The Controversial “Orphan Works” Copyright Bills and Google Book Settlement

The Controversial “Orphan Works”
Copyright Bills and Google Book Settlement


Historical Court Cases and Rulings

by Barbara Brabec

THIS ARTICLE, originally published on my website 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.)

A search for “status of orphan works controversy in 2020” yielded a few articles suggesting that this problem has proliferated across the globe. Read “Orphan Works and Mass Digitization: A Report of the Register of Copyrights in June 2015” for the latest update from the Copyright Office, which has been working with Congress for years.

In the Wikipedia article, I found this provision in the Initial Settlement: “The settlement gave all authors and publishers a year and half, until June 2010, to submit opt-out requests to Google to either prevent Google from scanning their books in the future or to remove any books already scanned.”

I completed the necessary forms that year to protect my copyrights and hoped for the best.

Understanding the Orphan Works Controversy

THIS ARTICLE on explains how the creative community mobilized to deal with the “orphan works” bills then pending in both houses of Congress.

Below, in order by date from 2011 to 2019, are historical court cases and rulings I was following in those years:

March 23, 2011: Federal judge rejects Google Books settlement

September 13, 2011: Authors Guild Sues Libraries Over Scan Plan

2014: Google Book Search Settlement Agreement

2015: Orphan Works Copyright Law Being Considered Again in the US

2016: Author’s Guild v. Google. Throughout the ten-plus years of Authors Guild v. Google—from the filing of the case on September 20, 2005 to the Supreme Court’s denial of review on April 18, 2016—many authors and observers raised questions about why we brought the case and why we fought it for so long. 

August 10, 2017 Update: “What Happened to Google’s Effort to Scan Millions of University Library Books?” This article explains how Google scanned 25 million books no one is allowed to read (yet).

Another take on this topic: “Torching the Modern-Day Library of Alexandria.” “Somewhere at Google there is a database containing 25 million books and nobody is allowed to read them.”

“Hotlined” Bills in Congress

WHILE RESEARCHING this topic, I learned something interesting about how Congress works (or doesn’t work when it suits them).

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. “Senators who ‘hold’ hotlined bills do not have to identify themselves or 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.”

This informative article in “Roll Call” (2007) 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.

Originally published in 2010; updated in 2021.

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