In last week’s rejection of the Google Books Amendment Settlement Agreement, part of Judge Denny Chin’s ruling indicated the copyright questions in the case may best be answered by Congress. James Grimmelmann, associate professor at New York Law School, cited from the ruling:
The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties. Indeed, the Supreme Court has held that “it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.”
This raises the question of whether the settlement could be affected by the Golan v. Holder copyright case being heard by the Supreme Court. I posed the question to Dana Newman, a transactional and intellectual property attorney. Via an email interview, she pointed out one of the main considerations:
If the Supreme Court upholds the law at issue in Golan, then those foreign books in Google’s digital library previously considered to be in the public domain will move to the category of copyrighted works, and Google would need to obtain permission to copy them and make them available online.
As Adam Hodgkin noted, this point further muddies the waters around this question as well:
Newman also considered overlapping issues at play in both cases:
- Are changes to existing copyright laws best left to Congress, versus private parties or the courts? In Golan the issue is restoring copyright protection to works previously in the public domain, and in Google it’s allowing the use and copying of orphan works.
- Are the interests of foreign rightsholders adequately protected in the U.S., where there are inconsistent or burdensome requirements to protect their copyrights? It’s interesting to note that the Google settlement was opposed by foreign authors and publishers on the basis that it violates international treaties — an issue at the heart of the dispute in Golan.