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The Controversial
"Orphan Works" Copyright Bills
and Google Book Settlement

by Barbara Brabec
Updated September 2011

September 13, 2011: Authors Guild Sues Libraries Over Scan Plan. "With the Google Settlement poised to meet its ultimate demise . . . the Authors Guild yesterday doubled down on its infringement claims, filing a new lawsuit against a consortium of university libraries over a digitization initiative known as HathiTrust. The suit is the latest twist in the ongoing legal drama over digitization." (Excerpt from article on PublishersWeekly.com)

Editor's Note: Read the above article to learn how some seven million works from every nation have already been digitized by HathiTrust for Google's book project, which involves "orphan works." In an article on the Authors Guild website, Guild president, attorney and author Scott Turow, said: "These books, because of the universities' and and Google's unlawful actions, are now at needless, intolerable, digital risk."

(See 9/16/11 update here for HathiTrust.)

March 23, 2011: Court Rejects Google Book Settlement. Google's six-year struggle to bring all the world's books to the Internet suffered a setback at the hands of US Circuit Denny Chin. "A copyright owner's right to exclude others from using his property is fundamental and beyond dispute," he ruled.

THIS ARTICLE (originally published in 2010) has now been updated to provide historic background information on the Orphan Works bills, specifically H.R.5889, The Orphan Works Act of 2008, and S.2913, The Shawn Bentley Orphan Works Act of 2008. More than 60 groups representing artists, illustrators, photographers, musicians, and writers actively opposed this controversial revision of U.S. copyright law which, thankfully, Congress never passed.

But the problem of "orphan works" remains because of Google's six-year struggle to scan every book in the world and make it available on the Internet. While always claiming to be scanning only works out of copyright whose authors could not be found (so-called "orphan works"), it was learned that not much effort was spent in trying to locate the authors of such works and, further, that Google was actually scanning some books still in copyright. Google ultimately tried to make amends by coming up with what they called their "Book Settlement," but it was ultimately rejected in court. On March 22, 2011, U.S. Circuit Court Judge Denny Chin rejected Google's controversial settlement of the class action suit (Authors Guild v. Google, Inc.)

For more history and updates on this topic, visit the Illustrators' Partnership Orphan Works Blog. (In September 2009, this organization testified before Congress in opposition to the Google Book Search Settlement.)

"HOTLINED" BILLS IN CONGRESS

After the Orphan Works bills had been hotlined twice, I found an article on Google Groups' "Open House Project" pages that offered insight on why some bills are passed and others are put on hold. Here's an excerpt from that article, which you can read in full here:

"Senators who 'hold' hotlined bills do not have to identify themselves nor give their reasons for holding it. Holds are temporary. Most people are unaware of the process called hotlining. In the past it was used to pass non-controversial legislation, but increasingly, it's being used to pass bills whose sponsors don't want to see debate. An excellent article in Roll Call explains the process. Here's an excerpt:

Senate conservatives are upset that the leaders of both parties in the chamber have in recent years increasingly used a practice known as "hotlining" a bill—previously used to quickly move noncontroversial bills or simple procedural motions—to pass complex and often costly legislation, in some cases with little or no public debate. The increase was particularly noticeable just before the August recess, when leaders hotlined more than 150 bills, totaling millions of dollars in new spending, in a period of less than a week.

The practice has led to complaints from Members and watchdog groups alike that lawmakers are essentially signing off on legislation neither they nor their staff have ever read.

In order for a bill to be hotlined, the Senate Majority Leader and Minority Leader must agree to pass it by unanimous consent, without a roll-call vote. The two leaders then inform Members of this agreement using special hotlines installed in each office and give Members a specified amount of time to object--in some cases as little as 15 minutes. If no objection is registered, the bill is passed.

- From 'Hotlined' Bills Spark Concern, by John Stanton, Roll Call Staff, September 17, 2007.

 

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