The Google Book Settlement Decision & Opt-In/Opt-Out Models of IP Protection in Cyberspace

The District Court has rendered its decision rejecting the Amended Settlement Agreement (ASA) in The Authors Guild v. Google, Inc., the Google Books copyright infringement case for digitalizing books from University libraries and other sources. The decision actually nicely highlights the incompatibility between traditional copyright and other intellectual property models and the fast moving pace of the internet and related technologies. Basic copyright, patent, and related intellectual property laws rely primarily on opt-in models for the use of covered intellectual property. One needs to negotiate a license before using the material, i.e. a rights holder needs to opt-in to the use of their material on the internet or otherwise. If they refuse to opt-in or simply cannot be located or otherwise identified, traditional intellectual property regimes restrict the use of the material until they have opted-in. Thus, orphan works remain restricted until their parentage can be identified an consulted.

By contrast, valuable property in cyberspace has been developed primarily on an opt-out model — material can be used until the rights hold comes forward and objects. The opt-out model casts the onus of policing and rights protection on the rights holder, leaving the cyber entrepreneur to use potentially protected material unless and until the rights holder objects. Continue reading