Stop! I think I see where we are getting confused. When you said "orphan," did you mean "orphan" - a person who has lost his parents - or "often," frequently? - The Pirates of Penzance

When the voices howl that Google is weeks away from securing a digital monopoly around orphaned books, Google doesn't quite hear what they're saying. Or maybe it does, and it's not letting on.

Google's Dan Clancy hears the overtones. Accused of using a civil court case to secure exclusive rights to the orphans - copyrighted books whose rights holders can't be found - he jokes that he'd rather not be seen as the Miss Hannigan of the digital book world. "Of course, no one wants Google to monopolize the poor orphans," says Clancy, the engineering director of Google Book Search, the web giant's library-scanning project/controversy lightning rod. "And I don't want to be - what's the woman in Little Orphan Annie that runs the orphanage? I'm blanking - I don't want to be her."

But he doesn't seem to hear the argument. When the voices complain that Google has approached the orphan-works issue in precisely the wrong way, Clancy responds by saying that if they wanted to, anyone else could take the same approach. Google likes to accuse its Book Search critics of contradictory logic. But surely, there's a contradiction at the heart of its own argument.

Last week, Dan Clancy turned up at Silicon Valley's Computer History Museum as part of a bi-coastal effort to buff the image of his digital book project. Naturally, he spent much of the evening defending Google's $125m settlement with American authors and publishers.

In October, Google settled a lawsuit from the US Authors Guild and the Association of American Publishers over Book Search - née Google Print - a project that seeks to digitize the works inside the world's libraries. The settlement creates a "Book Rights Registry" where authors and publishers can resolve copyright claims in exchange for a predefined cut of Google's revenues. And in eye-opening fashion, it also gives Google a unique license to digitize and sell and post ads against so-called "orphan works," books whose rights are controlled by authors and publishers who have yet to come forward.

The settlement still requires court approval, and as the court seeks input from interested parties, many have questioned whether the pact gives Google an unhealthy level of control over the future of digital books. That includes the US Department of Justice, which recently confirmed an official investigation into the matter.

For Brewster Kahle - founder of the Internet Archive, which runs its own book-scanning operation - the settlement will create not one but two monopolies. Google will have its monopoly on orphans, he says, and the Book Rights Registry - funded but not solely controlled by Google - will have a second monopoly, one that encompasses all rights holders who agree to join.

"Google will have permission to bring under its sole control information that has been accessible through public institutions for centuries. In essence, Google will be privatizing our libraries," Kahle wrote in a recent editorial.

"Google would get an explicit, perpetual license to scan and sell access to these in-copyright but out-of-print orphans...No other provider of digital books would enjoy the same legal protection. The settlement also creates a Book Rights Registry that, in conjunction with Google, would set prices for all commercial terms associated with digital books."

As the critics howled, Google insisted that the settlement was no way a Google exclusive. Prior to the company's annual shareholders meeting, chief legal officer David Drummond barked back that "anyone who wanted to go scan" copyrighted books could "come up with a similar outcome," meaning they could get themselves sued for copyright infringement and negotiate their own settlement.

But this argument only highlights the fact that not everyone believes Google's way of solving the issue is the right way. "The right way to gain access to orphan books is to not break the law while you are doing it," the Internet Archive's Peter Brantley tells The Reg, "to work through Congress to ensure that the people's voice in copyright is articulated the way the system was designed to work - not through a private, secret deal that we're assured is in our best interests by Google. No one elected Google to write copyright law for America."

During Thursday night's chat at the Computer History Museum, a week after holding a similar talk at the Boston Public Library, Dan Clancy continued to play Drummond's card, explaining that anyone who has a problem with Google stretching the boundaries of copyright should stretch the boundaries of copyright themselves.

"Under the agreement, it is the fact that if you can't find the rights holder, then it's difficult for someone else to take advantage," Clancy says. "But it's not because of the agreement. The agreement is completely non-exclusive. It allows anyone to do exactly the same thing we're doing."

Google believes it has the fundamental right - under the US fair use doctrine - to scan copyrighted works and index them online. So much so, it sees no reason why any other ebook outfit wouldn't feel the same way.

Which is not to say that Google expects anyone to run out and get themselves sued. There's little reason to do so, Clancy says, because the orphans are close to worthless.

'I don't know what an orphan book is'

Whereas Brewster Kahle estimates that in-copyright but out-of-print orphans cover 50 to 70 per cent of books published after 1923, Dan Clancy worked to convince his Computer History Museum audience that the number of orphan works is marginal at best.

Google has already scanned roughly 10 million books, with plans to scan another 30 million or so, and Clancy guesses that orphan works account for only 10 per cent, arguing that most unclaimed works will eventually be claimed.

"The reason we do this with orphan works is that under the settlement, we don't know if a book is an orphan work or an unclaimed work," Clancy says. "I don't know what an orphan book is, because for me, any book here just hasn't been claimed yet."

And he's sure that once the orphans sift out, they'll hold little value. "When I talk to people in the publishing industry [about orphan works issue], it's kind of a joke. They say 'Well, they're orphaned for a reason.' If we've suddenly found a gold mine where the future of the book is the orphan works, then boy, the publishers aren't very smart."

Clancy spent much of the evening explaining how the net can unlock the potential of books buried in the world's libraries. But apparently, this doesn't apply to the orphans.

And if he's wrong, Clancy says, others will undoubtedly follow Google's lead. He dismisses the notion that no one else is positioned to spend the millions needed to settle their own book-scanning suit. "It is inconsistent to say there is significant economic potential [in the orphan works], but that no one else would spend all the money [we're] spending," he says.

"It may be that there's no economic potential, so therefore no one will spend the money we're spending and then we can all be glad that Google decided to spend. Or maybe we're onto the future of books, in which case [others will spend too]."

Slim Chances

Perhaps they will and perhaps they won't. Many have argued that even if someone were willing to try, there's little chance they could duplicate Google's result.

"Virtually the only way that Amazon.com, Microsoft, Yahoo!, or the Open Content Alliance could get a comparably broad license as the settlement would give Google would be by starting its own project to scan books," reads a now-famous post from University of California, Berkeley law professor Pamela Samuelson.

"The scanner might then be sued for copyright infringement, as Google was. It would be very costly and very risky to litigate a fair use claim to final judgment given how high copyright damages can be (up to $150,000 per infringed work). Chances are also slim that the plaintiffs in such a lawsuit would be willing or able to settle on equivalent or even similar terms."

But even if someone were bold enough to follow Google's lead - and lucky enough to match its terms - we're still left with a market of two. As Peter Brantley and the Internet Archive have said, the most sensible solution is federal legislation, a solution that applies the same rules to everyone.

Clancy says he has no objections to legislation. He says Google has lobbied for a federal law and will continue to do so. But he's adamant that Google's settlement should come first, arguing that the company's private agreement provides the quickest path to the public good.

"By creating the database and making the database [the Book Rights Registry] public, it solves what has always been one of the big challenges in getting orphan works legislation through," Clancy says. "You're trying to prove a negative, since nobody has put up the money and made an effort to build a database of copyright holders. How do we know what you have to do?"

A fair argument - up to a point. As Brewster Kahle pointed out, the Registry is its own monopoly. Shouldn't this copyright database be in the hands of the public? Or at least be subject to government regulation?

The Positive/Negative Feedback Loop

For Dan Clancy, Google's settlement doesn't hamper competition. It feeds competition, encouraging authors and publishers to step forward and claim their work - creating a copyright database that anyone else can use.

"The idea is to build a system that helps define who the rights holders are to make it easier for everybody. The fact that access to these books is being made available, that money is being held, that there's an organization where you can find the rights holders, it incentivizes people to come forward...It creates this positive feedback loop of getting more and more works claimed. So it means that other people who have all sorts of ideas can take advantage."

But this also means that a single, private concern will control prices on all claimed works. It's not an open market. "There is very little incentive for the BRR to engender competition for vending alternative access to the books because it would drive prices downwards, thus diminishing returns to registered rights holders," says Peter Brantley.

And because of this, rights holders may be less likely to join. "Many writers and authors are so incensed, they are pulling their books out - more of a negative feedback loop if you ask me," Brantley continues. "The rights registry should be a public asset, not a private good. The Book Rights Registry should either be provided through the Copyright Office or regulated to engender public access. We don't want a private organization stipulating when we will have access to public data."

What's more, the Registry won't include the orphans. Again, those rights will rest with Google and Google alone. Even if you can negotiate a decent price with the Registry, you won't have access to the same works as Mountain View. Which brings us full circle, back to the voices howling that Google is weeks away from securing a digital monopoly around orphan works.

Surely, they're worth listening to. ®