Professional Readings: The Fate of an Institutional Subscription Database for Out-of Print Books Since the Court Rejection of the Google Book Settlement

"One likely victim of the rejection of the proposed Google Book Settlement is its plan to develop an institutional subscription database of out-of-print books," writes Pamela Samelson (Richard M. Sherman Distinguished Professor of Law, Berkeley Law School). "The fate of the ISD envisioned in the GBS settlement is now up in the air because in March 2011 Judge Denny Chin ruled against the proposed agreement. One likely victim of the rejection of the proposed Google Book Settlement is its plan to develop an institutional subscription database of out-of-print books." There are alternatives. See Samuelson's Legislative Alternatives to the Google Book Settlement. Here's the SSRN abstract:

In the aftermath of Judge Chin's rejection of the proposed Google Book settlement, it is time to consider legislative alternatives. This article explores a number of component parts of a legislative package that might accomplish many of the good things that the proposed settlement promised without the downsides that would have attended judicial approval of it. It gives particular attention to the idea of an extended collective licensing regime as a way to make out-of-print but in-copyright books more widely available to the public. But it also considers several other measures, such as one aimed at allowing orphan works to be made available and some new privileges that would allow digitization for preservation purposes and nonconsumptive research uses of a digital library of books from the collections of major research libraries.

The article can also be downloaded from this non-SSRN link. Highly recommended. Ditto for Samuelson's related recent works:

Why the Google Book Settlement Failed - And What Comes Next? (Powerpoint).

More than a year after the Google Book Settlement fairness hearing, Judge Chin ruled that the settlement was not fair and could not be approved. This talk will explain why I think the failure of this settlement was inevitable. It will also discuss the options available after the failure of the settlement and why some of these options are more likely or desirable than others.

The Google Book Settlement as Copyright Reform.

This Article explains why certain features of U.S. law, particularly copyright law, may have contributed to Google’s willingness to undertake the GBS project in the first place and later to its motivation to settle the Authors Guild lawsuit. It then demonstrates that the proposed settlement would indeed achieve a measure of copyright reform that Congress would find difficult to accomplish. Some of this reform may be in the public interest. It also considers whether the quasi-legislative nature of the GBS settlement is merely an interesting side effect of the agreement or an additional reason in favor or against approval of this settlement.

[JH]