Tuesday, a federal judge tossed out the proposed settlement in the lawsuit over Google's vast book-digitization project. Still, research libraries with a stake in that work said they were undeterred. They emphasized that widespread digital access is key to scholars' work, and reiterated their commitment to making as much material available to as many people as possible, whether or not the settlement is revived in some form. And they said they hoped the ruling, by Judge Denny Chin, would galvanize efforts to solve the vexing problem of orphan works, which are under copyright but whose rights-holders are unknown or unfindable.
Some university librarians noted that the settlement's demise has scuttled, at least for the time being, the goal of low-cost library subscriptions to the enormous Google catalog. But they also raised hopes for a legislative solution that would sidestep the concerns about monopoly that the Google settlement raised.
"The decision does not dim our hope that a path can be found for public access to out-of-print works," the University of California Libraries said in a statement on Wednesday. "Many academic fields are dependent on this cultural record, and its conversion to digital form is the necessary basis for future innovation in scholarship." The university's libraries have contributed more than three million books to Google's book-digitization project.
California's statement reminded users that much of what's been digitized by Google and its research-library partners has become part of the HathiTrust Digital Library, a large-scale repository that draws on the collections of 52 partner institutions. That digitized material "was obtained in large measure through the Google partnership," the California libraries said.
"Libraries are not leaving the future of digital books to Google," the HathiTrust Digital Library said in its own statement, posted on its Web site on Wednesday. "HathiTrust will maintain our commitment to long-term digital preservation of library collections curated by generations of librarians at great research libraries around the world."
HathiTrust said it would continue to provide "full-text search of the repository" as well as appropriate uses of in-copyright material. About 2.2 million of the repository's 8.4 million volumes are in the public domain and accessible on the Web; the rest are under copyright. All that will remain in HathiTrust regardless of what happens with the settlement, and their digitizing work continues.
"We will continue to strive to provide as much access as legally possible to materials in the repository for discovery, reading, and computational research," the trust said.
John P. Wilkin, HathiTrust's executive director, said the ruling did not take the group by surprise, and that he expected Google would continue its digitization work. "Judge Chin's analysis made sense," he said. "It doesn't change what we're doing at all in HathiTrust."
What does change, from the trust's perspective, is the chance to give more people access to the abundance of material scanned by Google and its partners. Mr. Wilkin talked about "what might have been possible" if the judge had approved the settlement. Low-rate library subscriptions to the Google corpus, for instance, could have put it within reach of people who can't easily find or read that material now.
"That was something that we fought hard to get into the settlement," Mr. Wilkin said. The Google library "would have been an amazing treasure trove for people who don't have access everywhere. I think that's a real loss."
Thinking of the Orphans
In his ruling, Judge Chin said that clearing up the uncertainty over orphan works' status was best left to Congress rather than to private entities like Google. HathiTrust said it hoped that "the rejection of the settlement will lead immediately to meaningful progress toward orphan-works legislation."
There has been renewed talk about a coalition, maybe—but not necessarily—led by Google, to push for such legislation action. "We would throw our weight behind that," Mr. Wilkin said. "This has to be one of the outcomes" of the case, he said: "a legislative framework—not just in the United States but around the world—on orphan works." Orphan-works bills have been introduced over the past few years, most recently in 2008, but so far none has become law.
The trust has been gathering data on just how big the orphan-works problem is, "trying to get some bibliographic certainty" on the problem, the executive director said. "I don't think for many years to come that we're going to see a public-domain corpus of more than about 30 percent" of the books available, he added. Having more data, he said, might encourage lawmakers to take action on the issue more quickly.
Orphan works were also very much on the mind of Michael A. Keller, the Stanford University librarian, who released a statement about the ruling on Tuesday. "Congress has considered watered-down solutions for access to these books for years, but only this project imagined universal widespread access to them," Mr. Keller said. He lamented that the decision "leaves unanswered several important questions, including access to orphan works, periods of protection provided by the Copyright Law, and the yearning for a universal library available to all American citizens." As for what happens next, Mr. Keller said that the university is analyzing the ruling and would consult with Google and its other library partners before it decides how to proceed.
An orphan-works bill isn't the only solution being proposed to put orphan works within reach of more users. The issue is likely to figure in the planning conversations surrounding the proposed Digital Public Library of America, for instance.
An Alternative Remedy
One strategy, extended collective licensing, or ECL, has been generating a lot of interest among librarians and copyright reformers, says Peter Brantley, director of the Internet Archive's BookServer project. He's also a co-founder of the Open Book Alliance, whose members include Amazon.com and Microsoft. (The alliance weighed in against the Google settlement, filing a brief opposing it in 2009.)
The ECL approach works like this: Certain uses of copyrighted material—research that does not have a commercial application, for instance—might get a free pass, while more-commercial uses would trigger a licensing fee. The approach took off in Scandinavia, says Mr. Brantley, and has had some success in Europe. One big challenge, though, is how to create an entity—ideally on the national level—that would administer the system. That may be more easily done in Europe, where many countries are more accustomed to approaching such issues on a national level. It's possible that the Books Rights Registry Google created under the proposed settlement could be repurposed to do that, but that depends in large part on what Google decides to do, and the company's not saying yet.
Mr. Brantley says he hoped the ruling stimulated discussion of how "to create legislative frameworks that enable us to broaden access to materials whose rights status is uncertain." But he said that, as far as he knew, "there have been no explicit approaches on the Hill to enlist support for a new proposal. It's too early in the process for that."
Prue Adler, associate executive director of the Association of Research Libraries, said the association's members "are really hungry for understanding" of the ruling and what it means. The association has asked Jonathan Band, a copyright expert, to analyze the decision and write a guide for the group's members explaining it and what may lie ahead.
The association did not take a pro or con stance on the proposed settlement. Along with the American Library Association and the Association of College and Research Libraries, it did raise privacy and antitrust concerns about it and questioned whether academic libraries' interests were adequately represented. As for action on the legislative front, "the library community worked long and hard for a constructive and practical orphan-works bill" in recent years, Ms. Adler said, but those efforts were unsuccessful.