Rights holders who don’t want their work subject to Google’s uses would have the extra burden of becoming informed about the settlement and then excluding their works. (As would rights holders for in-print works who don’t want their content included in Google’s indexing and other “non-display” uses.) A rights holder might want to limit access because they’re planning to bring a work back into print. (The settlement has provisions for this, but the terms are strict, requiring an announcement to “the trade” and publication within a year.) Or a rights holder might be hoping to sell rights to another party, or maybe they just don’t trust Google or want anything to do with them.

Does the promise of easy access to out-of-print works now trump the rights of the copyright owners?

Greg — I think that we don’t disagree. My point wasn’t (isn’t) that copyright doctrine is unimportant, but rather that it is part of an increasingly complex matrix of interests and institutions, and the doctrine itself is no longer necessarily first-among-equals. One way to take your “shadow of fair use” point is that both the existence and the scope of the doctrine set the initial bargaining positions of the parties and constrain their options. In that sense, legal doctrine is always important; the Google deal presents nothing new. A different way to take the point, however, is that (as you say) the deal is as much about shaping copyright and other IP concepts as the deal is about responding to them. Again, as with my reply to Frank, that point applies not just to Google Book Search but potentially to a broad variety of emerging institutional and disciplinary arrangements.

The emergence of this private system makes it all the more imperative for the Library of Congress to require digital deposit, in case the Google-led effort veers away from its founding principles.

I’ve refrained from commenting further because I haven’t yet read the agreement. But one sine qua non for legitimacy here should be universal accessibility to the database of books and text itself. Something like that appears to be promised in the notice below:

http://www.authorsguild.org/advocacy/articles/member-alert-google.html

“Readers are also big winners under the settlement of Authors Guild v. Google. Readers will be able to browse from their own computers an enormous collection of books. We hope this will encourage some readers to buy full online access to some of the books. Readers wanting to view books online in their entirety for free need only reacquaint themselves with their participating local public library: every public library building is entitled to a free, view-only license to the collection. College students working on term papers will be able to point their computers to resources other than Wikipedia, if they’re so inclined: students at subscribing institutions will be able to read and print out any books in the collection.

“We expect that millions of out-of-print books (and many in-print books) will be available through Google Book Search to readers, but we don’t know how many, since that depends partly on you. Participating rightsholders can choose to pull their books from this service with reasonable notice at any time and will retain substantial control over Google’s presentation and pricing of their books.

“As with any class action, individual class members remain free to opt out of the settlement. ”
from Roy Blount Jr., President, Authors Guild

http://laboratorium.net/archive/2008/10/28/authors_guild_settlement_insta-blogging#comments

So I’m with you that the center of copyright law doctrine is increasingly distant, in the digital era, from the center of information policy. It seems to me that much of the copyright + tech scholarship in the last 10 years has been about this trend, in one way or another.

But the Google Print suit tells a different story for me. It is about as much about the interests of creative authors as it is about the power of both computing and financial capital (Google) arrayed against organized publishing capital (The Guild).

It doesn’t surprise me that a deal was struck — it was in the interests of both parties to do so. I’m not even quite sure that a court decision would have been better — a big win or big lose for either Google or the authors might have had some problematic implications.

Yet by clarifying the law for third parties, a ruling would have greatly alleviated some of the anti-competitive issues presented by this deal. And to some extent, this perpetuates the IP licensing culture that seems to favor, inevitably, established players over new entrants.

But on your broader point, this deal was surely bargained in the shadow of fair use law. If fair use didn’t cast its particular shadow, the deal would have been struck in a different way.

What interests me is how fair use law may well change in the shadow of a deal like this, casting a different shadow in the future. In some ways I can see it changing for the better, but in some ways the very existence of a licensing deal suggests it has changed for the worse.