A2K and orphaned work: the rise of the Open Access Trust Inc

On April, 13 a group of professors lead by Charles Nesson, Lewis Hyde and Harry Lewis requested a pre-motion conference to Judge Denny Chin seeking to file a motion to intervene in the case Authors Guild v. Google.

These scholars represent the community of  readers, scholars, and teachers who use orphaned works.  Orphaned works are works under  copyright, but with a copyright holder who has died, cannot be found, or otherwise has  abandoned his work.  In the status quo, users like us and commercial users like Google can and  do use orphaned works, although we do so against a backdrop of potential legal liability should  the owner of an orphaned work later emerge.

The petitioners affirm that:

“The parties in this case propose to change this status quo by clarifying that the use of orphaned works is, indeed, actionable copyright infringement; vesting in Google a monopoly in the lawful use of orphaned works; and dividing between themselves the proceeds of this monopoly.  The Authors and Publishers, with Google’s consent, purport to represent a class of copyright holders that includes the owners of orphaned works, even though neither the Authors
nor the Publishers are such owners.  Having turned the Authors and Publishers into legal representatives of the owners of orphaned works, Google will buy from these representatives a global license.

The proposed settlement will make Google the only company in the world with a license to use orphaned works.  No other company will be able to buy a similar license because, outside the context of the proposed class-action settlement in this case, there is no one from whom to buy such a license.  The Authors and Publishers join in this scheme because Google proposes to divide with them, pursuant to the proposed settlement agreement, the revenue that the orphaned works will generate.  The settling parties plot a cartel in orphaned works.

We seek intervention to defend our interest in orphaned works — to defend the public domain’s claim to free, fair use.  The purpose of copyright is to promote authorship and learning. Copyright does this by giving authors exclusive rights for limited times so that authors can profit from their writing by selling licenses to others.  This mechanism breaks down in the case of orphaned works because, with respect to these works, there is no one from whom to buy a license.  The public can buy no license; the author can reap no reward.  Because exclusive rights in orphaned works do not serve the ultimate purpose of copyright, the public domain has a claim to free, fair use of orphaned works.

We have the right to intervene to present the public domain’s claim to free, fair use of orphaned works.  None of the present parties will present our claim.  It is inconsistent with the settlement they propose.  If the use of orphaned works is free and fair, then there is no exclusive license to give Google and no claim on the part of Google, the Authors, and the Publishers to the proceeds of that exclusive license.  We must press our claim in this case because it is only in this case that there is a party that purports to represent the owners of orphaned works with whom we, like Google, can negotiate.  Our interest in orphaned works, put in jeopardy by the proposed settlement and adverse to the interests of the settling parties, gives us the right to intervene under Rule 24.”

More comments on the possible effects of the Google Book agreement:

To read the agreement, access the site Google Book Settlement

All Peter Suber Open Access Blog entries here.

Google & the Future of Books By Robert Darnton, February 12, 2009.

Siva Vaidhyanathan has a whole series of relevant posts here.

James Grimmelmann has a detailed analysis here.

Harry Lewis Blog here.

Aaron Shaw’s Weblog