I learned something important that at some level I already knew.

The most important single thing about the Google settlement, simultaneously its greatest achievement and among its most vexing features, is the treatment of orphaned works (in James Grimmelman’s witticism, “zombie” works). The problem, as we all know, is that there are millions – no one quite knows how many – of works that may or may not be in copyright and for which the rightsholder(s) may or may not exist and may or may not be aware of their rights. Our ability to use these works is thus much compromised: we run the risk that a copyright holder will appear and claim damages. As we all know, Congress’s efforts to make it easier and safer to use orphaned works have failed. Moreover, the most recent draft legislation would have imposed difficult and costly burdens on a potential user by requiring the would-be user to make substantial efforts to find any potential but unknown rightsholder.

Along comes the Google settlement, which solves at least part of the problem, for Google and the Book Rights Registry, at one fell swoop. (Only part of the problem, because works that were not registered with the copyright office will likely not be in the settlement and yet may be just as orphaned as those that are registered.) Under the settlement, revenues generated by orphaned works will be held in escrow for for five years, allowing time for a rightsholder to come forward. It’s a moving window; if the rightsholder comes forward in year 22, she gets revenues from year 17 on. Thus the products that Google sells to individuals and institutions can include, among other works, millions of orphans (zombies). Without the orphans, the great public benefit of the settlement – the ability to find and use much of the literature of the 20th century in digital form – would be much diminished.

At the same time, the disposition of the revenues attributed to orphaned works is one of my least favorite parts of the settlement. The unclaimed revenues go first to support the operations of the BRR, and then, after that, will be used for charitable purposes consistent with the interests of publishers and authors. As the head of a library that has lovingly cared for these works for decades, the notion that the fruits of our labors (and those of many others in many libraries) redound to the benefit of entities that did not write, publish, or curate these works sticks a bit in my craw. So I hope that authors, publishers, the court, and the public will be vigilant in making sure the BRR does not squander the unclaimed revenues on mismanagement, high salaries, and the like. The “charitable purposes” should be an objective, not a remainder for unclaimed funds.

The settlement also gives Google and the BRR, and no one else, the right to use the orphaned works in this way. A number of commentators, have noted problems that may arise from Google’s privileged position in this regard. But there is an obvious solution, one that was endorsed at the Columbia meeting by counsel for the Authors Guild, the AAP, and Google: Congress could pass a law, giving access to the same sort of scheme that Google and the BRR have under the Google Settlement to anyone. And they could pass some other law that makes it possible for people to responsibly use orphaned works, while preserving interests for the missing “parents” should they materialize. Jack Bernard and Susan Kornfield have proposed just such an architecture to “foster” these orphans. Google has also made a proposal that would be a huge improvement.

Given that the parties to the suit, libraries, and the public would all benefit from such legislation, it should be a societal imperative to pass it. I look forward to AAP, the Authors Guild, and Google lobbying and testifying in favor of such legislation. I’d be happy to be there, too.

Perhaps 30 years ago, my father visited me in Ann Arbor and we went to Borders (The idea that fathers and sons should hang out in bookstores together is one of the things that I am both remembering and, prospectively, mourning.) This was before Borders had become a chain, back when Ann Arbor was its only store, and Dad remarked that it was really quite wonderful that Ann Arbor had a bookstore that reminded him of Cody’s, the best of all of the college town bookstores. And Cody’s remained the standard, even as Borders got glitzy and became a mall store in college town clothing.

On my last visit to Cody’s (and how was I to know that it was to be the very last?) the checkout clerk, looking at what I had bought, engaged in a conversation that led to my buying William Maxwell’s “So Long See You Tomorrow.” The title of the book makes the loss of Cody’s all the more powerful. And of course the clerk ran circles around “readers who bought X also bought Y.”

Great bookstores are places where one can reliably expect to be in the presence of books and the people who love them. There should be one around every corner, and certainly one in every university town, and Cody’s is gone. Weeping and gnashing of teeth are in order.

What leads me to share this rather old news with anyone who might be reading this entry is that today’s technology allows me to check on all three versions in the privacy of my own home, lifting not much more than a finger. I happen to have the King version on vinyl and Studio 60 on DVD, but all three versions of the song are available on iTunes.  Studio 60 is not available legally on the web, leading one to wonder what NBC is thinking and nicely illustrating the point that the fruits of information technology are limited more by the practices of content-owners than by the technology itself.

But the technology, even the simple stuff that I am talking about here, is remarkable. When King and Goffin wrote the song, and when King sang it again in 1971, it was inconceivable that a family argument over whether a song was optimistic or pessimistic could be resolved (well, not resolved, but greatly enriched) via home access to a variety of media, all at reasonably high fidelity and low cost.  I’m proud to have sons who care about such matters and I continue to be amazed (as they are not) at what we can do.

By the way, it’s a great song, in all three versions.

Anyhow, here is my letter:
In today’s (Feb. 15) Times, you credit Senator Clinton with having won primaries in Michigan and Florida. Well, yes, but those primaries were essentially uncontested, because the Democratic National Committee, in an effort to prevent large and diverse states from voting before Feb. 5, ruled that delegates from Michigan and Florida would not be seated and candidates who campaigned actively would be punished. (Obama and Edwards were not on the ballot in Michigan, and the Party did not even count write-in votes.) It is bad enough to have been deprived of my franchise. The Times should not compound the insult by mischaracterizing the event. I don’t know if your delegate counts include Michigan and Florida. If they do, the counts are corrupt. In any case, Michigan and Florida should be marked on your map as “no contest and no delegates” rather than as victories for Senator Clinton.

Paul N. Courant

My name is Paul Courant, and after over 30 years as a college professor and academic administrator, writing and teaching on economics and public policy and serving in a variety of roles including department chair and provost, I recently became University Librarian at the University of Michigan. I find that the pace of change and the volume and frequency of commentary in the world of academic libraries and scholarship call for quick (and sometimes loud) response. So I am starting a web log. While libraries and related matters will be the subjects of much of what I am likely to say here, they will not be the only topics. Those of you know me know that I have opinions about many things, and I have never been especially reticent about sharing them. So, I expect that my posts (and I hope yours) will from time to time cover a variety of matters whose immediate relationship to libraries and publishing is not obvious. (Although, of course, pretty much everything of importance is related to libraries, in that if you can’t find a trace of something in a library you probably can’t find it at all.)

My immediate motivation for starting a blog is to add a generally positive (although never uncritical) voice to the cacophony around the subject of large-scale digitization projects in academic libraries, and my first substantive post is on that subject. In starting this blog I am also responding to Peter Brantley’s recent comments to the effect that the voice of big libraries has been noticeably absent on the list-serves and blogs that are the loci of much of the public debate on digitization and other innovations in libraries and publishing.

Of course, any comments that I make here are my own, and are not those of the University of Michigan or its libraries. What I have to say is surely affected by the various roles that I play in my day jobs, but here I speak only for myself, and not for my employers, groups with which I am affiliated, family members, or anyone else.