[yohui]

It's frustrating how the opposition was so painfully naive. As the article says, it was so clearly a case of "perfect being the enemy of the good." The following paragraphs deconstruct the sorry state of affairs that resulted:

> The irony is that so many people opposed the settlement in ways that suggested they fundamentally believed in what Google was trying to do. One of Pamela Samuelson’s main objections was that Google was going to be able to sell books like hers, whereas she thought they should be made available for free. (The fact that she, like any author under the terms of the settlement, could set her own books’ price to zero was not consolation enough, because “orphan works” with un-findable authors would still be sold for a price.) In hindsight, it looks like the classic case of perfect being the enemy of the good: surely having the books made available at all would be better than keeping them locked up—even if the price for doing so was to offer orphan works for sale. In her paper concluding that the settlement went too far, Samuelson herself even wrote, “It would be a tragedy not to try to bring this vision to fruition, now that it is so evident that the vision is realizable.”

> Many of the objectors indeed thought that there would be some other way to get to the same outcome without any of the ickiness of a class action settlement. A refrain throughout the fairness hearing was that releasing the rights of out-of-print books for mass digitization was more properly “a matter for Congress.” When the settlement failed, they pointed to proposals by the U.S. Copyright Office recommending legislation that seemed in many ways inspired by it, and to similar efforts in the Nordic countries to open up out-of-print books, as evidence that Congress could succeed where the settlement had failed.

> Of course, nearly a decade later, nothing of the sort has actually happened. “It has got no traction,” Cunard said to me about the Copyright Office’s proposal, “and is not going to get a lot of traction now I don’t think.” Many of the people I spoke to who were in favor of the settlement said that the objectors simply weren’t practical-minded—they didn’t seem to understand how things actually get done in the world. “They felt that if not for us and this lawsuit, there was some other future where they could unlock all these books, because Congress would pass a law or something. And that future... as soon as the settlement with Guild, nobody gave a shit about this anymore,” Clancy said to me.

> It certainly seems unlikely that someone is going to spend political capital—especially today—trying to change the licensing regime for books, let alone old ones. “This is not important enough for the Congress to somehow adjust copyright law,” Clancy said. “It’s not going to get anyone elected. It’s not going to create a whole bunch of jobs.” It’s no coincidence that a class action against Google turned out to be perhaps the only plausible venue for this kind of reform: Google was the only one with the initiative, and the money, to make it happen. “If you want to look at this in a raw way,” Allan Adler, in-house counsel for the publishers, said to me, “a deep pocketed, private corporate actor was going to foot the bill for something that everyone wanted to see.” Google poured resources into the project, not just to scan the books but to dig up and digitize old copyright records, to negotiate with authors and publishers, to foot the bill for a Books Rights Registry. Years later, the Copyright Office has gotten nowhere with a proposal that re-treads much the same ground, but whose every component would have to be funded with Congressional appropriations.