Courant proclaims “The most important single thing about the Google settlement, simultaneously its greatest achievement and among its most vexing features, is the treatment of orphaned works.” He provides a nice summary of how the settlement treats orphan works, and goes on to suggest that “Congress could pass a law, giving access to the same sort of scheme that Google and the BRR* have under the Google Settlement to anyone.” (BRR = Books Rights Registry).
Peter Brantley argues that “the most vexing issue for orphans was the distribution of income from their monetization by Google for the benefit of BRR, Google, and the Class parties (authors and publishers of books, as identified in the proposal).” His concern is that “the settlement parties have a vested interest in maintaining a monopoly over access to orphan books.”
This is complicated stuff, and Courant and Brantley do a nice job of summarizing two prevailing opinions on the matter:
Courant adopts a pragmatic approach, noting that the settlement is better than the current status quo, and that it doesn’t prevent interested parties from pursuing legislative solutions as well. Brantley lays out a more critical position, noting that “If this is the best train coming down the tracks, it might be time to throw a red light.”
Stay tuned, this story is far from over.