Have Orphan Works Found a Home in Class Action Settlements?
Volume 83, No. 2, Winter 2011
By Christina M. Costanzo

In October 2008, Google announced that it had reached a landmark settlement to resolve two class action lawsuits filed against it. The lawsuits, filed two years prior, came in response to Google’s announcement of the ambitious Google Book project, in which Google aimed to digitize the world’s libraries and make them accessible to everyone—a noble goal indeed. While the project sparked a buzz as to its innovation, it also sparked a great deal of controversy. Authors, publishers, and copyright owners the world over envisioned the loss of their rights if Google was able to usurp them in the name of “access.”

Google’s name and the potential for a large damages award drew a great deal of public attention. When Google proudly announced its settlement agreement, however, legal scholars and copyright owners still felt ill at ease. Yes, the parties to the lawsuits were pleased, but questions emerged as to the breadth of the settlement. One of the issues raised was the settlement’s inclusion and treatment of works over which no one had a voice: orphan works. Orphan works are those that are “protected [by copyright], but for which no copyright owner can be identified or located.” The Google Book Settlement Agreement (“Agreement”) may have inadvertently created a solution to allow access to and use of these works.

Although the most recent version of the Agreement was rejected on March 22, 2011, this Comment explores whether a judicially-imposed class action settlement, such as the Google Book settlement, is an appropriate or necessary method for dealing with the copyright issues raised by orphan works. Part II.A explains the constitutional basis for copyright law, how U.S. copyright law has evolved such that a class of orphan works exists, and the issues this class creates. Part II.B provides a statutory review of the current copyright law that controls the disposition of copyright rights subsisting in orphan works. Part II.C reviews past legislative attempts to resolve the issues raised by orphan works and the inroads created toward a resolution. Part II.D explores how the Google Book Agreement developed, the concerns it raised regarding orphan works, and how it responded to those concerns through subsequent modifications.

Part III discusses the practical implications of the Google Book Agreement and whether it suggests that judicially-imposed class action settlements can adequately address the issues raised by orphan works. More specifically, Part III juxtaposes the Google Book Agreement with current copyright law and legislative attempts to rectify the orphan works problem to determine which, if any, produces the optimal result.

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