I've been thinking a lot recently about the availability of books in online searchable repositories, and the likely outcomes for publishers, libraries, and the public. Most particularly, I have been considering the impact of a possible settlement between publishers, authors, and Google involving the books that are currently under litigation in the Google Book Search product.

A significant portion of the implicated works are likely to be out-of-print, of uncertain copyright status, and no longer present in any publisher's archive -- available only in the less-visited shelves of the largest research libraries. This substantial category, numbering in the millions of books, incorporates a large number of what are called "orphan works", where the presence of any identifiable copyright owner in the work, or its constituent parts, is not known, and resilient to easy resolution as a result of poorly recorded mergers and acquisitions, lost archival contracts, publisher insolvency, and myriad other reasons. In turn, some of this orphan material is almost certainly public domain; the original copyright never renewed, and long since expired.

What might break the logjam of access to these works, and frustrate the otherwise inevitable near monopoly of access that Google might obtain through a court proposed settlement?  A digitization agreement involving universities and a suitable hosting service that would make this lost material broadly available on reasonable terms, with clear benefits that facilitate research and education, would make a strong counterpoint.

The content could be made available through various monetization arrangements, including subscription based individual access that supported features such as print on demand or digital lending, and licensed access with payment tiers for universities, high school libraries, and similar institutions, which might also be willing to pay a premium for local-hosting options. (If this material was provided through a charitable non-profit organization, hosting fees could be quite low). Alternative arrangements, such as those pursued by the high-energy physics community's SCOAP3 journals project, might also be feasible, depending on the topology of interested parties.

A portion of fees could be escrowed in a common fund for allocation to rights holders should any come forth with the necessary proof of copyright retention. A basic access level to orphans and proven public domain books, sans any advanced features, could be extended to currently registered card holders of public libraries as a free public service (this would have the secondary benefit of driving use of a trusted OpenID through library participation at a community level).

Books that have newly apparent IP holders could be taken down through a simple, authenticated request mechanism, or alternatively retained in the delivery system with a different share of income returned to the identified author and/or corporate parties. The escrow fund would provide a modest, yet reasonable compensation for the works' past use, partially offset by the virtue of the hosting service's implicit discovery fee. Easily accessed lists of available works, e.g., through publication of OpenSearch RSS feeds, would assist possible copyright owners in finding bereft works; transparency would increase trust for all parties.

What might be most challenging would be identifying an appropriate body of content that would be both coherent and compelling; that would include a significant enough number of out-of-print orphans to be useful; and where large libraries might hold sufficient numbers of these books to be able to mobilize for their digitization. Perhaps a subject with an accumulation of desirable material might best meet these parameters: e.g., works of U.S. history, or autobiographies, or American literature. Alternatively, a discipline with a long history, such as anthropology or economics, might embolden a tribe of scholars and interested amateurs to make organization for online access compelling.

Cry out then for participation in such an effort! Nothing prevents us for crafting something that works for many parties, not just one, and yet clearly benefits the richest goals that any public must have for itself -- learning and inquiry into the most fundamental matters of our time, and ourselves.