of negotiating for a copyright license, but it does not eliminate copyright protection all together. | >
> | If the Settlement is approved, there is no denying that it will serve the public interest of preserving creative materials and eliminating the geographical limitation to access, but the opt-out arrangement and anti-competition exclusionary provision of the Settlement will essentially create a Google monopoly. The liability rule rests on the assumptions that copyright holders will likely assert their claims and the court can award just compensation. Neither assumption is true here. Orphan work copyright holders are unlikely to know that someone used their work. The revenue model proposed by the Settlement affords Google tremendous leverage in fixing prices for its institutional and private subscriptions because there are no other competitors. If approved, Google and the Registry will successfully usurp the judicial function of determining the reasonable amount of “just compensation.” The liability rule only lifts some of the obstacles of negotiating for a copyright license. It is not supposed to eliminate copyright protection all together. | | | Conclusion | |
<
< | Orphan works present the unique challenge we face here because it is impractically to ask the user and the copyright holder to bargain in an efficient way. The idea of digital archiving orphan works is a great method to preserve creative materials, and the liability rule is the right approach when the transaction cost of bargaining is too high. However, the Settlement has abandoned the spirit of the liability rule and gives Google unbounded power to monopolize the orphan work online market. Therefore the court should order the Settlement to be amended. If Google wants to profit from digitally archiving books, it must bear the corporate responsibility to surrender all its profits from orphan works to the Registry or another independent agency and this money should be dedicated for the sole purpose of locating copyright holders and compensating them for their work. Google will likely attempt to undermine the effect of such amendment with techniques such as modifying the definition of orphan work, reducing the overall amount of orphan works it archives, and etc. The court must ensure the amended Settlement will provide clear guidelines to prevent such evasive strategies. | >
> | The main issue of the orphan work problem is the impossibility of bringing the user and the copyright holder together to bargain in an efficient way. Digitally archiving orphan works is great for preserving creative materials, and the liability rule is also the right approach when the transaction cost of bargaining is too high. However, the Settlement has abandoned the spirit of the liability rule and gives Google unbounded power to monopolize the orphan work online market. Therefore the court should order the Settlement to be amended. Google’s objective is to profit from digitally archiving all books, including orphan works and all other copyrighted materials. The court can use the other copyrighted materials as leverage and request Google to dedicate all its profits from orphan works to the purpose of locating copyright holders and compensating them for their works. This way, we can resolve the orphan work problem and everyone will benefit. | | | |
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RyanSongFirstPaper 6 - 01 Apr 2010 - Main.RyanSong
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | | |
<
< | The Orphan Work Problem | >
> | The Orphan Work Problem | | | One particular category of books covered under the Settlement, known as orphan works, presents a unique legal challenge. The orphan books are essentially “abandoned book” which are still in-copyright, but it is impossible or too difficult to reach the copyright holders to secure a license. Many of the books are rotting on the shelves of libraries because people do not want to risk potential copyright infringement litigations. The 1976 Copyright Act exacerbated the problem of orphan works because it permitted automatic attachment of copyright without registration and longer duration for the copyrights once attached.
| |
<
< | A workable solution to resolve the orphan work problem should maximize the usefulness of the orphan works, and at the same time promote creativity and innovation. What reduces efficiency in the case of orphan works is the transaction cost: the total cost of locating the copyright holders and bargaining for an exchange of the right.
The current copyright law adopts a “property rule”. A user must obtain permission first before using the copyrighted material. An alternative to the property rule is the “liability rule” which allows the public to use the material without fear of infringing anyone’s right; then the copyright holders can be compensated later when they assert their rights. The property rule is inferior to the liability rule because it is prohibitively expensive and difficult, if not impossible, to find the copyright holders of orphan works. For the law to incentivize innovation and creativity, we should allow the public to use the orphan works and encourage the copyright holders to show themselves. Once they can obtain some benefits from their works, they will be encouraged to invest more time and efforts in writing. The liability rule also reduces transaction cost in searching the copyright holders because it encourages the copyright holders to show up and claim their rights. The issue with the liability rule is the potential for exploitation and infringement of copyrighted materials.
Potential solutions of resolving the orphan work problem can come from three parties: the court, the congress, or the private sector. Relying on the court to design a solution will be too slow because it can only deal with the issue on a case-by-case basis. The Congress has already failed due to the pressure of lobbyists. The private sector is the only option left. The author associations and the publishing industry are intimately familiar with the problem and they have the financial incentive to utilize orphan works. | >
> | Property Rule v. Liability Rule | | | | |
>
> | A workable solution to resolve the orphan work problem should both maximize the usefulness of the orphan works and promote creativity and innovation. The current copyright law adopts a property rule approach: a user must obtain permission first before using the copyrighted material. The purpose of the rule is to protect the copyright holders from potential exploitation. However, when the transaction cost of locating the copyright holders and bargaining for an exchange of the right is prohibitively high, it also prevents the copyright of orphan works from moving to the person that value them the most. Essentially this rule produces zero net benefit to society because neither the copyright holders nor the users are getting what they want. An alternative to the property rule is the “liability rule” which allows people to use the material without fear of infringing anyone’s right; then the court will decide the right amount of compensation. The liability rule reduces the transaction cost of negotiating for a license and it can still protect copyright holders from exploitation. The Settlement follows the liability rule and it stipulates that, for out-of-print books, Google can adopt an “opt-out” approach, which means it can digitalize orphan works with impunity and profit from it unless the copyright holder opts out. The Registry will use some of these profits to actively seek out copyright holders of orphan works and create a database to store their contact information. Google will be the first to partner with the Registry. Any third party who wishes to work with the Registry must obtain the permission from the copyright holders, which is practically impossible for orphan works. | | |
Google Book Settlement and Orphan Works Monopoly | |
<
< | Google book settlement is a major movement by the private sector to take the issue into its own hands. The Registry will be administered by a representation from both of the publishers and the authors. It will actively seek out copyright holders of orphan works and create a database to store their contact information. Google will be the first one to partner with the Registry. Any third party who wishes to work with the Registry must obtain the permission from the copyright holders. The Settlement stipulates that for out-of-print books, Google can adopt an “opt-out” approach, which means it can digitalize orphan works and profit from it unless the copyright holder opts out. This allows Google to avoid the transaction cost of finding and negotiating with individual copyright holder, and use the orphan works with impunity. Although the Registry can reach agreements with other third parties, but the requirement to obtain permission from the copyright holders, which is virtually impossible for orphan works, is simply a pretext for barring competitors from using any orphan work. The revenue model proposed by the Settlement also gives Google tremendous leverage in fixing prices for its institutional and private subscriptions because there are no other competitors. | >
> | There is no denying that digitally archiving the orphan works serves the important public interest of preserving creative materials and also eliminating the geographical limitation to access, but the opt-out arrangement and anti-competition exclusionary provision essentially create a Google monopoly in the on-line orphan work market. The liability rule rests on the assumptions that copyright holders will assert their claims and the court will be able to award just compensation. Neither assumption is met here. Orphan work copyright holders are unlikely to know that someone used their work. The revenue model proposed by the Settlement affords Google tremendous leverage in fixing prices for its institutional and private subscriptions because there are no other competitors. If approved, Google and the Registry will successfully usurp the judicial function of determining the appropriate amount of “just compensation.” Liability rule lifts some of the obstacles of negotiating for a copyright license, but it does not eliminate copyright protection all together. | | | | |
<
< | It should be up to the private sector to resolve the orphan work problem using the liability rules. However, the Settlement authorizes Google unbounded power to create a monopoly of digitalized orphan works. The court should order the parties to amend the Settlement until we have a more competition friendly solution. | >
> | Conclusion
Orphan works present the unique challenge we face here because it is impractically to ask the user and the copyright holder to bargain in an efficient way. The idea of digital archiving orphan works is a great method to preserve creative materials, and the liability rule is the right approach when the transaction cost of bargaining is too high. However, the Settlement has abandoned the spirit of the liability rule and gives Google unbounded power to monopolize the orphan work online market. Therefore the court should order the Settlement to be amended. If Google wants to profit from digitally archiving books, it must bear the corporate responsibility to surrender all its profits from orphan works to the Registry or another independent agency and this money should be dedicated for the sole purpose of locating copyright holders and compensating them for their work. Google will likely attempt to undermine the effect of such amendment with techniques such as modifying the definition of orphan work, reducing the overall amount of orphan works it archives, and etc. The court must ensure the amended Settlement will provide clear guidelines to prevent such evasive strategies. | | | |
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RyanSongFirstPaper 5 - 28 Mar 2010 - Main.RyanSong
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | History of The Google Book Settlement | |
<
< | In 2004, Google released the Google Book Library Project. Essentially, Google partnered with libraries and publishers to digitalize books and make the scanned images of book pages searchable online. In 2005, the Authors Guild and the Association of American Publishers brought class action copyright infringement lawsuits against Google for digitalizing copyrighted works without permission. Without resolving whether Google’s practice was defendable on the ground of the fair use doctrine, the parties reached a settlement. | >
> | In 2004, Google created the Google Book Library Project, a partnership between Google, several university libraries and numerous publishers to scan book pages and make the scanned image searchable online. In 2005, the Authors Guild and the Association of American Publishers brought copyright infringement lawsuits against Google for digitalizing copyrighted works without permission. Without resolving whether Google’s practice satisfied the fair use doctrine, the parties settled. | | | | |
<
< | In October 2008, the initial draft of the Settlement required Google to pay $125 million in damages. $34.5 million of the damage would go toward the funding of the Book Rights Registry (“Registry”), a collective copyrights organization that would act as the middleman to collect revenues from Google and distribute them to the copyrights holders. The settlement also included several revenue models: institutional subscription for colleges and universities; the consumer perpetual access to individual books; and various others. The settlement is pending approval by the court. | >
> | In October 2008, the initial draft of the Settlement required Google to pay $125 million in damages. $34.5 million of the damage would fund the Book Rights Registry (“Registry”), a collective copyrights organization that would act as the middleman to collect revenues from Google and distribute them to the copyrights holders. The settlement also included several revenue models: institutional subscription for colleges and universities; the consumer perpetual access to individual books; and various others. The settlement is pending approval by the court. | | |
The Orphan Work Problem | |
<
< | Among the books covered by the Settlement, one particular category of books, known as orphan works, presents a unique legal challenge. The orphan books are essentially “abandoned book” which are still in-copyright, but the copyright holder cannot be reached to secure a license. Large volumes of such books are rotting on the shelves of libraries because people do not want to risk potential copyright infringement litigations. The 1976 Copyright Act has exacerbated the problem of orphan works because it permits automatic attachment of copyright without registration and longer duration for the copyrights once attached. | >
> | One particular category of books covered under the Settlement, known as orphan works, presents a unique legal challenge. The orphan books are essentially “abandoned book” which are still in-copyright, but it is impossible or too difficult to reach the copyright holders to secure a license. Many of the books are rotting on the shelves of libraries because people do not want to risk potential copyright infringement litigations. The 1976 Copyright Act exacerbated the problem of orphan works because it permitted automatic attachment of copyright without registration and longer duration for the copyrights once attached. | | | | |
<
< | A workable solution to resolve the orphan work problem should reduce the inefficiency of the public in using the orphan works, and at the same time protect the existing copyright holders from potential exploitation. The two important policies here are the incentives for innovation and the efficiency for maximizing the usefulness of the orphan works. Maximum efficiency of the copyrights is achieved where the copyrights go to the parties who value them the most. What reduces efficiency in the case of orphan works is the transaction cost: the total cost of locating the copyright holders and bargaining for an exchange of the right. | >
> | A workable solution to resolve the orphan work problem should maximize the usefulness of the orphan works, and at the same time promote creativity and innovation. What reduces efficiency in the case of orphan works is the transaction cost: the total cost of locating the copyright holders and bargaining for an exchange of the right. | | | The current copyright law adopts a “property rule”. A user must obtain permission first before using the copyrighted material. An alternative to the property rule is the “liability rule” which allows the public to use the material without fear of infringing anyone’s right; then the copyright holders can be compensated later when they assert their rights. The property rule is inferior to the liability rule because it is prohibitively expensive and difficult, if not impossible, to find the copyright holders of orphan works. For the law to incentivize innovation and creativity, we should allow the public to use the orphan works and encourage the copyright holders to show themselves. Once they can obtain some benefits from their works, they will be encouraged to invest more time and efforts in writing. The liability rule also reduces transaction cost in searching the copyright holders because it encourages the copyright holders to show up and claim their rights. The issue with the liability rule is the potential for exploitation and infringement of copyrighted materials. |
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RyanSongFirstPaper 4 - 26 Feb 2010 - Main.RyanSong
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | -- By RyanSong - 16 Feb 2010 | |
<
< | The 1976 Copyright Act has lead to a proliferation of copyrighted materials known as the orphan works. This generates significant waste of creative materials and traditional copyright law is incapable of resolving this growing issue. Some members of the Congress have proposed to ameliorate this problem through legislative acts. However, the pressures from special interest groups nipped the proposed act in the bud. The Congress’s failure has not discouraged private sections to take action: the Google Book Settlement is the most recent action by private parties to resolve this issue. The proposed settlement improves efficiency and increases incentives for copyright holders. However, it will also create a monopoly by Google to dominate the market of orphan works. The courts should request the parties to amend the settlement to include more limitations on Google’s ability to profit from digitalized orphan works. | >
> | The 1976 Copyright Act has lead to a proliferation of copyrighted materials known as the orphan works. As the current copyright law is inadequate of resolving this growing waste of creative materials, some members of the Congress have proposed to ameliorate this problem through legislative acts. However, the pressures from special interest groups nipped the proposed act in the bud. The Congress’s failure has not discouraged the private sector to take action: the Google Book Settlement (“Settlement”), if approved, will create a new market for orphan works on the internet. The Settlement will provide greater public access to the orphan works, but its anti-competition measures will also lead to a Google monopoly over this new-found on-line market of orphan works. | | | History of The Google Book Settlement | |
<
< | In 2004, Google proposed a new service known as Google Book Library Project. Google digitalized books and made the scanned images of book pages searchable online. In 2005, the Authors Guild and the Association of American Publishers brought class action copyright infringement lawsuits against Google for digitalizing copyrighted works without permission. Google invoked the defense of “fair use” doctrine on the ground that only snippets of text from a book were viewable. Before resolving the issue of fair use doctrine at trial, parties reached a settlement.
In October 2008, the details of the initial draft of the Google Book Settlement (“Settlement”) were released. Google will pay $125 million in damages: $45 million would go to pay rights holders whose copyrights had allegedly been infringed; $45.5 million to the plaintiffs’ legal fees; and $34.5 million toward the funding of the establishment of the Book Rights Registry (“Registry”), a collective copyrights organization that will act as the middleman to collect revenues from Google and distribute them to the copyrights holders (“holders”). The settlement also included several revenue models: institutional subscription database for colleges and universities; the "consumer" model of selling perpetual access to individual books; and various other models. The settlement has not been officially approved by the court yet. | >
> | In 2004, Google released the Google Book Library Project. Essentially, Google partnered with libraries and publishers to digitalize books and make the scanned images of book pages searchable online. In 2005, the Authors Guild and the Association of American Publishers brought class action copyright infringement lawsuits against Google for digitalizing copyrighted works without permission. Without resolving whether Google’s practice was defendable on the ground of the fair use doctrine, the parties reached a settlement.
In October 2008, the initial draft of the Settlement required Google to pay $125 million in damages. $34.5 million of the damage would go toward the funding of the Book Rights Registry (“Registry”), a collective copyrights organization that would act as the middleman to collect revenues from Google and distribute them to the copyrights holders. The settlement also included several revenue models: institutional subscription for colleges and universities; the consumer perpetual access to individual books; and various others. The settlement is pending approval by the court. | | |
The Orphan Work Problem | |
<
< | Among the books covered by the Settlement, one particular category of books, known as orphan works, presents a challenging legal issue. Orphan books are essentially “abandoned book” which are still in-copyright, but the work cannot be licensed because the copyright holder cannot be discovered to secure a license. Large volumes of these orphan works are rotting on the shelves of libraries and in storage rooms because the public are reluctant to use them due to the fear of potential copyright infringement litigations. The 1976 Copyright Act has exacerbated the problem of orphan works because it permits automatic attachment of copyright without registration and longer duration for the copyrights once attached. | >
> | Among the books covered by the Settlement, one particular category of books, known as orphan works, presents a unique legal challenge. The orphan books are essentially “abandoned book” which are still in-copyright, but the copyright holder cannot be reached to secure a license. Large volumes of such books are rotting on the shelves of libraries because people do not want to risk potential copyright infringement litigations. The 1976 Copyright Act has exacerbated the problem of orphan works because it permits automatic attachment of copyright without registration and longer duration for the copyrights once attached.
A workable solution to resolve the orphan work problem should reduce the inefficiency of the public in using the orphan works, and at the same time protect the existing copyright holders from potential exploitation. The two important policies here are the incentives for innovation and the efficiency for maximizing the usefulness of the orphan works. Maximum efficiency of the copyrights is achieved where the copyrights go to the parties who value them the most. What reduces efficiency in the case of orphan works is the transaction cost: the total cost of locating the copyright holders and bargaining for an exchange of the right.
The current copyright law adopts a “property rule”. A user must obtain permission first before using the copyrighted material. An alternative to the property rule is the “liability rule” which allows the public to use the material without fear of infringing anyone’s right; then the copyright holders can be compensated later when they assert their rights. The property rule is inferior to the liability rule because it is prohibitively expensive and difficult, if not impossible, to find the copyright holders of orphan works. For the law to incentivize innovation and creativity, we should allow the public to use the orphan works and encourage the copyright holders to show themselves. Once they can obtain some benefits from their works, they will be encouraged to invest more time and efforts in writing. The liability rule also reduces transaction cost in searching the copyright holders because it encourages the copyright holders to show up and claim their rights. The issue with the liability rule is the potential for exploitation and infringement of copyrighted materials. | | | | |
<
< | A workable solution to resolve the orphan work problem should reduce the inefficiency of the public in using the orphan works, and at the same time protect the existing copyright holders from potential exploitation. [1] The two important policies here are the incentives for innovation and the efficiency for maximizing the usefulness of the orphan works. Property rights can be defined as the relationship between people regarding the right to something. The purpose of the copyright is to allow copyright holders to reap benefits by precluding others from using the copyrighted materials, so the copyright holders will be incentivized to invest more time and efforts to create useful materials. Maximum efficiency of the copyrights is achieved where the copyrights go to the parties who value the copyright the most. The factor that reduces efficiency in the case of orphan works is the transaction cost: the total cost of locating the copyright holders and bargains for an exchange of a right. [1] | >
> | Potential solutions of resolving the orphan work problem can come from three parties: the court, the congress, or the private sector. Relying on the court to design a solution will be too slow because it can only deal with the issue on a case-by-case basis. The Congress has already failed due to the pressure of lobbyists. The private sector is the only option left. The author associations and the publishing industry are intimately familiar with the problem and they have the financial incentive to utilize orphan works. | | | | |
<
< | The current copyright law uses “property rules”. A user must obtain permission first before using the copyrighted material. An alternative to the property rule is the “liability rule” which allows the public to use the material without fear of infringing anyone’s right; then the copyright holders can be compensated later when they assert their rights. Liability rule is more applicable to orphan works because it is prohibitively expensive and difficult, if not impossible, to find the copyright holders of orphan works. If we want the law to incentivize innovation and creativity, so we should allow the public to use the orphan works and encourage the copyright holders to show themselves. Once they can obtain some benefits from their work, they will be encouraged to invest time and efforts in writing. The liability rule also reduces transaction cost in searching the copyright holders because it encourages the copyright holders to show up and claim their rights. Exploitation can be avoided by creating a information agency that can provide notice to copyright holders any use of their work. | | | | |
<
< | Potential solutions of the orphan work using the liability rule can come from three sources: the court, the congress, and the private sector. Relying on the court to design a solution will be too slow because it can only deal with the issue on a case by case basis. The Congress has already failed due to the pressure of interest groups and lobbyists. The private sector is the only option left. The publishing industry is intimately familiar with the problem and it has the financial incentive to utilize orphan works. | | | | |
>
> | Google Book Settlement and Orphan Works Monopoly | | | | |
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< | Google Book Settlement and The Orphan Work | >
> | Google book settlement is a major movement by the private sector to take the issue into its own hands. The Registry will be administered by a representation from both of the publishers and the authors. It will actively seek out copyright holders of orphan works and create a database to store their contact information. Google will be the first one to partner with the Registry. Any third party who wishes to work with the Registry must obtain the permission from the copyright holders. The Settlement stipulates that for out-of-print books, Google can adopt an “opt-out” approach, which means it can digitalize orphan works and profit from it unless the copyright holder opts out. This allows Google to avoid the transaction cost of finding and negotiating with individual copyright holder, and use the orphan works with impunity. Although the Registry can reach agreements with other third parties, but the requirement to obtain permission from the copyright holders, which is virtually impossible for orphan works, is simply a pretext for barring competitors from using any orphan work. The revenue model proposed by the Settlement also gives Google tremendous leverage in fixing prices for its institutional and private subscriptions because there are no other competitors. | | | | |
<
< | Google book settlement is a major movement by the private sector to take the issue into its own hands. The Registry will be administered by a representation from publishers and authors. It will actively seek out copyright holders of out-of-print books and create a database to store the contact information of such copyright holders. Google will be the first company to partner with the Registry. Any other third parties who wish to take advantage of the Registry must obtain the permission from the copyright holders. The settlements stipulates that for out of print books, Google can adopt an “opt-out” approach; Google can digitalize orphan works, display a snippet of it to the readers, and provide full view to institutional and private subscribers. The settlement allows Google to avoid the transaction cost of finding and negotiating with each individual copyright holder, and essentially create a monopoly of digitalized orphan works. Although the Registry is allowed to sign with third parties, but the requirement of obtaining permission from the copyright holder is simply a pretext for barring competitors from using any orphan works. These books are called orphan works precisely because their copyright holders cannot be contacted. The revenue model proposed by the settlement also gives the Google tremendous leverage in fixing prices for its institutional and private subscriptions. | >
> | It should be up to the private sector to resolve the orphan work problem using the liability rules. However, the Settlement authorizes Google unbounded power to create a monopoly of digitalized orphan works. The court should order the parties to amend the Settlement until we have a more competition friendly solution. | | | | |
<
< | The Google Book Settlement is on the right track to resolve the orphan work problem using liability rules. However, it affords Google unbounded power to create a monopoly of digitalized orphan works. The court should order the parties to continuously amend the Settlement until we have a more competition friendly solution. | | | | |
<
< | Reference
[1] 19 S. Cal. Interdis. L.J. 97 | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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RyanSongFirstPaper 3 - 26 Feb 2010 - Main.RyanSong
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RyanSongFirstPaper 2 - 25 Feb 2010 - Main.RyanSong
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< | | | | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | |
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< | Paper Title | >
> | Google book settlement: the future for orphan works? | | | -- By RyanSong - 16 Feb 2010 | |
>
> | The 1976 Copyright Act has lead to a proliferation of copyrighted materials known as the orphan works. This generates significant waste of creative materials and traditional copyright law is incapable of resolving this growing issue. Some members of the Congress have proposed to ameliorate this problem through legislative acts. However, the pressures from special interest groups nipped the proposed act in the bud. The Congress’s failure has not discouraged private sections to take action: the Google Book Settlement is the most recent action by private parties to resolve this issue. The proposed settlement improves efficiency and increases incentives for copyright holders. However, it will also create a monopoly by Google to dominate the market of orphan works. The courts should request the parties to amend the settlement to include more limitations on Google’s ability to profit from digitalized orphan works. | | | | |
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< | Section I
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> | History of The Google Book Settlement | | | | |
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> | In 2004, Google proposed a new service known as Google Book Library Project. Google digitalized books and made the scanned images of book pages searchable online. In 2005, the Authors Guild and the Association of American Publishers brought class action copyright infringement lawsuits against Google for digitalizing copyrighted works without permission. Google invoked the defense of “fair use” doctrine on the ground that only snippets of text from a book were viewable. Before resolving the issue of fair use doctrine at trial, parties reached a settlement.
In October 2008, the details of the initial draft of the Google Book Settlement (“Settlement”) were released. Google will pay $125 million in damages: $45 million would go to pay rights holders whose copyrights had allegedly been infringed; $45.5 million to the plaintiffs’ legal fees; and $34.5 million toward the funding of the establishment of the Book Rights Registry (“Registry”), a collective copyrights organization that will act as the middleman to collect revenues from Google and distribute them to the copyrights holders (“holders”). The settlement also included several revenue models: institutional subscription database for colleges and universities; the "consumer" model of selling perpetual access to individual books; and various other models. The settlement has not been officially approved by the court yet. | | | | |
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< | Subsub 2 | >
> | The Orphan Work Problem | | | | |
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> | Among the books covered by the Settlement, one particular category of books, known as orphan works, presents a challenging legal issue. Orphan books are essentially “abandoned book” which are still in-copyright, but the work cannot be licensed because the copyright holder cannot be discovered to secure a license. Large volumes of these orphan works are rotting on the shelves of libraries and in storage rooms because the public are reluctant to use them due to the fear of potential copyright infringement litigations. The 1976 Copyright Act has exacerbated the problem of orphan works because it permits automatic attachment of copyright without registration and longer duration for the copyrights once attached.
A workable solution to resolve the orphan work problem should reduce the inefficiency of the public in using the orphan works, and at the same time protect the existing copyright holders from potential exploitation. [1] The two important policies here are the incentives for innovation and the efficiency for maximizing the usefulness of the orphan works. Property rights can be defined as the relationship between people regarding the right to something. The purpose of the copyright is to allow copyright holders to reap benefits by precluding others from using the copyrighted materials, so the copyright holders will be incentivized to invest more time and efforts to create useful materials. Maximum efficiency of the copyrights is achieved where the copyrights go to the parties who value the copyright the most. The factor that reduces efficiency in the case of orphan works is the transaction cost: the total cost of locating the copyright holders and bargains for an exchange of a right. [1]
The current copyright law uses “property rules”. A user must obtain permission first before using the copyrighted material. An alternative to the property rule is the “liability rule” which allows the public to use the material without fear of infringing anyone’s right; then the copyright holders can be compensated later when they assert their rights. Liability rule is more applicable to orphan works because it is prohibitively expensive and difficult, if not impossible, to find the copyright holders of orphan works. If we want the law to incentivize innovation and creativity, so we should allow the public to use the orphan works and encourage the copyright holders to show themselves. Once they can obtain some benefits from their work, they will be encouraged to invest time and efforts in writing. The liability rule also reduces transaction cost in searching the copyright holders because it encourages the copyright holders to show up and claim their rights. Exploitation can be avoided by creating a information agency that can provide notice to copyright holders any use of their work.
Potential solutions of the orphan work using the liability rule can come from three sources: the court, the congress, and the private sector. Relying on the court to design a solution will be too slow because it can only deal with the issue on a case by case basis. The Congress has already failed due to the pressure of interest groups and lobbyists. The private sector is the only option left. The publishing industry is intimately familiar with the problem and it has the financial incentive to utilize orphan works. | | | | |
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< | Section II | >
> | Google Book Settlement and The Orphan Work | | | | |
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< | Subsection A | >
> | Google book settlement is a major movement by the private sector to take the issue into its own hands. The Registry will be administered by a representation from publishers and authors. It will actively seek out copyright holders of out-of-print books and create a database to store the contact information of such copyright holders. Google will be the first company to partner with the Registry. Any other third parties who wish to take advantage of the Registry must obtain the permission from the copyright holders. The settlements stipulates that for out of print books, Google can adopt an “opt-out” approach; Google can digitalize orphan works, display a snippet of it to the readers, and provide full view to institutional and private subscribers. The settlement allows Google to avoid the transaction cost of finding and negotiating with each individual copyright holder, and essentially create a monopoly of digitalized orphan works. Although the Registry is allowed to sign with third parties, but the requirement of obtaining permission from the copyright holder is simply a pretext for barring competitors from using any orphan works. These books are called orphan works precisely because their copyright holders cannot be contacted. The revenue model proposed by the settlement also gives the Google tremendous leverage in fixing prices for its institutional and private subscriptions. | | | | |
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< | Subsection B | >
> | The Google Book Settlement is on the right track to resolve the orphan work problem using liability rules. However, it affords Google unbounded power to create a monopoly of digitalized orphan works. The court should order the parties to continuously amend the Settlement until we have a more competition friendly solution. | | | | |
>
> | Reference
[1] 19 S. Cal. Interdis. L.J. 97 | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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RyanSongFirstPaper 1 - 16 Feb 2010 - Main.RyanSong
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Paper Title
-- By RyanSong - 16 Feb 2010
Section I
Subsection A
Subsub 1
Subsection B
Subsub 1
Subsub 2
Section II
Subsection A
Subsection B
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
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| Revision 9 | r9 - 13 Jan 2012 - 23:14:26 - IanSullivan |
| Revision 8 | r8 - 13 Apr 2010 - 01:07:01 - EbenMoglen |
| Revision 7 | r7 - 06 Apr 2010 - 02:37:15 - RyanSong |
| Revision 6 | r6 - 01 Apr 2010 - 04:27:00 - RyanSong |
| Revision 5 | r5 - 28 Mar 2010 - 03:57:45 - RyanSong |
| Revision 4 | r4 - 26 Feb 2010 - 21:58:35 - RyanSong |
| Revision 3 | r3 - 26 Feb 2010 - 05:28:46 - RyanSong |
| Revision 2 | r2 - 25 Feb 2010 - 05:23:22 - RyanSong |
| Revision 1 | r1 - 16 Feb 2010 - 18:53:05 - RyanSong |
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