On cookbooks, orphans, and out-of-print books

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Several years back, I sought one rather elusive cookbook. I first spotted The Use-It-Up Cookbook (A Guide for Minimizing Food Waste) in a used bookshop during a weekend getaway in Seattle. At $8.00, the price was right, but my suitcase had a serious lack of room for additional purchases. I reluctantly placed it back on the shelf and decided it would be simpler to order a copy online when I returned home to North Carolina.

How wrong I was.

The story of a cookbook

The Use-It-Up Cookbook was written by Lois Carlson Willand over 20 years before I stumbled upon that dusty copy, first published by Scribner in 1979. Resourceful ideas for repurposing bits and pieces of leftover foods were nestled between cautionary tips intended for my parents' thrifty generation:

If you suspect a food is no longer safe to eat, do not taste it! When in doubt, throw it out.1

Scribner merged with Macmillan in 1984, leaving the book's second edition to be released by Practical Cookbooks.2

Used copies of either edition are scarce, and when I searched Amazon.com after my trip I found one copy priced at over $60. Thanks to the Interlibrary Loan service, I was able to get my hands on another for about two weeks and consoled myself therein.3

Copyright, copywrong

Yet this story of the lifespan (and ultimate scarcity) of one ordinary cookbook is paralleled by millions of others. Every book has a copyright with a built-in expiration date: for those published in or after 1923, that's 70 years after the death of the author.4 But any number of times before or after the death of that author (or the dissolution of a corporate owner, e.g. a publishing house) the copyright can be bought, sold, inherited, traded, acquired, and transferred, creating a complex chain of copyright holders. All too often, a link in the chain is broken by missing or ambiguous records, leaving the book stranded with no one claiming the rights to it. An orphan book. The book remains under copyright, but no one knows who holds those rights.

My pet cookbook was fortunate, as the author is still living and likely holds the copyright. A large number of out-of-print books, from novels to nonfiction, have become orphans that remain paradoxically copyrighted (by whom?) and thus unavailable for purchase.

But not for long. Enter Google, the benevolent adoptive parent... or monopolizing, scheming corporate overlord, depending on who's telling the story.

Way back in 2002, Google quietly began “digitizing” entire collections of university libraries. Within a few years, these scanned digital copies of books filled up what became Google Book Search. Predictably, lawsuits by copyright holders followed. But for the university librarians who assisted with the project, the in-print books being scanned were irrelevant to their mission. Most librarians reluctantly or happily ignored the digitization of those books and only sought the digitization of their out-of-print and orphaned book collections, which were becoming increasingly difficult to acquire and preserve.

Ultimately, the various groups suing Google joined together in a class-action lawsuit, and a settlement was brokered. (It's being criticized by the Department of Justice and reviewed by a federal court.) If the settlement with copyright holders is approved, Google Book Search will obtain what amounts to an exclusive license over digitizing and marketing the vast majority of out-of-print and/or orphaned books. That's because the settlement prevents Google from being sued by anyone who later claims the rights to an out-of-print book Google has digitized, while competing companies who scan the same book—being unnamed in the settlement—would have no such protection. (Google will be able to show up to 20% of the text of any out-of-print copyrighted book whose copyright owner cannot be found—or more accurately, does not opt out in part or entirely via the Book Rights Registry—then generate revenue with ads or by selling digital editions.) In return, Google would determine the prices for any of these associated services or products, then set aside 63% of the profits generated by each book in the event of the copyright claim of an author or other copyright holder.5 The unclaimed money from a book would be held for 10 years before being donated to literacy projects or handed to the states. (Google is entitled to the remaining 37% of revenue regardless of any claims by the copyright-holder.)

The company will also provide every library free digital access to the vast number of out-of-print books in Google Book Search. But the subscription only covers one computer per library, and additional subscriptions will have to be purchased by the libraries at a price set by Google.

Objection, your Honor

Google isn't the only company trying to solve the problem of out-of-print books, and competitor Amazon.com isn't pleased with the proposed settlement. That's because while Google seeks to adopt an “ask forgiveness” method of making out-of-print and orphaned books available, Amazon instead asks permission. Under the cover image of the Amazon.com page for The Use-It-Up Cookbook, there are two interesting links:

I own the rights to this title and would like to make it available again through Amazon.

Tell the Publisher! I’d like to read this book on Kindle.

(I clicked the second, and perhaps Ms. Willand will get a message from Amazon one day. The first option (enabling print-on-demand) would be even better for a cookbook, since I don't like seeing my laptop sprinkled with flour or baking soda.)

Beyond the question of whose method is better, it's easy to understand why people find it objectionable to grant one company an exclusive right to profit from (presumably) orphaned books. Particularly when these rights are obtained through a lawsuit rather than legislation.6 In fact, Google agrees, arguing that the parties who brought the class-action suit could better spend their time and money petitioning the government for revisions to the copyright laws that govern orphan books.

A higher calling

By all appearances when Google began looking to sell digital editions of out-of-print books unless those books were specifically restricted by a rightsholder, the company catapulted over the line most people would sketch between “fair use” and flagrant misuse of copyrighted material. Yet in the act of scanning millions of books and forcing them into digital formats, Google has pushed publishers and authors into the digital age far more quickly than they had been entering of their own volition.

Meanwhile, advocates for orphan works copyright amendments have long begged Congress to address that issue, making little headway. Copyright laws are slow to change and strongly favor creators and capitalists over the general public, even when neither benefits. Google was clever in its use of the settlement to raise interest and public sympathy around orphaned works, and should receive due credit for any subsequent legislative action.

But is Google right to move forward under the assumption that the typical out-of-print book is an orphan book, without extensively searching for its copyright owner? Europe has long debated the digitization problem. As it turns out, when looking at orphaned works (books, posters, newspapers, etc.) the cost of locating rights-holders and obtaining permission for digitization usually exceeds the cost of the actual digitization process. Worse, several European digitization projects were unable to obtain the rights to the majority of works (75 - 95%) in their holdings.7

So Google is not manufacturing a crisis around orphan books: waiting until they enter the public domain could well mean losing a significant portion to deterioration while keeping valuable information out of the hands of the very readers whom the authors had in mind. But make no mistake: that's not the central issue of the Google Book Settlement.

Justice as fairness? Maybe not.

In truth, I am conflicted. It all feels a bit too utilitarian, too freewheeling: Robin Hood masquerading as John Rawls. Copyright laws are in essence personal property laws. By skipping the extensive search for a copyright holder in order to make reprinting out-of-print books more cost-effective, Google erodes the existing ownership rights to any book where a prior owner failed to keep impeccable records. (Remember that copyright chain I mentioned earlier?) If this were a different corporation than Google, I doubt that I'd be as eager to rationalize these actions “for the good of the people.” If it were my book, twenty years after my death, wouldn't I prefer that it enter the public domain and be freely available to anyone—or perhaps be brought back into print by my children—rather than be handed over by the courts to Google to “monetize” and collect a third of the profit? (How many authors intended to write Google into the family will?)

I will also admit that I'm hesitant to take on faith that any company will do the right things in the future simply because they're doing the right things today. Google's goals around this project are nebulous; just four years ago we were reassured8 that the Google Library Project book snippet pages didn't have any Google ads on them. That's one change the proposed settlement would allow, with revenues divided accordingly. We were reminded that although Google is a commercial company, they weren't making money from selling these books.

So, thrilled as I would be to buy a “Google Edition” of Ms. Carlson Willand's cookbook, I can't help but feel sick at the thought of books like hers—the product of hours of care, experience, and time borrowed from friends and family—being reprinted without permission simply because an author didn't know she needed to opt out. Especially difficult for me is the knowledge that, should the author later discover this happening, the money she'll receive for the books already sold will be limited by the terms of someone else's agreement.

I applaud Google for its efforts to make out-of-print books available again, and for trying to solve the orphan books problem. I do hope some good legislation comes of this. But when the settlement dust clears, I'm inclined to opt out of Google Book Search and look elsewhere for print-on-demand services. Call me archaic, but I suspect I'll stick with companies like Amazon and Lulu, who still extend authors and rights-holders the courtesy of asking permission.

A shout-out to Pam Chestek, who patiently fielded dozens of questions and contributed her legal expertise, making this article far more intelligible than it would otherwise have been. Any errors are my own.


1. I will confess that, like many people who were teenagers in the roaring economy of the 90s, I am strongly inclined to hold my breath and dump straight anything I find in the back of the fridge straight into the trash. This may explain my fascination with a cookbook that gives ideas for using up two cooked carrots and a half-cup of cold rice.

2. Perhaps self-published? I can find no record of any other book published by Practical Cookbooks, which operated from the same city where the author lives. Twenty-six years later, the details are hard to track down.

3. Several years later, you can find used copies occasionally for $13 - $29 (plus shipping) along with their “pristine” $60 counterparts. One of these days I'll get around to ordering a copy.

4. Ok, so it's a bit more complex, as legal matters often are. If it the work was:

  • “created for hire,” or

  • authored by a corporation, or

  • published under a pseudonym, or

  • published anonymously, then

...the copyright expires either 95 years after the first publication or 120 years after creation, whichever comes first. But that is dependent upon the year of publication and whether the work needed a copyright notice at that time and whether registration renewal was required and... Does your head hurt yet? Yeah, me too. Try this helpful chart.

5. I'm over-simplifying again. The Book Rights Registry gets the money that's ear-marked for the author and decides how much of that to retain and how much to give to the authors. The details of how this will work still seem fuzzy to me.

6. See this excellent article on the pros and cons of the settlement terms for Google, Amazon, Microsoft, authors, and the general public.

7. The article goes on to say that books would be easier to locate copyright holders than other works, but when Carnegie Mellon University tried to locate authors for permission digitize their out-of-print holdings, they were only able to clear around 20% of the books.

8. See this CNet article, one of many from 2004 – 2006 highlighting Google's lack of monetization for the Library Project.


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Rebecca Fernandez is a Principal Program Manager at Red Hat, leading projects to help the company scale its open culture. She's an Open Organization Ambassador, contributed to The Open Organization book, and maintains the Open Decision Framework. She is interested in the intersection of open source principles and practices, and how they can transform organizations for the better.

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