• by Kaila Colbin , Featured Contributor, February 9, 2010

Last Friday, my MediaPost colleague Wendy Davis reported on recent developments in Google's ambitions to dominate the globe digitize and sell "orphan works" -- books under copyright whose owners can't be found. Although places like Stanford University are welcoming Google's book plans with open arms, the Department of Justice isn't responding with quite as much benevolence.

The issue hinges on a proposed settlement with the Authors Guild, one designed to make out-of-print library books available while still protecting the rights of their creators. An anonymous blog post on the AG's Web site makes an argument for settling with Google (rather than taking the case to court) that wavers between the reasonable and the defensive: "If we'd lost, it would then be open season on scanning of your out-of-print and in-print books. All one would need is a scanner and a friend with a little bit of technical knowledge to start displaying 'snippets' at your science fiction, humor, Civil War, or Harry Potter website."

And, apparently, the AG wouldn't have wanted to win in court anyway, claiming that "copyright victories tend to be Pyrrhic in the digital age."

Pyrrhic? Tell that to Greg Ham. Ham's the flautist from Men At Work who, in a moment of ultimately ill-fated spontaneity, added a few bars from an old Australian folk tune ("Kookaburra Sits In The Old Gum Tree") to a live performance of his band's hit song "Down Under." As the New Zealand Herald reports, even though "Down Under" had already been around for years, the added riff stuck -- resulting in a judgment last week that Ham and his band mates owe the current owners of "Kookaburra" 60% of all the earnings generated by "Down Under" in the past two decades.

The original author of the folk song, a schoolteacher by the name of Marion Sinclair, has been dead since before her riff was incorporated. The current owners didn't even notice the similarity until 2007, and it's not as if they had never heard the Men At Work song. Nonetheless, the law says they're entitled to their payout.

Back to the Authors Guild. Their post continues: "The stakes are even higher for authors than they've been for musicians. The ace in the hole for musicians is that they're not as dependent on copyright as book authors are. Music is a performing art: people buy tickets to see musicians. Writing is decidedly not a performing art. Nearly all authors give away their performances, through book tours and readings, and are glad for any audience they can find. For most authors, markets created by copyright are all we've got."

The global copyright system is clearly broken. On the one hand, you've got three musicians likely being forced into bankruptcy by a multinational corporation who made a lucky purchase of a relatively worthless asset 20 years ago. On the other, you've got Google playing a game of arbitrage, using its muscle to leverage the inconsistencies of a crumbling infrastructure before the floodgates open and it turns out that, in fact, everyone with a scanner and a little bit of technical knowledge can display all the snippets they want. And maybe, as the music industry is learning, the fight to keep control is a losing battle.

We have seen, in recent years, a revelation in the entertainment business model. From iTunes to Nine Inch Nails, instead of people paying money for music because there's no other way to get it, we're paying because we're happy to support the system. It's time for the book industry to answer the same question: "If you can't force us to pay, how can you make us want to pay?"